PEOPLE v. FAGONE

F052358

THE PEOPLE, Plaintiff and Respondent, v. JAMES FAGONE, Defendant and Appellant.

Court of Appeals of California, Fifth Appellate District

Not to be Published in the Official Reports


Attorney(s) appearing for the Case

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

ARDAIZ, P.J.

On September 25, 2003, an information was filed in Fresno County Superior Court, charging appellant James Fagone with murder (Pen. Code,1 § 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), residential burglary (§§ 459, 460, subd. (a); count 3), and torture (§ 206; count 4). Financial-gain, lying-in-wait, torture, kidnapping-felony-murder, and burglary-felony-murder special circumstances (§ 190.2, subd. (a)(1), (15), (17) & (18)) were alleged with respect to count 1.2 During trial, the financial-gain, lying-in-wait, and torture special circumstances were stricken, and count 4 was dismissed, at the prosecutor's request. On December 12, 2006, the jury returned verdicts convicting appellant of first degree murder and first degree burglary, but acquitting him of kidnapping. Jurors further found true the burglary-murder, but not true the kidnapping-murder, special circumstance. Appellant was sentenced to life in prison without the possibility of parole and ordered to pay restitution, as well as various fees and fines, and he filed a timely notice of appeal. For the reasons that follow, we will strike the parole revocation fine, but otherwise affirm.

FACTS

I

PROSECUTION EVIDENCE

As of July 2003, Timothy Schuster and his wife, Larissa, had been separated for approximately two years and were going through a contentious divorce.3 One source of conflict was the fact that Timothy owned 49 percent of Larissa's business, Central California Research Laboratory (CCRL); thus, according to what Larissa told Leslie Fichera, a chemist at CCRL, Timothy was entitled to 49 percent of the business's worth. This upset Larissa, who felt like she had started the business and that Timothy was not entitled to any of it. Larissa occasionally talked to Joseph Boatwright, a CCRL employee, about her feelings toward Timothy. At one point, she asked Boatwright whether he knew anyone who would kill Timothy. Boatwright thought she was joking, although he knew she hated Timothy.

CCRL, which was located near Shaw and 99, was an agricultural laboratory involved in researching and analyzing pesticides, crops, soils, and the like. Occasionally, various types of acids were used in some of the tests, but, by Fichera's estimate, no more than approximately two to four liters of sulfuric or hydrochloric acid in a year. Chloroform was not used in any of the testing.

In August 2002, Larissa asked Fichera to rent a unit for her at Security Public Storage, which was on Shaw Avenue near CCRL, so she could conceal some items from Timothy. Fichera rented the unit (A182) in her own name as a favor to Larissa, then gave the key and access code to her. Fichera did not return to the unit after that.

For about a year following the separation, Timothy resided in a condominium in the Woodward Lake area. During the time he was there, he spoke to his close friend, Robert Solis, about a burglary that occurred while he was out of town. Although Timothy expressed a belief that Larissa was responsible, he did not express any fear of her to Solis. However, he once played for Solis some of the telephone messages Larissa left for him on his phone message recorder. They were vulgar and intimidating. Timothy also confided that Larissa had physically assaulted him. Solis heard Timothy mention appellant as occasionally babysitting Timothy and Larissa's son for Larissa.

The break-in occurred a couple of months after Fichera rented the storage unit for Larissa. Larissa confided to Fichera that she had gotten into Timothy's house and that "James" was with her. On several occasions over a period of time, Larissa commented to Fichera that she wanted her husband dead.

Sometime after the burglary, Timothy moved to a house in Clovis. He also obtained a gun permit.

In the late months of 2002, appellant told James Thornburgh about having some property that he obtained from his old boss's ex-husband. At some point, perhaps a month or two before appellant's arrest, appellant said something to the effect that Larissa had asked him to chloroform her ex-husband and rob him again. Appellant also took Thornburgh to see a place in the Tower District that he said he was going to rent and for which Larissa was going to pay.

In the summer of 2003, appellant, Afshin Salehi, and two of their friends were socializing at TGI Friday's when appellant said he wanted to break into his old boss's ex-husband's house and wanted help doing it. He wanted one of his companions to go up to the door and knock, and Taser the victim when he answered the door. Salehi assumed the plan was then to rob the person, who appellant said had nice electronics. Appellant wanted Salehi to Taser the person because Salehi did not know the man, and so the man would not know who Tasered him. Appellant told Salehi that he wanted him to Taser the man in the neck. Appellant explained that if someone were Tasered in the neck, hopefully he would pass out. Salehi responded that he did not know what would happen; the person might not pass out, or something worse could occur. Appellant said he did not know what would happen, either, but Salehi did not believe appellant shared his concern about causing serious injury. Appellant mentioned something about having his ex-boss buy a house so he could live there. He said he had been given some money in relationship to the plan he had.

Appellant discussed his plan with Salehi a second time less than a month later. At that point, which was about a month before appellant's arrest, Salehi decided to have no further contact with him. Appellant never implied the plan was to kill the person.

Sometime prior to June 25, 2003, Judy Van Gorkom, whose home was directly across the street from Larissa's residence in Clovis, saw Larissa moving a blue barrel inside her garage. Several months before Timothy's disappearance, Boatwright saw a blue barrel at the back of the CCRL premises that looked to be a 55-gallon open-top drum, meaning the top could be removed and put back on. This was not the type of barrel normally used at the lab for disposal of solvent waste. At some point, Larissa asked Boatwright either if a body or if Timothy would fit in the barrel. On July 8 and 9, 2003, Boatwright saw bottles of chloroform sitting on top of an acid cabinet at the lab.

In the first part of July 2003, Saint Agnes Hospital was in the process of laying off some workers, including Timothy, a registered nurse who had risen to supervisory level, and Solis's wife. Both had exit interviews scheduled. The night before these interviews, Timothy had dinner at the Solis residence. Plans were made for Timothy to go to his interview, which was scheduled for an hour or two before that of Mrs. Solis, then meet the Solises for breakfast at IHOP. Timothy left the Solis residence about 9:00 p.m. He did not seem depressed.

Timothy failed to appear at IHOP the next morning, July 10. When the Solises learned he had also failed to appear for his exit interview, they became concerned, as he was always on time and never missed appointments. Solis made a number of calls to Timothy's cell phone, which Timothy always carried, but there was no answer. Solis then contacted a mutual friend, Victor Uribe, and asked him to go to Timothy's house to see if Timothy was all right. Uribe reported that the doorbell went unanswered, but that Timothy's pickup — his only vehicle — was in the garage.

The next morning, the Solises went to Timothy's residence. They also contacted the Clovis Police Department, explaining that Timothy was going through a bad divorce and that they were concerned he might have hurt himself.

Clovis Police Officer Willow responded to the residence at approximately 9:00 a.m. on July 11 and entered the house. Timothy was not there, but a checkbook/wallet combination containing his driver's license was in the pickup. Timothy's cell phone was in the bedroom. The butt end of a handgun was visible under the cushion of a chair near the front door. The clothing Timothy had worn to the Solis home the night before was in the hamper.

A missing person report was filed, but Willow was unable to find anyone contained in the address book of Timothy's cell phone, other than the Solises, who had had contact with Timothy more recently than approximately two weeks earlier. One of the people he contacted was Teresa Lopez, Larissa's manicurist. Lopez informed Willow that Timothy and Larissa normally exchanged custody of their 12-year-old son, T., at the Body Shop salon, where Lopez worked, but that Timothy had failed to pick up the boy on the evening of Thursday, July 10. Lopez subsequently contacted the Clovis Police Department to express fear for Timothy's safety and concern he may have fallen victim to foul play because of threats or implied threats from Larissa over their divorce. Lopez also gave information concerning the earlier burglary, and related that someone named "James" may have been involved.

The case was turned over to detectives. Clovis Police Detectives Weibert and Kirkhart searched Timothy's house on the afternoon of Friday, July 11. They found what appeared to be fresh damage to the entryway wall. The telephone on the night stand in Timothy's bedroom indicated that, at 2:02 a.m. on July 10, a call had been received from a number subsequently determined to be that of Larissa's cell phone.

Kirkhart contacted Larissa and arranged for her to come in for an interview. During the interview, which took place at the Clovis Police Department beginning around 10:00 p.m. on July 11, Larissa related that her last face-to-face contact with Timothy was during a child custody exchange on July 5. Larissa said it had been weeks or months since she had spoken to Timothy by telephone, as they mostly communicated by e-mail.

Finding this unusual in light of the caller ID showing that someone using Larissa's cell phone had called Timothy's house at 2:02 a.m., Kirkland asked Larissa about her activities on the evening of Wednesday, July 9 and early morning of July 10. Larissa related that she was at home, with T. She denied calling Timothy or attempting to make any contact with him. When confronted with the 2:02 a.m. call, Larissa denied, several times, that she made it. Eventually, she said that she may have been lying on the couch and could have rolled over and somehow accidentally hit the speed-dial button and caused the phone to dial Timothy's house.

Asked if she had her cell phone with her, Larissa said she had left it at home. Weibert saw a cell phone inside the Lexus he believed was hers, however. Using his own cell phone, he called what police knew to be Larissa's cell phone number. The phone inside the car rang. Larissa was then asked to retrieve her phone. Weibert inspected it and found no speed-dial setting for Timothy. He then gave the phone to Larissa and asked her to demonstrate what might have happened. The detectives stepped out of the interview room to consult, but were able to watch Larissa on a monitor. She was wildly pushing buttons on her phone. When the detectives reentered the interview room, Larissa handed the cell phone to Weibert. As she did so, she pushed a button and said something like, "oops, I must have deleted it." She said she had inadvertently deleted the speed dial that was on the phone.

The detectives confronted Larissa about what appeared to be lies, and she admitted making the 2:02 a.m. call. She said that she and T. were getting ready to go out of town, and that she had called Timothy to "vent" because she was upset about some papers that he was refusing to sign.

On the morning of Saturday, July 12, Fichera read in the newspaper that Timothy was missing. Early that afternoon, Larissa telephone Fichera, said she needed help with the gas chromatograph, and asked Fichera to meet her at the lab. Once Fichera was there, Larissa, who seemed a little nervous, said the Clovis Police had caught her in a lie about the time of a telephone call or something, but that she did not know where Timothy was. Larissa also said she had lied to Fichera about there being something wrong with the instrument at the lab, but that she was worried her phones were tapped. She handed Fichera a box of papers and said there might be calls from the police while she was on vacation. Larissa instructed Fichera to be honest with them and do whatever they asked, but to call Larissa if they wanted to see the lab. Larissa also asked Fichera to pay for the storage unit while she was gone and not to say anything about it to the police.

As Fichera started to drive home, Larissa pulled up beside her and motioned that she was going to follow Fichera. When they arrived at Fichera's home, Larissa said she needed to move a piece of lawn equipment, and asked if Fichera knew anyone who had a truck with a lift gate. At Larissa's request, Fichera went to the U-Haul on Blackstone and rented a moving van with a ramp and dolly or hand truck. Fichera then drove the truck back to her house, as Larissa had said she needed to meet a detective and give him a journal or something and that she would come by Fichera's later.

Larissa's meeting with Kirkhart took place near Blackstone and Sierra, and was watched by Clovis police. After, Larissa started to travel eastbound toward Clovis. She then began driving erratically and dangerously, so that surveillance was discontinued and then picked up again at her house just as she arrived and went inside. A short time later, appellant drove up. He was at the residence about 20 minutes, then left with a younger male.

Larissa returned to Fichera's house and took the van. She seemed to be in a hurry. She telephoned Fichera 45 minutes to an hour later, and said she was done and would meet Fichera at the U-Haul place. When Fichera got there, she noticed that Larissa was hot and sweaty. She had some scrapes on her legs and arms, and her shoe had a little bit of blood on it. The van's mileage showed it had not been driven far enough for a round trip to Larissa's house. Fichera noted that the restraining tie on the hand truck had been cut, indicating the dolly had been used. Storage facility records for July 12, 2003, showed that the facility was entered at 6:31 p.m. by someone with Fichera's entry code. The door to unit A182 was opened at 6:33 p.m. and closed at 6:41 p.m., and exit from the storage facility was at 6:43 p.m.

When Fichera arrived at the lab on Monday, she found a check from Larissa on her desk for around $500. It was to pay for the van and one month's worth of storage (which together came to $60 to $70), and what the check memo listed as "travel expenses."

Investigation into Timothy's disappearance continued through the weekend. Kirkhart had obtained the Fresno Police Department's report on the earlier burglary of Timothy's residence and was aware of Lopez's information regarding the possible involvement of "James." During the search of Timothy's home, Kirkhart had found a Palm Pilot. Seeking any clues as to Timothy's whereabouts, he had used the search feature to search for "James." The only match was to appellant. Learning that the Fagones lived approximately half a mile from Larissa's house caused Kirkhart to conclude this might be the "James" who was involved, and led him to interview appellant.

Appellant was first interviewed at the Clovis police station, by Detectives Kirkhart and Dailey, on the afternoon of July 14.4 He related that he had been "hanging out" a lot with Larissa and T., and that he believed he had last seen Larissa the preceding Saturday, when he took T. to a friend's house. Appellant initially denied involvement in the earlier break-in at Timothy's residence. Eventually, however, he admitted going to Timothy's house with Larissa. The deal was basically that, if he would help her get her stuff, he would get to take a few things for himself. Appellant denied any knowledge of Timothy's current whereabouts. Dailey instructed appellant to gather up anything he had left from the burglary and bring it to him so that the matter could be resolved. Appellant agreed to do so.

On the evening of July 14, as a result of information received from appellant, Fichera, and other persons, search warrants were executed almost simultaneously at three locations: Larissa's home in Clovis, CCRL, and unit A182 at Security Pacific Storage. On the floor of a storage shed adjacent to Larissa's garage were some markings that were consistent with a barrel being slid or manipulated.

