P. v. Lopez

Filed 3/12/07 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam, Judge.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Lopez.

Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and Appellant Stacey Daniella Dyer.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Justin Ortega.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendants and appellants Jesus Lopez, Stacey Daniella Dyer, and Daniel Justin Ortega were convicted of the first degree felony murder of Donald Jameson Hunter (D.J.) with the jury finding true the special circumstances that the murder was committed during a robbery, a kidnapping, and a carjacking. The jury also found each defendant guilty of robbery and kidnapping. In addition, an arming allegation was found true as to the murder and robbery counts.

In this consolidated appeal, the defendants challenge their convictions on numerous grounds. We remand the matter to the trial court for limited proceedings related to the defendants sentences. In all other respects, we affirm.

FACTS

On March 21, 2002 19-year-old D.J. left his home in Fowler at approximately 6 p.m. He was driving his 2000 pickup truck. The car had been fixed up, including custom wheels and a stereo system. D.J. spent the evening at the home of his friend Carlos Rodriguez. They watched television, had a couple of drinks and at one point went out to get some food. D.J. had $5 in cash at that time. D.J. left to return home at approximately 1 a.m.

Paul Bedrosian, a friend of D.J.s, was driving home on March 22, 2002 at approximately 1 a.m. He saw D.J. driving in his truck by himself. He waved to D.J.

Testimony of Ramiro Roman

Ramiro Roman agreed to plead guilty to one count of robbery in exchange for his truthful testimony against the defendants.

Roman was living in the back room of his familys home on March 21, 2002. Alfred Cruz came over during the afternoon. They smoked some marijuana together. Over the telephone, Roman spoke to Delores Cruz, his girlfriend and Alfreds sister, at approximately midnight. As Roman left his house to walk over to Delores house, he saw Dyer at the corner of the carport. Dyer asked for Roman. Roman replied that he was Roman. Dyer said that Lopez needed him out front. Roman returned to his room and called Cruz to come out also and see what Lopez wanted.

Lopez was in a truck with Dyer. Roman asked Lopez where he got the truck. Lopez said it was his. Roman did not believe him and again asked him where he got the truck. Lopez responded, I jacked it. Lopez told Roman that the victim was in the bed of the truck under the truck bed cover, but Roman did not believe him. Roman said he was leaving and he would be back.

Roman met Delores. He told her about the stolen truck and they walked back to his house. When they arrived, Lopez and Dyer were outside by the bed of the truck; Cruz was in Romans room. Roman told Lopez and Dyer to leave because his mother was home. Lopez said he was waiting for someone and then they would leave. Delores went to the back room.

Roman looked in the truck. Roman tried to work the hydraulics on the truck. Roman told Lopez that if they were going to be there for a while, he was going to move the truck. Roman moved the truck away from the house. Roman told Lopez and Dyer he was going to take the stereo out of the truck. Lopez did not want Roman to take anything or mess up the truck. Roman went to his room to get tools and gloves to remove the stereo.

Cruz looked through the truck while Roman removed the stereo and amplifiers. Roman took the items to his room and hid them in the basement. Lopez said he was going to come back and get the speakers.

Lopez handed Roman D.J.s wallet. Roman looked through it and threw identification and other papers into a barrel. During the course of the evening several of those present used Romans portable home phone.

Roman asked Lopez where the other people were, since it had been one or two hours since Lopez arrived at Romans house. The others arrived in a light blue van. Those in the van included Martin Castro, Jose Romero, defendant Ortega and one other person.^[1]

The group left with Dyer, Ortega, and the unidentified person in the truck. The others followed in the van. Roman and Cruz stayed at Romans house.

Lopez called at approximately 6 a.m. that morning. Roman asked him what happened to the owner of the truck. Lopez said he ate dirt. Lopez came over a couple of days later to get the stereo speakers. Lopez did not know that Roman had switched the stolen speakers with cheaper speakers. Roman kept the stolen speakers for himself. Roman burned the items he had removed from D.J.s wallet.

Testimony of Alfred Cruz

While being tried in a separate and earlier proceeding for the murder of D.J., Cruz agreed to plead guilty to one count of robbery in exchange for his truthful testimony against the remaining defendants.

Cruz was at Romans house watching television on March 21, 2002. Roman left sometime around midnight to get Delores. Roman came back about 45 minutes later and then left again. Roman said there was someone outside. Lopez and a female, Dyer, were outside in a nice truck. Cruz asked Lopez where he got the truck and Lopez said he jacked it. The keys were in the ignition. Lopez asked to use the telephone to call Martin Castro. Lopez told Castro to come to Romans.

Lopez told Cruz that the victim tried to rape Dyer so they beat him up and threw him in the back of the truck. Lopez told Cruz to talk to D.J.

Roman moved the truck to the side of the house. Roman said he was going to take the stereo out of the truck. Lopez did not want Roman to do so, but Roman did it in any event. Lopez wanted everything in the truck because his homies were going to come.

