P. v. Reese

Filed 3/2/07 P. v. Reese CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.

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

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

Clarence Erwin Reese appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187, 189) with special circumstances that he was engaged in attempted carjacking (Pen. Code,  190.2, subd. (a)(17)(L)) and burglary (Pen. Code,  190.2, subd. (a)(17)(G)), count 2 attempted carjacking (Pen. Code, 664, 215, subd. (a)), and count 3 first degree residential burglary (Pen. Code,  459) with, as to each offense, findings that a principal personally used a firearm (Pen. Code, 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code, 12022.53, subds. (c) & (e)(1)), and a principal personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, 12022.53, subds. (d) & (e)(1)). The court sentenced appellant to prison for 25 years to life.

In this case in which appellant and a confederate entered an apartment garage and killed a cars owner while attempting to carjack his car, we reject appellants claim that his statements to police were obtained in violation of Miranda and involuntary. Appellant gave the statements after properly waiving his Miranda rights, and the facts that he later may have had second thoughts about his waiver, he was 16 years old, and police may have told him it was advantageous for him to tell his side of the story did not render his waiver or statements involuntary.

Moreover, the fact that police during a later interview commented that if appellant wanted an attorney, police would not question appellant about the case, did not render his previous statements involuntary. The comments occurred after appellants previous voluntary Miranda waiver and statements. Moreover, appellant was not entitled to police questioning, but only to the presence of an attorney during any questioning.

We conclude there is no need to decide whether jury misconduct occurred when one or more jurors may have overheard in the court hallway a conversation between a detective, and two apparent gang members who had been suspected of intimidating witnesses. The court conducted a thorough inquiry into the matter, and determined any jurors receipt of the information was inadvertent and would not affect the jurys ability to be impartial. Therefore, apart from whether jury misconduct occurred, we conclude the judgment need not be reversed as a result of the trial courts denial of appellants motion to grant a mistrial based on juror misconduct, since the record rebuts the presumption of prejudice from jury misconduct and there is no substantial likelihood the incident prejudiced appellant.

Finally, we hold there was sufficient evidence that, based on the predicate felony of attempted carjacking, appellant committed felony murder, the murder was of the first degree, and a special circumstance existed. There is no dispute that, based on the predicate felony of attempted carjacking, appellants confederate directly committed felony murder, the murder was of the first degree, and a special circumstance existed. The remaining issues were whether there was sufficient evidence that appellant was an accomplice and if, as to him, a special circumstance existed.

Based on various factors, including appellants presence at the scene of the crime, companionship with the confederate, and conduct before and after the homicide, there was substantial evidence that, based on attempted carjacking as the predicate felony, appellant was an accomplice to first degree felony murder. Moreover, there is no dispute that appellant shared his confederates intent to burglarize. There was sufficient evidence that, based on the predicate felony of burglary, appellant, as an accomplice, committed murder, and that the murder was of the first degree. Finally, the facts, including the fact that appellants confederate was armed with a firearm, provided substantial evidence that appellant, with reckless indifference to human life and as a major participant, was an accomplice to burglary and attempted carjacking resulting in death; therefore, special circumstances existed.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that shortly after 3:20 p.m. on January 30, 2002, two males were near the garage gate of the apartment building where Vuthipong Sanguansukdikosol (the decedent) lived in Los Angeles County. After the decedent opened the gate, and shortly before or as the decedent drove his car inside the garage, the two males entered. One of the two males approached the drivers side of a van in the garage, and the other male approached the vans passenger side. The male on the passengers side removed something from his pocket. Shortly thereafter, the decedents car, with the decedent inside, crashed in the garage. A witness saw the two males flee.

About 3:30 to 3:45 p.m., Jose Rodriguez and Rosemarie Alfaro were in Rodriguezs white Mustang near Romaine and St. Andrews. As Alfaro began to exit, appellant and Juan Saucedo approached. Saucedo mentioned something about trouble and asked for a ride for a few blocks. Rodriguez agreed to give appellant and Saucedo a ride, and appellant and Saucedo entered Rodriguezs car. Appellant had a sweater wrapped around his hand, and sat in the back. At one point during the ride, Saucedo said that he was a member of the Culver City gang. Paramedics were called to the decedents location and discovered he had been shot and mortally wounded.

