P. v. Soto

Filed 9/17/07 P. v. Soto CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

A jury convicted Ramon Soto of premeditated attempted murder (count 1) and first-degree murder (count 2), in both of which Soto used and discharged a firearm causing great bodily injury or death and furthered the interests of a gang.^[1] In a bifurcated hearing after a jury waiver, the court found Soto had one serious conviction qualifying as a strike, and two prison term, prior felony convictions.^[2] The court imposed an aggregate 135 years-to-life sentence: on count 1, 15 years-to-life pursuant to the gang enhancement, doubled to 30 years-to-life as a second strike, plus a consecutive 25 years-to-life for discharging a firearm causing great bodily injury, for a total of 55 years-to-life; on count 2, 25 years-to-life, doubled to 50 years-to-life as a second strike, plus a consecutive 25 years-to-life for discharging a firearm causing death, for a total of 75 years to life; and a consecutive five years for the prior serious felony conviction. The court struck the prior prison term enhancements for sentencing purposes.

Soto timely appealed. He contends the court erred in (I) admitting pretrial, inconsistent, allegedly involuntary and coerced statements of prosecution witnesses which implicated him as the perpetrator of the crimes, to which his counsel incompetently failed to object; (II) failing to instruct the jury how to weigh inculpatory evidence from an accomplice because substantial evidence supported a conclusion one of the prosecution witnesses was an accomplice; and (III) failing to instruct the jury assault with a firearm was a lesser included offense of attempted murder committed by discharging a firearm. He also contends (IV) insufficient evidence supports his convictions for both counts and the premeditation finding on count 1.

We reject these contentions and affirm the judgment.

FACTS AND PROCEEDINGS BELOW

In the summer of 2003, two rival street gangs fought for control of the Wilbur Apartments in the San Fernando Valley. Several members of the primarily Hispanic Bryant Street gang lived and sold drugs at the Wilbur Apartments. However, Paul Evans, a leader of the mostly African-American Dead End gang, also lived and sold drugs at another apartment in the complex. Sandra Doston, who lived in the complex, saw Soto, a member of the Hoover Crips gang which was allied with Dead End, spending time at Evans apartment. Sometime in mid-August 2003, Soto walked through the complex and asked Doston in an unfriendly, confrontational tone if we had seen . . . any of those Bryant Street . . . Mexicans.

Early in the morning of August 31, 2003, as Bryant Street member Efren Martinez left his girlfriends apartment in the Wilbur Street complex, someone fired three or four shots at him, hitting him once in the chest. Martinez was badly wounded but survived. Police found several shell casings, all of the same caliber (suggesting they were fired from a single gun), at the scene.

A few weeks later, police interviewed Martinez, who initially told the officers he would not cooperate and would settle the matter himself. In an attempt to elicit information Martinez otherwise might withhold, the officers falsely told him they would not disclose anything he said, and he would not have to testify. He first told the officers he hadnt seen the face of the person who had shot him because the person was wearing a hat. But when shown a collection of six photographs of possible suspects, Martinez circled Sotos picture as being similar to his attacker, and said he had seen Soto at the complex before he was shot. However, contrary to his preliminary hearing testimony, at trial Martinez, who did not want to testify, denied circling Sotos photo or seeing him before the shooting, maintained the officers pressure[d] him into so stating, and claimed his assailant wore a ski mask, preventing him from making any identification.

Doston heard the gunshots from the Martinez shooting. A few hours later, Evans apartment was fire bombed by several Molotov cocktails.

Two days later, on the morning of September 2, 2003, Ronald Locks was driving a few blocks from the Wilbur Street complex when he saw a white car, occupied only by its Hispanic or white driver, run a red light. Locks heard gunshots, then drove by a parked car with broken glass from which someone was alighting from the front passenger door. The white car had driven by the parked car. Locks got a partial license plate number for the white car and later reported the information to the police. Meanwhile, officers summoned to the parked car found Norberto Lopez, Martinez friend who was associated with but not a member of Bryant Street, slumped behind the steering wheel with a single gunshot wound to his head. Lopez died shortly thereafter. Police found several shell casings at the scene.

