In re Jeremy M.

Filed 5/28/08 In re Jeremy M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Rudolph A. Diaz, 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, Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Jeremy M. (appellant) appeals from the orders declaring wardship (Welf. & Inst. Code, 602) and committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, after a finding that he had committed second degree murder with the discharge of a firearm proximately causing death (Pen. Code,  187, subd. (a), 12022.53, subd. (d)). The juvenile court ordered the maximum period of confinement was 15 years. (Welf. & Inst. Code,  731, subd. (b).)

He contends that (1) the evidence is insufficient to support a finding of murder because appellants testimony that he acted in self-defense was uncontroverted, (2) the juvenile court improperly relied on profile and propensity evidence in reaching its verdict, thus depriving appellant of due process, and (3) appellants statement to the police, taken in the absence of a Miranda warning (Mirandav. Arizona (1966) 384 U.S. 436 (Miranda)), was inadmissible in evidence.

The contentions lack merit, and the orders under review are affirmed.

FACTS

I. The Peoples Case-in-chief

At about 3:15 p.m., on December 12, 2005, appellant, a South Central Klan S.C.K. gang member was walking across 43rd Street in Los Angeles. He was going to the residence of another youth, S., who was a fellow gang member. As appellant crossed the street, he encountered two Jefferson High School students, M. and P., who were walking home from school down 43rd Street. This was M.s and P.s usual route home after school. M. and P. were members of the Down Low, Down Locos or D.L. tagging crew. The S.C.K. gang and the D.L. tagging crew did not get along. M. and P. were unarmed; appellant had a .38-caliber revolver in his pocket.

S. walked out of his residence. Appellant and S., and perhaps a third youth, approached M. and P. throwing gang signs. S. said, Get the f--- off my block. S. saw appellant brandish a firearm so as to scare M. and P. S. swore at M. and punched M. in the face, which lead to a fist fight. M. got the best of S., and S., who was much larger than M., fell to the ground. Suddenly, appellant shot P. M. dropped to the ground to avoid being shot. Appellant, S. and the third youth ran. M. stood up to assist P. and another youth, C., arrived on a blue bicycle. C. also attempted to help P.

An ambulance arrived within minutes. M. and C. left the scene as the ambulance arrived, thereby avoiding the police. P. was taken to the hospital, but died shortly thereafter.

The deputy medical examiner testified that P. had been shot in the chest, which caused fatal bleeding from his heart and lungs. P. also had what was possibly a defensive wound, a through-and-through gunshot wound in one arm.

At trial, M. and S. testified, disclosing the youths gang and tagging crew associations and how the shooting had occurred. M. and S. each in part recanted the out-of-court statements that they had made to the police describing the events of the shooting. At the adjudication, S. claimed that he did not see the shooting and could not identify the gunman. M. hesitated to identify appellant as he had immediately after the shootingM.s life had been threatened prior to the adjudication. During his testimony, M. did acknowledge that he believed that the gunman was an S.C.K. gang member, and he explained that S.C.K. gang members hung out on that block.

P.s mother testified that P. was not interested in guns. There was never one in her house, and P. was not a rebellious child. M. also testified that P. was not known for carrying a gun and that he had never seen P. with one.

Los Angeles Police Detective Tommy Thompson testified to M.s and S.s out-of-court statements revealing the events of the shooting. Detective Thompson indicated that he showed M. a six-pack photographic identification procedure the day following the shooting. M. said that appellant probably was the gunman.

M. had told the detective that the two youths who had confronted him and P. were the aggressors. S. told Detective Thompson that he left his home to support appellant, who was having a confrontation with M. and P. S. knew M. and P. and had previously seen them walking home down the block. He was aware of their tagging crew affiliation. S. claimed that M. and P. were giving appellant some sort of a hard time, throwing gang signs and arguing with him. S. got into a fight with M. When M. pushed him to the ground, suddenly, the shot rang out.