A box containing bottles and bearing a shipping label addressed to Larissa was found in a Dumpster behind CCRL. Inside the lab was a blue container labeled "acid." There were several two-liter bottles of sulfuric acid on top of a cabinet. There was a loading/storage area at the back of the lab that could be accessed from a rear alleyway by means of a roll-up door. There were three 55-gallon drums in the loading area. These containers, which had small openings in their tops, were used for disposal of small hazardous waste, such as test tubes. These types of containers were the kind commonly used in the lab, as opposed to ones from which the entire top could be removed.

At some point before any of this happened, Fichera noticed a purchase order form for hydrochloric acid in quantities greater than a normal order. She approached Larissa, who told her not to worry about it. During the execution of the search warrant at CCRL, Fichera became aware that fairly large quantities of hydrochloric acid had been ordered.5 During the search, Fichera also saw a case of empty bottles labeled hydrochloric acid in CCRL's Dumpster. At the time, the Dumpster was emptied twice a week. Fichera found it "[i]nconceivable" that four 2-liter bottles of hydrochloric acid would have been used in the course of half a week.

During the search of the lab, Boatwright observed some blue-tinted drips on the cabinets and floor adjacent to the lab's storage compartment for its caustic chemicals, which included acid. Boatwright had never seen such drips before. Lab employees used nitrite gloves when handling caustic materials. Boatwright discovered that a combination of hydrogen and sulfuric acid placed on nitrite gloves produced drips of the same color.

A strong, foul odor, recognizable as that of a dead body, exuded from the unit at Security Pacific Storage. The smell became extremely strong when the unit was opened. Inside, Christmas ornaments and other items were found stacked on top of a blue barrel. The lower half of a human body was floating inside the barrel in fluid found to contain hydrochloric acid, decomposed body fat, chunks of meat, and blackish-brown material. Both ankles had fractures caused by a sharp cutting instrument. Subsequent testing identified the remains as those of Timothy and the cause of death as probable combined effects of acute chloroform exposure and hydrochloric acid immersion. The time of death was estimated to be in the early morning hours of July 10, 2003. It could not be determined whether Timothy was alive when he was placed in the barrel.

In light of where the body was found, Fresno Police Detectives Alcorn and Cardenas took over primary responsibility for the investigation. After being briefed on the information Clovis police had obtained, they had Clovis officers facilitate appellant's going to the Fresno Police Department for an interview.

During the course of this interview, which began just before 9:00 a.m. on Tuesday, July 15, appellant described his involvement in the earlier break-in at Timothy's house. With respect to the most recent developments, appellant related that he had been watching T. a lot lately. The preceding Wednesday, he took over a movie to watch with T. Around 11:00 p.m., he told Larissa he was tired and wanted to go home. She said all right. He went home, drank a couple of beers, and took some painkillers because of his back.6 Sometime between 1:00 and 3:00 the next morning, she tapped on his window and told him to come and ride with her. They went to what appellant assumed to be Timothy's house. When Larissa let him into the house, she asked if he wanted anything. He looked around and said he just wanted to go home. Larissa then drove him home. He thought she may have gone back, but was not sure.

When urged to tell the truth, appellant admitted he was afraid, as his parents had said there was a body. Larissa had said she wanted to kill Timothy, as she was sick and tired of him. Appellant knew she would try and pull him in on it. She was forceful and a strong person, and it was almost to the point where he could not tell her no. She had a way of controlling everything. He thought he gave her the idea, because he once mentioned that in high school, his teacher had told him about how somebody got rid of his wife in a barrel of acid. Appellant had seen a barrel at Larissa's house, but had thought nothing about it.

When urged again to tell the truth, appellant said Larissa had opened the front door of the house and let him in. Timothy's body was inside, to the left of the front door. Seeing him left appellant "messed up" and "wigging out." Appellant did not know whether Timothy was alive, and he told Larissa that he wanted to go home. She got upset with him and told him not to freak out on her. She wanted him to help move the body into the Ford truck that belonged to Timothy. Eventually, appellant moved Timothy into the backseat. It sounded like Timothy was still breathing. He was not bleeding and appellant saw no injuries. Larissa bound Timothy's hands and feet with plastic zip ties she had told appellant to buy about a month before.

Alcorn asked appellant to start from the beginning. Appellant replied that he and Larissa were always hanging out and talking, so there was no one specific time he could point to. She asked him to get some things for robbing a house and dealing with someone there. As a result, appellant bought some zip ties and a stun gun. She kept insisting that he help her, although he did not want to. She asked if appellant had any friends who could help pull a robbery. Appellant called around, but no one wanted to.

Cardenas turned the conversation back to Wednesday night. Appellant admitted stepping aside at the front door of Timothy's house, so he could not been seen. When the door opened, he heard Larissa and Timothy talking, then appellant ran up and went inside, where he used the stun gun on Timothy a couple of times.7 There was a struggle; appellant had to hold Timothy down while Larissa bound him with zip ties. Larissa had some chloroform, which she had given appellant to keep for her. He had thought they were going to rob the place and make Timothy fall asleep and forget about it. Larissa ordered him to make sure no one was coming or could see in. Appellant was looking out the front window and neither knew nor wanted to know what she was doing, so he did not see her use the chloroform. After he helped Larissa put Timothy in the backseat, they went to Larissa's house. Larissa drove Timothy's truck; appellant drove hers. Larissa pulled into the garage, while appellant parked in the driveway. Larissa then asked appellant to get some stuff from upstairs. There, appellant found a blue barrel that he could barely carry. He took it downstairs and helped her prop it up. She put Timothy in it. It sounded like Timothy was breathing or moaning, but appellant did not think he was alive, as he was "real floppy." Larissa then poured in some sort of caustic solution. She insisted that appellant help her, so he helped pour in a little bit. He helped her clamp the lid on, then she put the barrel in the shed in the side yard of her house. After they returned Timothy's truck to his house, appellant went home, had a couple more drinks, and passed out. He believed Larissa took the stun gun, as she said she would take care of everything.

Appellant related that a day or two later, he helped Larissa move the blue barrel to the lab, where it was placed in the back room with the roll-up door. Appellant, who believed this took place the day Larissa spoke to detectives, did not know how long it remained there. Larissa said she would take care of it. When appellant refused to rent a truck for her, she said she would get someone else to help her. Late Saturday, she said she had gotten some helpers. Appellant expressed concern that she could have someone do something to him.

Clovis detectives monitored the interview, and it was decided they would reassume primary responsibility for the investigation, since there was reasonable cause to believe Timothy actually died in Clovis. They accompanied appellant to his house, where a consent search was conducted. In appellant's room was a bottle appellant said had contained chloroform. The bottle now contained a barn owl feather appellant had found.

Weibert obtained a warrant, then arrested appellant at the house. Appellant was transported to the Clovis Police Department, where he was advised of his constitutional rights and again interviewed, this time by Weibert and Alcorn.

Appellant explained that he was going to go over to rob the place with Larissa, but then it ended up being more than that. He was "freaked out" and did not know what to do, and just went along with it. Appellant related that he had remembered some things since speaking with Alcorn. For instance, when he and Larissa were at Timothy's house, she mentioned something about looking for another book that he may have been keeping. Weibert acknowledged that appellant had told Fresno detectives what happened, but he asked that appellant now tell him. Appellant did so, essentially repeating what he had ultimately told Fresno detectives. Appellant stated that he never wanted this to happen. He did not even want to commit the first break-in, but he reasoned that it was her stuff and he would just help her out and then she would leave him alone.

Appellant ultimately declined to make pretext calls to Larissa. As the result of a map he drew following the interview, however, the stun gun was located inside the holding tank of a port-a-potty at a construction site. A Ford vehicle key and a key to the front door of Timothy's house were found at Thornburgh's residence, where appellant had stayed the weekend of July 12 and 13.

On July 18, a search warrant was executed at appellant's home. Tacked to a cork board in appellant's bedroom were a receipt from Herb Bauer Sporting Goods for a Stun Master stun gun and two 9-volt batteries, and a receipt from Orchard Supply Hardware for 14-inch cable zip ties. Both receipts were dated the afternoon of June 20, 2003.

II

DEFENSE EVIDENCE

According to several of appellant's friends, appellant was a very nonviolent person. Salehi even described him as passive and docile. Some of Larissa's former employees variously described her as very controlling, cruel and vindictive but very nice at times, intimidating, unable to control her temper, and "a scary lady to work for."

Teresa Lopez was Larissa's manicurist for years. During the latter portion of that time, they saw each other on a weekly basis. One week, seemingly out of the blue, Larissa announced she was getting a divorce. She said she had met a man at a convention in Chicago and did not realize how good sex could be, and she did not want to be in her marriage anymore.

At some point, Larissa confided in Lopez about a burglary at Timothy's home. Larissa related that Timothy had gone to Missouri, and that she, "James," and two other people had entered Timothy's home and ransacked and vandalized the place.8 Larissa said she went back a couple of times after the incident, just to sit and gloat and see what they had done. She said it was better than sex for her. She also said that she keyed the side of Timothy's truck, and seeing those scratches was like a trophy. Larissa later told Lopez that when Timothy came home, he called her and then the insurance company. He was unable to file a claim because he did not have renter's insurance, but he knew Larissa had had something to do with it. Larissa bragged of giving an Academy Award-winning performance when talking to the police and insurance agent.

On one occasion after the break-in, a couple of women in the beauty shop were talking about their ex-husbands and how things would go so much easier with the children if the women were widowed instead of divorced. Larissa said she wished Timothy were dead. When Lopez suggested she did not really mean that, Larissa turned her chair around, looked at Lopez, and said, "[Y]ou don't understand. I wish he was dead. I can do it and get away with it." She said she knew people who could do it. Around this point in time, Larissa started using vulgar names for Timothy that disparaged his virility and sexual performance. She also talked about having T. take stuff from Timothy for her during T.'s visitations with Timothy, and how T. would lie to Timothy about it.

Timothy also talked to Lopez and expressed fear of Larissa. On several occasions, he said he was going to take out a permit to carry a concealed weapon, because he was in fear for his life. At one point (Lopez believed the last time they talked), Timothy told her that if anything happened to him, it would not be an accident.

Victor Uribe and Timothy, who was very quiet and easygoing, were close friends. On a few occasions, Timothy expressed fear of Larissa. He said she had threatened him and he was afraid of her and that she was nuts. He told Uribe about one occasion on which she physically assaulted him. Timothy played for Uribe messages Larissa had left on his answering machine. They were vulgar, derogatory, and threatening.9 Uribe was with Timothy when Timothy purchased a gun. Timothy said he was buying it because he was afraid of Larissa.

In July 2002, Charles Jimenez delivered and installed a barbecue at Larissa's home in Clovis. After asking whether he did odd jobs, Larissa asked if he wanted to get her ex-husband's truck from the airport, as he would be going on a business trip, and help her get into his house and get her stuff back. Larissa said Jimenez could take whatever he liked from the house as payment. Sometime later, Larissa told Jimenez some things that made him believe she had already done something to get her property back.

Several months later, Jimenez came in contact with Larissa again. On this occasion, she asked if Jimenez wanted to go to her ex-husband's house. She wanted him to stun Timothy with a stun gun at the door, then wave at her down the block so she could come and get some vases he had taken and some other property she wanted back. She said nothing about killing Timothy, but offered Jimenez $1,500 to help her.

Appellant, who was 21 years old as of July 10, 2003, testified that he first met Larissa in August 2001. His mother knew Timothy, and told appellant that Timothy's wife had a laboratory and was looking for some help. Larissa hired appellant as a lab technician. T. was often at the lab, and he and appellant got to know each other.

Shortly after appellant began working for Larissa, he was emptying some waste solvents into the disposal barrel. Appellant was not sure how it came up, but he jokingly brought up a story he had heard at school about a man who put his wife in a barrel of acid. Appellant could not remember whether this was before or after Larissa started talking about her marital problems, but from his standpoint, he was merely joking.

As time went on, appellant did not see Larissa and Timothy together much. In perhaps February or March of 2002, Larissa told appellant that they were divorcing. Not long after, appellant believed in the summer of 2002, she talked about Timothy moving out. She said he took some things that belonged to her, as well as thousands of dollars. She was angry. Larissa began to talk about wanting to get her property back. At first, the conversation was general, then one time, she asked whether appellant thought it was possible for her to go and get the things back. He said he did not know. A few days later, she said she knew Timothy was going on vacation, and that she was thinking of taking the stuff while he was gone.

Appellant had started working a swing shift at the laboratory. One day, when he was not planning on going in to work, Larissa telephoned and asked him to meet up with her. After appellant got into her truck and they drove off, she said she was going over to Timothy's house to get her stuff back, and that appellant could get a DVD or CD or speakers or anything like that as his payment. She said she had driven over to the airport, where she had found Timothy's truck. Gaining entrance with a spare key, she had taken the garage door opener from it. Larissa "seemed resolute," and appellant "was along for the ride." She was his boss, and he did not protest.

At the house, Larissa pulled into Timothy's garage. Appellant then used a screwdriver to open the door from the garage to the house. Once inside, Larissa told him to take whatever he wanted, that she was going to get her stuff back. Appellant helped her with some baskets and other items, then grabbed some speakers and electronic equipment. He neither committed, nor did he see Larissa commit, any acts of vandalism. They loaded what they took into Larissa's truck, then she took him to his grandparents' house, where he unloaded the items he had taken and placed them in his room. Appellant was scared and nervous while in Timothy's house, but Larissa said it was her stuff and Timothy had taken it when he was not supposed to. Appellant was helping her get her things back.

Appellant subsequently heard Larissa say that she went back to Timothy's residence on her own. She said she stepped on some CD's and that she enjoyed realizing she had gotten her revenge on him or had gotten her stuff back. She said something about Timothy not being able to do anything about it, and she implied she had other people helping her.