When police ran the partial license plate number provided by Locks, they learned Dead End member Brian Dingles mother had rented one of the possible cars which matched Locks description, and a friend of Dingles had rented a second such car. Locks identified a photo of a similar car as similar to the car he had seen. After further investigation, the police arrested Dingle for the Lopez murder. Initially, Dingle refused to speak with the police until counsel was appointed. Dingles attorney advised him not to talk to the police. The next day, Dingle told the police he wanted to speak with them. The detectives contacted Dingles attorney, who came to the station. Dingle insisted on speaking with the detectives despite his attorneys advice, but his attorney was present during the interview. Dingle, who feared he could be charged with the murder, initially lied to the officers, claiming Soto told him about the murder in a telephone call. As they had promised, the detectives released Dingle after the interview.

Later, Dingle contacted the detectives and said he wanted to talk to them again with his attorney present. Two such interviews followed. In these later interviews, Dingle told the police, and testified consistently at the preliminary hearing and trial, he, Soto and Evans were friends, members of affiliated gangs, and spent time together at Evans apartment at the Wilbur Street complex. Sometime before the Martinez shooting and the retaliatory firebombing, the three men were at Evans apartment when two Bryant Street members approached and challenged them. Despite Evans protests, Soto produced a gun and fired at the Bryant Street members. Soto and Dingle fled; Dingle later learned Evans had negotiated a truce with Bryant Street, explaining Soto, a member of an affiliated gang, had acted alone.

On the morning of September 2, 2003, the day of the Lopez killing, Dingle drove Soto to the Wilbur Street complex in one of the white rental cars after learning of the arson of Evans apartment, to inspect the damage. Soto later asked Dingle if he could borrow the car to go to the store. Dingle gave Soto the keys, and Soto drove off. Within 30 minutes, Dingle heard multiple gunshots and saw several nearby Dead End members smirk[ing]. Soto returned in the car alone about 15 minutes later, picked up Dingle, and drove off hysterical[.] When Dingle asked Soto what did you do[,] Soto replied, I popped two . . . Mexican gang bangers. (Italics added.) When Dingle asked Soto why he had used Dingles car, Soto replied he was an active[] Hoover Crips gang member. Soto stopped the car, alighted, and Dingle drove away. Dingle received immunity from prosecution for the crimes in this case in exchange for his truthful testimony. He was being relocated and feared gang retaliation for testifying.

During the investigation, Doston told the detectives Arlan Melchor, the son of a friend, had spoken to Soto about the crimes. As a result, the detectives twice interviewed Melchor, Sotos friend and distant relative, who was serving a sentence after conviction for robbery and receiving stolen property. Melchor testified for the prosecution at the preliminary hearing and trial. Melchor spent time at the Wilbur Apartments and knew Doston, who was friends with his mother, Evans, and the Bryant Street and Dead End gangs. Police tape-recorded their interviews with Melchor. Police spoke with Melchor again shortly before his preliminary hearing testimony. The court admitted recordings and transcripts of Melchors tape-recorded interviews. Because gang members are reluctant to cooperate with police, the detectives falsely told Melchor Soto had spoken to them and asked them to speak to Melchor, who would provide information which would help Soto. The detectives also falsely suggested Soto told them he shot in self-defense. The detectives did so hoping the false information would motivate Melchor to provide information he otherwise would withhold. Also in an attempt to elicit information Melchor otherwise might withhold, the detectives said Martinez, the attempted murder victim, deserved what he got because he was an active Bryant Street member. However, the detectives repeatedly told Melchor they only wanted him to tell the truth. Melchor told the detectives Soto had admitted getting into a shootout with some Bryant Street members sometime before the Martinez shooting and retaliatory firebombing, was present at the Martinez shooting and seen the dude go down, and knew another Bryant Street member was shot in the head and killed. Melchor insisted, however, Soto never admitted shooting either Martinez or Lopez.

Contrary to his preliminary hearing testimony, however, at trial Melchor denied making any incriminatory statements regarding Soto during any of his police interviews. He insisted any information he had about the crimes came from general knowledge, not from Soto. He claimed any incriminatory information came not from him but from the officers, who told him they had spoken to Soto and were interviewing him to see if he had any information which could help Soto. Melchor repeatedly said he did not want to testify and, although he claimed not to be afraid, described how anyone, including gang members, who cooperates with police or prosecutors, particularly by testifying, is subject to gang retaliation.