Detective Thompson testified that on the day following the shooting, he and his partner, Detective Fanning, had driven appellant, a potential witness, to the police station. They did not regard appellant as a suspect; the shooting had simply occurred in front of his residence, and they knew that he was a gang member. Appellant had accompanied them voluntarily and was under no restraint. The detectives put appellant in an unlocked interview room and did not interview him immediately. They momentarily left the station to take care of several other pressing matters in their investigation.

At that time, Detective Richard Arciniega, who was not involved in the investigation, dropped by to say, Hi, to appellant. Detective Arciniega knew appellant from a gang shooting investigation that he had conducted the prior June. That investigation concerned an S.C.K. gang member who had been killed. Appellant had been extremely cooperative during the earlier investigation, and the detective and appellant were on friendly terms. Detective Arciniega had no intention of interviewing appellant about the current shooting. The detective had told Detectives Thompson and Fanning earlier that day that appellant might be helpful as a witness because he had been so cooperative previously.

Detective Arciniega found appellant sitting in an interview room. The detective could not recall whether the room was locked. He claimed that the door to that interview room locked so that it could be opened only from the outside. However, the door might have been ajar when he entered. He spoke to appellant with the door open or ajar.

During a brief and casual conversation, Detective Arciniega casually inquired whether appellant knew why he was at the station. In response, appellant blurted out, About the guy I shot in front of my house yesterday. Detective Arciniega quickly left the interview room, telling appellant, Ill tell the detectives you wanted to talk to them. Prior to speaking to appellant, Detective Arciniega had not given appellant Miranda advice or obtained a waiver of rights. (Miranda, supra, 384 U.S. 436.) Detective Arciniega immediately telephoned Detectives Thompson and Fanning to tell them about the admission. At that point, Detective Thompson made the decision that appellant was under arrest.

II. The Defense

Appellant testified and claimed self-defense. He said that he did not know M. and P. and knew nothing about their tagging crew association. He admitted that he was an S.C.K. gang member, but he denied that the 1200 block of 43rd Street where he lived was his hood. His claim was that the hood was 23rd Street. He admitted that he had lived on that block since he was age 7. Appellant claimed that the encounter began with M. and P. flashing gang signs at him. He walked on, but the youths approached and asked Where are you from? When appellant replied with his gang affiliation, M. and P. started cursing at him. Suddenly, S. arrived, and S. and M. started punching one another. According to appellant, during the fight, he was watching P. P. was dogging him and said, F--- your hood. P. had dissed S.C.K. Appellant said nothing, and P. said, Lets get down, which indicated P. wanted to fight.

P. was taller than appellant. Appellant claimed that he was in fear of his life. Appellant admitted that he was armed with the .38-caliber revolver. He explained that after Spooky, a fellow gang member, was shot in the head in front of him the prior June, he believed that he needed protection. Appellant said that he stepped away from P., but he did not leave the area. He did not want to leave S. there alone with M. and P.

Appellant testified that he put his hand into his pants pocket to communicate to P. that he was armed. Another youth he did not know bicycled up, yelled, and dropped his bicycle behind appellant. At the same time, P. quickly reached for something near his stomach. Appellant did not see a weapon or know what P. was doing. However, appellant believed that P. was reaching for a gun or something. Appellant explained, Thats what I would do, too.

He explained that he shot P. because he believed that P. was drawing a firearm. He said that he was afraid and shot P. only once; he did not intend to kill P. Then, he and S. ran. He did not report his involvement to the police until he spoke to Detective Arciniega. Afterwards, he took the police to the location where he stashed the gun in the alley, but by that time, the handgun was gone.

During cross-examination, the prosecutor pointed out that the shot was reasonably accurate, and appellant replied, Lucky shot. Appellant acknowledged that during his postarrest statement to the detectives, he had failed to tell them about several of the statements he now claimed that M. and P. had made prior to the shooting. His claim to the detectives had been that P., the taller guy, made a quick movement, and he thought that P. was pulling out a weapon. He also said that he did not know what they could have done.

The prosecutor asked, You werent really scared of these two guys in your neighborhood, were you? Appellant replied, I didnt know them. I do have to keep my eye on them. The prosecutor said, You were p----- off these guys were in the neighborhood where you live? In response, appellant said, I dont care. Thats just where I live. Appellant admitted that it p----- [him] off a little that P said, F--- your hood. Appellant denied that he had a gang-related motive for shooting P.

III. The Verdict

The juvenile court found that appellant committed second degree murder.

In sustaining the petition, the juvenile court commented that appellant intended to use [his revolver] when the opportunity arose. The opportunity . . . did arise. [Appellant] claims the reason he was there, I suppose, and had the gun was to protect his friend, [S.], who was engaged in a fight which he started. [According to the testimony, appellant] took the first shot, the first swing or punch at [M.] He never saw any weapon on [P.] . . . He makes reference to a . . . quick gesture. Thats the reason why hes entitled to shoot [P.] I dont buy that argument. I dont even buy that happened in that respect. When he leaves and runs after the shooting, what happens to this friend [S.] who apparently is losing this fight. He used that occasion when he saw his friend was losing the fight, to shoot somebody. He never intended to protect [S.] He intended to shoot somebody. Thats why he carried a gun. Thats why a gang member carries a gun, to shoot rival gangs. Thats exactly what he did.

DISCUSSION

I. Sufficiency of the Evidence

Appellant contends that the evidence establishes that as a matter of law he acted in self-defense. Accordingly, the evidence is insufficient to support the juvenile courts orders.

We disagree.

A. The Standard of Review

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Johnson (1980) 26 Cal.3d 557, 576.)

An appellate court may not substitute its determination of witness credibility for that of the trier of fact. (People v. Snow (2003) 30 Cal.4th 43, 66.)

B. The Relevant Legal Principles

The court in People v. Clark (1982) 130 Cal.App.3d 371, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92, distilled the following rule from the existing decisional law: [W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the [finder of fact] to determine. (People v. Acosta (1955) 45 Cal.2d 538, 542.) Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question of fact for the trier of fact. [Citations.] (People v. Clark, supra, 130 Cal.App.3d at p. 379.)

In order for homicide to be completely justified in self-defense, the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. (Pen. Code, 198, italics added; see also, People v. Flannel, supra, 25 Cal.3d at p. 675.) (People v. Levitt (1984) 156 Cal.App.3d 500, 509.) Also, a person does not act in reasonable self-defense where the force employed to repel the attack is excessive. (People v. Clark, supra, 130 Cal.App.3d at pp. 377-379.)

No valid claim of self-defense will justify a killing where the defendant is the initial aggressor. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) It is well established that the ordinary self-defense doctrineapplicable when a defendant reasonably believes that his safety is endangeredmay not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified. (In re Christian S.[, supra,] 7 Cal.4th [ at p.] 773, fn. 1.) Moreover, a quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger. (People v. Holt (1944) 25 Cal.2d 59, 6566.) In other words, when a defendant seeks or induces the quarrel which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it. [Citations.] (People v. Hill (2005) 131 Cal.App.4th 1089, 1102, overruled on another point in People v. French (2008) 43 Cal.4th 36, 47.) The rule is the same in situations in which a person engages in mutual combat. (People v. Ross (2007) 155 Cal.App.4th 1033, 1042-1047; see People v. Lucky (1988) 45 Cal.3d 259, 291.)

C. The Analysis

Appellant argues that the record, when viewed as a whole, establishes as a matter of law that appellant acted in self-defense. He asserts that his testimony regarding the perceived danger from the victim and his reaction to that perceived danger is uncontroverted. He explains that only he testified to what occurred between P. and himself. Thus, as a matter of law, the evidence establishes that he acted in self-defense.

The contention is meritless. The testimony and the reasonable inferences that may be drawn from that evidence demonstrate that there was no justification for the shooting. Appellant admitted during his trial testimony that he shot P. The only question for the juvenile court to determine was whether appellant acted in self-defense. There was substantial evidence that appellant and S. were the aggressors in the confrontation with M. and P. S. told the police that when the S.C.K. gang members approached the two youths and challenged M.s and P.s presence on their block, appellant immediately brandished his .38-caliber revolver at M. and P. At this time, M. and P. presented no immediate threat to appellant and were unarmed. As appellant initiated the confrontation and used excessive force to protect himself, the record fails to establish he acted in self-defense.