Los Angeles Police Detective Vicki Bynum testified appellant told her the following. About 3:00 p.m., on January 30, 2002, appellant and Saucedo were in a car traveling from Culver City to Hollywood. The two were members of the Culver City gang. Appellant had a screwdriver that he was going to use to steal a car. When appellant and Saucedo were leaving Culver City en route to Hollywood, appellant knew that Saucedo had a gun.

Appellant told Bynum how appellant found himself in the garage where the homicide occurred. Appellant and Saucedo exited their car in order to steal a vehicle. The two entered a garage in which a man who looked Chinese had driven. Once inside the garage, appellant and Saucedo considered taking a van, but it had an alarm. The decedent noticed appellant and Saucedo. Appellant wanted to leave, but Saucedo told him to take the decedents car. Saucedo, with the gun at his side, approached the decedent and demanded his car. Appellant first learned Saucedo had a gun when Saucedo confronted the decedent. After the decedent began honking his horn and yelling for police, appellant heard a gunshot. Saucedo told appellant to run, and the two fled until they got a ride with a man in a white Mustang. Bynum testified it took about two to four minutes to jog from the shooting scene to the location where Rodriguez encountered appellant and Saucedo. We will present additional facts below where pertinent.

CONTENTIONS

Appellant contends (1) his statements to police were obtained in violation of Miranda^[1]and were involuntary, (2) the trial court erred by denying his motion for a mistrial, and (3) there was insufficient evidence that he committed felony murder based on attempted carjacking, and insufficient evidence to support the attempted carjacking special circumstance finding.

DISCUSSION

1. Appellants Statements to Police Were Properly Admitted in Evidence.

a. Pertinent Facts.

(1) Peoples Evidence.

The trial court conducted a March 2004 admissibility hearing concerning appellants statements to police and his probation officer. At the hearing, Bynum testified that on Friday, April 12, 2002, Bynum and her partner, Los Angeles Police Detective John Miller, interviewed appellant about the homicide. Los Angeles County Probation Officer Steve Howell was present during the interview. Appellant had had previous contacts with law enforcement and had suffered a prior conviction for grand theft of an automobile.

Bynum testified as follows. The interview occurred at a juvenile camp facility. Bynum advised appellant of his Miranda rights, including his right to speak with an attorney and to have an attorney present during questioning.^[2] Bynum asked appellant if he understood each of those rights and wished to give up his right to remain silent, and appellant replied yes to both questions. Bynum asked if appellant wished to give up the right to speak with an attorney and to have the attorney present during questioning, and appellant replied, I have no problem talking to you.

According to Bynum, appellant did not appear to have difficulty understanding his situation or the words used to describe his Miranda rights. Appellant gave the incriminating statements referred to in the Factual Summary. Appellant provided a written statement concerning some of what had happened. Bynum brought tapes to tape record appellants statement but it was not taped because Bynum erroneously thought Miller had brought a tape recorder, and one was not available at the camp. The written statement was admitted in evidence at the hearing.

Miller testified as follows. Miller told appellant that we were there to take a statement. Appellant was told, perhaps more than once, that it would be to his advantage to make a statement. Appellant was not told this before the Miranda warnings, but after the warnings and before the end of the statement. It was for appellant to determine how it would be advantageous; this was an open question. Appellant was 16 years old on April 12, 2002.

On April 15, 2002, Bynum and Miller returned to the camp to tape record appellants statement. The statement was taped and transcribed, and the tape and transcript were admitted in evidence at the admissibility hearing. The transcript reflects that a camp supervisor, Mr. Smith, was present.