During his police interviews, Melchor said Roger Mills, his and Sotos friend, was party to Melchors telephone conversation with Soto. As a result, the detectives interviewed Mills, who later testified for the prosecution while in custody for residential burglary. When the detectives first tried to contact Mills, he ran away. The officers asked Mills father to have Mills contact them. Shortly thereafter, Mills did so. Although Mills was not in custody during the interview, the detectives told him he could be prosecuted as an accessory. Again hoping to elicit information Mills otherwise would withhold, they played portions of the tape recording of their interview with Melchor (suggesting Mills already was implicated by others who had implicated Soto), falsely said they had interviewed Soto in custody during which he said Mills was the shooter, and suggested Soto may have acted in self-defense. The detectives asked Mills if Soto had made any admissions to him about the crime, and told him they were interested only in the truth. Mills told them that shortly after the crimes, Soto telephoned him and said he had had problems with the same people as before, they had displayed guns or shot at him, and he shot someone in the head. At trial, however, Mills denied making that statement and claimed Soto called him before the crimes in this case and said only someone had been shot.

A police gang expert opined hypothetical facts paralleling the two shootings and retaliatory firebombing described a war between the two gangs to maximize their power and respect among both gang and non-gang members, and both shootings were committed to further gang purposes. The expert also opined gang members would retaliate against anyone, including fellow gang members, who cooperated with police or prosecutors; as a result, gang and non-gang witnesses were reluctant to do so.

Soto neither challenged introduction of any witness pretrial statements nor presented a defense. The parties did not request and the court did not give instructions regarding evaluating the testimony of accomplices, the related corroboration requirement, or assault with a deadly weapon as a lesser-included crime of attempted murder committed by firing a gun. The jury convicted Soto of premeditated attempted murder and first-degree murder.

DISCUSSION

I. THE COURT PROPERLY ADMITTED THE PROSECUTION WITNESSES VOLUNTARY PRETRIAL INCONSISTENT STATEMENTS, TO WHICH SOTOS COUNSEL PROPERLY FAILED TO OBJECT.

Soto contends the court erred in admitting the pretrial inconsistent statements of Martinez, Dingle, Melchor, and Mills because the pretrial statements were involuntary and coerced. Soto further argues those witnesses trial testimony was a product of the earlier coercion. Soto and the Attorney General agree Sotos counsel waived the issue by failing to object,^[3]but Soto argues counsels failure constituted prejudicially incompetent representation.^[4] Although the parties further agree Sotos counsel was not asked for and did not provide an explanation for this omission, Soto argues we should address the issue rather than defer to habeas relief because no valid tactic excused the omission.^[5]

Although we agree with the parties Soto waived the issue, we address the merits because if the statements should have been excluded, their admission was prejudicial, and no tactic could justify a failure to object. However, we conclude the court properly admitted the statements; thus, any such objection would have been futile; and, since counsel need not make futile objections, counsel provided adequate representation.^[6] Because of our conclusion, we do not further discuss Sotos incompetence claim.

As the parties agree, defendants may challenge admission of coerced and thus involuntary statements from third parties. To exclude such statements, the defendant must show the statement was coerced and involuntary.^[7] On appeal, we review the whole record to determine whether the defendant has met that burden.^[8]

In reviewing the totality of the facts in this case, we begin with the undisputed gang background of the crimes, which arose from the ongoing conflict between the primarily Hispanic Bryant Street gang and the primarily African-American Dead End gang. All the challenged witnesses were directly or indirectly involved in the feud and the resulting retaliatory violence. Martinez, the attempted murder victim, was a Bryant Street member; Dingle, who lent Soto the car from which he shot and killed Lopez, was a Dead End member; Melchor and Mills, both convicted felons, were associated with Dead End. All four witnesses knew, followed, and feared the gang code in which no one cooperated with the authorities in criminal investigations and anyone, even fellow gang members, who did was subject to reprisals as a snitch. Under these circumstances, the detectives reasonably surmised all the witnesses, the victim and suspects, would refuse to cooperate, and reasonably used interrogation techniques designed to overcome the witnesses reluctance to provide information. Although this background does not per se justify these police tactics, it is a significant factor in analyzing Sotos coercion claim.

We conclude none of the witnesses challenged pretrial statements was coerced. As to Martinez, the only allegedly coercive police tactic was the officers telling him he would not have to testify. Soto cites no authority suggesting such conduct is coercive, particularly in the gang-related context of the case. Moreover, as with Melchor and Mills, Martinez felt no pressure to conform his trial testimony to his earlier statements, recanting all his incriminating pretrial statements.

