P. v. Bell

Filed 6/8/07 P. v. Bell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart and Patrick F. Magers, Judges.^* Affirmed as modified.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Terry Lee Bell.

Bensinger, Ritt & Tai and Kerry R. Bensinger for Defendant and Appellant Natalie Le DeMola.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Michael Long.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Natalie DeMola conspired with her boyfriend, defendant Terry Bell, and with their mutual acquaintance, defendant Christopher Long, to kill DeMolas mother by beating her to death. After the commission of the crime, however, as DeMola was driving away, she got into an accident. She left the accident scene (evidently so she could drop off her coconspirators) but then came back and told the police that she had caused the accident because her house was being robbed. Police went to her house, where they found the victim on the floor, unconscious in a pool of blood, with a broken nose, a broken jaw, broken ribs, and a skull fracture that ultimately proved fatal.

A jury found DeMola and Bell guilty of first degree murder. (Pen. Code,  187, subd. (a), 189.) It also found true both a lying-in-wait special circumstance and a torture-murder special circumstance. (Pen. Code,  190.2, subd. (a)(15), (18).) However, it found an alleged financial-gain special circumstance not true. (Pen. Code,  190.2, subd. (a)(1).) A separate jury found Long guilty of first degree murder but rejected all three alleged special circumstances. DeMola and Bell were sentenced to life without parole. Long was sentenced to 25 years to life.

The appellate issues raised are many, but they can be grouped into several broad categories. A number of them involve the fact that ‑‑ at least according to DeMola ‑‑ this case was initially filed in juvenile court. Others involve the admission of hearsay statements by Bell and by Long, not only against them, but also against their codefendants. Several others involve asserted jury misconduct. In addition, there are assorted evidentiary, instructional, and sentencing issues.

As the People concede, the trial court erred by imposing a parole revocation restitution fine (Pen. Code,  1202.45) on DeMola and Bell. We will modify the judgments against them accordingly. Otherwise, we find no prejudicial error. Hence, we will affirm the judgments as modified.

I

FACTUAL BACKGROUND

A. DeMolas Relationship with Her Mother.

DeMola lived with her parents in Corona. She went to Centennial High School, where she was on the swim team. In late 2000, DeMola began dating Bell. Around the same time, one of DeMolas friends began dating Long. DeMolas mother (the victim) did not want DeMola to date. She and DeMola had frequent arguments about the relationship. DeMola once told a friend that she hated her mother.

In February or March 2001, the victim ran into DeMola with Bell (and with Long) at a Carls Jr. The victim yelled at DeMola, then took her home. Afterwards, Bell and Long joked about torturing the victim. They discussed starving her, spanking her, pulling her hair, and cutting her and putting lemon juice on the cuts.

B. Emails and Instant Messages.

DeMola sent or received the following emails and instant messages:^[1]

January 8, 2001, from Bell to DeMola:  . . . I dont know how to get into the conversation with my mom . . . im gone tell her that Im not going to Winter Formal . . . cuz youre not going, cuz youre mom doesnt want you to see me n-e-more, cuz she doesnt allow you to have a boyfriend, and shes been hearing that youre my girlfriend, and you are, but you never told her . . . . im going to tell her your mom doesnt want you seeing, or talkn to me, and that she said if i try to, then shes going to put out an order on me.

January 9, 2001, from DeMola to Bell: i cannot call u n-e more. my mom said that she can tell all of the numbers i call. so if you want [to] talk to me, you have to call me. she is letting me go with u 2 winter formal, but that is it. i cant go n-e-where with you other than that. . . .  she doesnt want me and you together all the time. everything that s[h]e is doing to hurt me will all come back on her.

January 10, 2001, from Bell to DeMola: dont feel bad, cuz we are gone always be together, no matter what. I know, that might seem hard, cuz of your mom, I use to like your mom, that was when she liked me, but now, I dont care what your mom sais, cuz Im still gone be with you.

Unknown date, between DeMola and Bell:

[Bell:] i thought [your mom] was nice at first[,] but she threatened me[,] hits you[,] put[]n you down[,] as if she don[]t care about you[,] and then getdislike every[,] and n-e-body that tries to correct her[.]

[DeMola:] it[]s ok[.]

[Bell:] If you dont ever wanna see her again[,] just let me know[,] cuz you already know I[]ll do n-e-thing for you[.]

[Bell:] and I just want you to be happy[.]

[DeMola:] i don[]t need to be happy[,] life wasn[]t meant to be joyful[.]

[Bell:] yeah it was[,] . . . and I know that the only reason you[]re never happy[,] is cuz of her. [] . . . [] . . . i[]m not even gone do nuthin to her[,] unless you want me to[,] cuz God will take care of her. [] . . . [] I just hopes that she doesn[]t hurt or get n-e-body hurt b-4- she[]s taken care of[.] (Capitalization altered.)

[DeMola:] the only person that she will hurt before she is taken care of is me cuz i []can[]t live like this[.]

February 5, 2001, 8:33 p.m., from DeMola to Bell: [M]y mom is yellin at me now[.]

February 5, 2001, 10:34 p.m., from DeMola to Bell: i said that the only person who will get hurt before she is taken care of is me because i cant live like this[.]

February 6, 2001, 1:51 a.m., from Bell to DeMola: You want get hurt, cuz I want let you.

February 6, 2001, 1:57 a.m., from Bell to DeMola: youre not going to do n-e-thing, all u have to do is let me handle it, cuz right about now I really have no type of care, feelings for your mom whatsoever, and thats a shame, cuz i usually respect all adults whether they like me or not, but shes hurting you, so she should get handled ju[st li]ke i would handle n-e-body else that hurts, or tries to hurt you.