They got tools and removed items from the truck. Dyer was talking to D.J. and asked him for his cell phone number. Cruz saw Dyer talking on the phone. Lopez told Cruz to ask D.J. for his wallet. Cruz did and D.J. threw the wallet out from under the truck bed cover. Cruz handed items from the wallet to Roman. There was no money in the wallet. Lopez asked D.J. for money but he said he did not have any. Lopez told D.J. to throw the money out or they were going to kill him. D.J. was moaning and asking why. Roman threw items from the wallet into a barrel.

A light blue van pulled up to Romans house. Ortega was in the van. Ortega handed a gun to Dyer. Lopez told Cruz they were going to tie up D.J. and throw him in a field. Dyer got into the truck with the gun. Lopez later said they were going to kill D.J.

Ortega drove off in the truck with Dyer sitting in the middle and one other man in the truck. Lopez drove the van, with others inside. They left about 3:45 a.m.

In the afternoon Lopez called and said they had to do him. Lopez said that D.J. knew too much.

Evidence from Nonaccomplice Witnesses

Juan Hernandez was driving to work about 5 a.m. when he saw a light van followed by a nice truck. At approximately 5:30 a.m. Harry Stackhouse heard gunshots. Within a minute of hearing the gunshots, he saw a blue van speeding away. He then saw smoke. Another neighbor heard gunshots and called 911.

Deputy Sheriff David Cunha was dispatched at 5:53 a.m. to a call of gunshots and smoke. He arrived at 6:01 a.m. to find D.J.s truck engulfed in flames. The fire department arrived quickly and put out the fire. After the fire was extinguished the cover over the bed of the truck collapsed and Cunha could see a burned human body. He requested additional units. Three of the custom tires on the truck were missing. One tire that had a bent lug nut remained.

An investigation revealed that flammable liquids had been used to accelerate the fire. D.J. died from three gunshot wounds to the head. Two projectiles were recovered from his body. He had very significant burns to his body, but no soot or carbon in his airway. There was hemorrhage along the gunshot wounds indicating that D.J. was alive when all three shots were fired, but was dead before his body was burned. The projectiles recovered from D.J.s body were fired from the same firearm.

On the morning of March 22, 2002, Beau Vang arrived at his business. Inside the fenced parking lot he found a cell phone. He thought the phone might have been dropped by one of his customers. He brought the phone inside and answered it when one of D.J.s friends called looking for D.J. The friend relayed the information to D.J.s mother, and she told law enforcement. Law enforcement went to Vangs place of business and retrieved the phone. The phone belonged to D.J.

Cell phone records from D.J.s phone were retrieved. Beginning approximately 1:27 a.m. on March 22, 2002 and ending at 4:16 a.m. a number of phone calls were made to and from D.J.s cell phone. The first call was from D.J.s phone to Ortegas pager. Calls were made to Lopezs pager, Romans phone and Dyers apartment. Calls were received from various places including several calls from Lopezs home to the cell phone.

Augustina Lopez, defendant Lopezs sister, testified that Lopez lived in the same house as she did. Martin Castro, her nephew and previously convicted codefendant, also lived there. She testified that her phone rang a lot during the night of March 21, 2002. Dyer was calling and asking for Ortega. Lopez was not there when Dyer called. Ortega showed up at the house between 2 and 3 a.m. and used the phone. (Three calls were made from the Lopez home to D.J.s cell phone, at 2:17 a.m., 2:18 a.m. and 4:14 a.m.) Augustina testified that numerous calls were received between midnight and 5 a.m.

Fresno County Sheriffs officers had stopped a blue van owned by Gabriel Rojas on March 21, 2002. The driver was Ortega; Dyer was the passenger. The same van was stopped on March 22, 2002. Rojas was the driver and Ortega was a passenger.

Based on the telephone records and other evidence, several search warrants were issued and several defendants were arrested and/or detained. Speakers matching the speakers stolen from D.J.s vehicle were found in the basement of Romans house.

Officers searched a van on the property where Castro and defendant Lopez lived. They found shell casings and live rounds in the van with bunter marks that matched the casings found at the crime scene. An average bunter makes 100,000 casings.

Statements and Recorded Conversations from the Defendants

Dyer was detained and questioned. She admitted that she had been in the blue van and she said that she knew who D.J. was. She initially told law enforcement that on the night of D.J.s murder she was at home taking care of her children. After further questioning, she stated that she left her home at approximately midnight with a man who called himself Adam and a woman named Laurie. D.J. was following them. Adam told Dyer to get out and ask D.J. if he wanted to party with them. She did so, and D.J. declined the invitation. Adam then took off, leaving Dyer at D.J.s truck. Dyer asked D.J. for a ride, and they tried to catch up to Laurie and Adam. They stopped by a house, and Adam and a person from the house came out and started hitting D.J., forcing him into the back of his truck. Adam, the other person and Dyer got into the cab of the truck and drove off. Dyer said she wanted to go home. They took her home and told her to keep her mouth shut. Dyer denied being present when the truck was stripped or having anything to do with the killing.

Ortega was questioned by police. He said he did not know anything about the murder of D.J. He said that he spent the early morning hours of March 22, 2002 in Dinuba stealing car radios. He was in the blue van when he stole the radios. After stealing the radios he went to his brothers house and did not go out again.