The transcript reflects the following. Bynum again advised appellant of his Miranda rights.^[3] Appellant said he understood them. Bynum later asked if appellant wanted to talk about the case. Appellant asked Now, when do I get to talk to a lawyer?

Bynum explained thats something that will come down the road and the case had not yet been presented to a prosecutor. Bynum later asked if appellant wanted an attorney now, and appellant replied Yeah. After appellant spelled his first name for Bynum, Bynum asked, Now, do you have a problem continuing talking with us today? Appellant replied no. Bynum replied, No. So youll talk to us. Bynum reminded appellant that complete notes were taken concerning appellants April 12 statements. Bynum indicated she wanted to make sure that when she represented appellants version of the events to the district attorney, the representations were accurate.

Bynum told appellant that when she read appellant his Miranda waiver on April 12, appellant was willing to talk with Bynum and appellant said on April 12 that he did not want to have a lawyer present. Bynum asked if appellant was still willing to talk to Bynum on April 15, and review appellants statement of April 12. Appellant replied he did not know he could have a lawyer.

Bynum indicated that, on April 12, she read from appellants sheet, verbatim, that appellant had a right to have an attorney present, appellant said he had understood, and appellant said he would go ahead and talk to detectives. Bynum asked if appellant remembered that, and appellant replied Yeah. Bynum asked if appellant understood it when Bynum explained it to appellant, then Bynum said, You said you did. Appellant replied, Well, I said I did, but I (Inaudible) didnt know I was going to court (Inaudible) I didnt think I could have one here with me during my case.

Miller indicated appellant would have an attorney when appellant went to court, and If you want a lawyer while you talk to us, then we cant talk to you, cause we cant bring in a lawyer (Inaudible) just dont talk (Inaudible). We take your statement on what you told us [April 12]. (Sic.) Miller said he wanted to clarify what appellant said on April 12.

Bynum said that, on April 12, the detectives and a probation officer were present, appellant was Mirandized, Bynum read appellant all of those questions, and appellant said he understood everything and would talk to them. Bynum asked if that was correct, and appellant replied Yeah.

Bynum indicated what was occurring was not a new investigation, but an opportunity to review notes taken on April 12 to make sure they were correct. Bynum asked if appellant understood, and appellant replied Yeah. Bynum said that Smith need[ed] to sign; therefore, the detective had to ask appellant questions again. Bynum asked if appellant understood, and appellant replied, Like part I dont understand, like part I want to talk to a lawyer is, see like what do I have against me. (Sic.) Bynum said that if and when the district attorney decided to file charges against appellant, an attorney would be appointed.

Appellant acknowledged he previously had been arrested. Bynum asked if appellant always had received an attorney in the past, and appellant replied, No, once I had a lawyer. Appellant indicated he was confused cause normally, . . . I like talking to my lawyer and seeing what he has to say about it and then talking to detectives. Appellant said this a good case, and I dont know if you have to talk to the detectives first or the lawyer.

Appellant said he had talked with his grandmother after April 12, and she said he should talk to his lawyer first. However, on April 12 when detectives gave the Miranda admonition to appellant, he said he understood it and would talk to detectives. Appellant said he did not know how the system worked, and he did not know he could talk with an attorney before he talked with detectives.

Miller told appellant the following. On April 12, appellant admitted involvement in murder. Chances were appellant would be charged with murder. It was okay if appellant told detectives that he wanted an attorney, but once an attorney was appointed, the detectives could not talk with appellant. In Millers experience, once a defendant had an attorney, the attorney would tell the defendant not to talk with police. If appellant wanted to tell the detectives what happened, this was the time to do it. Miller said, you can waive your right to a lawyer and tell us -- you already told us what happened. And were gonna use that against you. Miller told appellant, we told you that, and appellant replied, Yeah, I know. Appellant indicated he wanted an attorney.

(2) Defense Evidence.

Appellant testified that in April 2002, he had just turned 16 years old and he was in custody in camp for a probation violation. Before April 2002, appellant had been arrested and his Miranda rights had been read to him. Appellant testified normally they will just read me rights between putting me in handcuffs and taking me to jail. Appellants Miranda rights had been read to him two or three times, however, he had never been asked to give a statement to police.