Appellant denied having any kind of romantic relationship with Larissa. As time passed, however, his relationship with T. became closer. Because of the divorce, Larissa would need somebody to look after him if she had meetings or a date or the like. Appellant was kind of like a big brother to the youngster. Increasingly during the separation, Larissa would deride Timothy as a man, often in T.'s presence.

Until March 2002, when it was totaled in a collision, appellant owned a white Volkswagen. Around May of that year, he purchased a 1973 Porsche 914. After a while, it developed some problems. In September 2002, appellant set the engine on fire and collected the insurance proceeds.

Appellant quit his job at the lab in mid-October 2002. He was bored with the work and wanted to get away from Larissa. He was uncomfortable because she had started to use him to watch everyone else at the lab and report back to her. At the same time, he was in the process of moving from his grandparents' residence to his parents' new house, which was in the same subdivision as Larissa's home. He continued to watch T. when Larissa was out, and she encouraged the two to spend time together. She paid appellant very well to feed the dogs, watch the house, and take in the mail if she was gone. Appellant wanted to be a buddy to T., as they were friends and had many similar interests. At the end of November or so, appellant went to work for another employer. He was also taking classes at Fresno City College. He continued to watch Larissa's home, feed the dogs, and take care of T. during this time.

Larissa sometimes talked about wanting Timothy dead. At first, she would say things like that when she was venting, but then her vulgar comments started to increase and she would say she wished he would crawl somewhere and die or things of that nature. Once, she said she wished she could smash his head in with a crowbar, but she immediately clarified that she could not do that. She said she could not live with that on her conscience, and that Timothy was not worth it.

Sometime after the first burglary, Larissa said that Timothy still had some knife sets and other items that she did not get the first time. At some point, she asked appellant if he knew somebody who could rough someone up for her. She said something about her friend's husband having stolen something from her, too, and something along the lines of wanting to teach him a lesson. Appellant told her that he did not know anyone who would do something like that. Appellant believed she may also have mentioned something about getting someone to rough Timothy up.

When Larissa first brought up the possibility of robbing Timothy again, appellant did not want to be involved and told her so. Larissa asked if he had some friends who could do it. Appellant was not interested. At some point, Larissa told appellant that she had talked to the man who installed her barbecue. She implied that he or someone he knew was an experienced criminal. Ultimately, however, it was not working for her to get someone else. When suggesting that they commit another burglary of Timothy's house, she did not really talk about it being a little more than that; however, she later said that Timothy had gotten an alarm and was paranoid, and so they would probably have to rob him while he was there.

The reason for the second burglary basically was revenge. Larissa wanted Timothy to know. At some point, she raised the issue of chloroform and gave appellant some. She said it would wipe out Timothy's memory. It would make him pass out and he would forget. He would wake tied up and everything would be gone. He would know that she was involved, but he would not be able to prove it. It would be the ultimate touché or vendetta. The stun gun was appellant's idea. He had seen a movie in which a person was knocked out with a stun gun, and he mentioned that to her, he believed in spring of 2003. He suggested something along the lines of having someone pretend to have broken down and, when Timothy let the person use the telephone, the person would stun Timothy and he would be unconscious.

In April or May of 2003, Larissa gave appellant $2,000 and said she wanted him to check it out and see if it could be done, and to buy some supplies. He used some of the money on odds and ends, and some to rent a house. He basically wasted the money, and he never moved into the house he rented in the Tower District, because his motorcycle accident caused him to be unable to work sufficiently to afford the rent.

Larissa continued to bring up the notion of robbing Timothy. She never said anything about putting him in a barrel of acid. The discussions only concerned robbing him. She wanted revenge. She wanted him to know that she had someone take his things. Larissa wanted appellant to recruit some friends to help him. He talked to a couple of friends; they were not interested.10 Appellant was "dragging [his] feet." He had hoped that if his buddies were there, then everything would go exactly according to plan and nothing else would happen. It had crossed his mind that things could escalate. He did not want anyone to get "really badly hurt."

After appellant took the money, Larissa began to get forceful. He could tell she knew he was not doing anything she had asked. He talked to Larissa about doing this to Timothy because she led him to that. He had never assaulted anyone or picked a fight in his life. He tried to extricate himself from the plan by telling Larissa, after his motorcycle accident, that he could barely move around and did not think he could be involved. She ignored what he said and immediately started talking about trying to recruit more friends. Because Larissa was becoming "incredibly forceful" and her venting was becoming more intense, appellant started to become concerned for his own safety and to wonder what would happen if he opposed her. She had mentioned talking to people who had weapons, and it was appellant's understanding that she could call these people at any time. As appellant saw it, "she had clout. She had money, connections." Appellant believed he was in too deep, and he did not want to oppose her because he was afraid of what she could do. He began to get the idea she was crazy, but figured he would be okay as long as he was loyal to her.

Larissa gave appellant $500 when he said he had a couple of buddies who might be interested. He was to show his friends that they could get paid for this kind of thing. Appellant told his buddies they could get paid, then wasted the money. At some point, perhaps a month and a half before the $500 payment, appellant saw a blue barrel in Larissa's garage. She said something about using it at the lab. Appellant, who was at her residence frequently, only saw the barrel that one time. Larissa never told appellant that she was ordering large quantities of acid. He never saw large quantities of acid until the night of the crime.

After appellant's motorcycle accident, Larissa started becoming intense in terms of pressuring him to recruit people. Not wanting to appear disloyal, he bought a stun gun in case she asked to see it. He only bought it because he was afraid and did not have anything to show for her money. As he did not have any of the money she had given him, he used his credit card. Sometime after that, he informed her that he had purchased a stun gun. He also had zip ties, and she gave him chloroform. Although he could not recall with certainty, appellant believed he received the bottle of chloroform before he purchased the stun gun.

Larissa continued to pressure appellant. She was going on vacation soon and was becoming forceful about wanting to get it done, although she did not set a specific date. On the night of Wednesday, July 9, however, appellant stopped by Larissa's house to watch a movie with T. As he was leaving after the movie ended, she said she was thinking about driving over there and checking it out or scoping it out, to see if there was a way into the house. The discussion was brief; afterward, appellant went home.

Once home, appellant could not sleep because of his back pain. His usual routine was to take Excedrin PM and have a beer or two. He believed he had at least one beer that night. Later, Larissa telephoned him.11 She told him to get his things and come outside, or something along those lines. He understood that she wanted him to bring the things he had acquired in connection with the plan for the robbery. He put them in a backpack. He saw that she was waiting outside in her truck. He was scared to go out there without the things because he was afraid of her and of being disloyal to her. Because earlier that evening she had said she just wanted to check things out, he wanted to believe that nothing was going to happen that night.

Appellant got into the truck and Larissa drove to the house she had told appellant belonged to Timothy. They parked across the street, but drove off upon seeing that one part of the house was lit up. Appellant was relieved; he believed he was going back home, and that Larissa had seen he was not being disloyal to her and that would be it. Instead, Larissa drove out of the neighborhood, but then turned back and parked in front of the house again. She said she wanted to try and get in, and mentioned telling Timothy that T. was sick to see if he would come to the door. She then provided each of them with a pair of the blue gloves that she normally had in her laboratory. Appellant followed her out of the truck, carrying the backpack. They both walked up to the porch, then she told appellant to stand in a spot that was out of sight, and she went up to the door. Appellant then heard some electronic noises that could have been an intercom, but were probably Larissa's cell phone.

Appellant heard Larissa talking to someone he presumed to be Timothy. She said something about T. being sick. Larissa was standing right in front of the door at the time, and appellant was off to the side with the stun gun in his hand. Everything felt surreal, and he kept hoping that nothing would happen and that Timothy would not come to the door. He did come to the door, however, and when appellant heard the bolt, he came around the corner and attempted to follow Larissa's plan of stunning him, while Larissa rushed him. Appellant hit Timothy's arm, which zapped appellant more than it did Timothy. Appellant hit Timothy with the stun gun once or twice, but it did not work. Timothy was yelling, asking what was going on, and Larissa threw him to the ground.

Timothy struck a chair and fell in front of it. Appellant then got him in a headlock so he could not move or run. This had not been part of the plan; appellant was just following Larissa at this point. He did not know whether she said to put him in a headlock, but appellant did it and Timothy passed out. Appellant loosened his grip, then Larissa retrieved the chloroform and some rags, which were either in the backpack or she had, and held them near Timothy's face while appellant was looking away. Timothy was breathing when he passed out from the headlock; after the chloroform, he was snoring. Appellant then helped Larissa restrain Timothy's ankles and wrists with the zip ties.

Larissa said something about checking out a room or seeing if a window was open or something like that. She thought a window had been open earlier, and she told appellant to take a look around and see if there was anything he wanted. Later, she told him to look out the front window to see if anyone was coming. At this point, appellant, who was very scared, was following her orders.

While appellant was at the front window, Larissa was looking around for something. She said something about finding another logbook Timothy had kept about her. Appellant was relieved, as he figured that was what she really wanted. Appellant was not even thinking about taking items himself at that time.12 He did not want to be there, and was scared and in a daze.

Larissa went to find the book. Appellant then saw her coming back down the hall with some dry-cleaner plastic, like from a garment that might have been in the closet. She had a "horrid" look on her face and wrapped the plastic around Timothy's head. Appellant was "[c]ompletely scared stiff" and could not look at her from that moment on.13 He did not try to stop her because he was "scared to death" of her. He wondered what she might do if he opposed her. He did not know how far her network went or who she had in "her pocket." He did not know where the stun gun was; he thought it fell out somewhere. He did not even think to use it at that point.

Appellant did not remember a lot of the details after Larissa wrapped Timothy's head in the plastic. A couple minutes later, however, she tried to move him. The zip ties were breaking, and she told appellant to help her. Appellant just did what he was told. There was a rug nearby, and they used it to slide Timothy from the entryway to the garage. Larissa went to the truck. Appellant was near Timothy's body. Timothy had not been breathing, and, when Larissa was not looking, appellant tried to take his pulse. Appellant did not feel anything.

Larissa told appellant to help her get Timothy in the truck, and they managed to put him in the backseat. She told appellant to follow her, so he drove the truck and followed her to her house. There, she pulled into the driveway, opened the garage door, and told appellant to pull inside. He obeyed. She closed the garage door, and appellant helped her move Timothy out onto the floor of the garage. Timothy made a moan, like air escaping, when he was being pulled out of the truck. There was no breathing at this point.

Appellant followed Larissa into the house. As he entered the kitchen, she was coming down from the attic area with a blue barrel.14 Appellant believed it was the same barrel he had previously seen in her garage. Larissa brought it into the garage and told appellant to help her put Timothy in it. Appellant was "incredibly horrified" and scared, as it was clear Larissa had killed Timothy and wanted to get rid of him.

Larissa asked how to get Timothy into the barrel. When appellant said he did not know, she tipped the barrel over. Appellant then helped her push him in, head-first. He believed he probably then helped her right the barrel, although he did not specifically recall doing so. The whole night was fuzzy, like a bad nightmare.

Larissa went to the far wall of the garage, opened a box, and pulled out a bottle. At that point, appellant noticed it was hydrochloric acid. Larissa poured two or three bottles into the barrel. The fumes were hard on the lungs and Larissa could not handle it anymore, so she put the lid on the barrel. She then got a small cart or dolly and moved the barrel out to the shed. Appellant and Larissa rolled the barrel inside, then Larissa closed the shed. She then pulled out some cleaner and wiped down Timothy's truck, appellant guessed for fingerprints. She handed appellant a rag, and he helped clean the vehicle. He did whatever she told him and whatever she did.

After the truck was cleaned, appellant drove it back to Timothy's house. Larissa went in her own truck. Once at the residence, appellant put the truck in the garage, using the garage opener that was in the vehicle. Larissa either came in and told him or had told him before to straighten things up, so appellant righted a couple of things that had fallen during the entry. He could not remember whether Larissa reentered the home. Appellant then left via the front door, which he locked. He got into Larissa's truck and she drove him to her house. There, he collected his backpack, which contained the stun gun and bottle of chloroform (neither of which he remembered putting in there), then rode T.'s bicycle home.

Appellant reached home around 4:00 a.m. He was shaking and scared. He could not recall specifically, but thought he had a couple of drinks so that he could try to go to sleep. When he awoke, it was a hot day. At some point, he ended up watching T. As T. wanted to swim, appellant took him to the house of a friend who had a pool. After Larissa picked T. up, appellant went home, then was invited to join a couple of buddies at a restaurant. Appellant did not have an appetite, but he drank "a considerable amount" to try to forget.

Appellant was unsure whether Larissa called him that night, but believed he may have turned off his cell phone because he did not want to hear from her. Even before everything happened, she called him often. He could not get away from her, as "[h]er presence was pervasive." Appellant specifically remembered talking to her the next day, which was Friday. She called him that evening while he was with some friends. She asked him something like how far away he was, then said she needed him to watch T. because she had to go to the police station or talk to a detective.

Appellant went to Larissa's house. She was gone for several hours, during which time he could not reach her on her cell phone. When she returned, she was "incredibly paranoid" about the police and said something about being worried her phone was tapped or bugged. She and appellant got in the spa, as the water would destroy a bug or something like that. There, she said Timothy's body was in the shed, that she had to move it, and that appellant needed to help her. When appellant said he did not think he could, she told him he did not have a choice. He interpreted that as a threat.

Appellant helped Larissa move the barrel from the shed into the garage and then into the extra cab section of Larissa's truck. She had a couple more boxes containing acid bottles, and she asked appellant to put them in the truck, which he did. She then said she was going to the lab, and she gave him the alarm code and told him to open the back door for her. She then drove away from the house and he followed.