Ortega and Dyer were placed in adjoining holding cells after they were questioned by police. They professed their love for each other. Ortega asked Dyer to not break down on him. Dyer responded she would not break down. Ortega told Dyer that she knew it was not her, and she does not know anything. He advised her not to add to the story. Dyer said she wanted to marry Ortega. Ortega assured Dyer he was going to marry her.

Lopez was questioned by police. He said he did not kill anyone. He was home, went a few places, and then returned home on the night/morning in question. He said that a truck was at his house a few minutes but he did not even talk to the person in the truck. Another truck pulled up with it and a few people got out of the second truck. Lopez said he believed the truck got jacked somewhere and then taken to his house. Lopez left with a couple of females. Then he came home and called it a night. Officers pressed Lopez for the name of a female involved. He did not give a name. He said a girl came to his house with D.J. and they wanted some weed. Lopez did not think the guy had been carjacked because he was with the girl that came to his house. Lopez and the girl took off and went looking for weed. They went to a friends house on the west side; Lopez said he came back with someone else. Lopez thought the girl wanted to use D.J. to get high and use his truck to cruise around in.

Lopez called his sister from jail. During their conversation, Lopez said that the guy (D.J.) came to his house with a girl. He informed his sister that he told officers he left with them and they were trying to get some weed. Lopez told his sister they went to Romans house and D.J. was in the other truck cruising around. At that time the girl said forget the guy, lets just get his beat [stereo]. Lopez said they took out his stereo. Others arrived in another truck and Lopez went home.

DISCUSSION

I. Admission of Statements of Codefendants

The trial court admitted the redacted statements and conversations of the three defendants at trial. The jury was instructed not to consider the statement of one defendant against the remaining codefendants. The content of these statements is set forth above in the statement of the facts. Each defendant now claims that the trial court erred in admitting the statements of their codefendants at trial. They claim that their right to confrontation has been violated under the United States Supreme Court cases of Bruton v. United States (1968) 391 U.S. 123 and Crawford v. Washington (2004) 541 U.S. 36 .

In Bruton, the court held that a defendants right to confrontation of the witnesses against him is violated by admitting the confession of a nontestifying codefendant who names and incriminates the defendant. This is so even though the jury is instructed to disregard the confession in determining the nondeclarant defendants guilt or innocence. [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. (Bruton v. United States, supra, 391 U.S. at pp. 135-136^[2].)

The holding in Bruton was limited in scope in Richardson v. Marsh (1987) 481 U.S. 200. In Richardson the Court considered a redacted confession. The case involved a joint murder trial of Marsh and Williams. The State had redacted the confession of one defendant, Williams, so as to omit all reference to his codefendant, Marsh--indeed, to omit all indication that anyone other than Williams and a third person had participated in the crime. [Citation.] The trial court also instructed the jury not to consider the confession against Marsh. [Citation.] As redacted, the confession indicated that Williams and the third person had discussed the murder in the front seat of a car while they traveled to the victims house. [Citation.] The redacted confession contained no indication that Marsh--or any other person--was in the car. [Citation.] Later in the trial, however, Marsh testified that she was in the back seat of the car. [Citation.] For that reason, in context, the confession still could have helped convince the jury that Marsh knew about the murder in advance and therefore had participated knowingly in the crime.

The court held that this redacted confession fell outside Brutons scope and was admissible (with appropriate limiting instructions) at the joint trial. The Court distinguished Evans confession in Bruton as a confession that was incriminating on its face, and which had expressly implicat[ed] Bruton. [Citation.] By contrast, Williams confession amounted to evidence requiring linkage in that it became incriminating in respect to Marsh only when linked with evidence introduced later at trial. [Citation.] (Gray v. Maryland (1998) 523 U.S. 185, 190-191.) Thus, the judges instruction to disregard the evidence in assessing the nondeclarant codefendants guilt may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. (Richardson v. Marsh, supra, 481 U.S. at p. 208.)

The court in Richardson left open the question of whether a confession would be admissible when it has been edited by replacing the defendants name with a symbol or neutral pronoun. That question was considered by the California Supreme Court in People v. Fletcher (1996) 13 Cal.4th 451. The court in Fletcher concluded that the admissibility of a confession by replacing names with a pronoun or similar neutral or nonidentifying term must be decided on a case-by-case basis. The court determined that redaction is a viable solution in a substantial number of cases. As we have seen, redaction that replaces the nondeclarants name with a pronoun or similar neutral and nonidentifying term will adequately safeguard the nondeclarants confrontation rights unless the average juror, viewing the confession in light of the other evidence introduced at trial, could not avoid drawing the inference that the nondeclarant is the person so designated in the confession and the confession is powerfully incriminating on the issue of the nondeclarants guilt. (Id. at p. 467.)

A similar conclusion was reached by the United States Supreme Court in Gray v. Maryland, supra, 523 U.S. at page 209. The confession in Gray referred directly to the existence of the nonconfessing defendant. It was redacted by removing the defendants name and replacing it with either the word deleted or a blank space set off by commas. The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardsons words, facially incriminat[es] the codefendant. [Citation.] Like the confession in Bruton itself, the accusation that the redacted confession makes is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. [Citation.] [Citation.] (People v. Archer (2000) 82 Cal.App.4th 1380, 1387-1388.)

With this background of law in mind we separately examine each defendants claim of erroneous admission of his or her codefendants statements.

We begin by noting that none of the statements here were redacted by substituting blanks or symbols, thus making it obvious that a name had been removed. Also, the redaction of the statements did not result in any awkward sentences that would indicate to the jury that a persons name or other identifying information had been removed. We additionally note that because there were numerous participants in the crimes here, any generic reference to another person without any further identifying features does not single out any one individual over another. The jury was well aware that there were more participants involved than those before the court during this trial. In addition, all three defendants denied being present at the murder or knowing anything about the murder. Their statements were not powerfully incriminating against anyone causing jurors to ignore the instruction from the court limiting the use to each particular defendant who made the statement.

Lopez argues that the statements of his codefendants were erroneously admitted. In particular he argues that there was error when the People elicited testimony from Dyers mother that the mother had listened to Dyers police interview and that the person who drove Dyer home had threatened her. Additionally, defendant argues that the prosecutor spoke about the statements of all three defendants during argument to the jury but did not limit each statement to each particular defendant.

Dyers statement made no direct link to Lopezs house or to Lopez. Lopez would only be inferentially implicated in Dyers statement by his own statement indicating that a truck came to his house. Lopez was also not linked to the fact that Dyer said she had been threatened except by his statement that he left with a girl. Any incriminating implications from Dyers statement to Lopez occurred only after other evidence introduced at trial had been presented linking Dyer and Lopez. Dyers statement was not powerfully incriminating against her codefendants and thus we can assume the jury followed the courts instructions and safely avoided drawing improper conclusions from the statement of the declarant defendant to the statements of the other defendants. The Dyer statement as it relates to Lopez falls under the exception set forth in Richardson and results in a finding that the judges instruction to the jury to disregard Dyers statement as it related to Lopez was successful.

Lopez did not object to the prosecutions closing argument. He has failed to show that an objection and admonition would not have cured any error.

Ortega argues that Dyers redacted statement impacted him and Lopez equally because the jury might infer that Ortega was the one who threatened Dyer based on the fact that Ortega was Dyers boyfriend.

We find nothing in Dyers statement that implicated Ortega differently than Lopez. We reject Ortegas argument for the same reasons we rejected Lopezs argument.

Dyer objects to the admission of the statements and phone conversations of Lopez as well as the statement from Ortega. Dyer admits that Ortega did not make incriminating statements against her during his interrogation, but his protestations of not being involved were hollow because of his later remarks to Dyer about not cooperating with the detectives. Thus his statements reflect that he and Dyer had personal knowledge of the crimes and he was trying to control her.

During his statement to police, Ortega made no statements incriminatory to Dyer. Ortega and Dyers romantic relationship was established by other evidence and was established by Dyers own admission during the jailhouse conversation. Their agreement to stay true to not revealing evidence was also established by Dyers own admission during the jailhouse conversation. There was nothing facially incriminating in Ortegas statements against Dyer such that the jury would have not followed the courts instructions to not consider the evidence from Ortega against Dyer.

Dyer argues that Lopezs statement identified her as the woman with D.J. before and at Romans house, it identified her as the one who wanted to commit theft and kill D.J., and it identified her as the person with the gun leaving Romans house. She argues the statement also inferentially identified her as the person who shot and killed D.J. As such, she argues it was error to admit the redacted statements of Lopez.

Dyer grossly exaggerates the evidence contained in Lopezs statements identifying her. Lopez never named anyone in his actual statement and thus no redaction of names was necessary. Because Dyer was the only female on trial, there was an inference that she could be the female he was talking about, although he referred to more than one female during the course of the evening. In any event, Lopezs statement coincides with Dyers statement that she was with D.J., rode in his truck, and went to a location with another truck. Dyers statement provided this information without resort to Lopezs statement. Even if we were to conclude that Dyer is implicated in Lopezs statement, because he referred to at least two females the only criminal implication arose from Lopezs conversation with his sister. In that conversation he said that a female took part in taking the stereo from the truck when D.J. was not around. Lopez did not implicate the female in leaving with the others when they took D.J.; in fact, during his statement to police, Lopez said that the girl went home before any inappropriate activities took place. Lopezs statement was thus more favorable to the implicated female than Dyers statement when she said that she was there when D.J. was beaten and then asked to be taken home. Lopezs statement was not so powerfully incriminating against Dyer such that the jury would not follow the courts instruction to consider it only against Lopez. Even if we assume that Lopezs statement was inferentially incriminating against Dyer, it was far less incriminatory than Dyers own statement and any error would be harmless.

In addition to Bruton error, each defendant also claims that the admission of his or her codefendants statements at trial was error under the recent United States Supreme Court case of Crawford v. Washington, supra, 541 U.S. 36. In Crawford the court held that, with certain exceptions, out-of-court testimonial statements are inadmissible at trial under the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Statements, such as those in question here, that are elicited during a police interrogation are testimonial and if admitted against the nondeclarant would fall within the Crawford rule of inadmissibility.

Crawford is not applicable here because, as previously discussed, it is reasonable to presume that the jury followed the trial courts instructions to only consider the statements against the declarant defendant and not against the nondeclarant defendants. Because the statements were properly admitted under Bruton and their admissibility was limited to only the declarant defendant, the testimonial evidence was not admitted against the nondeclarant defendants and the right to confrontation is not involved. The nondeclarant defendants had no need to engage in cross-examination because the testimonial evidence was not admitted against them. (See People v. Song (2004) 124 Cal.App.4th 973, 984.)

II. Suppression of Dyers Statement

Prior to trial Dyer made a motion to exclude her statement to police, claiming the statement was improperly taken without giving Dyer her Miranda (Miranda v. Arizona (1966) 384 U.S. 436) warnings.

Sheriff Detective Mark Chapman testified at the hearing. He was the primary investigative officer of this murder case. A search warrant was obtained for Dyers residence and was executed at approximately 10:35 p.m. on March 28, 2002. Dyer was not home when the warrant was executed. She arrived home approximately five minutes later.

Chapman arrived at Dyers apartment after the warrant had been executed. When he arrived, he found Dyer seated in the back seat of Deputy Simpsoms patrol car, which was parked in the alley outside of Dyers apartment. The doors to the patrol car were closed and Dyer could not open them from the inside of the back seat. Chapman could not recall if the car was unattended at the time he arrived. Chapman contacted Dyer and told her he was conducting an investigation. Neither Chapman nor his partner, Detective Rasmussen, was in uniform. They did not display a firearm to Dyer. Chapman asked her if she would mind coming to the sheriffs department to speak to us. She was agreeable. Dyer was transported to the department and her interview began approximately 30 minutes later. She was in the patrol car for over an hour, at the apartment and in transit from her apartment in Fowler.

Dyer was never handcuffed nor was she told she was under arrest. At the outset of the interview, Dyer was told she was not in custody and she was free to leave. The interview room was approximately 15 feet by 15 feet. It contained chairs, a table, and a trash can. Dyer was not under the influence of drugs at the time of the interview. The interview lasted 3 hours and 45 minutes. Two breaks were taken during the interview, one at 1:54 a.m. and one at 3:01 a.m. During the first break Dyer got up, left the room, walked to the restroom (approximately 30 yards away), used the restroom, and returned to the interview room. At each break, Dyer said that no promises or threats had been made to her. For the first hour and a half of the interview, Dyer denied all knowledge and involvement. She later admitted that she had some contact with D.J. on the evening of the 21st. Dyer said she wanted to go home. She was arrested.

During their interview of Dyer, the officers told her that they knew pretty much where she was and what she was doing. They told her that people had told them that she was the one that killed D.J.

The trial court denied the motion to suppress, finding that Dyer was not under arrest at the time of her statement and a reasonable person in her position would not have felt she was in custody or restrained from departing at will. In particular, the court found Dyer was not handcuffed and she consented to come to the station for an interview. Additionally, the court said there was not clear evidence that she was in a locked portion of the vehicle. The court relied on the facts that Dyer was told she was free to leave and she acknowledged that she understood that. She was allowed to go freely to the bathroom and water fountain and was gone from the interview room for approximately five minutes. Dyer responded to the officersquestions without any hesitation.^[3]

Dyer claims the trial court erred in denying her motion to suppress her statement because her statement was given under circumstances indicating that she was in custody for Miranda purposes. In particular she argues that [s]he was detained by many officers executing the search warrant at her home, she was kept in the back of a locked patrol car for an hour, she was accused and confronted repeatedly with evidence of her guilt, including being the actual killer, in a barren and windowless room at the Sheriffs Department by two detectives during a four-hour long interrogation. Under the totality of the circumstances, no reasonable person would have felt free to leave at any time during the five-hour period beginning with the initial detention to the time of her formal arrest.

We review independently a trial courts determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial courts findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.] [T]o the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1093.)

After being taken into custody by police or otherwise deprived of his or her freedom of action in any significant manner, a person must be given Miranda warnings apprising the person of his or her right to remain silent, that any statement the person makes may be used against the person and that the person has the right to counsel, retained or appointed. [Citation.] Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial. [Citation.] (In re Kenneth S. (2005) 133 Cal.App.4th 54, 63.)

The due process [voluntariness] test takes into consideration the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation. (Dickerson v. United States(2000) 530 U.S. 428, 434.) Miranda made clear that the rule was only applicable to custodial interrogation, which means, 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. [Citation.] In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply where there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] (In re Kenneth S., supra, 133 Cal.App.4th at p. 64.)

Dyer was not arrested at the time her interview took place. Although Chapman testified that he intended to arrest Dyer after the interview, this information was not conveyed to Dyer. It is the objective circumstances of the interrogation, not the subjective intention of the officer that is evaluated in determining if the individual was in custody at the time she was questioned. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)

Chapman informed Dyer that the investigators had information linking her to the killing and even had information that she was the killer. He said that others had talked, thus she should give her side of the story. While an officers beliefs may bear on the custody issue, if those beliefs are conveyed to the individual being questioned, [e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, (Stansbury v. California (1994) 511 U.S. 318, 320.) While Chapman told Dyer that she was strongly linked to the killing, he left open the possibility that others were not telling the truth and Dyer could shed light on what happened and refute the evidence already gathered from the statements of others. His questioning was framed in a manner that was more investigatory than accusatory.

Dyer was questioned at the sheriffs station by two sheriff deputies in a fairly large room (15 feet by 15 feet). Miranda warnings are not required to be given merely because the questioning takes place at a law enforcement location. (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Other than the fact that the questioning took place at the station, there was nothing about the surroundings that was intimidating or tantamount to a formal arrest. The two deputies questioning Dyer were not in uniform. Dyer was allowed to leave the room to take a break and walk freely to the bathroom and the water fountain. Dyer was not handcuffed or otherwise restrained during the questioning. Her freedom of movement was not restricted.

While the interview was lengthy (approximately four hours), the crime was very serious and involved numerous activities and individuals, thus requiring a lengthier questioning period than would be required for a less complicated crime.

Dyer contends her detainment for a lengthy period of time in a locked patrol car suggests that she was in custody for purposes of Miranda. The initial detention of Dyer, before Chatman arrived, has little bearing on whether her freedom of action was curtailed to a degree associated with a formal arrest. Her initial detention was because she was the occupant of a house that was being searched pursuant to a valid search warrant. A warrant to search founded on probable cause carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. (Michigan v. Summers (1981) 452 U.S. 692, 705.) Dyer was asked if she would come to the station to talk to the deputies. She agreed and she was transported from Fowler to Fresno in the patrol car. Thus her one hour in the back of a locked patrol car was related to the search warrant and then for voluntary transportation purposes. In such a situation, a reasonable person would not believe that the time in the patrol car was a deprivation of her freedom of action in any significant way amounting to a custodial arrest.

At the conclusion of the interview, Dyer was asked if she was going to stay at her apartment. She said she did not want to stay there because the others knew where she lived. Although the determination of whether a custodial interrogation took place is based on an objective standard, the fact that Dyer thought she was going home when the interview was completed gives credence to a finding that she was not in custody at the time she was questioned.

Based on all of the above reasons and under the totality of the circumstances, we find Dyers statement was voluntary.

III. Substantial Evidence

Dyer contends that the evidence is not sufficient to support the convictions and related special circumstances against her. She argues that the case against her was based on mere suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. In particular she argues that her statement does not provide substantial evidence and that, although there was evidence that she was with D.J. and was at the scene when his stereo was stolen, she neither did nor said anything that could reasonably be construed as aiding and abetting Lopez or Romero, the masterminds and leaders of the incident.

On appeal the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)

The evidence is more than substantial to find that Dyer was involved as a direct perpetrator or an aider and abettor in all of the crimes against D.J. Dyer admitted she was with D.J. on the night in question. She was the one who asked for Roman after she and Lopez arrived at Romans house with D.J. trapped under the bed cover of his truck. She stood at or near the truck at all times knowing that D.J. was under the cover. She asked D.J. for his cell phone number and made calls on his phone. She called Lopezs house numerous times looking for Ortega. When Ortega showed up, he handed her the gun. She rode away in D.J.s truck carrying the gun and sitting between Ortega and an unidentified male. D.J.s truck was seen being followed by a blue van going to the crime scene and the blue van was seen leaving the crime scene. This evidence is more than sufficient for a rational jury to conclude that Dyer was an active participant in the crimes, and at a minimum was an aider and abettor.^[4]

IV. CALJIC No. 6.40

Dyer and Ortega requested the court to instruct the jury on accessory after the fact pursuant to CALJIC No. 6.40. Their request was based on two theories. First, they wished to have the instruction given as a lesser related instruction. Next, they wanted the instruction given as a pinpoint defense instruction. The trial court refused to give an instruction on accessory after the fact.

CALJIC No. 6.40 provides: Defendant is accused [in Count[s] ____] of having committed the crime of being an accessory to a felony in violation of section 32 of the Penal Code.

Every person who, after a felony has been committed, harbors, conceals or aids a principal in that felony, with the specific intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony in violation of Penal Code section 32.

In order to prove this crime, each of the following elements must be proved:

1. A felony, namely _______, was committed;

2. Defendant harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape [arrest] [trial] [conviction or punishment]; and

3. Defendant did so with knowledge that the principal [committed the felony] [was charged with having committed the felony] [was convicted of having committed the felony].

Dyer asserts that she was entitled to the instruction. She claims that the evidence that supports the accessory instruction is that she tried to divert attention from herself and the other charged defendants in her statement to police, thus aiding the other defendants in escaping conviction.

Accessory after the fact is a lesser related offense to murder. [A] trial court has no duty to instruct on an uncharged lesser related offense when requested to do so by the defendant [citation]. (People v. Schmeck (2005) 37 Cal.4th 240, 292.) We are bound by this decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Dyer argues that even if she is not entitled to a lesser related offense instruction she is entitled to an instruction that pinpoints her defense when such an instruction was requested. A trial court is required to give pinpoint instruction upon request if the instruction is supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.)

A person may aid, or attempt to aid, the principal to a crime by making false or misleading statements to the authorities, and such conduct will support a conviction of accessory after the fact. (In re I.M. (2005) 125 Cal.App.4th 1195, 1203.) In In re I.M., the defendant was found to be an accessory after the fact based on several things, including telling the police a false story about what he had seen in an effort to mitigate the evidence against the shooter, a fellow gang member. (Ibid.) In People v. Duty (1969) 269 Cal.App.2d 97 the defendant was found guilty of being an accessory after he supplied an affirmative and deliberate falsehood in the form of a false alibi for the principal to the public authorities.

In her statement to police, Dyer did not affirmatively misrepresent the activities of her codefendants; her statement at most would be considered to be withholding information regarding activities. A mere withholding of information is not equivalent to supplying affirmative and deliberate falsehoods regarding the activities of others and cannot be considered evidence sufficient to support a conviction for accessory after the fact. Because the evidence would not support such a conviction or such a defense the trial court did not err in failing to give the pinpoint defense instruction.

Ortega raises the same issue on the same basis as Dyer. His argument should be rejected on this point. In addition, Ortega argues there was evidence that his involvement in the crime amounted only to attempting to dissuade witnesses after Dyer was arrested, thus he was an accessory after the fact.

Even if we assume that the evidence would support an argument that Ortega aided Dyer by attempting to dissuade witnesses after the fact, error in failing to give an accessory instruction was harmless beyond a reasonable doubt. First, Ortega was allowed to argue this theory to the jury--thus the jury was aware of the theory. More importantly, we cannot imagine that jurors would convict Ortega of first degree murder with special circumstances if they believed that he was only involved in witness intimidation after the fact. (People v. Turner (1990) 50 Cal.3d 668, 692-693, People v. Boyer (2006) 38 Cal.4th 412, 471.)

V. Lesser Included Instructions

In an alternative claim to her argument that substantial evidence does not support her convictions, Dyer argues the trial court erred in failing sua sponte to give lesser included instructions for second degree murder and voluntary manslaughter. In particular, she argues there was evidence that D.J. had attempted to sexually assault her and thus her reason for killing D.J. was not tied to the felonies of robbery, carjacking, and kidnapping but was an independent reason to kill him. Thus, she contends the evidence was sufficient to support an intentional killing without premeditation and deliberation. In addition, she argues that the heat of passion engendered by the attempted sexual assault was sufficient to warrant an instruction on voluntary manslaughter.

Cruz testified that Lopez said the dude tried to rape home girl, so they beat him up and threw him in the back of the truck. Lopez said they were waiting for someone to come. When Dyer was questioned by law enforcement, she was asked if D.J. tried to rape her or do anything to her in the truck. She said, no. She added, nobody ever tried to rape me. During Dyers jailhouse conversation with Ortega she told him that the police thought that D.J. had raped her.

Assuming that the premise of Dyers argument is true--that D.J. tried to rape her and the killing was a response to this--the evidence was not sufficient to support instructions on second degree murder and/or voluntary manslaughter.

Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense. (People v. Sakarias (2000) 22 Cal.4th 596, 620.) [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense.... (People v. Breverman [(1998)] 19 Cal.4th [142, 162].) Rather, substantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense. [Citation.] Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] (People v. Valdez(2004) 32 Cal.4th 73, 116.)

While we agree with Dyer that the evidence may have supported another theory of murder other than the only charged theory of first degree felony murder, we do not find that theory to be second degree murder or voluntary manslaughter. The evidence was susceptible to a theory that Dyer was guilty of first degree premeditated and deliberate murder.

Murder is defined as an unlawful killing committed with malice aforethought. ( 187, subd. (a).) An unlawful killing with malice aforethought, perpetrated by certain specified means or that is willful, deliberate, and premeditated, constitutes murder in the first degree. ( 189.) A killing in the course of the commission of certain enumerated felonies also constitutes murder in the first degree. ( 189.)

Second degree murder is an unlawful killing with malice aforethought, but without the elements that elevate an unlawful killing to first degree murder. ( 187, subd. (a), 189; ...) In addition, an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189, constitutes at least murder in the second degree. [Citation.]

Malice may be express or implied. Malice is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. ( 188.) It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [Citation.] More specifically, malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citation.] [Citation.] An unlawful killing may constitute manslaughter rather than murder even in the presence of intent to kill or conscious disregard for life, however, if the defendant killed in a sudden quarrel or heat of passion ( 192, subd. (a); ). (People v. Robertson (2004) 34 Cal.4th 156, 164-165.)

We begin by noting that evidence that D.J. attempted to sexually assault Dyer was weak, at best. But if we assume this evidence was credible, and as Dyer argues, she was not involved in the felonies but wished to kill D.J. because he attempted to rape her, the evidence establishes nothing less than a willful, deliberate, and premeditated killing. Dyer stayed with the truck, with D.J. under the truck bed, for several hours. She phoned Ortega numerous times. When Ortega arrived she accepted the gun from him, rode out to the country in D.J.s truck, and shot him three times in the head. One shot was to the left back side of the head, one to the left top of the head, and one to the front of the face, each shot being fired from a different angle. In this scenario, as set forth by Dyer, the killing could not be anything less than a willful, deliberate, and premeditated killing.

Next Dyer argues that under this same scenario she was acting under the heat of passion when she killed D.J. [I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter .... [Citation.] (People v. Breverman (1998) 19 Cal.4th 142, 163.) Under the scenario set forth by Dyer the jury could only reasonably conclude that sufficient time had elapsed between the provocation and the fatal blow for the passion to have subsided and for Dyer to return to reason. Several hours passed between the alleged attempted sexual assault and the killing. During this time D.J. was held captive and was not in any position to reignite the passion. Dyer was surrounded by others. Numerous activities occurred in the interim between the alleged sexual assault and the killing. Dyer called Ortega numerous times and Ortega showed up with a gun. This evidence does not come close to suggesting a passionate crime, but points directly to a well-thought-out plan. There was no evidence presented to the jury from which it could be reasonably persuaded to find second degree murder or voluntary manslaughter. The trial court did not err in failing to instruct sua sponte on second degree murder or voluntary manslaughter.

VI. Limitation of Cross-examination of Cruz

After Cruz was arrested, he was interviewed numerous times by law enforcement. During one interview he was granted limited immunity status and anything he said during that interview could not be used against him. He declined to enter into a plea bargain with the People at that time. He was tried with Castro and Romero for the murder of D.J. Cruz testified on his own behalf at that trial. Prior to jury deliberations, Cruz decided to accept the Peoples offer to plead guilty to one count of robbery with a gun enhancement. In exchange for the plea agreement, Cruz was required to testify truthfully at the trial of the remaining codefendants.

As previously set forth Cruz testified at this trial. During the cross-examination of Cruz by counsel for Ortega, Cruz admitted to lying to law enforcement even though he promised he was telling the truth. Cruz explained that he was testifying truthfully because now he was testifying under oath, yet his explanation of giving truthful testimony under oath was impeached with testimony from the previous trial where he testified under oath and then changed his testimony under oath.

During his cross-examination by counsel for Ortega, the following exchange took place:

Q [Counsel for Ortega] So when you take oath to tell the truth, you realize that thats important that you not tell a lie; right?

A [Cruz] Yeah.

Q Besides that, you have a contract with the District Attorneys office; isnt that right?

A Yeah.

Q And that contract can be broken if you dont tell the truth; correct?

A Yeah.

Q But its the District Attorney who decides whether you tell the truth; isnt it?

MR. PETERSON [District Attorney] Objection, calls for a legal conclusion.

THE COURT: Sustained.

MR. HODGKINS [Counsel for Ortega] Q Mr. Cruz, do you know that it is perjury to lie under oath?

A Yes, I do.

Q Okay. And do you know who would be involved in prosecuting that perjury if you didnt tell the truth?

A Yes.

Q Who?

A The judge.

Q Dont you know that the District Attorney prosecutes crimes in the County of Fresno?

A Yeah.

Q And wouldnt the District Attorney be the one to prosecute a false testimony under oath by you?

MR. PETERSON: Objection, argumentative at this point.

THE COURT: It is. Sustained.

Dyer claims that the trial court violated her right to cross-examination when it refused to allow defense counsel to cross-examine Cruz about his contract with the district attorneys office. Dyer characterizes the above exchange as [t]he prosecutor repeatedly objected to this line of questioning and the trial court sustained all of his objections. Dyer claims that this purported error also precluded the defense from questioning Roman regarding his plea agreement with the prosecution because any questioning would have been futile. Dyer claims that the trial courts limitation of cross-examination of Cruz and Roman denied her the right to confront the two main witnesses for the prosecution.

Dyer places primary reliance on the case of U. S. v. Schoneberg (9th Cir. 2005) 396 F.3d 1036. This case does not aid Dyers argument. We are not bound by a federal circuit court opinion. (People ex. rel. Renne v. Servantes (2001) 86 Cal.App.4th 1081, 1090.)

When a witness has agreed to testify as part of a plea bargain, his motive for testifying is relevant. (People v. Alvarez (1996) 49 Cal.App.4th 679, 688.) The California Supreme Court has held that any agreement bearing on a witnesss credibility, including the consequences to the witness of failure to testify truthfully, must be fully disclosed to the jury. But, the precise mechanism whereby the truthfulness of a witnesss testimony would be determined at a later time is not a matter for the jurys concern. (People v. Fauber (1992) 2 Cal.4th 792, 823.)

The two questions objected to by the prosecutor and sustained by the trial court fall within the area that our Supreme Court has determined is not a matter for the jurys concer