On April 15, 2002, Bynum told appellant it would be to appellants advantage to make a statement. Bynum said she was a friend of the district attorney, she could talk to the district attorney, and Bynum wasnt after [appellant] and knew he was not involved. Appellant testified the detectives told him they had me for murder and they were telling me all the evidence that they had. That it would be to my advantage to help them, and that they will tell the DA and the judge that I cooperated with them, and that it would be to my advantage.

Appellant initially denied remembering if the detectives read him his Miranda rights on April 12. He later denied that they were read to him on April 12. Appellant did not understand on April 12 that he could have a lawyer present with him while police questioned him.

During cross-examination, appellant testified he previously had pled guilty to driving a vehicle without an owners consent. He had a lawyer in that case. Bynum told appellant that appellant was looking at a lot of time and if he wanted to see his family or house again, he should cooperate with her. The audiotape reflected that on April 15, appellant agreed that on April 12 he had been given, and had waived, his Miranda warnings.

Appellant also testified as follows. Appellant did not, on April 15, object that on April 12 he had not been told he could have a lawyer. Appellant failed to object because he was confused and did not understand when they read him his rights. Throughout the tape, detectives asked him about the fact that he had waived his rights on April 12. Appellant went along with that because he was trying to get out of the interview room. Appellant testified I was saying, yeah, because I wasnt understanding what they were saying.

Appellant knew what an attorney was. On two previous occasions, police had rolled up to appellant and had given him his Miranda rights. Appellant was in camp after fleeing police and getting caught.

(3) Rebuttal Evidence.

In rebuttal, Bynum denied telling appellant he would be unable to see his family or house again unless he cooperated with Bynum. Bynum never said she had a friend in the district attorneys office and never threatened appellant in any way.

Bynum denied recalling if she discussed with appellant about how it might be advantageous for him to tell his side of the story. She never offered him any specific benefit that he would receive if he told his side of the story. She never offered appellant the possibility of leniency. Bynum made it her practice to urge people to tell the truth. At the beginning of the interview, appellant told Bynum that he had turned himself in to stay out of trouble on a probation violation. During cross-examination, Bynum denied remembering if appellant was told it would be to his advantage to make a statement.

(4) The Courts Ruling.

After argument on the admissibility of appellants statements, the court made the following findings. On April 12, 2002, the detectives advised appellant of his Miranda rights, and appellant gave the answers that were indicated at that time. Appellant knew full well what his Miranda rights were. Appellant subsequently had a change of heart after talking with his family. Bynums comment that it would be advantageous to give a statement occurred after appellant waived his Miranda rights, and his statement was voluntary. The court denied the suppression motion.

b. Analysis.

Appellant claims his statements on April 12, 2002, were obtained in violation of Miranda and involuntary. He argues (1) on April 12, appellant was confused about his Miranda rights, as evidenced by his statements on April 15, (2) on April 12, Miller encouraged appellant to tell his story and repeatedly told appellant that it was to his advantage to do so, (3) appellants April 12 confession was involuntary because he was barely 16 years old at the time, and (4) during the April 15 interview, detectives told appellant he could not have a lawyer present during questioning. We reject appellants claim.

A minor may waive his constitutional right against self-incrimination. The admissibility of a confession depends upon the totality of the circumstances which existed at the time the confession was obtained. (People v. Lara (1967) 67 Cal.2d 365, 389 . . . .) Included in the totality of circumstances standard are such factors as age, intelligence, education and ability to comprehend the meaning and effect of a confession. (Id. at p. 383.) (In re John S. (1988) 199 Cal.App.3d 441, 445.) Under federal and California constitutional law, the prosecution must show voluntariness of a confession by a preponderance of the evidence. [Citations.] . . . [] In reviewing a finding of voluntariness we make an independent examination of the record and determine the ultimate issue independently as well. With respect to conflicting testimony, however, we accept the version favorable to the People to the extent it is supported by the record. [Citations.] (In re Aven S. (1991) 1 Cal.App.4th 69, 75-76.) A trial courts ruling on a Miranda issue may not be set aside unless it lacks the support of substantial evidence. (People v. Siripongs (1988) 45 Cal.3d 548, 575.)