Once at the laboratory, appellant followed her instructions: He opened the front door, disarmed the alarm, locked the front door, and then opened the back door for her. She went into the laboratory and found another dolly or cart. She brought it to the truck, and appellant helped her slide the barrel out and put it on the cart. Larissa then wheeled it into the room that had the roll-up door. Either she brought the acid in or appellant helped her; he could not recall.

Larissa opened the lid of the barrel, from which a horrible smell emanated. Larissa began to add acid to the barrel. She handed appellant a couple of bottles of acid, and he poured them in at her direction. He did this because he was terrified. She said he did not have a choice. He was afraid of what she could do, not only to him, but maybe to someone he knew, simply out of revenge. He was not thinking rationally.

Appellant did not know how much of the barrel was filled, as he did not look. Larissa tried to close the lid, but could not because of Timothy's feet. She went to the room where the tools were kept and returned with a couple of saws. She then started cutting Timothy's feet and snapped the ankles over. Appellant believed she was wearing gloves, as there was an ample supply at the laboratory.

When Larissa found it hard to put the lid on the barrel even after she sawed Timothy's feet, she told appellant to stand on top of it. He obeyed and she was able to clamp the barrel shut. She then told him to leave, that she would lock up behind him. He then got in his car and went home. It was daybreak Saturday. Appellant never wanted to see Larissa again.

When appellant awoke later on Saturday, he heard Larissa's voice. She was in the driveway, talking to his father. Appellant heard her ask if appellant was home, then she just walked right into his room. She told him that she needed him to rent a truck with a lift gate, as she could not have the body at the lab in case it was searched. She asked whether he could rent a truck or knew someone who would. He told her maybe, but that if she did not hear from him, to assume he could not pull it together. She told him to call someone and see if he could find something. She then said something about T. being home and that appellant should go by and pick him up.

As appellant was driving to Larissa's house, he caught up to her and she stopped. She said that he should take T., and that she still had some evidence or something that she was going to dispose of. She also said something about meeting up with a detective to give him one of the books in which Timothy had logged her activities.

Appellant either picked T. up or stopped by Larissa's house to say hello to him. Appellant then went to his friend's house. Realizing that he had some of items with him, he got scared and hid the keys in a vent. He then went to another friend's house near Sanger. He got a call from Larissa sometime that afternoon, and she told him to come and get some pizza. Appellant thought she was using it as a code word to indicate she needed to talk to him. He was scared, but thought it might be safe because she had said T. was there. On his way, he had to use the restroom. He found a port-a-potty, in which he disposed of the stun gun.

Once appellant arrived at Larissa's house, she asked him to help her do something with the truck.15 Appellant, who was trying to avoid her, said that his friends expected him to come right back. He offered to take T., and Larissa agreed. When appellant brought him back, it was late. Larissa said she had had some workers help her. She said she had taken care of everything, and that she had put the barrel in the storage unit. Larissa and T. left for an out-of-state vacation the next morning, which was Sunday. Appellant did not see her again until they were in court together.

On Monday, appellant was interviewed by Clovis detectives. He initially denied being involved in the first burglary, but ultimately admitted to it. The next morning, he woke up to find Clovis police at his house. They took him to the Fresno Police Department. They said it would be okay for appellant to take his car if he wanted, but one drove in front of him and one behind. During the Fresno interview, appellant first minimized his involvement, but then made a fairly accurate statement. After appellant gave detectives the items that were at his home, they said they wanted to talk to him some more at the police station. An officer handcuffed appellant, but said it was just something he had to do since appellant would be riding in a police car. Appellant was never told he was under arrest or charged with anything. He was then taken to the Clovis Police Department and interviewed again. The third interview was the most accurate and the one in which appellant "came clean." He thought about making a telephone call to Larissa like the detectives wanted, but was too afraid of her. He believed that if she found out he had talked to the police, all she had to do was call somebody and appellant would be gone or someone in his family would be gone. Even as of trial, he feared she could harm him or someone in his family at any time.

Shortly after appellant's arrest, appellant's father and pastor were allowed to meet with him at the Clovis Police Department. When Mr. Fagone asked what was going on, appellant said they had gone to get some of Larissa's stuff from Timothy's house. Mr. Fagone asked why appellant would do that; appellant said Larissa had been threatening him for a long time, and he believed she would kill his parents and sister. Mr. Fagone expressed disbelief and asked why appellant did not just get out of the car. Appellant repeated that he was afraid she would kill his family, and that he had wanted to protect his mother and sister. When Mr. Fagone asked whether appellant physically participated in Timothy's killing, appellant said he did not. Mr. Fagone asked if appellant knew he was going over there to do a murder; appellant replied that it was just to get Timothy's stuff, and that he had no idea this was going to happen. Mr. Fagone could not get anything else out of appellant, whom he described as "spaced."

Dr. Howsepian, a psychiatrist, interviewed appellant on five occasions, for a total of almost 14 hours, between August and October of 2006. He also reviewed various documents, reports, transcripts, and videotapes connected to this case. Howsepian concluded that appellant initially had a good relationship with Larissa, but that it changed, over time and as he learned more about her, to one in which he felt intimidated, threatened, and fearful to the point at which he did not feel he could extricate himself from the relationship or defy her. The fear began sometime after the first burglary and grew even stronger in spring of 2003, when there was talk about a second burglary. By the time appellant made the purchases, and on up to July 10, 2003, the nature of the fear was that giving any appearance at all of disloyalty would precipitate a violent response on her part. When the truck stopped at Timothy's house on July 10, the fear intensified dramatically.

Appellant described experiencing what amounted to dissociative symptoms during the event — feeling disconnected, out of his body, and things not being real. The traumatic events involving great fear, helplessness, and horror, once appellant realized Larissa had killed Timothy, caused florid dissociative symptoms that evolved into an acute stress disorder, which in turn evolved into a posttraumatic stress disorder. The controlling fear primarily was fear of harm to appellant and his family by Larissa or someone she might later hire, if appellant did not follow through with her directives. In Howsepian's opinion, appellant's account was "robustly consistent with the dissociative response to intense, fear and horror and helplessness that are very credible." Howsepian's screenings for malingering were negative.16

DISCUSSION

I

APPELLANT'S STATEMENTS TO POLICE

Prior to trial, appellant challenged the statements he made to police in all three interviews as being both involuntary and violative of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Following an evidentiary hearing, his motion to suppress or exclude the statements and the fruits thereof was denied. On appeal, he contends the trial court erred, requiring reversal of his convictions.

A. The Trial Court Proceedings17

Clovis Police Detective Kirkhart was assigned to investigate Timothy's disappearance once a missing person report was made. During his investigation, it was brought to his attention that Timothy had reported to Fresno police, in 2002, that his residence had been burglarized. Kirkhart was also aware that Larissa had been identified as a possible suspect, and that a police legal advisor had concluded that the matter should be classified as a misdemeanor trespass.

On July 13 or 14, 2003, appellant was contacted for an interview as a witness in the attempt to find Timothy. Detectives were trying to talk to anyone who might have knowledge of his whereabouts. In addition, detectives had obtained telephone records showing that a call was placed to appellant's telephone number by Larissa approximately an hour before the last call was placed to Timothy's home. They were aware someone named James may have been involved in the earlier break-in, and that appellant's name was in Timothy's Palm Pilot. All of the potential witnesses Kirkhart telephoned, including appellant, were coming to the police station voluntarily.

Kirkhart and Detective Dailey interviewed appellant at the Clovis Police Department on the afternoon of July 14. The interview was conducted in the "soft" interview room that was mostly used for witnesses and family members. It was larger than the formal interview rooms and was located right at the entrance to investigations. Kirkhart first made contact with appellant while the latter was in the waiting room.

In order to reach the interview room, a person must be buzzed through. He or she can leave without being buzzed out, however. Once inside the room, appellant was offered a seat. He sat farthest from the door, but, had he chosen a different seat, the detectives would not have objected. During the interview, appellant was calm and relaxed until near the end, when the discussion turned to what took place in 2002. At that point, things appellant said and how he said them caused Kirkhart to believe he was being untruthful. Appellant was not told the interview was being recorded. The door to the room was closed for privacy, as a secretary was outside and there were people in the hallway. At the time of the interview, the matter was being handled as a missing person case. Although Kirkhart believed Larissa knew something about Timothy's whereabouts and he had not excluded the possibility of a homicide, he personally believed it was a suicide, and that Larissa's telephone call had pushed Timothy over the edge.18 Appellant was not Mirandized, as police had no crime or victim, appellant was not a suspect, and appellant was not in custody.

During the course of the July 14 interview, Dailey asked whether, about a year before, Larissa had encouraged appellant to go to Timothy's residence to get some stuff. Appellant denied any involvement in the 2002 break-in, although he said he thought perhaps Larissa had had something to do with it because she seemed happy about it, as Timothy had taken some stuff from her. After questions and conversation geared more to Timothy's disappearance and Larissa's activities and attitude toward him, Kirkhart asked whether appellant had ever seen anyone with a white Volkswagen at Larissa's house.19 Appellant related that he used to have a white Volkswagen bug, but that it had been in a bad wreck, after which he had sold it. Appellant denied ever being at the residence where Timothy used to live or loaning his car to Larissa.

Dailey asked whether Larissa had ever asked appellant to do anything that he was uneasy about or to get involved in the situation with Timothy. Appellant said no. When Kirkhart asked whether there was any way appellant's Volkswagen could have been in Timothy's garage, appellant again said no, that he always kept his car locked and never had it broken into or found it in a different place.

Dailey gave appellant a business card and asked him to call if he heard anything or thought of anything else. Appellant then asked whether the detectives thought he had anything to be afraid of, as he was watching Larissa's house. After a discussion about appellant's duties at the house and telling him that it was best if he did not spend extra time there until things were settled, Dailey asked whether appellant could think of anything that had not been covered, as the detectives' mission was to find Timothy. Appellant said he might have someone else come in to feed the dogs for a couple of days because he was supposed to go camping, and he was asked to let Dailey know so that the detectives would know who was at the house. Appellant then asked Kirkhart if he had ever purchased an aquarium at a place appellant used to work. Kirkhart said he had, then asked where appellant was working now. Appellant related the details of the motorcycle accident he had been in the previous month. Kirkhart then asked if he remembered the license plate on the Volkswagen, and Dailey asked who had purchased it. Appellant said it was a classmate named Will, and explained how appellant was thinking about helping him change the engine out between appellant's old car and Will's car and using Larissa's garage. Appellant explained that his father did not like him working on cars, and he would have difficulty doing it because he had no strength or mobility following the accident, but thought his friend might help him do it at the friend's house.

This ensued:

"[Kirkhart]: You know, I, one thing I just want to make sure, cause we're gonna real thoroughly be looking into this, um. The one thing that kinda concerns me with the burglary over there on Woodlawn, "[Appellant]: Mmm huh. "[Kirkhart]: um, and maybe we're not concerned about that right now, we're concerned about Mr. Schuster and we need to get that all put together, but we are trying to account for um Larissa's past and her stories, and you know, kind of what's gone on in her past. But the burglary I could care less about. The only reason I care about it is trying to put, see who's telling the truth and who's not. "[Appellant]: Yah "[Kirkhart]: So we are gonna be reopening that for this case just so we can find out because this, this is potentially a murder. We don't know that. And you've probably thought of that too, right? "[Appellant]: Oh, yeah. Figured either he's missing or he's gone crazy or [Kirkhart]: He killed himself or somebody killed him, and that's kinda. We aren't gonna tell the press that, but that, we don't know. Or he wandered off, we don't know. But we're looking at it real seriously, OK. "[Appellant]: I mean, I, I got a little nervous when she, when she said she was gonna come into here. Cause she mentioned that the book and everything and "[Kirkhart]: yah "Appellant]: And I'd kinda forgotten about that, so that kinda makes me nervous cause "[Kirkhart]: Well, I wanna, what I wanna do for you is to make sure that you understand this is your opportunity to get anything out or let us know anything you know about. So this is not the time to uh, you know, kind of do the omission thing and if like we don't ask the right questions, you don't answer, OK? I'm not calling you a liar but I just want to make sure you have everything out on the table right now so, we, we don't have to come back. And the question I have is with the Woodlawn address, OK, out there? Um, with the white Volkswagen, OK, and a couple of the facts that we have from that incident; and they, they actually reclassified it, it's not even a burglary. It's a trespass type thing, OK? Um, if, if you have anything to do with that, if you were out there, you need to let us know right now, OK? Because we're concerned about this investigation, not that."