February 6, 2001, 2:20 a.m., from Bell to DeMola: If n-e-thing was to happen to you, and then sumthin was to happen to me, and sumthin will happen, cuz of the way Ill be, . . . youll be in Heaven, But Ill pro[bably b]e in hell, cuz Murders dont get to go to Heaven. Even though I believe in God, and everthing, but for the shit that Im gone do, I prob. want be going to heaven. Ill probably be done broke 6[ ]or 7 out of the 10 Commandments.

February 6, 2001, 2:21 a.m., from Bell to DeMola: Just like I said b-4, Love can make you do some crazy shit, cuz Love hurts.

February 18, 2001, from Bell to DeMola:  . . . Ill do n-e-thing for you, I mean anything all you have to do is let me know what it is, . . . from lien for you, to killn for you . [Y]our mom seriously haves problems, and I wouldn[t h]esitate to help her with her problems, cuz she seriously haves issues. You already know that Im down for whatever, and Ill do n-e-thing when it comes to you. Cuz I dont want n-e-body hurting you . . . . I think that youll be better off with just you and your Dad, you need to see if it is someway that you can make that happen . . . . But Im bout to call up Chris, cuz I might have something that I might have to do.

February 19, 2001, from DeMola to Bell: it is really good to know that you will do anything for me. . . . we will do whatever it takes to be together. i just dont want you to get caught for anything. but if there is a way that you will not get caught, then I am thinking about it.

March 27, 2001, from DeMola to one Nick Neal:^[2] i really like you and everything else that goes along with you. but the only re[ason?] that I wouldn;t want to be in a relationship with you is because of you going to college real soon. then i wouldnt get to see you and i would spend all my time thinking about you because you couldnt be there with me.

March 30, 2001, from DeMola to Nick Neal: hi, the time is finally here. ive been waiting to see you all weekend and no[w] i[t] is here.

April 2, 2001, from DeMola to Nick Neal: im glad that we are together now. even though we just met, i feel like i known you for a long time. . . . we need to pick out a song for us. . . . and i am the type of girl that doesnt like my boyfriend to hug other girls. . . . and if they come up to you, i really want you to tell them that you have a girlfriend. . . . terry called me last night and was going off about stuff. it was because when I picked up the phone . . . i asked who it was and he was like, what the hell do you mean who is this, do you have other guys callin you? . . . he didnt even make me mad[] cuz i was thinking about you the whole time and that i wouldnt have to deal wit him much longer and that i have something else so much better than him or anyone else.

April 7, 2001, from Bell to DeMola, entitled This is what I sent . . .: []fucc ya b[oy]f[riend], he cant do it like I can, promise.[] What kind of shit is that, first of all, u came off like a rapest, u 20 years old, my girl is only 16 . . . . u cant get females by talkn wit ya dicc, thats not the case wit u though, that one sentence u type came str8t from ya ass . . . . Sounds like a nigga like you aint got no life whatsoever . . . shouldnt you [b]e somewhere in college, or workn or sumthin . . . . (Capitalization altered.)

C. The Car Accident.

As of April 10, 2001, DeMola was 16; Bell and Long were 17. On that day, at 1:00 or 1:30 p.m., Bell came to Longs house. He brought some walkie-talkies. Sometime between 2:30 and 4:30 p.m., both Bell and Long left.

Sometime after 6:00 p.m., three neighbors saw DeMola back a black Nissan Xterra out of the garage, turn it around, and back it in again. As she was closing the garage door, two of them waved at her; she waved back.

Around 6:45 p.m., DeMola was driving the Xterra away from her home. She had gone only a block or two when she ran a stop sign and was broadsided by a pickup truck. Tammy Godinez, who was riding in the pickup, saw two passengers in the Xterra, one in the front passenger seat and one in the rear; they were both African-American. Her husband Javier Godinez, who was driving the pickup, told police that he saw one passenger in the front seat of the Xterra. He described him as a male, dark-complected African-American.^[3] At trial, he thought he might also have seen a second passenger in a rear seat, though he was not sure.^[4]

DeMola drove away from the scene of the accident but, just minutes later, she came back, without any passengers. Tammy Godinez asked, Where are the people in your car? DeMola replied, I didnt have anybody else in the car. She also said, My mother is being robbed. Tammy then asked, [W]hy did you come back to us and not back to your mom? DeMola said, [I] didnt want to get in trouble for a hit and run. She seemed calm and matter-of-fact.

Officer Jeffrey Glenn was the first to respond to the scene of the accident. When he asked DeMola what had happened, she said, [I] d[o]nt know. She then asked if her mother was okay. He asked her where her mother was. She said, I dont know. She then said someone had broken into her house. As a result, he sent other officers to check the house.

Meanwhile, Officer Gary Butera arrived, and he, too, spoke to DeMola. She said again that no one else had been in her car. She said that she left the scene because she was scared. She also said that she ran the stop sign because there had been a robbery at her house. He asked if there was anybody at the house, and she said no.

Finally, Officer Bryan Wilson arrived and spoke to DeMola. She told him that she left the accident scene because she did not have insurance, but she came back because she did not want a hit and run on her record. She then added, [A]nd my house was being robbed. She said that she was driving away because of the robbery. However, she also said that she was going to swim practice; because she was late, she had planned to call the police when she got there.