As to whether appellant was confused about his Miranda rights on April 12, there is no dispute that on April 12, Bynum properly advised appellant of, and appellant impliedly waived, his Miranda rights prior to talking to Bynum. Appellants argument really pertains to whether that waiver was voluntary. (See People v. Michaels (2002) 28 Cal.4th 486, 511-512.) Although appellant offers his April 15 conversation as evidence that his April 12 waiver was involuntary, the trial court reasonably concluded, in effect, that that conversation merely reflected buyers remorse after appellant spoke with his grandmother.

As for Millers encouragement to appellant to tell his story, it is settled that advice or exhortation by a police officer to an accused to tell the truth or that it would be better to tell the truth unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary. (People v. Hill (1967) 66 Cal.2d 536, 549 (Hill).)

Thus, the Supreme Court in Hill observed, [w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. (Hill, supra, 66 Cal.2d at p. 549.) In the present case, Bynum did no more than point out a benefit to appellant which merely flowed naturally from a truthful and honest course of conduct. The trial court was not obligated to believe appellants testimony or any defense evidence of indications of leniency.

As for the fact that appellant was barely 16 years old, the court in the case of In re Charles P. (1982) 134 Cal.App.3d 768 (Charles P.), was presented with a similar issue. Charles P. observed, The fact that the appellant was only 12 years of age at the time the offense was committed requires strict scrutiny of the record. We have done so and find that the conclusions of the trier of fact were reasonable under the circumstances of this case. Appellant was a worldly 12-year-old. He was on probation and had been advised of his Miranda rights on a prior occasion . . . . Considering the fact that the appellant had a prior experience with the juvenile court, it would be reasonable to assume that he knew what the role of an attorney was in the juvenile law process. At no time did the appellants actions or words suggest a lack of understanding of his rights. (Id. at p. 772.) Charles P.s reasoning is largely applicable in the present case, and notwithstanding appellants later April 15 protestations.

In the case of In re Norman H. (1976) 64 Cal.App.3d 997, the fact that the defendant was a 15-year-old minor with the IQ of a 7-year-old child (id. at p. 1002) did not compel the conclusion that he did not validly waive his Miranda rights. (Id. at p. 1003.) Neither a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood. (Ibid.)

As to appellants argument that detectives told him on April 15 that he could not have a lawyer present during questioning, any such statement obviously did not affect his April 12 waiver and statement. Moreover, as mentioned, Bynum admonished appellant on April 12 that he had a right to speak with an attorney and to have an attorney present during questioning, and there is no dispute as to the validity of the admonition. Appellant was entitled, not to questioning, but to the presence of an attorney during any questioning. The detectives were free not to question appellant if he wanted an attorney. The detectives never told appellant that, during questioning, he could not have an attorney present.

We hold there is sufficient evidence that appellant knowingly, intelligently, and voluntarily waived his Miranda rights on April 12, 2002, and his statement on that date was voluntary. (Cf. People v. Clark (1993) 5 Cal.4th 950, 987-992; Hill, supra, 66 Cal.2d at pp. 549-550; In re Aven S., supra, 1 Cal.App.4th at pp. 76-77; People v. Spears (1991) 228 Cal.App.3d 1, 27-28.) None of the cases cited by appellant, or his argument, compels a contrary conclusion.

2. The Court Did Not Err by Denying Appellants Motion for a Mistrial.

a. Pertinent Facts.

During jury trial, an issue arose as to whether jurors had heard a conversation between Bynum and two apparent gang members who had been suspected of intimidating witnesses. The court asked the jury if any of them overheard any conversation between Bynum and persons in the hall during any break in proceedings. Juror Nos. 5 and 7, and alternate juror No. 2, indicated they had.