When appellant said he did not know why anyone would ask about his car, Kirkhart informed him that a white Volkswagen was involved and the name "James" had come up. Appellant insisted he had never driven the car over there, although Timothy knew he drove a Volkswagen because T. was always talking about it. When Dailey asked whether Larissa ever asked appellant to help go over to Timothy's house to pick up some items, appellant said she had asked him if he had been by Timothy's house, but he told her no. Appellant reiterated that there was no reason his Volkswagen should have been mentioned, unless Timothy was trying to make it look as if appellant was involved, perhaps to give Larissa problems. This ensued:

"[Kirkhart]: Well, in, in the course of this investigation, we're, we're different than Fresno PD, not to disrespect those guys, but we're gonna open that case and make sure that that's solved and, and we have about 8 detectives and our narcotics unit working on this and it's gonna be day and night until we get it taken care of, so um. That's why, again, I'm not accusing you, but I'm giving you the opportunity that, that we will find out the truth about everything in her life. We're gonna know her life better than she knows her life, and about that incident before this is done. Um, and people that are forthcoming with, with information generally come out much better in these types of investigations, OK? Because if um, if, if later we were to find out that, that you went in there with the intent to burglarize that house knowing that she was going over there and assisting her in there, I mean there'd be felony charges that'd be fairly significant versus you know, you're trying to help out a friend with some stuff that already belonged to her, um, the baskets and the CD or DVDs and certain things that, or not DVDs, the baskets and certain things that already belonged to her and you're helping her get em back. Even it was for money, that's not a big concern for me. The big concern for me right now is, is the truth. And, and deception is gonna burn people. OK? Are you the kind of person where she, that she would have paid to go over and help with that? "[Appellant]: Um, I don't think so. I mean I'm always hanging out with her kid, so I'm assuming she thinks I'm pretty much on the up and up, so "[Kirkhart]: OK "[Dailey] Cause like Det. Kirkhart is saying right now, if by chance you were involved in that somehow, now's the time to INAUDIBLE. Not have us find out later that you were involved in that, um, because it technically is a felony burglary. Uh, right now it's been reduced down to a little misdemeanor trespass deal. So, you know, we have options of handling it [as] a misdemeanor little trespass deal, hey no big deal. Or knockin it back up to the burglary and make it a big deal having to. "[Kirkhart]: And, and then other things such as conspiracy and bad things come up. That's why because, see we're still lookin' and I'm being completely honest with you. We're still lookin for somebody to take names that supposedly was involved in that and there was a white VW seen at the house. Now you can sit and put yourself in my shoes. That looks a little bit suspicious."20

Appellant reiterated that he had never driven the car to Timothy's house, and that he had never loaned Larissa his car. The detectives then said they would be right back. They left the room for approximately 20 minutes, during most of which appellant appeared to be playing some sort of handheld video game. Upon their return, Kirkhart stated:

"Sorry we're taking so long. Lot a stuff comin' up. OK James, let me tell you what we have here. Um, this thing is moving kinda quickly OK? And we're getting some things answered. Um, calling you in today really was a truth verification thing. And if you know, people talk about polygraph tests and lie detector tests; really what they are is truth verifiers, OK. And they're just to verify things that we know are true and um to give people the opportunity to get everything out. On this deal with, with going into the residence over on Woodlawn, um, I, I don't have an interest in you or that case other than I needed to verify the truth. And we're at a point in the investigation right now where things are moving quickly and I can tell you that if you tell me that, that you went over there, I'd like the details about what, you know, she gave you X number of dollars to help her move that stuff out. I don't care less. And I'm not going to seek charges against you because I don't care about that. That is small worthless potatoes other than the truth. The truth is huge. The charges against you or anything related to that, I could care less, and I'm not gonna pursue charges, OK? But I need to know the truth. If something comes up later that, that, and this is your moment in time, that you were deceptive and doesn't come out, OK. Things are gonna be much, much different. I'll just leave it at that. OK? So this is your opportunity, now I'm telling you, I'm not pressing charges on that `cause I don't care, but I need to know the truth."

Appellant then admitted involvement in the 2002 break-in. Kirkhart reiterated that he was going to stick to his word and not seek anything as long as appellant continued to be honest. Appellant agreed that the deal essentially was that if he helped Larissa do it, he would get to take a few things for himself. He insisted that he had never taken his Volkswagen over there or loaned it to Larissa. With respect to the current situation, he stated that Larissa had not really told him much. He expressed concern that he or she might be in danger, and stated that he was trying to distance himself from her. When Kirkhart asked whether appellant would be shown as being involved in Timothy's disappearance, appellant said no, and that he had no idea where Timothy was. Dailey subsequently asked him to gather up whatever he still had from the break-in and whatever he could get from those to whom he had sold some of the items, and to bring it to Dailey at the police department on Thursday.

Kirkhart told appellant that they needed him to go into another room and give them a written statement. Appellant agreed. Kirkhart told him to write down what he had told them, and then he was free to go. Appellant was not arrested. Kirkhart described his demeanor during the interview as "strikingly calm."

Timothy's remains were found the following day, and the Fresno Police Department was notified. Appellant's name came up when Clovis authorities were briefing Fresno Police Detectives Alcorn and Cardenas concerning what witnesses had been interviewed or might be available for Fresno detectives to interview. Appellant's name was included in a list of witnesses, employees, or other people detectives could talk to. Alcorn did not remember Clovis personnel expressing concern about appellant, although it was brought up that he had previously gone with Larissa to retrieve some of her property, and there was also mention of the fact that cell phone records showed Larissa had called Timothy at around 2:00 on the morning he disappeared, and had called appellant an hour earlier. In addition, Alcorn and Cardenas interviewed Fichera before interviewing appellant, and were aware that Larissa had said "James" was going to help her. Nothing Fichera said, however, implicated appellant in Timothy's apparent homicide.

Cardenas arranged for appellant to come to the Fresno Police Department for an interview. To this end, Clovis Police Sergeant Havlik went to appellant's residence around 8:00 a.m. and contacted appellant's mother.21 She agreed to wake appellant. When appellant appeared in the hallway at the entrance to the front door, Havlik, who was in plain clothes, introduced himself and said that the Fresno Police Department needed to talk to him. Havlik said he understood appellant had an interview set with them and had to return some property. Appellant said sure, that it would take him a few minutes and then he would be ready to go. There was no discussion of how appellant would be transported; he was going to drive his car, as he was going to a Bible study or something that morning. It was more a matter of how to get down there. Appellant did not know how to get there or where to park, so they decided he would follow Sullivan. Sullivan and Havlik each had an unmarked vehicle. Had appellant known where the Fresno Police Department was, Havlik probably still would have offered to have him follow one of them to that location, as Havlik had planned on attending appellant's interview. However, Havlik would have let him drive off on his own.

Appellant drove his vehicle to the station. He followed Sullivan, and Havlik followed him. Alcorn and Cardenas met them either in the parking lot or inside the building. Appellant had not been arrested, was not in custody, and was not considered a prime suspect in the investigation. When Alcorn and Cardenas met appellant, they introduced themselves as police detectives, not homicide investigators, and asked if he would come in and talk to them. According to Alcorn, it was very clear that appellant was free to go at any time. Appellant's demeanor was very professional and respectful, and remained that way throughout the interview.

Appellant was offered, and given, his choice of beverage; when he commented that he was cold, the door to the interview room was left ajar.22 Alcorn described the atmosphere as "very relaxed," and he tried to maintain the casual, informal demeanor throughout the entire interview, which he estimated lasted about an hour. In Alcorn's opinion, the interview never became confrontational, although there were times when he urged appellant to tell the truth.23 With respect to the 2002 incident, Alcorn was aware that a police report had been written, but had not reviewed it and did not know appellant's specific involvement. That incident was not the focus of the interview; instead, the detectives wanted to find the truth about what happened to Timothy. At least at the outset, Larissa was considered the more important suspect in Timothy's disappearance or death, and the focus of the interview was to determine whether appellant had information that might implicate her. The detectives did not have probable cause to arrest appellant.

Cardenas began the interview by obtaining appellant's name, date of birth, address, and the like. He and appellant chatted briefly about appellant's recent motorcycle accident, then the following took place:

"[Cardenas]: Okay. Now we need to ask you some questions and, uh, I understand that the Clovis detectives, you came with them, uh, you came on your own free will. "[Appellant]: Yeah. "[Cardenas]: And, uh, I'm gonna need, I'm gonna tell you that you're not in custody, you're not under arrest. "[Appellant]: Okay. "[Cardenas]: And whatever you tell me here, you're going to be going home. "[Appellant]: Okay. "[Cardenas]: We're just looking for the truth. "[Appellant]: Okay. "[Cardenas]: Just tell me the truth, everything's fine. "[Appellant]: All right. "[Cardenas]: And, uh, you'll be going home today. "Appellant]: Because it's kinda scary, because — "[Cardenas]: Oh, it is. "[Appellant]: — they told my mom — "[Cardenas]: Um-hum. "[Appellant]: And she said that, that they found a body and I didn't want to make any assumptions or believe anything so (inaudible). "[Cardenas]: And, uh, and, uh, we believe that you may have some information that, uh, will help us. "[Appellant]: I don't know about too much but — "[Cardenas]: And there's and there's no need, uh, for you to, uh, get in [sic] involved in this. We need to talk to you on what you know about this — "[Appellant]: Okay. "[Cardenas]: — and, uh, as soon as you tell us, uh, your side of the story and how you got involved with this matter, uh, we'll, we'll take you back home. "[Appellant]: All right. "[Cardenas]: Does that sound reasonable to you? "Appellant]: Yeah."

Appellant related that he had never talked to a detective prior to the day before. Alcorn explained that the main thing was the truth, and that he and Cardenas might already know the answer to a question they were asking, but they had to fit all the pieces of the puzzle together to determine what happened. He told appellant that they had been talking to a lot of people, had a lot of information regarding appellant's involvement, and were just looking for the truth. This ensued:

"[Cardenas]: Okay, and with that can you tell us what you know about this. "[Appellant]: Um. "[Cardenas]: Go right from the beginning. A year ago, two years ago, whenever it started. "[Appellant]: Well, I — I brought that boom box because — "[Cardenas]: What is that? "[Appellant]: Um, they said that they wanted to have it because it was, it was from a robbery, so — "[Cardenas]: Where did you get it from? "[Appellant]: From Larissa. "[Cardenas]: From who? "[Appellant]: From Larissa. "[Cardenas]: As a gift? "[Appellant]: No, no, um, I already gave them my statement, um — "[Cardenas]: Can you go over the statement?"

Appellant then related his involvement in the 2002 incident.24 He explained that Larissa was his boss and that he considered her a friend, but denied any sort of dating or sexual relationship with her.

Cardenas then asked what happened with respect to the most recent developments. He reminded appellant to be truthful. This ensued:

"[Cardenas]: Because we — we have looked at every evidence. We've talked to a lot of people and, uh, your truthfulness here is very important. "[Appellant]: Yeah, I know. "[Cardenas]: And this is your opportunity to explain things. We all make mistakes. "[Appellant]: Yeah, I know. "[Cardenas]: We all make mistakes and there comes a time that we, uh, need to make those mistakes right. This is your opportunity."

Cardenas reiterated that this was appellant's time to explain himself, and told appellant to "[j]ust jump in." Appellant then explained that he had thought he was going to help Larissa commit "a robbery kind of, kind of deal" again, then he began to lay out what had happened.

Appellant first claimed not to know whether he and Larissa had gone to Timothy's house or instead to the house of the ex-husband of one of Larissa's friends. He explained that it was dark and he did not see anyone, which he thought was odd because, if it were Timothy's house, Timothy should have been there. When Alcorn said, "Let's be honest. Did you know you were in Tim's house?" appellant responded that he was almost certain. He walked around a bit and saw some model airplanes. He told Larissa that he wanted to get out of there, so she drove him home. He thought she might have gone back later.

At this point, Alcorn reminded appellant that the detectives were talking to everyone and already knew the answers to a lot of the questions they were asking. This ensued:

"[Alcorn]: We need to know the truth. "[Cardenas]: That's it. "[Alcorn]: We need to know what you saw. We need to know what you did. We need to know your participation in this, okay? Now keep something in mind. "[Appellant]: Yeah. "[Alcorn]: Okay. No matter what you tell us today, you're going home." "[Cardenas]: Do you understand that? "[Appellant]: Yeah. "[Alcorn]: But we need to know the truth. "[Cardenas]: That's all we need. "[Appellant]: All right."

Appellant related that he was afraid, and that he thought he gave Larissa the idea by mentioning the story his teacher had told about getting rid of a body in a barrel of acid. When asked if they had talked about killing Timothy, appellant responded that Larissa had said she wanted to, and that he had known she would try and pull him in on it. Both detectives said they knew she had pulled him in. Alcorn reminded appellant that the police were processing physical evidence in the case, that they needed to know what happened, and that Alcorn thought appellant needed to tell them. Alcorn said appellant just needed to tell them the truth.25 Appellant then said there was a body inside the front door of the house, and that he figured who it was. Appellant admitted helping to put the body into Timothy's truck. He said it sounded as if Timothy was still breathing.

Appellant denied helping to tie Timothy up, but admitted obtaining the zip ties that Larissa used. He first said he had purchased them for working on a bike that he was trying to get to run, but then admitted Larissa had told him to buy them. Alcorn then said the hemming and hawing around was not doing anybody any good, and asked appellant to start from the very beginning and tell what Larissa had told him.

Appellant proceeded to give a much more detailed account of his involvement. When he talked about bringing the blue barrel down for Larissa, though, he said that he then told her he did not want to be a part of this, and she told him to take T.'s bicycle home. When appellant said he thought Larissa might have had someone else help her, Alcorn stated twice that they needed to know the truth. Cardenas asked, "What did she tell you? This is important." Alcorn added, "You can't change it. The truth is the truth." Both detectives then assured appellant that Larissa was not going to hurt him. Appellant asked if they were sure, then admitted helping to prop up the barrel. He said that Larissa put Timothy in, then poured in a caustic solution. Appellant said he heard something that sounded like breathing, but did not think Timothy was alive because he was "real floppy." When asked whether he had used the stun gun he previously mentioned, appellant admitted stunning Timothy when he answered the door, but still thinking they were just going to rob the house.

At about this point, Alcorn said that he needed to make a telephone call, and he offered appellant another beverage. When Alcorn returned, he talked to appellant about how appellant was feeling. He then questioned appellant about what happened when appellant and Larissa went to the front door. Appellant related additional details and having to hold Timothy down.

At several points during the interview, appellant expressed fear that Larissa could have someone harm him. When asked what happened after the incident and what became of the barrel, appellant said Larissa took it to the lab. Asked if he helped, he answered affirmatively. After a discussion of how and when this was done, appellant talked about Larissa asking him to rent a truck. Appellant insisted he did not do so or help her move the barrel out of the lab.