DeMola then told Officer Wilson that she had looked downstairs and seen masked men running into the house through the front door. She ran downstairs, where she saw her mother lying on the floor; she got the car keys, then ran into the garage, got in the car, and drove away. She insisted that no one else had been in the car with her.

Finally, Officer Butera came over and joined the conversation. In an accusatory fashion, he challenge[d] [her] account of the events[.] She then said, Can I start my story over again?

This time, DeMola said that, when she ran into the garage, two or three men were waiting for her there. They were wearing ski masks. They said, Get in the car. Drive us away. They got in the back seat. After the accident, she dropped them off, then came back to the accident scene. DeMola explained that she had lied initially because she was scared and because [t]hey said they would come back and get me.

D. The Crime Scene.

The officers who went to DeMolas house found the front door locked. There was no sign of forced entry.

The victim was lying on the floor, at a central point where the kitchen, a den area, the stairway to the second floor, and a hallway leading to the garage all came together. She was unconscious but still alive. There was blood everywhere.

A kitchen stool had been knocked over, and a radio was on the floor. The victim had evidently tried to escape through the sliding glass door in the den; there were blood transfers, including a bloody handprint, near the door. The victim also had evidently tried to escape through the downstairs bathroom window ‑‑ there were blood transfers on the window and the window frame, several slats of the blinds had been torn out and bloodied, and the window screen had been pushed out. Inside the screen, there were two bloody handprints.

In the hallway, just outside a closet, there was a broken standing lamp. It weighed 15 pounds, because the base was filled with concrete. The underside of the base was almost completely covered with blood. There were blood transfers on the closet door and inside the closet. A bloody drag mark led from the closet to the body.

There were blood transfers on the banister. In the upstairs master bedroom, there were blood transfers on a gun box, on a jewelry box, and inside a nightstand drawer. A .22-caliber revolver that had been in the gun box was missing. Also missing was the victims purse, in which she usually carried $10,000 to $15,000 in cash. The last call that had been made from the phone in DeMolas bedroom was to Longs house.

Still more blood transfers were found on the door from the house to the garage, on a workbench in the garage, and on the door from the garage to the side yard. A .25‑caliber semiautomatic pistol that had been kept in the garage was missing.

No fingerprints had been left in the blood. At some points, however, there was a pattern of some coarse material consistent with gloves. In addition, in the kitchen, there were three distinct sets of footprints (some in blood, and some in 7‑Up that had spilled in the kitchen). One set had a pattern of stars, bars, and shields that matched the shoes DeMola had been wearing. The second set said FILA and had a waffle pattern. The third set had a wavy chevron pattern characteristic of Nike Cortez shoes.

Blood was found on two of the outside door handles of the Xterra â€‘‑ on the front and rear drivers side â€‘‑ and inside the rear passenger side door.

E. The Autopsy.

The victim never regained consciousness. She died about a week later in the hospital. She had been savagely beaten. There were bruises, cuts, and scrapes all over her face. There were also bruises and scrapes on both hands, both legs, her back, and her right hip. Some of these injuries featured a pattern consistent with brass knuckles.

[M]ost of the ribs on her right side were broken, plus four ribs on her left side. Her upper jaw was broken, and possibly also her lower jaw; several of her teeth were loose. Her nose was broken in multiple places. Her left eye socket may have been broken. One of her neck vertebrae was cracked; however, this injury would not have been life threatening.

The cause of death was brain damage resulting from a skull fracture behind the victims right ear. This fracture could have been caused by dropping the lamp base onto the back of her head. The fracture would have incapacitated her immediately.

F. The Dnouement.

Around 6:50 or 7:00 p.m., Bell and Long returned to Longs house. Longs brother, on the phone with his girlfriend, told her that they were roughed up a little bit. Like [they] had been fighting. They were not wearing shoes; they explained that they had gotten in a fight [when] someone wanted to jack them for their shoes.

DeMola later told a relative that the masked men were definitely not African-American . . . . She also said they used a computerized voice disguise . . . . She told a neighbor they got in through [a] broken window. She told a classmate they had a gun; however, she specifically told her swim coach that they had no weapons.

A few weeks after the funeral, DeMola and Bell started seeing each other every day. By July 2001, they were engaged; Bell paid $1,700 cash to buy DeMola a diamond ring. She bought him a 1993 Honda Civic.

On August 28, 2001, the police stopped Bell while he was driving with several passengers. In his car, they found two pairs of brass knuckles.

On January 17, 2002, the police arrested Bell. In his apartment, they found the DeMolas.25-caliber semiautomatic pistol, $1,180 in cash, a mask, and a walkie-talkie. They did not find the DeMolas .22-caliber revolver, nor did they find any shoes matching any of the footprints.

G. Additional Evidence Against Long.

On January 16, 2002, Long was arrested. His statements to the police were introduced before his jury, but not before DeMola and Bells.

Long told police that, about two months before the crime, Bell had asked him to help me get rid of Natalies mom. Long knew that what Bell meant was to kill her. Bell told him, [S]hes getting in the way of me and Natalie . . . . Long refused. He claimed he did not think Bell was serious. About a month later, DeMola, too, asked Long if he would help them kill her mother. She said,  . . . I dont like my mom and she always beats me . . . . Long refused again.

On the day of the crime, Bell came over to Longs house and raised the subject of getting rid of [the victim] . . . . He asked Long to come with him. Long said, [F]or what? Bell replied, [T]o watch my back. [J]ust in case her dad comes home or anything like that. He added that DeMola would pay us to do it. Long told police, I dont know why I went to go with him to do it . . . . I wasnt thinking straight . . . . [] . . . [] I just [got] caught up in it by peer pressure. However, he also admitted that [he] went up there cause [he] w[as] gonna get paid.