Later, the court separately questioned each of them outside the presence of the jury. Juror No. 5 indicated as follows. Juror No. 5 heard Bynum ask the two men to please leave, and said she would arrest them if they did not. Juror No. 5 was paraphrasing Bynums statement. Nothing juror No. 5 may have heard would affect juror No. 5s ability to fairly decide the case, and juror No. 5 would be able to disregard what juror No. 5 may have heard, and not discuss it with other jurors.

Subsequently, juror No. 7 indicated the following. Bynum was among a small group of people and one of them, a male, asked Bynum if it was legal for her to harass him like Bynum was doing. That was all juror No. 7 heard. Nothing juror No. 7 may have heard would affect juror No. 7s ability to fairly decide the case, and juror No. 7 would be able to disregard what juror No. 7 may have heard, and not discuss it with other jurors.

Alternate juror No. 2 indicated she merely heard Bynum questioning the two males, and them responding defensively. The two males earlier had been sitting in the back of the courtroom. Bynum had asked questions about their identity. The two males stood out as looking like gang members, and this did not make alternate juror No. 2 feel real good. One of the males wore a tattoo that was at issue in the case. Alternate juror No. 2 vaguely heard Bynum say something, and both males commented. Bynum later said something to the effect that if the males did not tell her, she would have an officer ask the two. The two males showed identification to Bynum.

The court asked alternate juror No. 2 what effect these observations had on alternate juror No. 2. Alternate juror No. 2 said the jury a little bit kind of joked about it when we got in there. Everyone did so, being a little nervous. Alternate juror No. 2 commented, things from television come into play, like are these guys going to find us later. All the jurors were talking about it as soon as they entered the jury room, and they all saw the two males.

The court indicated it was not interested in what other jurors saw but what alternate juror No. 2 saw. Alternate juror No. 2 indicated jurors questioned alternate juror No. 2 briefly when they were in the jury room. Alternate juror No. 2 indicated that nothing alternate juror No. 2 may have seen or heard would interfere with alternate juror No. 2s ability to be impartial.

Appellant moved for a mistrial, arguing the jury possibly had been contaminated by what had occurred, and jurors may have feared reprisal. The court reserved ruling on the motion pending examination of the remaining jurors. During separate questioning by the court, each of jurors 1, 4, 7, 8, 9, and 12 indicated that he or she had not heard any comment in the jury room about danger or an event that occurred in the hallway, and he or she had not seen anything that would affect his or her ability to be impartial.

Moreover, juror No. 1 said juror No. 1 walked away from the hallway event, and a juror or alternate juror commented about danger, but none of this would affect juror No. 1s ability to be impartial. Juror No. 3 said no one used the word danger in the jury room, someone commented about the hallway event, and none of this would affect juror No. 3s ability to fairly weigh the evidence.

Juror No. 2 said some jurors talked about what they had seen or heard in the hallway, but juror No. 2 reminded the jury that they were not supposed to talk about such matters. Juror No. 5 said two jurors commented in the jury room about some type of danger, but juror No. 5 thought they were joking. The comment had something to do with someone trying to scare the jurors, but juror No. 5 was not scared. Alternate juror No. 3 said that a juror had said that he or she had overheard a hallway conversation. Juror No. 11 said she overheard Bynum asking the two men if they would leave because their presence could make jurors uncomfortable in certain situations. That was all juror No. 11 overheard. However, juror No. 11 also indicated she may have heard Bynum intimate to the two men that the situation could be very harmful. Juror No. 11 denied Bynum used the word danger. One of the two men suggested they merely had been sitting in the courtroom to watch the proceedings. Juror No. 11 said only alternate juror No. 2 had commented in the jury room about safety or danger. Each of jurors 1, 2, 3, 5, alternate juror No. 3, and juror No. 11 indicated nothing that had occurred would affect his or her ability to be impartial.