Late in the interview, Alcorn stated that this was a serious case, and that he and Cardenas wanted to be as thorough as they could be. After confirming that appellant had driven his own car to the station, Alcorn asked whether it would be okay, when they were done talking, if they went back to his house and looked around his room to see if there was any evidence there. Appellant said yes, but that he did not have anything other than the boom box. When Alcorn said that he would not talk to appellant's parents, but instead would leave it up to appellant whether to do so, appellant responded, "Um, honestly, if you could just, you know, keep your word to me that nobody gonna hurt me and, you know, I'm gonna be safe and go home and everything, uh —" Cardenas responded, "Well like we told you, we're gonna be going home. You're gonna be going home after this interview." When appellant expressed concern about how his father might react, Cardenas suggested they could "kick it" in appellant's room and just say they needed to talk to him, and then look for the property. Appellant agreed to that procedure.

Later in the interview, Cardenas asked whether Larissa administered anything to Timothy. Appellant said she might have, but that he did not see everything after they took Timothy down. When Cardenas said, "Did she say she administered anything to him? The truth," appellant said she had some chloroform that she had given him to hold for her. He admitted that he still had the bottle in his room, and that he had not wanted to toss it, because it was a good bottle. He had put a barn owl feather in it.

At the conclusion of the interview, Cardenas said they wanted to review some of the evidence, and he asked if appellant could give them a couple of minutes. Appellant responded, "Oh, sure," then requested to use the restroom. He was allowed to do so.

Appellant's demeanor remained the same throughout the interview, even after he began to describe the removal and transportation of Timothy's body to Larissa's house. At no time was appellant stopped and given his Miranda warnings. According to Alcorn, it was clear throughout the interview that appellant knew he was leaving. After the interview concluded, appellant even stated, either to the detectives or during a telephone call, that he was going to go do something when he was done there. Appellant was never told, however, that he would never be arrested. By the conclusion of the interview, Alcorn knew it was likely appellant would eventually be arrested.

At the interview's conclusion, appellant was left alone in the interview room for different periods of time for a total of approximately 40 to 45 minutes. There were a lot of things going on, including initiation of the process to obtain an arrest warrant for him. There was some question as to whether appellant should be allowed to go home. That promise had been made, however, and the officers were determined to keep it. Havlik had to convince his management to let appellant drive home. Around 12:00 or 12:30 p.m., Havlik advised appellant that he could leave. They went out to the parking lot together and each got into his own car. Appellant drove off and Havlik and Sullivan followed him back to his house in their vehicles.

At the house, appellant signed a consent-to-search form and his room was searched. Once outside after the search, Havlik informed appellant that a warrant had been obtained for his arrest for murder, and appellant was taken into custody and transported to the Clovis Police Department.

Alcorn was notified of appellant's arrest, and he went to the Clovis Police Department to participate in the interview. He wanted to confirm that there was not a lot of discrepancy between appellant's statements, but also to introduce Detective Weibert and let appellant know that Clovis was now conducting the interview and investigation.

At the outset of the interview, Weibert informed appellant that he had spent some time talking with appellant's parents, although he had not given them any specifics about what happened. Weibert related that they were upset and concerned, but that they talked about how they had raised appellant to do the right thing and that they — especially appellant's mother — were very proud that appellant came forward. Appellant's father said he could tell something was wrong, but could not tell what. Appellant's parents were upset about the situation, but pleased that appellant came forward and was doing his best to clear things up. Weibert said that was part of what he was there for, to hear exactly what happened. He was aware appellant had spoken to Alcorn, but Weibert had been conducting much of the investigation on the Clovis side and thought it was best to hear it directly because it helped him get a better feel for what appellant was thinking while things were going on.26 This ensued:

"[Weibert]: ... And so what I want to do is give you an opportunity here to go ahead and tell me specifically here what happened. OK? Um, I uh what I do need to do OK. I do need to advise of your Rights because you're in custody. It's one of those things we have to jump through. You know, you see it on TV all the time. "[Appellant]: Yah. "[Weibert]: OK. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to an attorney and to have attorney present before and during questioning if you so desire. If you cannot afford an attorney one will be appointed free of charge to represent you before questioning. OK. Do you understand those Rights? "[Appellant]: Yah. "[Weibert]: OK. "[Appellant]: Do I, do I need an attorney? "[Weibert]: Well, that's, that's entirely up to you to go ahead and decide. What I want to do right now is to go ahead and talk with you about what happened, OK, on Wednesday night. And I want to get your side because we've already, I mean basically you've already told these detectives what happened. What I want to do is I want to hear it. "[Alcorn]: And I tried, and I, I, I explained to them what your statement was, but, but, you know what. This is his case not mine, and, and uh I can explain to him to death but you were there, not me. But I think it's important for him to hear the truth too. And I appreciate you telling me the truth earlier. "[Appellant]: Yah. "[Weibert]: OK. Do you want to talk to me about it? "[Appellant]: Um, yah, I mean, this has gone so crazy."

After his initial inquiry about whether he needed an attorney, appellant at no time indicated he wanted to have an attorney present. Weibert did not interpret his question as an invocation of his Fifth Amendment privilege. Appellant proceeded to tell Weibert essentially what he had told the Fresno detectives, with Weibert asking specific questions about various details.27 At one point, Weibert asked appellant why he had lied to the Fresno detectives. Appellant said he was scared, as he did not know who Larissa knew. A short time later, Weibert had to leave the room for a moment. While he was gone, appellant commented to Alcorn that he did not want to believe this was happening, and did not know if Larissa could get away with it. When Alcorn asked how it made him feel to talk about it, appellant replied, "Nervous. But, I mean, you know, like I said, I'm just going to cooperate. I'm not going to put up a fight. I mean ... there's nothing I can do really except talk about it. It's freaky."

At the end of the interview, Weibert suggested appellant relax a couple of minutes while paperwork was being completed, and that they would talk a little more in a bit. He also asked appellant to think about making the phone call to Larissa that Weibert had asked him to make. When appellant said he was scared, Weibert assured him that Larissa could not hurt him, that the detectives would make sure that did not happen, and that anything appellant could do to help them hold her responsible would do more to make appellant safe than doing nothing. Weibert again told him to relax, and asked if his water was holding out okay. Weibert asked if he had had lunch and said they would get him some food in a little bit. Appellant subsequently drew Weibert a map from which Weibert was able to locate the stun gun.

Appellant argued for exclusion of all three statements. He contended they were involuntary because they were the product of coercion and promises of leniency, and that they were obtained in violation of Miranda because detectives first used a ruse to avoid advising appellant of his rights and then trivialized those rights. The People responded that, to extent any promise was made, it was not a motivating factor, and that appellant's free will was not overborne by police procedure.

The trial court issued a written tentative ruling in which it denied appellant's motion to suppress/exclude his statements.28 With respect to the first interview, the trial court found it uncontroverted that detectives never advised appellant of his Miranda rights. The court found, however, that the interview did not constitute a custodial interrogation, and so no Miranda warnings were required. With respect to the question of voluntariness, the court found that the detectives made express and implied promises of leniency concerning the 2002 incident; however, appellant's admission of involvement was not motivated by the promises, but rather was motivated by his own interest in diverting suspicion about his involvement in Timothy's disappearance away from himself. Accordingly, the court denied appellant's motion to exclude this statement and evidence obtained as the fruit thereof.

Turning to the second interview, the court again noted there was no dispute that appellant was never advised of his Miranda rights. Considering all the circumstances, however, the court found that no coercive atmosphere was created such as would have caused a reasonable person in appellant's position to believe he was not free to leave, or to experience restraint tantamount to arrest. Accordingly, the court concluded the second interview did not constitute a custodial interrogation; hence, Miranda warnings were not required. With respect to the question of voluntariness, the court found appellant's confession to be a product of his own free will. The court found that appellant could not reasonably expect, from the detectives' promises that he would go home at the conclusion of the interview, that he would never be arrested or prosecuted no matter what he might say. The court found that the only inducements used by the detectives that pervaded the interview where the exhortations to appellant to tell the complete truth, and that such exhortations were proper. Accordingly, the court denied appellant's motion to exclude this confession and evidence obtained as the fruit thereof.

Turning to the third interview, the trial court found it undisputed that appellant was in custody, and that he was advised of that fact and given Miranda warnings. The court found a knowing and voluntary waiver of those rights, and further found that appellant's mention of an attorney did not constitute an invocation of his right to counsel. Accordingly, the court denied appellant's motion to exclude this statement.

Following further argument, the trial court adopted its tentative ruling as the ruling of the court. Appellant was granted a continuing objection to admission of his statements at trial.

B. Analysis29

1. Voluntariness

"The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576; Jackson v. Denno (1964) 378 U.S. 368, 376; People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) When a defendant challenges his or her statements as involuntary, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Guerra (2006) 37 Cal.4th 1067, 1093, disapproved on other grounds in People v. Rundle, supra, 43 Cal.4th at p. 151; People v. Markham (1989) 49 Cal.3d 63, 71.)

"A statement is involuntary if it is `not "`the product of a rational intellect and a free will.'"' [Citation.]" (People v. Rundle, supra, 43 Cal.4th at p. 114.) "Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the `totality of [the] circumstances.' [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 79.) Thus, "`[t]he due process [voluntariness] test takes into consideration "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation."' [Citations.]" (People v. Guerra, supra, 37 Cal.4th at p. 1093.)

An appellate court reviews independently a trial court's determinations as to whether coercive police activity was present and whether a defendant's statements were voluntary. (People v. Guerra, supra, 37 Cal.4th at p. 1093.) A trial court's findings concerning the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, in contrast, are reviewed for substantial evidence. (Ibid.) To the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. (Ibid.) However, where, as here, the interviews were tape-recorded, the facts surrounding the giving of the statements are undisputed and, hence, we may independently review the trial court's determination of voluntariness. (People v. Maury (2003) 30 Cal.4th 342, 404; People v. Anderson (1990) 52 Cal.3d 453, 470; People v. Vasila (1995) 38 Cal.App.4th 865, 873.)

Appellant's challenge to the voluntariness of his statements rests primarily on the assertion those statements were coerced by inducements in the form of implied promises of leniency. "The test for determining whether a confession is voluntary is whether the defendant's `will was overborne at the time he confessed.' [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 404.) In the present case, there is no claim, and the record contains no hint of, physical intimidation. Hence, we are concerned only with psychological coercion. "In evaluating a claim of psychological coercion, the `question posed ... is whether the influences brought to bear upon the accused were "such as to overbear [his or her] will to resist and bring about confessions not freely self-determined."' [Citations.]" (People v. Kelly (1990) 51 Cal.3d 931, 952.) "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it `does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 404.) This "requisite causal connection between promise and confession must be more than `but for': causation-in-fact is insufficient. [Citation.] `If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.' [Citation.]" (People v. Benson (1990) 52 Cal.3d 754, 778-779.) Rather, "[t]he statement is involuntary only if the threat [or promise] actually induces defendant to make the statement. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442.)

"The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. `[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.' [Citation.] `The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 297-298.) Thus, "`mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequently confession involuntary.' [Citation.] As [the California Supreme Court] stated in People v. Hill (1967) 66 Cal.2d 536[, 549], the distinction between permissible and impermissible police conduct `does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by the defendant if he speaks the truth as represented by the police.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, `"[w]hen the benefit pointed out by the police ... is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made [citation].' [Citation.]" (People v. Belmontes, supra, 45 Cal.3d at p. 773.)

A number of cases have made it appear as though the making of an express or implied promise of leniency, however slight, when a motivating cause of the decision to confess, mandates a finding of involuntariness without consideration of any other circumstance. (E.g., Hutto v. Ross (1976) 429 U.S. 28, 30; Bram v. United States (1897) 168 U.S. 532, 542-543; People v. Ray (1996) 13 Cal.4th 313, 339; People v. Boyde (1988) 46 Cal.3d 212, 238, affd. sub nom. Boyde v. California (1990) 494 U.S. 370; People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17; In re Shawn D. (1993) 20 Cal.App.4th 200, 210.) The California Supreme Court has clarified, however, that the question is not nearly so cut-and-dried: "In People v. Boyde[, supra,] 46 Cal.3d [at page] 238, this court said that `where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.' Similarly, the United States Supreme Court stated in Bram v. United States[, supra,] 168 U.S. [at pages] 542-543, that a confession is not voluntary if obtained by `"any direct or implied promises, however slight, [or] by the exertion of any improper influence."' But in Arizona v. Fulminante (1991) 499 U.S. 279, 285, the high court described Bram as inconsistent with current precedent, and explained it does not reflect `the standard for determining the voluntariness of a confession.' We echoed that view in People v. Cahill[, supra,] 5 Cal.4th [at page] 513, footnote 2. Thus, under current law, no single factor is dispositive in determining voluntariness, but rather courts consider the totality of circumstances. (Withrow v. Williams [(1993)] 507 U.S. [680,] 693-694; Arizona v. Fulminante, supra, at pp. 285-286.)" (People v. Williams (1997) 16 Cal.4th 635, 660-661, italics added.) "Whether the defendant lost his free will and made involuntary statements does not rest on any one fact, however significant it may seem." (People v. DePriest (2007) 42 Cal.4th 1, 34-35, italics added.; People v. Jablonski (2006) 37 Cal.4th 774, 814 [statement is involuntary when, among other circumstances, it was extracted by any sort of threat or obtained by any direct or implied promises, however slight; voluntariness does not turn on any one fact].)

In considering the totality of the circumstances, "[r]elevant are `the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as `the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 660; People v. Massie, supra, 19 Cal.4th at p. 576). Other characteristics of the defendant to be considered are his or her age, sophistication, prior experience with the criminal justice system, and emotional state. (In re Shawn D., supra, 20 Cal.App.4th at p. 209.)

After considering the totality of the circumstances in this case, we conclude the prosecution bore its burden of proving, by a preponderance of the evidence, that the statements made by appellant in all three interviews were voluntary. Accordingly, there was no due process violation in introducing those statements at trial. (See People v. Williams, supra, 16 Cal.4th at p. 660.)