When they were across the street from the victims house, Long had a change of heart. He looked at [Bell] and . . . asked him to think about what we were about to do before he did it. Meanwhile, DeMola called Bell on the walkie-talkie and told them to hurry up. Bell and Long went up to the front door, where Bell put on a Scream mask and gloves. He gave Long a beanie, a bandanna, and gloves. Bell then opened the door with a key that DeMola had given him.

When the victim saw them, she started screaming, Natalie[!] Bell punched her in the face. She fell, hitting her head and cutting it open. Bell kicked her and said, [W]heres the money? She said,  . . . Ill go get you the money, and started to walk toward the back door, but Bell grabbed her by the hair and pulled her off her feet. He wrapped a rug around her, then started punching her. Meanwhile, he told Long to push over stuff to make the house look like it was robbed. Long pushed over a radio and a bottle of water. Bell told Long to put the victim in the closet and hold the door closed. He complied. DeMola came into the room, then went upstairs with Bell. While they were gone, Long let the victim out of the closet. She sat on the floor, and he held her. However, he claimed, I didnt hit her . . . once.

When Bell came back downstairs, the victim looked up and saw DeMola. Long supposedly said, [L]ets get out of here . . . youve done enough, but DeMola ‑‑ apparently because she had been seen ‑‑ said, [N]o, finish her off. Bell told Long to break the victims neck. Long refused. Bell said,  . . . Im sure youve been in gang fights from Hoover, right? [I]f youre from Hoover, youll break her neck. Long refused again and went out into the garage. He came back in just in time to see Bell drop the lamp on the victims head. The victim stopped moving. DeMola walked over her mom like it wasnt her mom. She smiled at Bell.

Both Long and Bell got in the back seat of the Xterra, and DeMola drove them away. When the accident happened, Bell told DeMola to keep going. She dropped them off, and they walked back to Longs house. On the way, Bell threw any incriminating clothing, including his shoes, into a drain. Long did not realize that his own shoes were bloody until he got home. Long denied stealing anything or getting any money.

Finally, Long admitted that the waffle-patterned footprints had been left by his size 13 Fila shoes.

II

ISSUES ARISING OUT OF THE INITIAL CASE FILING AND ARRAIGNMENT

DeMola and Bell contend that they were originally charged and arraigned in juvenile court, and therefore all subsequent proceedings in adult criminal court were void. DeMola also contends that, at her arraignment, she received ineffective assistance of counsel.

A. Additional Factual and Procedural Background.

On January 18, 2002, the prosecution filed a felony complaint against DeMola and Bell. In the caption, under the words FELONY COMPLAINT, it also said JUVENILE. However, it alleged that Welfare and Institutions Code section 707, subdivision (d)(1) and (2)(A) applied. These provisions were enacted in 2000 as part of Proposition 21. They carve out an exception to the juvenile courts exclusive jurisdiction over children (see Welf. & Inst. Code,  602, subd. (a)) by allowing the prosecution, under certain circumstances, to file an accusatory pleading against a child in a court of criminal jurisdiction . . . .

On January 22, 2002, the prosecution filed an amended felony complaint against DeMola and Bell, adding Long as a defendant. This complaint did not say JUVENILE. It continued to allege that Welfare and Institutions Code section 707, subdivision (d)(1) and (2)(A) applied to DeMola and Bell.

Also on January 22, 2002, DeMola and Bell were arraigned by Judge Jean Pfeiffer Leonard.^[5] At that time, Judge Leonard was sitting in Department J1 and was assigned to hear juvenile delinquency matters. (In the Matter of Apportionment of Court Business, etc., for the Calendar Year 2001, Order, Amendment #1 (Super.Ct. Riverside County, Jul. 27, 2001).)

Bell appeared with counsel. DeMola appeared without counsel; however, her father was present. After Bell was arraigned, there was this discussion:

[THE COURT:] I was given some information this morning that you actually hired Mr. Harmon to be here today.

MINORS FATHER: That is correct.

THE COURT: Did you actually sign a retainer agreement with him?

MINORS FATHER: Yes, I did.

THE COURT: And did you pay him?

MINORS FATHER: Yes, I did.

[PROSECUTOR]: This may be a call from Mr. Harmon right now.

THE COURT: Okay. Just a second. We may have a call from Mr. Harmon as we speak.

(Discussion off the record)

THE COURT: [] . . . [] [W]hy doesnt he talk to [Bells counsel] right now.

(Discussion off the record)

THE COURT: . . . Mr. Harmon just called [the prosecutor] on his cell phone. [] You had a conversation with Mr. Harmon . . . ?

[PROSECUTOR]: Yes. I advised him that we had directly filed the matter against Natalie De[M]ola, filing it against her as if she were an adult; that her co‑defendant, Terry Bell, had already been arraigned; and that we had set his matter for a Felony Settlement Conference in Department 63 on February 4th, plus a 15-court-day time waiver.

He indicated that thats what he would like to have done on Natalies case as well, and I believe that has been communicated as well to [Bells counsel].

THE COURT: I understand that youre going to make a special appearance.

[BELLS COUNSEL]: Yes. [S]ince Im here, I have no problem specially appearing.

The arraignment itself went as follows:

THE COURT: [] . . . [] . . . Natalie, is your true name Natalie Le De[M]ola?

THE MINOR: Yes.

THE COURT: And is your birth date January 19th, 1985?

THE MINOR: Yes.

THE COURT: And at this time, [Bells counsel], does your client waive further reading of the Complaint and further reading of her rights?

[BELLS COUNSEL]: Yes.

THE COURT: At this time, Natalie, do you enter denials and not guilty pleas as to Count I and the additional allegations?

THE MINOR: Yes.

THE COURT: [] . . . [] Natalie, you have the right to have a preliminary hearing within a specified period of time. [T]he first hearing is called a Felony Settlement Conference . . . . At that hearing, the attorneys will talk. Theyll get all of their information. So Im asking if you would waive time for your preliminary hearing to the date of February 4th plus 15 court days. Is that okay with you? [] . . . []

THE MINOR: Yes.

On February 4, 2002, the prosecution filed a second amended felony complaint against DeMola, Bell, and Long. It did not say JUVENILE, and it continued to allege that Welfare and Institutions Code section 707, subdivisions (d)(1) and (d)(2)(A) applied. DeMola, Bell, and Long were rearraigned on the second amended complaint in Department 42 by Judge Timothy J. Heaslet.

B. Filing and Arraignment in Juvenile Court.

As the original complaint alleged, the prosecution had discretion to prosecute DeMola and Bell in juvenile court or in adult court, for two reasons. First, they were accused of a murder committed when they were 16 or older. (Welf. & Inst. Code,  707, subd. (d)(1).) Second, they were accused of an offense committed when they were 14 or older which, if committed by an adult, would be punishable by death or life imprisonment. (Welf. & Inst. Code,  707, subd. (d)(2)(A).) DeMola and Bell, however, essentially argue that the prosecutions initial election to proceed in juvenile court was binding because the juvenile court thereupon acquired exclusive jurisdiction.

They waived this contention by failing to raise it below. Whether a case should proceed in juvenile or adult court does not involve an issue of subject matter jurisdiction. [Citation.] (In re Harris (1993) 5 Cal.4th 813, 837, quoting People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619.) The juvenile court and the criminal court are divisions of the superior court, which has subject matter jurisdiction over criminal matters and civil matters, including juvenile proceedings. [Citation.] When exercising the jurisdiction conferred by the juvenile court law, the superior court is designated as the juvenile court. [Citation.] Accordingly, when we refer . . . to the jurisdiction of the juvenile court or the jurisdiction of the criminal court, we do not refer to subject matter jurisdiction, but rather to the statutory authority of the particular division of the superior court, in a given case, to proceed under the juvenile court law or the law generally applicable in criminal actions. [Citation.] (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548, fn. 3.)

The trial of a juvenile in adult court, even if unauthorized, constitute[s] an excess of jurisdiction, not a lack of fundamental jurisdiction. [Citation.] (In re Harris, supra, 5 Cal.4th at p. 837.) Accordingly, [i]t is well settled that a person who is eligible to have his or her case proceed in juvenile court may waive this right either knowingly, or by failing to timely and properly raise the matter. [Citation.] (Id. at pp. 837-838, quoting People v. Nguyen, supra, 222 Cal.App.3d at p. 1620; see also People v. Level (2002) 97 Cal.App.4th 1208, 1211-1212.)

Even if not waived, however, the contention lacks merit. The record demonstrates that the initial complaint was not filed in juvenile court. Juvenile delinquency proceedings are commenced by filing a petition, not a complaint. (Welf. & Inst. Code,  650, subd. (c).) The complaint here did not include allegations that would have had to be in a delinquency petition, such as that DeMola and Bell came under Welfare and Institutions Code section 602, subdivision (a). (Welf. & Inst. Code,  656, subd. (c); see also id., subds. (e), (g), (h).) Contrariwise, it did include allegations that supported direct filing in adult court under Welfare and Institutions Code section 707, subdivision (d). Finally, the prosecution gave the case number an RIF (felony) prefix, not an RIJ (juvenile) prefix.

We can only speculate as to why Judge Leonard handled the arraignment. The fact that she did, however, did not change the nature of the case. As a judge of the superior court, she had the authority to conduct an adult criminal arraignment. (See Pen. Code,  976, subd. (a), 988.) We also note that alleged juvenile delinquents are not arraigned at all; instead, they are accorded a detention hearing. (Welf. & Inst. Code,  632.) We therefore conclude that, at all times, the case was filed and pending in adult court, not juvenile court.

Even assuming that the prosecution did, in some sense, file the case in juvenile court, it still was not precluded from prosecuting DeMola and Bell in adult court. Welfare and Institutions Code section 606 states, as relevant here: When a petition has been filed in a juvenile court, the minor who is the subject of the petition shall not thereafter be subject to criminal prosecution based on the facts giving rise to the petition unless the juvenile court finds that the minor is not a fit and proper subject to be dealt with under this chapter . . . . (Italics added.) Here, the prosecution filed a complaint, not a petition; hence, Welfare and Institutions Code section 606, by its terms, did not apply.

Finally, DeMola and Bell also argue that the trial court failed to comply with Welfare and Institutions Code section 707, subdivision (d)(4). That subdivision provides that, when a case is filed directly in adult court under Welfare and Institutions Code section 707, subdivision (d), at the preliminary hearing, the magistrate must either make a finding that reasonable cause exists to believe that the case is eligible for direct filing, or else transfer the case to the juvenile court . . . .

Once again, DeMola and Bell waived this argument by failing to raise it below. Moreover, they cannot show that the asserted error was prejudicial. Irregularities in pretrial commitment proceedings that are not jurisdictional in the fundamental sense require reversal on appeal only where the defendant shows he was deprived of due process or suffered prejudice as a result. [Citations.] (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990.) The magistrate did find that there was probable cause for the murder charge and for the alleged special circumstances. These findings, combined with DeMola and Bells ages at the time of the crimes, placed them squarely within Welfare and Institutions Code section 707, subdivision (d).

Finally, DeMola and Bell contend that, because their initial arraignment on January 22, 2002, supposedly was void, the delay between their arrest and their (re)arraignment on February 4, 2002, violated their right to a speedy trial. As we have already held, however, their initial arraignment was proper and valid.

C. Ineffective Assistance by DeMolas Counsel at Arraignment.

DeMola argues that Attorney Harmon rendered ineffective assistance because he did not know that the case had been filed in, and was proceeding in, juvenile court. As we held in part II.B, ante, however, the case was actually filed in adult court. Harmon knew ‑‑ because the prosecutor truthfully told him ‑‑ that the case had been filed directly in adult court.

DeMola also argues that Harmon, as well as Bells counsel, who made a special appearance for her, rendered ineffective assistance by failing to advise her of her rights and the consequences of waiving them. If she is referring to her right to be tried in juvenile court, we have already rejected the existence of this supposed right in part II.B, ante. If she is referring to other rights, it is not at all clear which ones.

At a felony arraignment, the magistrate is supposed to read the complaint aloud, give the defendant a copy of it, and inform the defendant of his or her right to counsel. If the defendant is a minor, the magistrate is also supposed to appoint counsel for the minor (or notify one of the minors parents). (Pen. Code,  858, 859, 987, subd. (a), 988.) Here, DeMola had retained counsel; thus, any failure to advise her of her right to counsel was harmless. Also, absent a record to the contrary, we must assume that her retained counsel and/or Bells counsel advised her of her right to notice of the charges and to a copy of the complaint. Moreover, even if they did not, we cannot imagine how she was prejudiced. Similarly, we also must assume that they advised her of her speedy-trial rights; even if they did not, the trial court did advise her of them, to some extent, and she has not claimed that, if she had been given different or additional advice, she would have not have waived her speedy-trial rights. Thus, she cannot show ineffective assistance.

III

CONTINUANCE OF THE PRELIMINARY HEARING

DeMola contends that, by continuing the preliminary hearing from September 27 to October 25, 2002, the trial court violated her right to a speedy trial.

A. Additional Factual and Procedural Background.

On September 25, 2002, Long filed a written motion to continue the preliminary hearing, which was set, at that point, for September 27. On September 27, the prosecution joined in the motion. DeMolas counsel objected to a continuance, and DeMola refused to waive time. Nevertheless, the trial court, finding good cause, continued the preliminary hearing to October 25.

B. Analysis.

Preliminarily, we note that DeMola waived her right to a speedy trial by failing to make a subsequent motion to dismiss. The right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss. (People v. Wilson (1963) 60 Cal.2d 139, 146.) The defendant must . . . move to dismiss . . . so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided. (Id. at p. 147.)

Separately and alternatively, however, we find no error. There are three sources of a criminal defendants right to a speedy trial. First, there is a federal constitutional right to a speedy trial. (U.S. Const., 6th & 14th Amends.; People v. Harrison (2005) 35 Cal.4th 208, 225.) Second, there is a state constitutional right to a speedy trial. (Cal. Const., art. I,  15; Harrison, at p. 225.) Third and finally, there are statutory speedy-trial rights. We find it most convenient to discuss these in the reverse order.

The statutory speedy-trial provisions on which DeMola relies include Welfare and Institutions Code sections 657, 682, and 700 and California Rules of Court, former rules 1485 and 1486 (see now rules 5.774 and 5.776). These provisions all apply to juvenile delinquency cases. As we held in part II.B, ante, however, the case was not in juvenile court; accordingly, these statutes and rules did not apply.

DeMola also relies on Penal Code section 1382. That statute, however, as relevant here, is triggered only after the defendant is either (1) held to answer (Pen. Code,  1382, subd. (a)(1)) or (2) arraign[ed] on an indictment or information (id., subd. (a)(2)). It simply does not speak to a delay when, as here, a preliminary hearing has not yet been held and an information has not yet been filed.

In her reply brief, DeMola additionally relies on Penal Code section 1049.5. That statute, as relevant here, provides: In felony cases, the court shall set a date for trial which is within 60 days of the defendants arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. It was enacted in 1990, before trial court unification in 1998. Hence, we do not believe arraignment in the superior court was intended to refer to an arraignment on a complaint, which took place, at that time, in municipal court; it was intended to refer to an arraignment on an indictment or information, which took place (and still does) in superior court. (See Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1169, 1171 [[t]he voluntary unification of the municipal and superior courts was not intended to fundamentally alter preexisting criminal procedure].) Penal Code section 1049.5 therefore does not add anything to Penal Code section 1382. In any event, even when Penal Code section 1049.5 does apply, it permits a continuance upon a showing of good cause . . . . The trial court found good cause, and DeMola has not challenged this finding.

Incidentally, the statute that actually does require a speedy preliminary hearing following the arraignment on the complaint is Penal Code section 859b. It provides, as relevant here: Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment [or] plea, . . . unless . . . [] [t]he defendant personally waives his or her right to preliminary examination within the 10 court days. [] . . . [] The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment [or] plea, . . . unless the defendant personally waives his or her right to a preliminary examination within the 60 days.

DeMola, however, has waived the benefits of Penal Code section 859b by not citing it. Separately and alternatively, it was not violated. By September 27, 2002, DeMola had long since waived both the 10-day and 60-day provisions of Penal Code section 859b. Once they have been waived, they are waived for good; they cannot be restarted. (See People v. Love (2005) 132 Cal.App.4th 276, 284-286.) We therefore conclude that DeMolas statutory speedy-trial rights were not violated.

Accordingly, we turn to her constitutional speedy-trial rights. Absent a statutory violation, to make out a state constitutional violation, a defendant must show prejudice. (People v. Martinez (2000) 22 Cal.4th 750, 769; People v. Roybal (1998) 19 Cal.4th 481, 513.) DeMola has not done so. She complains that she remained in custody for over two years. The particular continuance to which she objected, however, was for less than a month. In any event, the typical result of a pretrial continuance is that the defendant stays in custody longer before trial. Absent a delay so long as to result in oppressive . . . incarceration (see Martinez, at p. 763), this, by itself, cannot be sufficient prejudice to make out a violation of the state constitutional speedy-trial right. DeMola also claims that once the trial finally commenced, the memories of the witnesses were arguably distorted and faded. This speculative possibility falls short of showing actual prejudice. Moreover, once again, DeMola cannot show that any memory loss was due to the single one-month continuance at issue.

Finally, DeMola did not yet have any federal speedy-trial rights. Under the federal Constitution, . . . the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: [I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. [Citation.] [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 891, quoting People v. Martinez, supra, 22 Cal.4th at pp. 754-755, quoting United States v. Marion (1971) 404 U.S. 307, 320 [92 S.Ct. 455, 30 L.Ed.2d 468].) Even assuming that her federal speedy-trial rights had attached, they were not violated, because she has not challenged the finding of good cause for the continuance and because she has not shown prejudice. (See generally Doggett v. United States (1992) 505 U.S. 647, 651 [112 S.Ct. 2686, 120 L.Ed.2d 520].) A one-month delay is not presumptively prejudicial. (See id. at p. 652, fn. 1; Horning, at pp. 893-894.)

IV

THE APPLICATION OF MIRANDA TO DEMOLAS STATEMENTS

TO OFFICER WILSON AT THE SCENE OF THE ACCIDENT

DeMola contends that her statements to Officer Wilson at the accident scene were inadmissible under Miranda.^[6] This turns on whether she was in custody at the time.

A. Additional Factual and Procedural Background.

Before trial, DeMola filed a motion to suppress these statements, on grounds including that they were obtained in violation of Miranda. The prosecution filed a written opposition, supported by a police report regarding the statements and a transcript of the statements.

According to the police report, Officer Wilson asked DeMola how the collision had occurred. She said her house was being robbed and she was driving her car northbound when the pickup hit her. At first, she drove away, because she had no insurance, and she was scared. However, she came back because [she] didnt want a hit and run on [her] record.

At that point, [d]ue to the cold temperature and wind, Officer Wilson asked DeMola if she would like to sit in his patrol car. They sat in the front seat together. He put his own jacket over her. He also turned the . . . heater on for warmth for her. He turned on a tape recorder. He then asked her what had happened before she left her house.

In the course of the ensuing interview, there was this exchange:

[DeMola]: Is [my mom] ok?

Officer Wilson: I dont know that is what there [sc. theyre?] . . .

[DeMola]: Can I walk up there?

Officer Wilson: I think they transported her to the hospital. [] . . . []

[DeMola]: [C]an I walk up there please?

Officer Butera:^[[7]] Sit up here for a second.

[DeMola]: But I need to see my mom.

Officer Butera: [W]ell[,] you need to see that she is not over there right now[,] your mom is not over there right now.

The interview went on. At one point, DeMola asked:

[DeMola]: Where is my Dad?

Officer Wilson: I think the[y]re trying to locate him[.]

Shortly afterward, Officer Wilson got out of the patrol car to confer with Officer Butera. They realized that DeMola had made some conflicting statements. They then returned to the patrol car. After Officer Wilson asked a few relatively innocuous questions, Officer Butera asked:

Officer Butera: Ok[,] when you came down the stairs what did you see[?]

[DeMola]: My mom laying on the floor.

Officer Butera: You told me you never saw your mom.

[DeMola]: Yes I did.

Officer Butera: [N]o[,] you told me [‑‑] Im not silly here[,] OK. I know what you told me[,] it[]s an important situation[,] so I would remember yes or no.

[DeMola]: I know it is.

Officer Butera: I know you know it is []cause you know what condition your moms in. You also know who was in this vehicle with you when you got in a collision down here. And Im gonna tell you this, these two other people that ran into your car[,] that you ran out in front of[,] this is a small situation[,] its a traffic collision[,] that lady is not hurt very bad. Ok[,] so it[]s not that big of a deal[,] it[s] not like you[re] going to jail over it. But what you are going to jail over eventually[,] if you do not decide to wise up and get in front of all of this[,] is the fact that those people both saw the passenger in your vehicle[,] they both know[,] as we know[,] you hauled ass down the street down there and dropped them off somewhere[,] either at a house or on the roadway somewhere. Here is the problem for you. Your moms not looking too good. I have to be real honest with you[,] if something happens to her[,] you[re] not only going to live with that, you[re] going to live with yourself in a prison cell. []Cause right now you[re] probably looking at being an accomplice on this whole situation. So you might want to start thinking about to help yourself out[,] you might as well be a witness on this thing[,] Ok[,] a witness is a hell of a lot better because a witness gets to live at home everyday [sic] [,] an accomplice gets to live in a jail cell. So you better start providing some names real quick[,] this is not a movie[,] Ok[,]this is not some freckin [sic] game on TV. Your mom is hurt[,] and people that hurt[,] sometime[s] they stay hurt. Now what was this person[]s name that was in the car with you[?] We are not playing games . . . with you no more. You will take it real hard on this[,] Im telling you right now. You will do jail time. Unless you start talking some honesty.

[DeMola]: For doing nothing?

Officer Butera: Thats right[,] cause you[re] doing nothing right now and you know a lot. It[]s called hindering an investigation. You are hindering big time[,] because everybody around you knows youre a part of this. Now[,] Im telling you right now, you can do [‑‑] the best thing is to be honest right here, you[re] not in jail right now. If you want things to stay that way[,] you might want to consider helping out your mom. Who was this person that was with you in the car?

[DeMola]: Can I start my story over then?

The interview then continued for some time,^[8]until Officer Wilson stopped it so he could confer with some other officers. Meanwhile, DeMolas father arrived and asked to speak to her; they were allowed to talk privately. In her fathers presence, DeMola agreed to go to the police station for a further interview. At the station, the police gave DeMola Miranda warnings. She waived her rights and agreed to be interviewed.

The trial court denied the motion to suppress. It explained: The Court finds, based on the totality of the circumstances, a reasonable person in her position at that time would not believe they were in custody. The police . . . were attempting to ascertain what role, if any, she played in the crime, whether she played any role or not, or whether she was a victim/witness to her mothers assault. And the police were attempting to piece together what happened.

B. Analysis.

Miranda warnings are due only when a suspect interrogated by the police is in custody. (Thompson v. Keohane (1995) 516 U.S. 99, 102 [116 S.Ct. 457, 133 L.Ed.2d 383].) Absent custodial interrogation, Miranda simply does not come into play. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 401, quoting People v. Mickey (1991) 54 Cal.3d 612, 648.)

[T]he court must apply an objective test to resolve the ultimate inquiry: [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] (Thompson v. Keohane, supra, 516 U.S. at p. 112, fn. omitted, quoting California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275] and Oregon v. Mathiason (1977) 429 U.S. 492, 495 [97 S.Ct. 711, 50 L.Ed.2d 714.) Whether custody has occurred short of a formal arrest depends upon the totality of the circumstances, including such factors as: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning. No one factor is dispositive. [Citation.] (People v. Morris (1991) 53 Cal.3d 152, 197, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) [C]ustody must be determined based on a how a reasonable person in the suspects situation would perceive his circumstances. (Yarborough v. Alvarado (2004) 541 U.S. 652, 662 [124 S.Ct. 2140, 158 L.Ed.2d 938].)

[W]e review the trial courts findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. [Citations.] (People v. Holloway (2004) 33 Cal.4th 96, 120.)

DeMola was the focus of an investigation, particularly once Officer Butera accused her of hindering an investigation and being an accomplice.  . . . Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave. [Citation.] (People v. Bellomo (1992) 10 Cal.App.4th 195, 199, quoting People v. Lopez (1985) 163 Cal.App.3d 602, 608, fn. 4.) However, [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, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officers degree of suspicion will depend upon the facts and circumstances of the particular case. (Stansbury v. California (1994) 511 U.S. 318, 325 [114 S.Ct. 1526, 128 L.Ed.2d 293].)

For example, in Oregon v. Mathiason, supra, 429 U.S. 492, the defendant had agreed to come down to the police station. The officer told the defendant he was not under arrest. However, the interview began in an accusatory fashion. The officer said that the police believed the defendant had been involved in a burglary and that his fingerprints had been found at the scene (which was not true). He also told the defendant that the judge or the district attorney might take his truthfulness into consideration. The defendant sat for a few minutes, then confessed. (Id. at p. 493.) The Supreme Court nevertheless held that the defendant was not in custody. (Id. at pp. 495-496.) It added: The officers false statement about having discovered Mathiasons fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule. (Ibid.)

Here, similarly, Officer Butera basically advised DeMola that she was not under arrest: [Y]ou[re] not in jail right now. If you want things to stay that way[,] you might want to consider helping out your mom. He told her, [W]hat you are going to jail over eventually[,] if you do not decide to wise up and get in front of all of this[,] is the fact that those people both saw the passenger in your vehicle . . . .

The interview took place at the scene of the accident, not at the police station. Although DeMola was sitting in a patrol car, she chose to do so, to stay warm. Also, she was sitting in the front seat. When she asked to walk home to see her mother, the officers did not tell her she was not free to go; they merely said her mother was no longer there. Likewise, when she asked where her father was, they said they were trying to locate him. Once her father did arrive at the scene, he was allowed to speak to her privately. There were none of the traditional indicia of arrest; she was not handcuffed or otherwise restrained, nor was she told that she was under arrest. Finally, when the police wanted to continue the interview down at the station, they asked for her consent, and she gave it.

DeMola relies heavily on the fact that she was a minor at the time. While this might be relevant to whether her statements were voluntary (see Gallegos v. State of Colorado (1962) 370 U.S. 49, 54 [82 S.Ct. 1209, 8 L.Ed.2d 325]; Haley v. State of Ohio (1948) 332 U.S. 596, 599-600 [68 S.Ct. 302, 92 L.Ed