As to Dingle, none of the allegedly improper police conduct undermines the voluntariness of his pretrial statements or testimony. Dingle originally was arrested for the Lopez murder because he was associated with the car from which the fatal shot was fired. Soto does not claim the arrest was unsupported by probable cause and thus improper or unfairly coercive; indeed, in his second contention he argues Dingle was an accomplice to the murder, and thus subject to prosecution as a principal. Dingle was represented by counsel at all his pretrial interviews, greatly limiting any actual or implied coercion. Moreover, neither Dingles arrest for murder, the detectives promise to release him after the first interview, nor his immunity agreement which required only his truthful testimony was improper.^[9]

As to Melchor and Mills, neither the detectives threats of prosecution as accessories nor their lies about the evidence they claimed to have in the case rendered the pretrial statements involuntary. Melchor already was in custody on unrelated felony charges. In context, the threats of prosecution as an accessory were mild, not unfounded, and tempered by the officers statements they did not think either man had any involvement in the crimes other than to have heard Sotos admissions. In any event, [t]here is nothing improper in confronting a suspect with the predicament he is in, or with an offer to refrain from prosecuting the suspect if he will cooperate with the police investigation.^[10]

Finally, police fabrications claiming they have more evidence than they actually possess do not render confessions involuntary.^[11] Cases have held similar lies about the evidence did not render confessions involuntary.^[12] Here, the false claims Soto admitted being a shooter, claimed to have shot in self-defense, hoped Melchor would provide exculpatory information, and said Mills was the shooter were no more likely to elicit false statements than those found non-coercive in the cited cases. The officers told Mills they did not believe he was the shooter, and repeatedly told all the witnesses they wanted only truthful testimony. The officers never demanded, promised leniency in exchange for, nor threatened prosecution in the absence of, specific statements. Thus, this case is distinguishable from People v. Lee, on which Soto primarily relies.^[13] In Lee, the police told the witness a polygraph exam showed the witness was the killer, and he would be prosecuted for murder unless he said the defendant was the killer. Lee held these police tactics coercive under the circumstances and the admission of the statements prejudicial, particularly since admission of evidence the witness was given a polygraph test and his responses constituted independent prejudicial error. Nothing remotely similar occurred in our case.

Because none of the police conduct, alone or together, rendered the statements coerced or involuntary, the court properly admitted all the statements, any objection should have been overruled, and Sotos counsel was not incompetent for failing to object.

II. ANY ERROR IN FAILING TO INSTRUCT REGARDING ACCOMPLICE LIABILITY WAS HARMLESS.

Soto contends the court prejudicially erred in failing to instruct the jury sua sponte regarding accomplice liability because the jury could conclude Dingle was an accomplice, or he was as a matter of law.^[14] The Attorney General does not dispute the court had a sua sponte duty to so instruct because substantial evidence supported such a conclusion, but argues the error was harmless because substantial evidence corroborated Dingles testimony. We agree with the Attorney General.

A conviction can not (sic) be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.^[15]

A conviction can be based on an accomplices testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplices testimony, tend to connect the defendant with the crime. The trier of facts determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.^[16] In determining whether there is sufficient evidence to corroborate the accomplices testimony, [a]n appellate court must view the evidence in a light most favorable to the verdict and must uphold the judgment if it is supported by substantial evidence.^[17]

Dingle admitted being Sotos friend and fellow Dead End member, being present when Soto fired at the Bryant Street members, and loaning Soto the car from which he fired the shot which killed Lopez. However, Dingle denied advance knowledge of or intent to aid the Lopez murder, or any knowledge regarding the Martinez shooting beyond Sotos statement that he popped two Mexican gang bangers. There was no evidence Dingle shared knowledge and intent and acted to facilitate the crimes or other violence against Bryant Street members before or during their commission, or aided Sotos post-crime escape. Locks testified only one person occupied the car when the shots were fired, and Soto picked up Dingle after the murder. Thus, we are not convinced Soto has carried his burden to show the court was required to instruct Dingle may be an accomplice; certainly, despite Sotos contrary argument, the court should not have instructed Dingle was an accomplice as a matter of law.

Assuming without deciding, however, the jury could have inferred such required knowledge and intent from the rest of the evidence if it rejected Dingles denial of the required knowledge and intent, and thus the court should have given accomplice instructions, we conclude Dingles testimony was adequately corroborated. We already have rejected Sotos contention Melchors and Mills pretrial statements should have been excluded. Melchor said Soto told him he was present at the Martinez shooting and seen the dude go down. The recovered shell casings suggested only one person fired at Martinez. Mills said Soto told him he shot Lopez in the head. Soto does not argue either Melchor or Mills were accomplices, and thus their statements alone adequately corroborate Dingles testimony. In addition, other independent evidence corroborated Sotos gang membership, animosity towards Bryant Street as shown by his pre-crime shooting at Bryant Street members, and identity as Martinez assailant as shown by Martinez identifying Soto as similar to his attacker. Thus, we conclude there was no reasonable probability that [Soto] would have received a more favorable result if the trial court instructed the jury to view [Dingles] testimony with distrust.^[18]

III. THE COURT DID NOT ERR IN FAILING TO INSTRUCT SUA SPONTE REGARDING ASSAULT WITH A DEADLY WEAPON AS A LESSER INCLUDED CRIME OF ATTEMPTED MURDER COMMITTED BY FIRING A GUN.

We reject Sotos contention the court erred in not instructing sua sponte regarding assault with a deadly weapon as a lesser included crime of attempted murder based on the allegation and evidence showing he committed the attempted murder by firing a gun. Our Supreme Court rejected the contention 24 years ago in an opinion which never has been overruled.^[19] The court recently reaffirmed the decision, rejecting arguments (identical to those advanced by Soto) claiming the decision was wrong and later decisions from the California and United States Supreme Courts compelled the opposite conclusion.^[20] We are bound by those decisions.^[21]

IV. SUFFICIENT EVIDENCE SUPPORTS SOTOS CONVICTIONS.

Soto contends insufficient evidence exists to show (1) he committed either the Martinez attempted murder or the Lopez murder, and (2) the attempted murder was premeditated. On the first point, Soto repeats the witnesses pretrial statements should have been excluded, and argues the remaining evidence is insufficient to support the inference he committed either crime. On the second point, he argues the evidence was insufficient to show he premeditated the attempted murder, primarily arguing there was no evidence of gang conflict when he shot Martinez. These arguments lack merit.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonable deduce from the evidence. [] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder.^[22] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [Citation.]^[23]

As to the first claim, we need not list either crimes elements, since Soto does not claim the evidence is insufficient to support any element, but argues only it does not show he perpetrated the crimes. We already have rejected Sotos claim the witnesses pretrial statements should have been excluded. Soto told Melchor he was present at the Martinez shooting and seen the dude go down. Soto told Mills he shot Lopez in the head. Soto told Dingle he popped two Mexican gang bangers. Combined with the rest of the evidence, those statements sufficiently show Soto committed both crimes.

As to the second claim, the court properly defined deliberation and premeditation as relevant to attempted murder for the jury pursuant to CALJIC No. 8.67.^[24] On appeal, Soto does not challenge the accuracy of the instruction. The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing--what may be characterized as planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a pre-existing reflection and careful thought and weighing of considerations rather than mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victims life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).^[25]

The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] Nor did Anderson change the traditional standards of appellate review . . . .  The Anderson guidelines are descriptive, not normative. [Citation.] . . . .  []  In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.] . . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.^[26]

Applying these principles to our facts, we conclude sufficient evidence supports the jurys finding the attempted murder of Martinez was premeditated. Soto argues there was insufficient evidence of any animus by him towards Bryant Street at the time of the Martinez shooting. We disagree. Before the Martinez shooting, the evidence disclosed Soto was an active Hoover Crips member, a gang allied with Dead End, and knew and spent time with Evans at his apartment. Doston saw Soto ask about Bryant Street in a confrontational way. Dingle saw Soto initiate a shootout with Bryant Street members despite Evans attempts to dissuade him. Soto told Melchor the same thing, and told Mills he had trouble with the same adversaries as before. Sotos admission to Dingle he shot two Hispanic gang members because he was an active Hoover Crips member shows his motive was gang related. This evidence sufficiently supports the jurys finding the attempted murder was premeditated as part of the ongoing war between Bryant Street and Dead End.

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, Acting P. J.

We concur:

WOODS, J.

ZELON, J.

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^[1] Penal Code sections 664, subdivision (a), 187, subdivision (a), 189; 12022.53, subdivisions (b)-(d); 186.22, subdivision (b); all further section references are to the Penal Code.

^[2] Sections 667, subdivisions (a)-(i), 1170.12; 667.5, subdivision (b).

^[3]People v. Maury (2003) 30 Cal.4th 342, 387-388 [failure to object to pretrial statements as involuntary, a constitutional issue, waived issue on appeal]; People v. Waidla (2000) 22 Cal.4th 690, 717 [failure to object to admissibility of evidence waives such challenge on appeal].

^[4]Strickland v. Washington (1984) 466 U.S. 668; In re Cudjo (1999) 20 Cal.4th 673, 687.

^[5]People v. Lewis (2001) 25 Cal.4th 610, 674-675.

^[6]People v. Smithey (1999) 20 Cal.4th 936, 992.

^[7]People v. Jenkins (2000) 22 Cal.4th 900, 966-968; People v. Badgett (1995) 10 Cal.4th 330, 338, 342-350; People v. Lee (2002) 95 Cal.App.4th 772, 781, 788.

^[8]People v. Badgett, supra, 10 Cal.4th at pages 350-352.

^[9]People v. Badgett, supra, 10 Cal.4th at pages 352-355, 357-363.

^[10]People v. Badgett, supra, 10 Cal.4th at p. 355, citations omitted.

^[11]People v. Jones (1998) 17 Cal.4th 279, 299; People v. Lee, supra, 95 Cal.App.4th at page 785.

^[12]People v. Thompson (1990) 50 Cal.3d 134, 159-162, 166-170 [false police claims they had tire tracks and soil samples placing defendants car at the crime scene, and physical evidence placing the victim in defendants car and bedroom]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [police falsely told defendant they had recovered his fingerprints from the robbery getaway car]; People v. Pendarvis (1961) 189 Cal.App.2d 180, 186 [police falsely told defendant the victim had identified him].

^[13]People v. Lee, supra, 95 Cal.App.4th at pages 781-792.

^[14] CALJIC Nos. 3.10 (accomplice defined), 3.11 (accomplice testimony must be corroborated), 3.12 (sufficiency of corroborating evidence), 3.13 (corroboration cannot come exclusively from other accomplices), 3.14 (required intent to be an accomplice), 3.16 (instruction that a particular witness is an accomplice as a matter of law), and 3.18 (accomplice testimony must be viewed with caution) (Spring 2007 ed.); CALCRIM Nos. 334 and 335 (same) (Fall 2006 ed.). All further CALJIC references are to the Spring 2007 edition.

^[15] Section 1111; People v. Boyer (2006) 38 Cal.4th 412, 466-467; People v. Hill (1998) 17 Cal.4th 800, 851; People v. Campbell (1994) 25 Cal.App.4th 402, 409.

^[16]People v. McDermott (2002) 28 Cal.4th 946, 985-986, internal citations omitted.

^[17]People v. Garrison (1989)47 Cal.3d 746, 774.

^[18]People v. Lewis (2001) 26 Cal.4th 334, 371 [applying People v. Watson (1956) 46 Cal.2d 818, 837 miscarriage of justice standard of prejudice to erroneous failure to instruct regarding accomplice evidence].

^[19]People v. Wolcott (1983) 34 Cal.3d 92, 98-102.

^[20]People v. Sloan (2007) ___ Cal.4th ___ [2007 DJDAR 12431, filed 8/16/07]; People v. Iazguirre (2007) ___ Cal.4th ___ [2007 DJDAR 12437, filed 8/16/07].

^[21]Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

^[22]People v. Ochoa (1993) 6 Cal.4th 1199, 1206, internal quotations and citations omitted.

^[23]People v. Hill, supra, 17 Cal.4th at p. 849.

^[24] As relevant, the court instructed the jury: Willful means intentional. [] Deliberate means formed, or arrived at, or determined upon, as a result of careful thought and weighing of considerations for and against the proposed course of action. [] Premeditated means considered beforehand. [] If you find that the attempted murder was preceded and accompanied by a clear deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of . . . deliberation, [it] is an attempt to commit willful, deliberate and premeditated murder. [] . . . [T]he law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. [] A cold calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation. [] To constitute willful, deliberate and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing, and the reasons for and against such a choice, and having in mind the consequences decides to kill and makes a direct, but ineffectual, act to kill another human being. [] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.

^[25]People v. Anderson (1968) 70 Cal.2d 15, 26-27.

^[26]People v. Perez (1992) 2 Cal.4th 1117, 1125.