Moreover, even if appellants reconstruction of the shooting were believed entirely, the murder cannot be justified as an act of self-defense. When P. looked as if he was reaching for a weapon, appellant, as the aggressor, was bound to retreat and not stand his ground. However, instead of retreating, appellant fired his gun, fatally wounding P. in the chest. This testimony does not demonstrate any act by appellant that would have communicated to P. that appellant was retreating and was no longer a threat. On this record, it is not clear how appellant moved when he stepped off the curb. Also, the conduct may not have been sufficient in the juvenile courts estimation to communicate to P. that appellant intended to withdraw.[1] Self-defense and the reasonableness of appellants conclusion that P. was reaching to draw a firearm were issues properly determined by the trier of fact. The trial evidence constitutes substantial evidence that defeats the claim that appellant acted in self-defense. (See People v. Bolton (1979) 23 Cal.3d 208, 214-215.)

II. The Evidentiary Claim

Appellant contends that the juvenile court improperly considered gang and profile evidence to reach the verdict of guilty, thereby denying him due process.

The contention is unpersuasive.

A. Gang and Profile Evidence

[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 193.) In a particular case, gang evidence may be relevant to establishing motive and specific intent. (Ibid.) Also, [g]ang evidence should not be admitted at trial where its sole relevance is to show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citation.] (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)

A profile ordinarily constitutes a set of circumstancessome innocuouscharacteristic of certain crimes or criminals, said to comprise a typical pattern of behavior. In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile. (See People v. Robbie (2001) 92 Cal.App.4th 1075, 1084; see also People v. Smith (2005) 35 Cal.4th 334, 357, 358.) (People v. Prince (2007) 40 Cal.4th 1179, 1226.)

One court has described profile evidence as a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity. (U.S. v. McDonald (10th Cir. 1991) 933 F.2d 1519, 1521.) (People v. Robbie, supra, 92 Cal.App.4th at p. 1084.) Profile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt. (People v. Smith, supra, 35 Cal.4th at p. 358.)

Profile evidence is generally inadmissible to prove guilt. [For example, d]rug courier profiles have been held to be inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers. . . .  Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. (U.S. v. Beltran-Rios (9th Cir. 1989) 878 F.2d 1208, 1210, quoting United States v. Hernandez-Cuartas (11th Cir. 1983) 717 F.2d 552, 555.) (People v. Robbie, supra, 92 Cal.App 4th at p. 1084.)

B. The Analysis

Appellant explains that he does not dispute the admissibility of gang evidence as to motive; he objects that the juvenile court used the gang evidence improperly as propensity evidence. He argues that the juvenile courts rejection of appellants defense was based upon the improper and overbroad use of appellants gang membership to conclude that [appellant] must have been seeking an opportunity to shoot a rival gang member because all gang members act in that fashion. He urges that by reaching such a conclusion during its comments on guilt, the juvenile court demonstrated that it had substituted a broad unsupported generalization for the required particularized consideration of the malice element. Appellant asserts that the juvenile court convicted appellant and rejected his self-defense [claim] because [appellant was] a bad person who belonged to a bad group, thus denying [appellant] a fair opportunity to defend against the charged crime.

We agree with the Attorney General that on appeal, appellants claim is essentially an evidentiary claim that he failed to raise at the adjudication, and thus, the issue is forfeited. (People v. Ochoa (1998) 19 Cal.4th 353, 453.) If appellant disagreed with the trial courts reasoning process, the proper time to raise that objection was immediately after the juvenile court rendered its verdict. As appellant failed to object at the time of the verdict, the issue is not cognizable on appeal.

In any event, on the merits, the gang evidence was properly admitted in this case as it illuminated appellants reasons for shooting P. It is well-known that gangs commit violence to defend what they regard as their gang territory. Also, male intruders into gang territory, particularly where there is gang rivalry involved, may precipitate violence. Appellants testimony during cross-examination contained admissions that he was upset by M.s and P.s intrusion into his neighborhood and by P.s disrespect for his gang. S. admitted that he was aware M. and P. belonged to a rival tagging crew, although appellant denied such knowledge. The confrontation involved gang challenges. Also, appellant apparently had recently obtained the .38‑caliber revolver. As a matter of common sense and based on the testimony of the witnesses, the juvenile court was entitled to infer that appellant was itching to use his revolver to gain status within his gang, and that was the reason for the shooting.

The juvenile court properly exercised its discretion by relying on the reasonable inferences drawn from the trial evidence. The juvenile courts remarks do not indicate the improper or overly broad use of bad character, gang or profile evidence as a basis for the finding of guilty.

Citing McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, appellant makes the claim that the inferences employed by the juvenile court had the effect of denying him due process. That court held that if there are no permissible inferences the jury may draw from the evidence, the admission of the complained-of evidence can violate due process. (Id. at p. 1384.) Again, the reasonable inferences to be drawn from the testimony about gang territory and the probable gang motive for the shooting constituted highly relevant evidence that was properly considered by the juvenile court. Gang evidence was relevant to the issues in the case, and appellant was afforded a fundamentally fair adjudication. (See People v. Steele (2002) 27 Cal.4th 1230, 1246.)

III. The Admission to Detective Arciniega

Appellant contends that prior to blurting out his admission to Detective Arciniega, he was in custody and was subjected to the equivalent of interrogation. Thus, his admission was inadmissible in the absence of a prior Miranda warning. (Miranda, supra, 384 U.S. 436.)

We disagree.

A. Background

The juvenile court listened to Detective Arciniegas trial testimony. Trial counsel argued that testimony indicated that appellant had been subjected to custodial interrogation, that triggered the need for a Miranda warning. The juvenile court elicited from Detective Thompson that the interview room had been left unlocked. At no time was appellant explicitly told that he could not leave the station at any time he wished. Detective Thompson explained that when appellant agreed to go to the police station, they had no idea that he was involved in the murder. The only reason the detectives wanted to interview him was because he had cooperated during an earlier shooting investigation, and the instant shooting had occurred in front of his house.

Detective Thompson further testified that after appellant was placed in an interview room, the detectives went to Jefferson High School on a higher priority matter. They left appellant in the unlocked interview room for about two hours. At the high school, they picked up another person who had to be interviewed prior to speaking to appellant. When appellant made his statement to Detective Arciniega, the detectives made the decision to arrest him. Only at that point was appellant moved into another interview room that had a door that locked. When appellant was in the original interview room, a police officer could see its door and would have been available if appellant had wanted to speak to an officer or leave the station.

The juvenile court ruled that the statement was admissible in the absence of a Miranda warning.

B. The Relevant Legal Principles

Generally, Miranda advisements must be given by law enforcement officers before any custodial interrogation. (Miranda, supra, 384 U.S. at pp. 478-479.)

In People v. Leonard (2007) 40 Cal.4th 1370, the court set out the principles relevant to a review of whether a person is in custody: An interrogation is custodial when a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] (People v. Leonard, supra, at p. 1400.)

Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial courts determination that a defendant did not undergo custodial interrogation, an appellate court must apply a deferential substantial evidence standard [citation] to the trial courts factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, a reasonable person in [the] defendants position would have felt free to end the questioning and leave [citation]. (People v. Leonard, supra, 40 Cal.4th at p. 1400.)

With respect to whether an interrogation is occurring, [n]ot every question directed by an officer to a person in custody amounts to an interrogation requiring Miranda warnings. The standard is whether under all the circumstances involved in a given case, the questions are reasonably likely to elicit an incriminating response from the suspect. (United States v. Booth (9th Cir. 1981) 669 F.2d 1231, 1237.) This is an objective standard. The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly relevant. [Citation.] [Citations.] (People v. Wader (1993) 5 Cal.4th 610, 637.)

C. The Analysis

The primary issue in this case was whether appellant was taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda, supra, 384 U.S. at p. 444.) To make this determination, the juvenile court must first establish the circumstances surrounding the interrogation. It must then measure these circumstances against an objective, legal standard: would a reasonable person in the suspects position during the interrogation experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest. (See Berkemer v. McCarty (1984) 468 U.S. 420, 442; California v. Beheler (1983) 463 U.S. 1121; People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury).)

Courts have identified a variety of relevant circumstances [for making this determination]. Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the persons conduct indicated an awareness of such freedom; whether there were restrictions on the persons freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.] (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161-1162.)

As applied to these facts, the detectives had no idea that appellant was involved in the murder when they contacted him. Thus, they would not have conveyed to him that he was a suspect in the murder or in custody. The morning following the shooting, the detectives merely asked him to voluntarily accompany them to the police station for an interview. Appellant agreed. Detective Thompson testified that they simply wanted to talk to appellant to obtain further information about the shooting because of his gang affiliation and the proximity of the shooting to his house. Further, appellant had been exceptionally cooperative during the investigation of a recent gang shooting.

At the station, the detectives left appellant in an unlocked or open interview room. They had other priorities to attend to and left his interview until later. Detective Arciniega or another officer was in the area. Detective Arciniega took the occasion to say, Hi to appellant and to have a short, casual conversation. On this record, there is no indication that the questioning took place in a context where the respondents freedom to depart was restricted in any way. (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)

As the court observed in Stansbury, supra, 9 Cal.4th at pages 833 through 835, even the admission of a person into the jail section of the police station for an interview, behind locked doors, with a need to obtain assistance to leave the facility, does not indicate that a person is in custody. (Id. at p. 834.) The decision in Green v. Superior Court (1985) 40 Cal.3d 126, 136, compels a no different result. As the Stansbury court explained: In Green v. Superior Court[, supra,] 40 Cal.3d [at page] 136, for example, though the defendant was interviewed in a locked room, the record did not reveal whether the defendant realized that the interview room was locked, and we found the evidence did not compel the conclusion that the defendant could not have left or felt he could not have left at any time during the interview. (Stansbury, supra, 9 Cal.4th at p. 834.) Also, here, appellant was not left alone in a locked room when the detectives attended a meeting as he was in Green. Here, the door to the room may have been open and was certainly unlocked. There was an officer nearby to direct appellant out of the station if appellant had decided to go home. Appellant was not alone in the interview room for long as Detective Arciniega entered to greet him and for a brief, friendly chat. (See Green v. Superior Court, supra, 40 Cal.3d at p. 136 [it is an entirely different matter when a person is left alone in that locked room with no apparent or ready means of leaving].)

Given the unique facts of this case, there was no need for a Miranda warning as appellant was not in custody.

Furthermore, even if there was Miranda error, it was harmless beyond a reasonable doubt. The admission only admitted appellants identity as the gunman. At the adjudication, appellant conceded that he was the assailant. What was at issue during the adjudication was appellants specific intent, and the admission was not incriminating in that respect. Even if the volunteered statement had been excluded from evidence, the evidence of guilt was overwhelming, and it is not reasonably likely that the verdict was attributable to the error. (Chapman v. California (1967) 386 U.S. 18, 36.)

DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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[1] The testimony appellant claims indicated that he retreated is at page 183 of the reporters transcript and indicates the following. Appellant claimed that P. walked up to within three or four feet of him and started saying, F--- your hood. P. then said to him, Lets get down. Appellant explained that that expression meant that P. wanted to fight. Appellant testified, Thats when I just backed out of the curb into the street, and appellant indicated that he was now standing in the street. Appellant put his hand into his pocket, and P. said to him, What are you going to do? P. was tall. Another youth drove up on a bicycle, dropped it behind appellant, and appellant turned and looked at the third youth. When appellant turned around and looked again at P., P. was reaching for something with his hand in the area of P.s midsection.