Leaving aside for the moment the purported threats and promises of leniency with respect to the 2002 break-in, the first interview was no more "coercive" than any interview conducted by police at a police station. It was conducted in the "soft" interview room, which was larger than the formal interview rooms, and was not terribly lengthy. Indeed, when the detectives sought to end the interview, it was appellant who prolonged it. The tone of the interview was calm and relaxed. Significantly, even when the detectives made the asserted threats and promises, their voices remained conversational. They did not yell at appellant or treat him in any way that might be termed aggressive or confrontational. (See People v. Jablonski, supra, 37 Cal.4th at p. 815; People v. Benson, supra, 52 Cal.3d at p. 780.) Although appellant described recently being in a motorcycle accident, he did not suggest he was in any physical discomfort during the interview, nor did he appear, at any time, to be upset, scared, or emotional. (See People v. DePriest, supra, 42 Cal.4th at p. 35.) He had no prior experience with the criminal justice system, but was 21 years old (hence, legally an adult) and, while he enjoyed spending time with a 12-year-old boy, also clearly had a number of friends his own age with whom he also spent time. Nothing in his way of conducting himself (which was, as one of the detectives described and the videotape confirms, professional) suggested he had any mental problems or low intelligence.30 Insofar as the record shows, the detectives did not lie to appellant. Although the use of deception is not necessarily improper in and of itself, it is one factor to be considered in determining whether a statement was voluntary. (See, e.g., People v. Jones, supra, 17 Cal.4th at p. 299; People v. Cahill (1994) 22 Cal.App.4th 296, 315.)

Appellant was neither frightened nor vulnerable to coercion (People v. Ray, supra, 13 Cal.4th at p. 340), as evidenced by his persistent denial of involvement in the 2002 break-in even after detectives suggested the misdemeanor trespass could become a felony burglary and other issues such as conspiracy could arise. Instead, the videotape shows he calmly sat and played some sort of electronic game while detectives left the interview room for approximately 20 minutes. "`His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.' [Citation.]" (People v. DePriest, supra, 42 Cal.4th at p. 36.) It was only after the detectives returned and Kirkhart informed appellant that a lot of stuff was coming up and things were moving quickly, that appellant admitted involvement in the break-in.

We assume, without necessarily so finding, that Kirkhart's saying he was not going to pursue charges related to the 2002 incident, but that things would be different if it later developed that appellant had been deceptive, constituted an implied threat or promise of leniency. (But see People v. Holloway (2004) 33 Cal.4th 96, 113-116 [investigators held not to have crossed line from proper exhortations to tell truth into impermissible threats of punishment or promises of leniency where they told defendant they were talking about a death penalty case, that truth could not hurt him, but the longer he said nothing, he was gone, and that if killings were accidental or resulted from uncontrollable rage during drunken blackout, such circumstances could make a lot of difference].) Nevertheless, we do not find appellant's will to have been overborne thereby: Similar statements had previously left appellant unswayed, and the fact the questionable remarks preceded appellant's confession to the break-in "does not establish causal force ...." (People v. Benson, supra, 52 Cal.3d at p. 781; see also People v. Rundle, supra, 43 Cal.4th at p. 118.) Instead, it is clear to us that appellant decided, based on the fact detectives were rapidly obtaining new information about Timothy's disappearance, that it was in his best interests to admit his involvement in the break-in now and thereby hopefully deflect suspicion from himself in what he knew to be a homicide, by appearing to detectives to tell the truth.

In sum, assuming the detectives' implied threats or promises of leniency, without more, might once have been fatal to admission at trial of appellant's statements, we conclude such is not the situation when the totality of the circumstances is considered. The record contains no evidence of badgering, misrepresentation, overreaching, coercion, "or a course of conduct on the part of the interrogator[s] designed to break the will of" appellant. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1203.) Cases in which threats and/or promises of leniency or advantage to the accused have been held to have rendered a confession involuntary are thus factually distinguishable. (See, e.g., People v. Neal, supra, 31 Cal.4th at pp. 81-85 [investigators made threats and promises, and deliberately violated Miranda rights of immature and uneducated defendant who was held incommunicado, and without food, for more than 24 hours]; People v. Hogan (1982) 31 Cal.3d 815, 838-84331 [investigators made promises of leniency, engaged in psychological coercion, and falsely told defendant he had been seen committing offenses]; People v. Jimenez, supra, 21 Cal.3d at pp. 610-612 [investigator told defendant he could get the death penalty if he did not confess, but a codefendant — the actual killer — probably would not get the death penalty]; People v. McClary (1977) 20 Cal.3d 218, 229-23032 [investigators repeatedly called 16-year-old suspect a liar, advised her that she would face the death penalty unless she changed her statement and admitted the true extent of her complicity, suggested she might be charged only as accessory if she changed her story, and ignored her repeated requests for assistance of counsel]; People v. Johnson (1969) 70 Cal.2d 469, 478-479 [investigators told defendant his companions had accused him of shooting the victim and that he could get the gas chamber, that no one would believe him because he denied everything, and that if they were the jury they would give him the gas chamber]; People v. Vasila, supra, 38 Cal.App.4th at pp. 868-877 [investigators ignored defendant's invocation of right to remain silent, then promised he would not be prosecuted federally and would be released from custody if he provided necessary information, and also threatened converse]; People v. Cahill, supra, 22 Cal.App.4th at pp. 314-317 [investigator deceptively omitted felony-murder doctrine and understated seriousness of defendant's position when he implied that if defendant admitted his role in killing but had not premeditated, he might avoid trial and conviction of first degree murder]; In re Shawn D., supra, 20 Cal.App.4th at pp. 213-216 [investigator repeatedly told minor, falsely, that witnesses would identify him, that truthful statement would benefit minor's girlfriend, and that minor would not be tried as adult if he confessed]; In re J. Clyde K. (1987) 192 Cal.App.3d 710, 720-722 & fn. 433 [investigator expressly promised leniency in return for confession where he told minor that if minor lied and officer learned items were stolen, minor would go to jail, but if minor told truth, he would receive only a citation]; People v. Flores (1983) 144 Cal.App.3d 459, 464-471 [implicit in investigator's remarks was notion that only by confessing could defendant avoid the death penalty]; People v. Nicholas (1980) 112 Cal.App.3d 249, 265-266 [investigators engaged in psychologically coercive ploys and falsely stated the death penalty had been reinstated that day, implying defendant could receive the death penalty].)

With respect to appellant's second statement, we again must consider the totality of the circumstances. The interview was not overly lengthy; the detectives' tone was conversational and not confrontational or aggressive, and they did not seek to deceive appellant about the information they possessed or state of the investigation; appellant was calm and unemotional; and the atmosphere was not coercive as, although the interview room was fairly small, the door was left ajar and appellant was given his choice of beverage. (See People v. DePriest, supra, 42 Cal.4th at p. 35.) Moreover, appellant was not cut off from the outside world, as he had his cell phone with him.

We recognize the detectives promised appellant that, no matter what he told them, he would be going home. Promises of a release from custody are a circumstance that can indicate involuntariness.34 (See People v. Vasila, supra, 38 Cal.App.4th at pp. 874, 876-878; In re J. Clyde K., supra, 192 Cal.App.3d at pp. 714-716.) It is simply inconceivable, however, that someone of appellant's intelligence — even without prior experience with police or the criminal justice system — would believe those statements meant he could confess to murder without consequences and remain free for any length of time. This is so even when we consider those statements in combination with Cardenas's telling appellant to just tell the truth and everything was fine, that there was no need for appellant to get involved in this, that everyone makes mistakes and this was appellant's opportunity to set things right, and with the fact appellant had been allowed to go home the day before after confessing to participating in a break-in.35 Considered in context, the detectives' statements did not minimize the seriousness of admitting involvement or implicitly promise leniency. We see a great difference between suggesting someone has the opportunity to make right a mistake, as happened here, and suggesting someone will receive more lenient treatment if he or she admits having made a mistake, as happened in the cases cited by appellant in which confessions were found to have been coerced. (See People v. Cahill, supra, 22 Cal.App.4th at pp. 303-308, 314-315 [investigators suggested to 18-year-old murder suspect that if he did not reveal mitigating factors concerning how homicide occurred, they would assume it was cold-blooded premeditated murder, and that planning to kill someone was very different from getting caught in the middle of a burglary; remarks constituted implied promise suspect might avoid trial and conviction for first degree murder if he admitted role in killing but did not premeditate; statements suggesting the death penalty was inoperative or would not apply if the killing was not premeditated also understated the seriousness of suspect's position]; United States v. Lopez (10th Cir. 2006) 437 F.3d 1059, 1061-1062, 1064-1065 [suggesting to suspect that if he cooperated and the killing was a mistake, he would get six years in prison, but if he did not cooperate and the killing was murder, he would get 60 years in prison, was promise of leniency rendering confession involuntary].)

With respect to statements made during the third interview, appellant contends that interview was merely a continuation of the second one, and so was tainted by the prior involuntary confession. Because we find the prior confession to have been voluntary, we reject this claim. (See cases cited in fn. 36, ante, p. 62.) Appellant further contends the confession was involuntary because it followed an arrest that was unlawful because it was unsupported by probable cause independent of the prior involuntary confession. Again, because the prior confession was not involuntary, we reject this claim.

2. Miranda

In Miranda, "the United States Supreme Court `recogniz[ed] that any statement obtained by an officer from a suspect during custodial interrogation may be potentially involuntary because such questioning may be coercive' and `held that such a statement may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and the right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer.' [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1092.) As is the case in our review of a voluntariness determination, "we review independently a trial court's ruling on a motion to suppress a statement under Miranda. [Citation.] In doing so, however, `we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.' [Citation.]" (People v. Guerra, supra, 37 Cal.4th at pp. 1092-1093.) Where the facts are uncontradicted, we determine independently whether the trial court's legal conclusion was properly found. (People v. Stansbury (1995) 9 Cal.4th 824, 831; In re Kenneth S. (2005) 133 Cal.App.4th 54, 64.)

Appellant's claims Miranda was violated rest primarily on the assertion he was subjected to unwarned custodial interrogation during the second interview, and that the third interview was tainted by the prior Miranda violation.36 We assume the second interview was reasonably likely to elicit incriminating responses and so constituted "interrogation" within the meaning of the Miranda rule. (See People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.) The third interview, which followed appellant's arrest, certainly was.

"`Absent "custodial interrogation," Miranda simply does not come into play.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401.) "Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444, fn. omitted.) "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 (2007) 40 Cal.4th 1370, 1400.) "Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." (Thompson v. Keohane (1995) 516 U.S. 99, 112, fn. omitted.)

"In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. [Citation.]" (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1; see California v. Beheler (1983) 463 U.S. 1121, 1125.) Important considerations include the site of the interrogation, whether objective indicia of arrest were present, and the length and form of the questioning. (People v. Boyer, supra, 48 Cal.3d at p. 272.) In this regard, what matters are the objective circumstances of the interrogation, not the subjective views harbored by the interrogating officers or person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323.) "[A] police officer's subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda.... Save as they are communicated or otherwise manifested to the person being questioned, an officer's evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry.... [¶] An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. [Citations.] Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her `"freedom of action."' [Citation.] Even 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." (Stansbury v. California, supra, at pp. 324-325.)

Appellant says the second interview was custodial; hence, since he was not given the Miranda warnings, the confession should have been excluded as having been obtained in violation of Miranda. Appellant argues that a reasonable person in his position would not have felt free to terminate the interview and leave, because he was told he needed to go to the Fresno Police Department and they needed to talk to him; he was escorted by Clovis police officers; upon arrival at the Fresno Police Department, he was not specifically told that he was free to terminate the interview and leave; and he was not sent home immediately upon completion of the interview. We disagree.

Although appellant was under surveillance when he was told he needed to go to the Fresno Police Department, nothing in the record suggests he was aware of that fact. While his mother had to awaken him, it was around 8:00 a.m. and not the middle of the night; Havlik was not in uniform and he and Sullivan both were driving unmarked vehicles; and appellant was not placed in handcuffs or otherwise restrained. (Compare Kaupp v. Texas (2003) 538 U.S. 626, 630-631.) It does not appear there was any debate over whether he would be permitted to drive his own vehicle; appellant had somewhere he needed to go later that morning. Appellant did not know how to get to the police station or where to park, so it was decided he would follow one of the officers. Insofar as the record shows, appellant either took part in making this decision or agreed with it. Once at the Fresno Police Department, appellant was met (whether in the parking lot or inside the building) by Alcorn and Cardenas, who introduced themselves merely as police detectives, not as homicide investigators. They asked if appellant would come in and talk to them. Once inside, the door to the interview room was left ajar, and the atmosphere throughout the interview remained relaxed and nonconfrontational. At least at the outset, the focus of the interview was on determining whether appellant had information that might implicate Larissa in what was now believed, in light of the discovery of a body, to be a homicide investigation. Almost at the outset of the interview, appellant confirmed that he had come with the Clovis detectives of his own free will. Although Cardenas did not specifically state that appellant was free to terminate the interview at any time and leave, he expressly stated that appellant was not in custody or under arrest, and that, whatever appellant told him, appellant would be going home. Cardenas said that they believed appellant might have some information that would help them, and that as soon as appellant told his side of the story and how he got involved, they would take him back home. Appellant confirmed that that sounded reasonable to him. Late in the interview, Alcorn asked whether it would be okay with appellant, when they were done talking, if they went back to appellant's house and looked around his room. Cardenas reiterated that appellant was going to be going home after the interview. At the conclusion of the interview, Cardenas said they wanted to review some of the evidence, and asked appellant if he could give them a couple of minutes. Appellant agreed, then asked if he could use the restroom. He was allowed to do so. While he was left alone in the interview room, appellant made several calls on his cell phone. It was apparent from the content of those calls that he believed he was leaving and would be going home, and he was, in fact, allowed to leave.

Having independently considered the totality of the circumstances, we conclude there is compelling evidence that appellant did not believe he was in custody and that a reasonable person in appellant's position would have believed he was free to terminate the interview and leave. Although appellant was told he needed to talk to Fresno detectives, those detectives asked if he would come in and talk to them. While appellant was not expressly told he was free to leave at any time, he was informed that he was not in custody or under arrest. Appellant had his own transportation and was not dependent on detectives to take him home. In light of these facts, a reasonable person would not have interpreted Cardenas's statement, that they would take appellant back home as soon as he told his side of the story, to mean he was not free to leave unless and until he talked. That a reasonable person would not have believed himself or herself to be in custody is bolstered by the fact the door to the interview room was left ajar and the tone of the questioning never became confrontational, as well as by appellant's belief, as stated in his telephone calls, that he would be leaving. (Compare California v. Beheler, supra, 463 U.S. at p. 1122, 1124-1125 [no custodial interrogation where defendant, told he was not under arrest, voluntarily accompanied police to station house, where he was questioned for approximately 30 minutes, allowed to return home, and then arrested five days later, despite fact defendant was a suspect at the time he was questioned]; Oregon v. Mathiason (1977) 429 U.S. 492, 495 [no custodial interrogation where, despite fact police suspected defendant and questioned him at station house, where defendant came voluntarily to police station, was immediately informed he was not under arrest, and, at close of one-half hour interview, left police station without hindrance]; People v. Leonard, supra, 40 Cal.4th at pp. 1400-1401 [no custodial interrogation where interrogation of young man with low intelligence and developmental disability initiated by police, defendant was fingerprinted before being questioned, interrogation was relatively long (three and a half hours) and took place in small room with door closed and with detective sitting between defendant and door, defendant was repeatedly told he was not under arrest and was free to end questioning at any time and leave, defendant was permitted to use telephone upon his request, defendant told his father on the telephone that he was free to go, and deputies took defendant home at conclusion of interview]; People v. Stansbury, supra, 9 Cal.4th at pp. 831-834 [no custodial interrogation where defendant was asked if he would come to police station to answer questions as a possible witness and given choice of finding own transportation or accepting ride from police, and questioning was brief and not accusatory, despite fact police arrived at defendant's house at 11:00 p.m. with guns out of holsters but possibly not visible to defendant, and interview took place in jail area of police station]; Green v. Superior Court (1985) 40 Cal.3d 126, 131-133, 135-136 [no custodial interrogation where defendant was asked to accompany officer to police station for interview; officer said he would drive defendant back to work whenever he wanted, but did not subsequently tell defendant he was free to leave; after initial interview, detectives said they had a meeting and asked defendant if he would wait for them, whereupon defendant agreed and remained in the interview room; complexion of defendant's stay changed and became custodial when he was left alone in locked interview room]; In re Kenneth S., supra, 133 Cal.App.4th at pp. 64-65 [no custodial interrogation where minor was brought to police station by foster mother voluntarily, detective told minor he was not under arrest and was free to leave at any time, and door to interview room was left ajar; fact detective told minor he had information minor was involved in robbery, and that interview was conducted in section of police station to which public not given free access and minor would have required accompaniment of officer to leave, insufficient to constitute custody]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1279, 1282-1283 [no custodial interrogation where defendant was asked to go to police station for interview, transported in unmarked car and without physical restraint with his agreement, told he was not under arrest, and returned home after the interview]; People v. Spears (1991) 228 Cal.App.3d 1, 23-26 [no custodial interrogation where, although a portion of questioning took place at police station and was extensive, tone of officers was polite, questions were not accusatory, defendant was told several times that he was free to leave, and he was allowed to return home, without hindrance, at close of interview]; United States v. LeBrun (8th Cir. 2004) 363 F.3d 715, 722 [no custodial interrogation where defendant was never physically restrained, was told before interview that he was free to leave, had his cell phone with him during interview and called wife from interview room, and was not arrested but instead was driven home at end of interview] with People v. Aguilera, supra, 51 Cal.App.4th at pp. 1159-1160, 1163-1165 [custodial interrogation where defendant told he was not in custody, but that officers would take him home when they were finished, and that it depended on how quickly defendant told them the truth, following which officers rejected defendant's story and said defendant would not be allowed to leave if they had to go interview an alleged alibi witness; defendant was not told he could terminate the interview and leave if he wished; defendant was informed he was a potential suspect and told officers had evidence to prove his involvement; and interrogation was intense, aggressive, confrontational, and sometimes threatening and intimidating]; People v. Esqueda (1993) 17 Cal.App.4th 1450, 1481-1483 [custodial interrogation where defendant was transported first to police substation and then to police headquarters by uniformed officers; interview room at headquarters was accessible only by security code; officer stood guard over defendant until detective arrived to take over; the investigation had focused on defendant as the suspect; defendant was not given information about condition of victim (his live-in companion) when requested and then was lied to about her condition]; United States v. Wauneka (9th Cir. 1985) 770 F.2d 1434, 1438-1439 [custodial interrogation where defendant was thrice transported by officers to investigators' office; on third occasion, he was placed in large conference room with four or five officers who each questioned him; questioning turned accusatory; questioning persisted despite fact defendant was visibly shaken and crying; defendant had no means of transportation and was never offered opportunity to leave office prior to his confession].)

Appellant suggests that, even assuming the interview initially was noncustodial, it evolved into custodial interrogation once he admitted accompanying Larissa to Timothy's home on the night of the murder, since it was objectively apparent he was subject to arrest at any moment. Probable cause to arrest does not necessarily equal a custodial environment, however. (Cf. Stansbury v. California, supra, 511 U.S. at p. 325 [some suspects are free to come and go until police decide to make arrest].) "As the United States Supreme Court has instructed, `the only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation.' [Citation.]" (People v. Stansbury, supra, 9 Cal.4th at p. 830, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 442.) Here, the detectives neither did nor said anything that would have led a reasonable person in appellant's position to believe he or she was no longer free to leave. Appellant points out that he was not sent home as soon as he confessed, but instead remained in the interview room for an additional 45 minutes while detectives debated whether they should honor their promise to let him go home. These factors, he says, demonstrate he was not free to go without the detectives' permission. This may be so, but that does not mean a reasonable person in appellant's position would have perceived that he or she was not free to leave. Cardenas asked whether appellant could give detectives a couple of minutes to review some of the evidence, and appellant readily agreed. Although the time stretched, there is no suggestion a reasonable person in appellant's position would have believed he or she would not be permitted to stop waiting and go home if he or she desired to do so. Being asked to wait does not mean one is not free to leave.

Appellant contends his third statement, which was preceded by the giving of Miranda warnings, was tainted by the prior Miranda violation. Relying on Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), he says it is "obvious" Fresno detectives deliberately withheld a Miranda warning, then police sought to "launder" the unlawful confession by having appellant repeat it to Clovis police. The record does not support his position.

In Seibert, the United States Supreme Court "test[ed] a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda [citation], the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time." (Seibert, supra, 542 U.S. at p. 604 (plur. opn. of Souter, J.).) The question before the court was the admissibility of the repeated statement. (Ibid.) "Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement, [the court held] that a statement repeated after a warning in such circumstances is inadmissible." (Ibid., italics added.)

In his concurring opinion, Justice Kennedy noted that the interrogation technique at issue was a two-step one that was based on a deliberate violation of, and designed to circumvent, Miranda. (Seibert, supra, 542 U.S. at pp. 618, 620 (conc. opn. of Kennedy, J.).) In Justice Kennedy's view, the holding in Seibert — that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on whether the Miranda warnings, delivered midstream, could have been effective enough to accomplish their object, given the specific facts of the case (id. at p. 615 (plur. opn. of Souter, J.)) — was overly broad. Instead, Justice Kennedy believed that the reasoning and result in Oregon v. Elstad (1975) 470 U.S. 298 (Elstad) should continue to apply except where a deliberate two-step strategy was employed. (Seibert, supra, at p. 622 (conc. opn. of Kennedy, J.).)

In Elstad, the suspect made an incriminating statement at his home. He was not given Miranda warnings first, apparently because it was unclear whether he was in custody at the time. He was taken to the station house and given a proper warning, and, after waiving his rights, made a second statement that he later sought to suppress. The United States Supreme Court held that, despite the initial Miranda violation that rendered the first statement inadmissible, the postwarning statement could be introduced against the defendant because "neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression," given the facts of the case. (Elstad, supra, 470 U.S. at p. 308.)

Finding "it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning," (Seibert, supra, 542 U.S. at p. 620 (conc. opn. of Kennedy, J.)), Justice Kennedy concluded: "The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver." (Seibert, supra, at p. 622 (conc. opn. of Kennedy, J.).) The Ninth Circuit Court of Appeal has held that, in light of Justice Kennedy's concurrence, "[t]his narrower test — that excludes confessions made after a deliberate, objectively ineffective mid-stream warning — represents Seibert's holding. In situations where the two-step strategy was not deliberately employed, Elstad continues to govern the admissibility of postwarning statements. [Citations.]" (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158.)

In our view, neither Seibert nor Elstad applies here because there was no Miranda violation — inadvertent or intentional — with respect to the second interview. As we have already discussed, that interview did not constitute a custodial interrogation within the meaning of Miranda; hence, Miranda warnings were not required and the failure to give them did not constitute a violation of Miranda. (Compare In re Kenneth S., supra, 133 Cal.App.4th at pp. 65-66 [Seibert inapposite when no evidence of any protocol used in eliciting confession, and provides no guidance for determining whether suspect was in custody] with United States v. Williams, supra, 435 F.3d at pp. 1150, fn. 1, 1159 [defendant was in custody when he confessed; once law enforcement officer detains suspect and subjects him or her to interrogation, there is rarely a legitimate reason to delay giving Miranda warning until after suspect has confessed].) Appellant's saying police deliberately withheld Miranda warnings does not make it so.

Appellant further contends the Miranda warning given near the outset of the third interview was defective because Detective Weibert (1) softened appellant up before giving the warning by telling appellant his parents were proud he had come forward and was doing his best to clear things up, and (2) the warning was undercut by the suggestion it was just a technicality, "one of those things we have to jump through" and something seen on television all the time.

"Miranda holds that `[t]he defendant may waive effectuation' of the rights conveyed in the warnings `provided the waiver is made voluntarily, knowingly and intelligently.' [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Combs (2004) 34 Cal.4th 821, 845.) The prosecution has the burden of demonstrating a knowing and voluntary waiver by a preponderance of the evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248; People v. Bradford (1997) 14 Cal.4th 1005, 1035.)

We conclude, after independent review, that appellant's statement was legally obtained. (See People v. Smith (2007) 40 Cal.4th 483, 502.) The California Supreme Court has "explained that `[w]hen the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary.' [Citation.]" (People v. Gurule (2007) 28 Cal.4th 557, 602.) Here, there was manifestly no disparagement of the victim, nor do we consider the statements that appellant's parents were proud to be ingratiating conversation or a "clever softening-up." Appellant had just been arrested for murder and handcuffed in front of his home, where his mother was present. She was surprised by the arrest and became very emotional when informed of it. Appellant would naturally be concerned about his parents' reactions and how they were holding up, and we see nothing wrong with the detective attempting to put him at ease before starting the interrogation. (See ibid.)

Even assuming the references to appellant's parents were ill-advised, they do "not even remotely resemble the egregious misconduct" that courts have condemned as rendering a Miranda waiver involuntary. (See People v. Kelly, supra, 51 Cal.3d at p. 954.) People v. Esqueda, supra, 17 Cal.App.4th 1450, which appellant says stands, in part, for the proposition that it is improper to tell a suspect that his family wants him to waive his rights, is distinguishable. In that case, a detective's statement that the defendant's family would want him to tell who killed the victim (id. at p. 1475) was merely one minor point in a multi-hour course of "lies, accusations, exhaustion, isolation and threats" detectives used to overcome the defendant's resistance and clear desire not to speak (id. at p. 1486), and that rendered his statements involuntary and his Miranda waiver ineffective.

With respect to the alleged trivialization of the warning, the California Supreme Court has "agree[d] with the proposition that evidence of police efforts to trivialize the rights accorded suspects by the Miranda decision — by `playing down,' for example, or minimizing their legal significance — may under some circumstances suggest a species of prohibited trickery and weighs against a finding that the suspect's waiver was knowing, informed, and intelligent." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1237.) The evidence here, however, suggests no trickery. Although Weibert would have done better simply to say he needed to advise appellant of his rights because appellant was in custody, the videotape shows appellant listened carefully to the recitation of the Miranda warning. His question whether he needed an attorney shows he considered his rights and whether to waive them, rather than being misled into believing they were a mere formality or of little legal significance.

We conclude the totality of the circumstances surrounding the interrogation — even considering the combined effect of Weibert's references to appellant's parents and characterization of the reading of appellant's rights — reveals an uncoerced choice on appellant's part to waive his rights, and the requisite level of comprehension. (See Moran v. Burbine, supra, 475 U.S. at p. 421; People v. Combs, supra, 34 Cal.4th at p. 845.)

To summarize, the trial court did not err in refusing to suppress appellant's various statements and the fruits thereof. It follows that this evidence was properly admitted at trial.

II

Change of Venue

Claiming there was a reasonable likelihood he could not obtain a fair trial in Fresno County due primarily to extensive media coverage of the case, appellant sought a change of venue. He now contends the trial court's failure to grant his motion constituted reversible error.

A. The Trial Court Proceedings

On August 11, 2006, Larissa filed a motion for change of venue. In support, she submitted a public opinion survey conducted a little more than three years after appellant's and Larissa's arrests by her expert, