P. v. Jones

Filed 3/20/07 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge (trial); Vilia G. Sherman, Judge (pretrial motions.) Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Michelle E. Jones.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant John Malagon.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants Michelle E. Jones and John Malagon appeal from their convictions of the first degree murder of Johnny Rudas, with special circumstances of kidnapping and torture, and their sentences of life without parole. Both defendants contend the trial court erred in failing to give accomplice instructions as to witness Amanda Chamalbide. Jones contends the trial court prejudicially erred in (1) admitting her statement that was made in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) refusing her request to instruct the jury on the defense of duress; (3) giving accomplice instructions as to witness Jeff Bastion; and (4) admitting unnecessarily gruesome crime scene and autopsy photographs into evidence. Malagon contends (1) his trial counsel provided ineffective assistance by failing to object to evidence of Joness assertive conduct in leading the police to the murder scene; and (2) the trial court committed prejudicial error in denying his motions to (a) suppress certain physical evidence seized from his person during an unreasonable search, and (b) suppress his nonMirandized statements to the police at the time of his arrest. Malagon also argues cumulative error, and Jones joins in Malagons arguments to the extent they benefit her. We find no prejudicial error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Evidence Heard by Both Juries

Defendants were tried in a joint trial before separate juries. The following evidence was heard by both juries.

In May 2001, Jeff Bastion^[1]lived in a house in Nuevo. Bastion was a methamphetamine addict, and his step-cousin, Fernando Hareu, also an addict, sold methamphetamine from the house. The house became a hub of methamphetamine use and sales.

In late April or early May 2001, Malagon (known to several witnesses as Chach or Chacho) began staying at the house on and off. Malagon sometimes sold methamphetamine. During that period, Malagon and Bastion got into a fight, during which Malagon punched Bastion in the mouth. Bastion told Malagon to get out, but Malagon refused to leave, saying that it was his house, and he could do what he wanted. A few minutes later, they shook hands and said it was over. However, Bastion feared Malagon after that.

Johnny Rudas, Bastions former roommate in Las Vegas,^[2]returned to Nuevo in May and began to visit Bastions house. On May 9, Bastion had been up for three or four days straight smoking methamphetamine, and he decided to go to bed. He handed the keys to Rudas and asked Rudas to lock up the house. Instead, Rudass friend, Amanda Chamalbide,^[3]and her friend, Jones,^[4]went through the house and stole some of Bastions belongings, including some family heirlooms. They put the property in Rudass truck and drove off.^[5]

When Bastion woke up the next morning, he saw that his property was missing, and he became upset. After talking to the other occupants of the house, he suspected Rudas and the two women of the theft. Bastion focused his anger on Rudas, to whom he had entrusted his keys and whom he considered a friend. Bastion wanted to fight Rudas. Malagon said he would look into it. Malagon recovered some of the missing items, including luggage and clothing, and brought them back to the house. However, the heirlooms were still missing. Sometime that day, Malagon went to Chamalbides house looking for Rudas; Chamalbide told Malagon that if he found Rudas, to crack him for her.

On the evening of May 11, Rudas telephoned Hareu at Bastions house, asking to buy drugs. Hareu hung up on him twice. When Rudas telephoned a third time, Bastion grabbed the phone and invited Rudas to come over. Bastion wanted to confront Rudas and hoped to learn where the rest of his property was.

When Rudas arrived at the house, Bastion, Malagon, Hareu, Blahr Jacob Howard, and another person identified only as T.J., were there smoking methamphetamine. Rudas bought some methamphetamine from Hareu. Bastion told Rudas to go to the back bathroom and started interrogating him about the theft. Malagon also went to the back bathroom.

Rudas told Bastion the two women had tricked Rudas into removing the property by telling him it belonged to them. Bastion had heard through the grapevine that Rudas had told the converse story to the women that his belongings were in the house, and he needed to move them out.

Malagon, who was also present in the bathroom, told Rudas to tell the truth and punched him in the cheek, causing some bleeding. Malagon ordered Rudas to empty his pockets. Rudas took out his key ring, and Bastion became even angrier when he saw his house key on the ring. Bastion yelled at Rudas and punched him in the nose, causing more bleeding. Malagon then got a shotgun that was kept in the house and struck Rudas with the gun stock and poked him with the barrel. Rudas fended off the blows with his arms. Malagon was aggressive and was acting like the enforcer. Bastion took the shotgun from Malagon and handed it to Howard. Hareu and Malagon looked through Rudass wallet and divided up the money, and Hareu, Howard, and T.J. left the house.

Bastion led Rudas to Bastions bedroom. Malagon came into the room with a pair of handcuffs. He made Rudas lie on the floor, and he handcuffed Rudass hands behind his back. Malagon said he was going to bring Chamalbide and Jones back to the house so they could find the rest of the property. Bastion testified that by then he was no longer angry.

Rudas had made prior arrangements to pick up Chamalbide at her house at 10:30 p.m. to go out, but he did not show up. Jones arrived at Chamalbides house unexpectedly about 11:00 p.m., and about 15 minutes later, Malagon pounded on the door. He broke the lock, came inside, and told the women to come with him to Bastions house. When Chamalbide said she did not want to go, he grabbed her by the arm and said, Lets go. Jones told Chamalbide, Its okay. Just come on. Its okay. Malagon drove the women back to Bastions house.

Bastion testified that when Malagon brought the two women to the house, Jones went straight to the bedroom where Rudas was. Alone in the room with him, she struck him on the head with a heavy object, causing considerable bleeding. Bastion heard the thump and Rudass scream, and ran back to the bedroom, although Malagon tried to stop him. Bastion grabbed a rag and put it on the back of Rudass head. Bastion testified that Jones escalated the aggression.

At the house, Jones told Chamalbide not to touch anything, and when Chamalbide picked up a glass to get a drink of water, Jones wiped the glass off on her pants. Jones told Chamalbide Rudas was in the back getting his, meaning that someone was beating him up. Chamalbide testified she had opened the bedroom door and had seen Rudas on his knees, tied up, and appearing to have been beaten. She started flipping out and asked numerous questions, but Jones told her not to worry. Chamalbide tried to run out the back door, but Jones said she could not leave, and Malagon grabbed Chamalbide by the shirt and neck, slammed her into the wall, and said he would do the same thing to her son. Chamalbide heard Rudas screaming in the back room while she sat in the living room covering her ears. Bastion walked in and out of the room and told her to do something to make them stop. Rudas was yelling something like, Why are you doing this? She believed this went on for more than three hours. At some point, Malagon told Chamalbide that Rudas was getting his because some money and drugs that belonged to Malagon were missing, and Malagon suspected Rudas and Chamalbide of taking them. Malagon was angry at the time.

In the bedroom, Malagon had stuffed a sock or piece of cloth into Rudass mouth as a gag and secured it with a pair of pantyhose tied around Rudass head. After Malagon gagged Rudas, Malagon told Bastion this was a kidnapping charge and we [had] to basically get him out of there so we wouldnt get in trouble for it. Bastion suggested they drop Rudas off at a Greyhound bus station and send him to Las Vegas. Malagon and Jones led Rudas, still handcuffed, out of the house. Rudass arms were behind his back, he was gagged, and he was limping. When Rudas tried to say something, Malagon told him to shut up and struck him on the head with a flashlight. Rudas fell, and Malagon took him by the arm and got him up again.

Malagon told Chamalbide to help Bastion clean up the house. Malagon gave her his car keys and told her to use his car to drive home. After Malagon, Jones, and Rudas left, Chamalbide helped Bastion clean up the back room. There were a few drops of blood on the bedroom carpet, which Chamalbide covered with a towel, and some blood on the wall, which they cleaned with Pine Sol. Bastion then went to Chamalbides home with her.

At daybreak on May 12, Malagon and Jones arrived at Chamalbides house in Rudass truck. Jones told Chamalbide that Rudas was at a motel; Malagon said Rudas was in the hills thinking about what he did or walking home.

Chamalbide noticed apparent blood drops on Malagons shoes. Jones asked for a change of clothing, which Chamalbide provided her. Chamalbide testified Jones was acting weird and nervous, but Malagon was acting as if nothing had happened. Malagon and Jones left, one driving Rudass truck, and the other driving Malagons car.^[6]

Later that morning, Hareu and Howard ran into Malagon at Bastions house and noticed that Malagon had red spots that might have been blood on his shoes. Malagon said something like, It was handled, or, [w]e took care of it, or something like that, referring to the confrontation between Bastion and Rudas.

That afternoon, Riverside Sheriffs Deputy Guy Moore saw a male driver and female passenger in a car parked facing the wrong way on Rhea Lane. By the time Moore turned his car around, he no longer saw the man, but he saw the woman^[7]running toward a house. He saw two sets of footprints in the soil leading toward the house. He knocked on the door and announced his presence several times. Although he got no response, he saw a curtain move in the house.

When a backup deputy arrived, they entered the house, after again announcing their presence, and found Malagon hiding in the darkened laundry room. Moore checked Malagons pockets for identification and found Rudass drivers license, several pieces of speaker wire, and a baggie containing methamphetamine.

When he was arrested on May 12, Malagon told Moore he had gotten Rudass drivers license from Rudas at a bar the night before and was going to return it. The deputy did not find Rudass license significant because the police did not yet know Rudas had been killed or even that he was missing. Malagon was arrested for possession of methamphetamine, and Rudass license was sent to the jail as inmate property. The personal property in Malagons possession when he was booked on May 12, presumably including Rudass drivers license, was released to Malagons wife the next day.

After his arrest, Malagon admitted the keys in his pocket fit the car in front of the house. He admitted driving the car to the house with a woman named Cindy, whom he described as a casual acquaintance who had run by him telling him the cops were coming. Malagon told the deputy that he had used the handcuffs found in the car on Cindy, who liked being handcuffed and whipped. Malagon asked the deputy if he had noticed the whip in the trunk, which the deputy had not. Malagon stated again that Cindy was a casual acquaintance, and they had had a one-time sex thing. He could not recall her last name.

Rudass brother reported him missing on May 12 or 13. Rudass truck was abandoned in a residential area in Nuevo on May 12, but the deputies did not discover it until a resident complained a few days later. The deputies found a considerable amount of dried, pooled blood in the bed and a bloody T-shirt in the cab. DNA analysis showed that the blood in the truck bed was that of Rudas. A stain on the drivers seat contained blood that matched Joness profile^[8]and semen that matched Malagons profile. A stun gun was found in the cab of the truck. Rudass truck had had a stereo, but the stereo was missing when the deputies found the truck. Malagon had loose stereo wires in his pocket when he was arrested, and there was a stereo lying on the seat of the car he was driving.

On May 19, Rudass body was found in a remote area called Juniper Flats. His body had been dragged off the road and left lying with his hands handcuffed behind his back. His shirt and T-shirt had been pulled off his upper body and were tangled about his arms, and a tow strap was wrapped tightly around his neck several times. His body was in a moderate state of decomposition. He had a skull fracture and numerous scrapes and abrasions. Those wounds included a split of the skin that went all the way down to the skull in two locations, a 10-inch by 12-inch abrasion to his chest and abdomen, abrasions on his arms approximately 9 inches by 3 inches, furrows around his wrists corresponding to the location of the handcuffs, abrasions to his knees, a 10-inch by 13-inch abrasion to his back (5 RT 1283}, and an 8 1/2-inch by 3-inch abrasion on his calf. An abrasion on the buttocks went down to the muscle. Discoloration around the calf injury and the chest and abdominal injury indicated that Rudas had been alive when the injuries were sustained. Rudass wounds were consistent with those suffered by motorcyclists who had fallen onto asphalt at high rates of speed. The injuries could have been inflicted by prolonged dragging on a dirt path for a number of minutes to hours. There was evidence of strangulation, but the cause of death was determined to be multiple traumatic injuries.

Chamalbide called the police on May 18, and told them she had information for them. She identified Malagon from a series of photographs shown to her by a detective. She was sure of her identification at the time, but she could not identify him in the courtroom at trial.

Chamalbide, who was 19 years old in 2001, testified she had known Rudas for years, and she considered him a friend. Jones was a friend of Chamalbides mother, and Chamalbide had gone to school with Bastion. Chamalbide was a diagnosed paranoid schizophrenic and heavy methamphetamine user. She admitted she was doped up and not in her right mind on the day of the murder, and she admitted at trial she had lied to the police when they interviewed her in 2001. She had been convicted of two felonies, including conspiracy involving burning a stolen car in 2000 and manufacturing methamphetamine in 2003. She had avoided prison on the methamphetamine charge by providing information sufficient to allow the prosecutor to file charges on five separate methamphetamine manufacturing operations. Chamalbide had been upset with Rudas the week before he was killed because he had left a stolen truck in her driveway. She had told Malagon she was angry with Rudas and had told Malagon to crack him, or slap him around for her if Malagon saw Rudas.

Investigator Robert Masson testified he had interviewed Chamalbide on May 18. She had told him that Chach slammed her up against the wall, and he was upset because his property or drugs might have been taken at Bastions house. Chach apparently believed Rudas had been involved. Chamalbide never told Masson that she had gone back to her house with Bastion after the events at his house on May 11. During the interview, Chamalbide was bouncing around in the time frame of how events had transpired, and she was upset and having a hard time focusing. Chamalbide did not tell Masson about a theft of property from Bastions house; she said Chach had been angry at Rudas over the theft of drugs and money. Chamalbide also did not mention any problems between Rudas and her concerning a stolen vehicle.

Ricardo Fuentes, an investigator with the Riverside District Attorneys office, interviewed Chamalbide in March 2005. During the interview, Chamalbide admitted stealing property from Bastion along with Jones and Rudas, and said she had returned some of the property.

B. Evidence Heard by Joness Jury Only

The following evidence was heard only by Joness jury.

Sergeant Richard Zerkel interviewed Jones on May 18, and the interview was audiotaped and videotaped. A videotape of the interview was played for the jury.

Jones told Sergeant Zerkel that she, Chamalbide, and Rudas had gone to Bastions house and had stolen items, including suitcases that still had tags on them and which could be returned to stores for cash. The next day, Malagon made her give back the items she had stolen from Bastions house. Later that night, Malagon took Jones and Chamalbide to Bastions house. Jones apologized to Bastion for taking his property and confirmed he had gotten it back. She learned that Rudas had denied being involved in the theft.

Jones went into the bedroom with Malagon, where she saw Rudas tied up on the floor. Malagon left her and Rudas alone together, and Rudas kept saying he had had nothing to do with the theft. Jones was holding a flashlight; she swung the flashlight and hit him on the head, although she did not mean to. Rudas was bleeding, and he screamed. Bastion and Malagon came in and told her to leave the room, which she did.

Bastion came out and said that he did not want blood in his house. Jones returned to the bedroom and saw Rudas bleeding from the back of his head. She asked Rudas just to tell the truth, and he did.

Sergeant Zerkel asked Jones if Rudas was still alive, and Jones said, No. Jones stated she believed she, Bastion, and Rudas would die. However, she stated she did not believe Malagon was going to kill her.

Malagon told Rudas to get up and that it was time to go. He told Jones she was going with him and Rudas, and that Bastion and Chamalbide would stay at the house to clean up. Rudas told Jones, Michelle, you gotta stop it, but she did nothing. She stated, I knew what was going to happen to him as soon as I seen [sic] him. Rudas asked where he was going, and Jones said back to Las Vegas, although she knew it was not true.

They left in Rudass truck with Malagon driving and Jones sitting in the middle. They drove into the hills, where the men got out. Malagon made Rudas lie down in front of the truck and then Malagon and Jones smoked methamphetamine. They then shocked Rudas a bunch of times with a taser gun that Malagon had.

Malagon got back into the cab of the truck, and he and Jones had consensual oral sex and intercourse. At some point, Rudas got up and started to run away. Malagon chased him on foot, and Jones could hear Rudas screaming for help. Jones got into the truck and waited for a long time. Malagon eventually brought Rudas back and made him lie down again on the ground. Malagon hit Rudas on the back of the head with something he took from a toolbox in the truck.

Malagon got into the truck, and Jones told him she wanted to go. She wrote, Help me, with her finger on the window. Malagon made Rudas get in the back of the truck, and they drove around in the hills. When they stopped, Malagon made Rudas get out and made Jones help him tie Rudas to the truck with a rope around his neck. Malagon then drove off, dragging Rudas behind the truck while Jones stood and watched. They were gone a long time, and when Malagon came back, Rudas was dead. Malagon drove over Rudass body. Malagon told Jones she had to help him move Rudass body, and they dragged the body to the side of the road and left. Malagon and Jones then returned to Chamalbides house. Malagon drove the truck to a mobile home park and left it; Jones and Chamalbide followed in Malagons car.

Jones said she felt no emotion while this was going on, but she denied helping Malagon kill Rudas, although she did not tell Malagon to stop. She said she was just as guilty as Malagon, and she did not know if she could have done anything to stop him. She said that if she had tried to stop Malagon, she would have died.

After the interview, Jones went with Sergeant Zerkel to an area between Hemet and Nuevo where Jones said Rudass body would be found. They found two shoes at separate locations beside a remote road, but they did not find the body that evening.

In a second interview, Jones provided a few additional details, including what she had been wearing and that she had left that clothing in Rudass truck.

C. Evidence Heard Only by Malagons Jury

Sergeant Zerkel testified that he interviewed Jones on May 18, and after the interview, they drove to a hilly area where two shoes were located that were identified as belonging to Johnny Rudas. The next day, Rudass body was located about a mile from the shoes.

D. Jury Verdicts and Sentencing

Their respective juries found defendants guilty of first degree murder (Pen. Code,^[9] 187, subd. (a)) and found the special circumstances of murder in the commission of kidnapping ( 190.2, subd. (a)(17)(B)) and murder involving torture ( 190.2, subd. (a)(18)) true. The trial court sentenced defendants to life without the possibility of parole.

III. DISCUSSION

A. Failure to Give Accomplice Instructions

Both defendants contend the trial court committed prejudicial error in refusing their request to instruct the jury with accomplice instructions as to the testimony of Chamalbide.^[10] Jones argues that Chamalbide was an accomplice as a matter of law. Malagon argues there was sufficient evidence from which she could have been found to be an accomplice to the murder.

Under section 1111, a defendant may not be convicted on the basis of the uncorroborated testimony of an accomplice; an accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111.) To be chargeable with an identical offense, a witness must be considered a principal under section 31; that is, the direct perpetrator or an aider and abettor. (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114; People v. Fauber (1992) 2 Cal.4th 792, 833.) An accomplice must have guilty knowledge and intent with regard to the commission of the crime. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).)

When there is substantial evidence from which a jury could find that a witness is an accomplice to the crime charged, the trial court must instruct the jury sua sponte on accomplice testimony (People v. Horton, supra, 11 Cal.4th at p. 1114), on the sufficiency of corroborating evidence (People v. Bevins (1960) 54 Cal.2d 71, 76), and that the accomplices testimony should be viewed with caution (People v. Guiuan (1998) 18 Cal.4th 558, 564, 569). However, if the evidence is insufficient to support the finding that the witness is an accomplice, the trial court need not give such instructions. (People v. Horton, supra, 11 Cal.4th at p. 1114; People v. Tewksbury (1976) 15 Cal.3d 953, 960.)

In support of their argument that accomplice instructions were required as to Chamalbide, defendants point to the evidence that (1) Chamalbide had the same motive as Jones to distance herself from Rudas because both Jones and Chamalbide had participated in the theft of Bastions house; (2) Chamalbide had been angry with Rudas because he had left a stolen vehicle in her driveway, and she had asked Malagon to slap Rudas around; (3) Chamalbide had been present when Rudas was handcuffed and beaten and was aware of what was going on; (4) Chamalbide had assisted in cleaning up after Rudas had been taken from the house; and (5) Chamalbide had let Jones into her house the next day and had provided her with a change of clothes.

Considered separately or cumulatively, this evidence is insufficient to require the giving of accomplice instructions as to Chamalbide. Presence at the crime scene, even when accompanied by intimate knowledge of the crime, means that a person was an eyewitness and not necessarily an accomplice to the crimes. (Lewis, supra, 26 Cal.4th at p. 369.) Thus, evidence that Chamalbide was present when Rudas was handcuffed and beaten and had been aware of what was going on was not, without more, sufficient to establish that Chamalbide was an accomplice.

Moreover, Chamalbides cleaning up after Rudas was taken from the house and providing clothing for Jones the next day might have established that she was an accessory, but did not establish that she was an accomplice. (See Lewis, supra, 26 Cal.4th at p. 369.)

For Chamalbide to have been an accomplice to the charged crimes, it would have been necessary to show that she acted with knowledge and intent to assist in Rudass kidnapping and murder. (Lewis, supra, 26 Cal.4th at p. 369.)The evidence to which defendants point does not support such a finding. Even if Chamalbide had a motive to distance herself from Rudas because of her own participation in the theft from Bastion or had been angry at Rudas for leaving a stolen vehicle in her driveway, the evidence does not show that she took any active part in the beating that occurred at Bastions house or that she provided any encouragement. (Id. at p. 370 [In short, there was no evidence other than speculation that [a witness] planned, encouraged or instigated the murder and robbery to give rise to accomplice liability. [Citations.]].) Thus, we conclude the evidence was insufficient to require the giving of accomplice instructions as to Chamalbide.

In any event, both juries were instructed under CALJIC No. 3.01 on the definition of an aider and abettor; CALJIC No. 3.10 that an aider and abettor is an accomplice; under CALJIC No. 3.11 that the testimony of an accomplice must be corroborated; under CALJIC No. 3.12 on the sufficiency of evidence to corroborate the testimony of an accomplice; under CALJIC No. 3.18 that the testimony of an accomplice must be viewed with caution. None of those instructions identified any specific witness to whom they applied or restricted the jury from applying the instructions to Chamalbide.

Finally, even if the trial court erred in failing to give accomplice instructions as to Chamalbide, such error is evaluated under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Breverman (1998) 19 Cal.4th 142, 176-178 [holding that instructional error is reversible if it appears reasonably probable the defendant would have achieved a more favorable result in the absence of the error].)^[11] Omission of the instructions is harmless when there is ample corroboration in the record (People v. Arias (1996) 13 Cal.4th 92, 143; People v. Sully (1991) 53 Cal.3d 1195, 1228), although corroboration may not be provided by another accomplice. (People v. Mardian (1975) 47 Cal.App.3d 16, 42, fn. 15, disapproved on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1123, fn. 1.)

Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.] [Citation.] The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] (Lewis, supra, 26 Cal.4th at p. 370.) The necessary corroborative evidence for accomplice testimony can be a defendants own admissions. (People v. Williams (1997) 16 Cal.4th 635, 680.)

Here, Joness own statements to the police provided ample evidence tending to connect her to the crime, to satisfy the jury that Chamalbide and Bastion were telling the truth. Jones admitted she struck Rudas with a flashlight at Bastions house, accompanied Malagon when he took Rudas from the house, had consensual sex and used methamphetamine with Malagon in Rudass truck, was with Malagon when Rudas was tortured and murdered, and used a stun gun on Rudas. Even though Jones downplayed her role in the events, her admissions were more than sufficient to corroborate Chamalbides testimony.

There was also ample corroborative evidence as to Malagons participation as described by Chamalbides and Bastions testimonies. Howard testified that Bastion and Malagon were at Bastions house the night Rudas was held captive. Howard testified Malagon appeared to like what was happening and acted like he was giving payback. Howard testified Malagon had a red stain on his shoes on the morning of May 12. Hareu testified that Malagon went into the bedroom with Bastion and Rudas the night of May 11, and Hareu also saw red spots and green stains on Malagons shoes on May 12. Malagon fled and attempted to hide from the police on May 12 and was found in possession of Rudass identification. He had speaker wires in his pocket that matched the cut wires on the stereo found in the front seat of the truck he had been driving, and Rudass truck stereo was missing. (See People v. Felton (2004) 122 Cal.App.4th 260, 272 [flight may be sufficient corroboration]; People v. Garrison (1989) 47 Cal.3d 746, 773 [flight and possession of the victims property was sufficient corroboration].) Finally, a blood and semen stain on the front seat of Rudass abandoned truck matched Joness and Malagons DNA profiles.

Thus, any error in failing to give accomplice instructions was harmless as to both defendants.

B. Admitting Joness Statement into Evidence

Jones moved pretrial to suppress the statements she made to Sergeant Zerkel, but the trial court denied her motion. She now contends the trial court committed prejudicial error in admitting those statements because she was subjected to custodial interrogation without having been advised of her constitutional rights, and her subsequent waiver of those rights was ineffective.

1. Factual Background

Sergeant Zerkel gave Jones a ride to the sheriffs office, and during the ride, he told her she was not under arrest, she did not have to talk to him if she did not want to, and she could leave if she wanted to. He repeated those statements at the police station, and Jones responded, I want to talk to you. Jones asked if the interview was being recorded, and Sergeant Zerkel told her that it was.

Sergeant Zerkel told Jones he wanted to talk to her about Rudas and said he would let [her] tell [him] what happened, after which he probably [would] have a bunch of questions. Sergeant Zerkel told Jones she could take a break, get a drink, or use the restroom when she wanted. He told her he had been working on the case and [y]ou need to pretty much assume that I already know it. He added that he knew something bad had happened to Rudas, but he did not know where Rudas was, and he needed something to tell Rudass family. He told Jones, in response to her question, that he could not guarantee that the tape would not be played in court.

Jones said she was scared, and she asked for a Bible. She and Sergeant Zerkel talked about religion and putting trust in the Lord. Jones then proceeded to narrate what had happened, and Sergeant Zerkel asked occasional clarifying questions. At the end of the interview, Sergeant Zerkel read Jones her Miranda rights. She stated she understood those rights, and she was still willing to talk and would help Sergeant Zerkel locate Rudass body.

Jones made a second statement after she and Sergeant Zerkel went to locate Rudass body. In the second statement, she mostly repeated what had been said in the first interview. The trial court reviewed the videotape of the interview and found that Sergeant Zerkels demeanor suggested no pressure of any sort.

Jones argues she was not free to leave when she made the first statement, and the police already had sufficient evidence to arrest her. She further argues that because she was in custody when she made the first statement, the waiver of her Miranda rights before she made the second statement was therefore ineffective.

2. Standard of Review

When we review a defendants contention that her statement was obtained unlawfully, [t]wo discrete inquiries are involved in determining whether a person is in custody within the meaning of Miranda. (Thompson v. Keohane (1995) 516 U.S. 99, 112.) [F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)

The first inquiry is factual. (People v. Ochoa, supra, 19 Cal.4th at p. 402. The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a mixed question of law and fact . . . . [Citation.]

3. Analysis

Under Miranda, suspects are entitled to the standard admonishments regarding their rights when they are subject to custodial interrogation, defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda, supra, 384 U.S. at p. 444.) The test of custody is an objective one (Stansbury v. California (1994) 511 U.S. 318, 323), and the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125.)

When the defendant has not been formally arrested, the relevant inquiry is how a reasonable man in the suspects position would have understood his situation under the totality of the circumstances. (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on another ground by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Among the relevant circumstances that guide the inquiry whether a declarant was in custody are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the persons conduct indicated an awareness of such freedom; whether there were restrictions on the persons freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).)

In Aguilera,the police went to the defendants house after learning that the defendant had been involved in an earlier shooting of a rival gang member. He agreed to accompany them to the police station, and they offered to bring him back home afterward. (Aguilera, supra, 51 Cal.App.4th at p. 1159.) At the police station, two officers questioned him in an interview room. He was told he was not in custody and that they would bring him home after he told the truth. During the interview, the officers told the defendant they knew what had happened, who had been present, and who had done what. (Id. at pp. 1159, 1163.) The officers rejected defendants story when he denied having been involved, calling it bullshit. The officers accused the defendant of fabricating an alibi and told him not to play games. They confronted him with incriminating evidence of his involvement with gang members and falsely suggested they had obtained his fingerprints from a car involved in the shooting. (Id. at p. 1159) When the defendant persisted in his story, the officers told him his mother was being interviewed, and she would not corroborate his story. They left the defendant alone for awhile. When the interview resumed, and the defendant stuck with his version of the events, the officers accused him of lying. Finally, [a]fter further pressuring, defendant partially abandoned his story. (Id. at p. 1160.)

In determining that the defendant had been subjected to custodial interrogation, the court gave great weight to the fact that [t]he tag team interrogation lasted two hours and was intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating. (Aguilera, supra, 51 Cal.App.4th at pp. 1164-1165.)

In sharp contrast to the facts of Aguilera, supra, 51 Cal.App.4th 1151, Jones was interviewed by a single officer who asked few questions, and, as the trial court found, applied no pressure of any sort on her. Under the totality of the circumstances, we conclude Jones was not subjected to custodial interrogation, and the trial court did not err in admitting her statement into evidence.

C. Refusing to Instruct Joness Jury on the Defense of Duress

Jones argues the trial court committed prejudicial error by refusing her request to instruct the jury on the defense of duress under CALJIC No. 4.40. The trial court found there was insufficient evidence to support the instruction. Jones argues that the trial court should have given the duress instruction as to the kidnapping element of the felony-murder theory and as to first degree murder by means of torture and the torture-murder special circumstance. Her argument fails for several reasons.

First, duress is not a defense to any form of murder. (People v. Anderson(2002) 28 Cal.4th 767, 780.) However, duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. (Id. at p. 784.) Murder by torture under section 189 and the torture-murder special circumstance under section 190.2, subdivision (a)(18) are not premised on the commission of an underlying crime. Thus, the defense of duress was not available as to those crimes by negating an underlying felony. To prove first degree murder premised on murder by torture under section 189, the prosecution must first prove a murder under section 187. (People v. Stanley (1995) 10 Cal.4th 764, 794; People v. James (1987) 196 Cal.App.3d 272, 288.)

The crime of torture under section 206 is not a predicate for the torture-murder special circumstance. Section 190.2, subdivision (a)(17), which lists the felony-murder special circumstances, does not include torture. Rather, the torture-murder special circumstance is included in section 190.2, subdivision (a)(18), which provides, The murder was intentional and involved the infliction of torture. The torture-murder special circumstance requires both an intent to kill and an intent to torture, while the crime of torture does not require an intent to kill. (Compare CALJIC No. 8.81.18 with CALJIC No. 9.90.) Thus, the defense of duress was unavailable for the charged offenses.

Second, the defense of duress requires evidence that the defendant participated in the crimes as a result of a present and active threat of imminent danger. (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677 (Petznick).) In Petznick, the court held that the evidence did not support an instruction on duress when there was no direct evidence of duress. The court noted that despite evidence indicating defendants general reluctance to participate, [t]here was no gun to his head, and the suggestion that his participation had been coerced by an imminent threat to his life was pure speculation. (Id. at pp. 677-679.) In People v. Keating (1981) 118 Cal.App.3d 172, 179, the court similarly rejected a claim that the trial court had erred in failing to instruct on duress when the defendant did not say that his companion had actually threatened him.

Here, Jones argues that Malagons threatening and menacing behavior cowed the entire household at Bastions house; Malagon was in charge of the events leading to Rudass death; and she was terrified he would turn on her. She told the police she did not know what to do to help Rudas or herself, and she knew if she tried, she would die. She also said she wrote help me with her finger on the window of Rudass truck, and Malagon told her she was going with him when they took Rudas from the house. Although the evidence Jones cites indicates she was in fear of Malagon, she does not cite any evidence that he actually threatened her, much less threatened her with imminent death. Moreover, in her interview with Sergeant Zerkel, Jones stated she did not fear Malagon. And Bastion testified that he did not hear Malagon ordering Jones around at his house on May 11.

Finally, Jones claims it was error for the trial court not to let the jury consider whether duress negated the required elements of malice and/or premeditation. However, the Supreme Court has rejected the argument that duress could negate the elements of malice or premeditation, thereby reducing a first degree murder to manslaughter or second degree murder. (People v. Vieira (2005) 35 Cal.4th 264, 290.)

We conclude the trial court did not err in failing to instruct on duress.

D. Admitting Crime Scene and Autopsy Photographs into Evidence

Jones argues the trial court committed prejudicial error by allowing the admission into evidence of unnecessarily gruesome photographs of the crime scene and the autopsy.

Counsel for both defendants moved in limine to exclude eight photographs taken at the location where Rudass body was recovered.

The trial court balanced the prejudicial impact of the photographs against their probative value and denied the motion as to seven of the photographs. The trial court found that exhibits 2 and 3 contained nothing graphic, but that the other crime scene photographs were gruesome. The trial court nonetheless found that the probative value of the photographs outweighed the prejudicial effect of their gruesomeness.^[12]The prosecutor thereafter offered six of the photographs into evidence as exhibits 2 through 4 and 6 through 8.

Exhibits 2 through 4 and 6 through 8 were crime scene photographs. Exhibit 2 showed the location of Rudass body against a boulder and depicted apparent drag marks from the road through the vegetation leading to the body. Exhibit 3^[13]depicted the location of the body relative to the boulders against which it was positioned. Exhibit 4 showed how the shirts on the upper body had been pulled back onto the arms, exposing the chest. Exhibit 6 showed the body on its back in an open body bag after it had been removed from the area of the boulders and also showed the strap around the neck and the arms behind the back. Exhibit 7 showed the body being lifted to expose the back side, including the tow strap around the back of the neck, the shirt off the body, and the pants pulled down around the legs. Exhibit 8 showed the face and head with the tow strap and a necklace or chain around the neck.

In addition, defense counsel objected during trial to the admission into evidence of three autopsy photographs. Again, the trial court balanced the prejudicial impact of the photographs against their probative value and overruled the objection. The trial court acknowledged that the decomposition of the body made the autopsy photographs unsightly. However, because of that decomposition, the injuries to the body were not as graphic as they would have been had the body been found earlier. Those photographs were introduced into evidence as exhibits 106, 110, and 113.

Exhibits 106, 110, and 113 were autopsy photographs. Exhibit 106 showed the large area of discoloration on the front chest. Exhibit 110 showed the underside of the base of the skull and the skull fracture that was causing the bone to protrude. Exhibit 113 showed two holes in the skin extending to the underlying bone one above the right eyebrow and one at the right side of the head.

1. Standard of Review

The trial court has broad discretion in ruling on the admissibility of allegedly gruesome photographs. (People v. Scheid (1997) 16 Cal.4th 1, 13-14; People v. Lucas (1995) 12 Cal.4th 415, 449.) A trial courts decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] (People v. Roldan (2005) 35 Cal.4th 646, 712-713 [affirming the trial courts decision to admit into evidence three autopsy photographs that portrayed closeup views of the murder victims wounds because they were basically clinical photos. They are not gruesome. They are not bloody. Moreover, [t]hey are relevant to show the nature of the wounds, the position of the . . . victim in receiving the wounds, and help[] illustrate the coroners testimony.].)

2. Analysis

Evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. [Citation.] (People v. Branch (2001) 91 Cal.App.4th 274, 286.)

However, murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant [citations], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative (Evid. Code, 352). A trial courts decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] . . . [P]rosecutors . . . are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims bodies to determine if the evidence supports the prosecutions theory of the case. [Citations.] (People v. Gurule (2002) 28 Cal.4th 557, 624.)

The crime scene photographs corroborated and illustrated testimonies of witnesses. A police investigator testified that Rudass body had been located off the side of a dirt road at the base of a large boulder. Jones described Rudas being dragged behind his own truck by a strap wrapped around his neck. Thus, the crime scene photographs corroborated the investigators testimony and Joness own statement. (People v. Bradford (1997) 14 Cal.4th 1005, 1051 [photographs admissible to corroborate the defendants statements about how the murder had occurred].) Moreover, the photographs supported and illustrated the forensic pathologists opinion as to how the murder had occurred. (People v. Lucas, supra, 12 Cal.4th at p. 450 [photographs admissible when useful in the jurys evaluation of the coroners testimony].)

Similarly, the autopsy photographs corroborated and illustrated the coroners testimony about the victims wounds and the mechanism of death. (People v. Lucas, supra, 12 Cal.4th at p. 450.) And the photographs were relevant and probative on the issues of intent to kill, deliberation, and the torture element of the torture-murder special circumstance and the murder-by-torture theory of first degree murder. (See People v. Lucas, supra, 12 Cal.4th at p. 450.) Specifically, the area of discoloration in exhibit 106 indicated minute amounts of blood at the margin of the injury that indicated Rudass heart was still beating when the injury occurred. Exhibits 110 and 113 showed injuries consistent with the evidence that Rudas had been struck in the head and towed behind the truck.

Jones argues, however, that the facts shown by the photographs were undisputed, and those facts were amply established by the testimonies of witnesses. That point is not a valid basis for excluding the photographs. Rather, the Supreme Court has rejected the argument photographs of a murder victim should be excluded as cumulative if the photographs are offered to prove facts established by testimony. (People v. Lucas, supra, 12 Cal.4th at p. 450.) Moreover, the absence of a defense challenge to particular aspects of the prosecutions case or its witnesses does not render victim photographs irrelevant. [Citations.] (People v. Pollock (2004) 32 Cal.4th 1153, 1170.)

We find no abuse of discretion in the admission of the challenged photographs.

E. Instructing the Jury That Bastion Was an Accomplice as a Matter of Law

Jones argues the trial court erred by instructing the jury under CALJIC No. 3.16 that Bastion was an accomplice as a matter of law. She contends that by giving the instruction for Bastion, whose guilt was established and admitted by his plea, the court told the jury there were other guilty parties, thereby effectively instructing the jury that Jones was guilty.

The trial court instructed the jury with CALJIC No. 3.16 as follows: If the crime of murder was committed by anyone, the witness Jeff Bastion was an accomplice as a matter of law and [his] testimony is subject to the rule requiring corroboration. The instruction was requested both by the prosecutor and by Jones. Joness counsel did not specifically mention the instruction in his argument, but he repeatedly urged that Bastions testimony was not credible, owing in part to the plea bargain that made him a prosecution witness and in part to his own culpability.

The instruction thus provided a judicial stamp of approval for defense counsels attack on Bastions credibility by requiring the jury to find corroboration for, and use caution in viewing, Bastions testimony that incriminated Jones. Because it appears that defense counsel had a reasonable tactical basis for requesting the instruction about which Jones now complains, any error was invited and may not be challenged on appeal. (People v. Hardy (1992) 2 Cal.4th 86, 152 [holding that the defendant had invited error by requesting CALJIC No. 3.16 because defense counsel had requested the instruction so he could argue that the testimonies of witnesses should be viewed with caution].)

F. Effectiveness of Assistance of Counsel

Malagon argues that his trial counsel provided ineffective assistance by failing to object to testimony that Jones directed law enforcement to the area where Rudass shoes were found because such testimony constituted hearsay and violated his constitutional right to confront witnesses. He argues that [l]eading the sergeant to the area of the body at his request was equivalent to responding that the body was located in such-and-such an area and was an implied admission that she was present at the scene of the murder.

Malagon argues that this implied admission went to the heart of the case because it provided the crucial corroboration the jury needed to convict him on the basis of the testimonies of Bastion and Chamalbide. Malagon further argues that it was a close case as to whether Bastion or Malagon was the actual murderer, because the evidence showed that Bastion hated Rudas and was angry about both the theft of his property and their fight in Las Vegas in which Rudas had bested him.

1. Factual Background

The challenged testimony was as follows:

Q. So, on May 18, . . . [w]ho were you interviewing?

A. Michelle Jones.

Q. You interviewed her for a good portion of the evening on May 18; is that right?

A. Correct.

Q. After the conclusion of your interview, did you and Michelle Jones drive to an area in Nuevo?

A. Yes.

Q. What was that area?

A. Its a hilly area called Juniper Flats, or part of Juniper Flats.

Q. Did she direct you where to go?

A. Yes.

Q. When you were in that area up in the hilly area of Juniper Flats, did you go on to Pulsar View Road?

A. Yes, maam, we did.

Q. Did you locate anything being directed by Michelle Jones at that point?

A. Yes.

Q. What did you locate?

A. Two shoes that were identified as belonging to Johnny Rudas. Sergeant Zerkel further testified that the next day, he and other officers returned to the area and discovered Rudass body about a mile further on.

2. Standard for Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 214-215.) When the defendant claims counsel was ineffective for failing to object to evidence, the defendant must show that there was a sound legal basis for such an objection. (People v. Majors (1998) 18 Cal.4th 385, 403.)

3. Analysis

Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code,  1200.) Hearsay statements are inadmissible only when they are offered for the same