The court later stated it was going to deny the motion for mistrial. The court also indicated the following. It appeared as though individual jurors may have overheard comments made by Bynum and spectators. Alternate juror No. 2. also apparently mentioned the issue. The court had had an opportunity to hear from the individual jurors and observe their demeanor and appearance, and each juror indicated to the court his or her willingness to decide the case based only on the evidence and law, and to disregard anything that may have been seen or heard in the hallway or while jurors were waiting in the jury room. The court was satisfied that if there was any misconduct, perhaps by alternate juror No. 2, any presumption of prejudice has been overcome. The comment appeared to have been innocuous. The court was satisfied that each juror would continue to follow his or her sworn oath in this case. The court saw no prejudice to appellant from anything that may have transpired, and continued to believe each juror would decide the case based only on the law. The court denied appellants motion for a mistrial.

b. Analysis.

Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. . . . [] We assess the effect of out-of-court information upon the jury in the following manner. When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] (People v. Nesler (1997) 16 Cal.4th 561, 578.) If review of the entire record demonstrates that appellant suffered no prejudice from the alleged misconduct, reversal is not required. (People v. Zapien (1993) 4 Cal.4th 929, 994.)

We have recited the pertinent facts. The court conducted a thorough inquiry of each juror outside the presence of other jurors. To the extent any juror saw or heard the incident in the hallway, the receipt of that information was inadvertent. Each of the jurors and alternate jurors indicated the incident would not affect his or her ability to be fair and impartial. The trial court had the benefit of observing the demeanor of the jurors and alternate jurors, and the trial court believed the jurors and alternate jurors would decide the case based only on the law and evidence. Apart from whether jury misconduct occurred, we conclude the judgment need not be reversed as a result of the trial courts denial of appellants motion for a mistrial, since the record rebuts the presumption of prejudice and there is no substantial likelihood the incident prejudiced appellant. (Cf. People v. Zapien, supra, 4 Cal.4th at p. 994.)

3. Sufficient Evidence Supported Appellants Conviction for First Degree Felony Murder With Special Circumstances Based on Burglary and Attempted Carjacking.

Appellant claims there was insufficient evidence that, based on the predicate felony of attempted carjacking, he committed felony murder or first degree murder, or that a special circumstance existed. We reject the claim.

This matter was prosecuted as a felony murder case. The prosecutor argued to the jury that appellant was guilty of felony murder, the murder was of the first degree, and special circumstances existed, based on burglary and attempted carjacking as predicate felonies. The prosecutor did not argue, and the court did not explicitly instruct the jury on, express or implied malice.

Murder is the unlawful killing of a human being . . . with malice aforethought. (Pen. Code,  187, subd. (a).) All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . carjacking, . . . [or] burglary, . . . is murder of the first degree. (Pen. Code,  189.) The felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder. [Citations.] As we have explained: Implied malice, for which the second degree felony-murder doctrine acts as a substitute [fn. omitted], has both a physical and a mental component. . . . The mental component is the requirement that the defendant knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life. [Citation.] [] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. [Citation.] (People v. Robertson (2004) 34 Cal.4th 156, 165.)

Penal Code section 190.2, subdivision (a)(17)(G) and (L), state, The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found . . . to be true: [] . . . [] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [] . . . []  (G) Burglary in the first or second degree in violation of Section 460. [] . . . [] (L) Carjacking, as defined in Section 215.

Penal Code section 190.2, states, in relevant part, (b) . . . an actual killer, as to whom the special circumstance has been found to be true . . . need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole. [] (c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true . . . . [] (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true . . . .

The phrase reckless indifference to human life in Penal Code section 190.2, subdivision (d) means that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. (People v. Estrada (1995) 11 Cal.4th 568, 577.) The meanings of the term major in major participant include notable or conspicuous in effect or scope. (People v. Smith (2005) 135 Cal.App.4th 914, 928.)

When a defendant challenges on appeal the sufficiency of the evidence, Our power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.] (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)

For purposes of our analysis, appellant was guilty, if at all, as the actual killer or an accomplice. Appellant argues Saucedo was the actual killer. Insofar as Saucedo was the actual killer, there is no dispute that Saucedo committed first-degree felony murder with special circumstances by committing the murder during a burglary and attempted carjacking. Nor is there any dispute that, if Saucedo was the actual killer, he intended to commit a burglary of the garage and the carjacking of the decedents car. The remaining issues are whether there was substantial evidence that appellant was an accomplice and if, as to him, special circumstances existed.

Penal Code section 31, states, in relevant part, that [a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. Moreover, a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Factors relevant to a determination of whether a defendant was an accomplice include presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)

There was substantial evidence as follows. After the garage gate was opened, and shortly before or after the decedent drove into the garage, appellant and Saucedo entered it. According to appellant, he had a screwdriver and, therefore, something that could be used as a weapon. Appellant and Saucedo went to the van, and appellant went to one side of the van while Saucedo went to the other. Appellant concedes there was substantial evidence that he intended to commit auto theft or burglary.^[4]

Appellant and Saucedo later approached the decedents car. Even assuming Saucedo was on the drivers side of the decedents car and Saucedo shot the decedent, appellant was present on the other side at the time. Based on the previous circumstances, there was substantial evidence that appellant was present, not merely as a bystander, but ready to assist Saucedo. Both fled after the shooting and, if appellant be believed, appellant fled after Saucedo told him to do so. Appellant offered no aid to the decedent.

About three minutes after the shooting, appellant entered the back seat of Rodriguezs car, and appellants hand was wrapped in a sweater. This supported an inference that appellant was hiding a weapon, perhaps the gun. Appellant and Saucedo entered Rodriguezs car together, Rodriguez drove the two of them away, and one of the two said he was a gang member. Appellant gave conflicting accounts to police as to when he first became aware of Saucedos possession of a gun. The conflicts supported an inference that appellant was fabricating to conceal his early knowledge that Saucedo had a gun.

Based on these facts, we conclude there was substantial evidence that appellant aided Saucedo in the killing of the decedent. Moreover, we also conclude there was sufficient evidence that appellant knew of, and shared, Saucedos criminal intent to carjack the decedents car. Accordingly, we further conclude there was sufficient evidence that appellant committed murder, and that the murder was of the first degree,

based on the predicate felony of attempted carjacking. Further still, there is no dispute that appellant shared Saucedos intent to burglarize the garage. We conclude there was sufficient evidence that appellant committed murder, and that the murder was of the first degree, based on the predicate felony of burglary.

As to special circumstances, we need not decide whether appellant intended to kill as required by Penal Code section 190.2, subdivision (c). As mentioned, there was substantial evidence that appellant was an accomplice to murder, and that the murder was of the first degree, based on burglary and attempted carjacking, including the fact that Saucedo was armed with a firearm. We believe that evidence also provided substantial evidence that appellant was subjectively aware that his participation in the felonies of burglary and attempted carjacking involved a grave risk of death, and his participation was notable and conspicuous in effect and scope, for purposes of Penal Code section 190.2, subdivision (d). Accordingly, we conclude there was sufficient evidence that appellant committed felony murder, first degree murder, and that special circumstances existed, based on the predicate felonies of burglary and attempted carjacking.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P.J.

ALDRICH, J.

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^[1] (Miranda v. Arizona (1966) 384 U.S 436 [16 L.Ed.2d 694].)

^[2] The full admonition was: You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to speak with an attorney and to have the attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning.

^[3] The full admonition was: You have the right to remain silent. Anything you say can and will be used against you in a court of law. [] You have the right to talk to a lawyer before we talk to [sic] and have him present while we talk to you. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning free of charge.

^[4] Appellant asserts in his opening brief, As to Count Two, carjacking [sic], the jury was instructed that it could consider whether carjacking was a probable and foreseeable consequence of appellants intent to commit auto theft or burglary, and appellant does not dispute that was a question of fact properly before the jury.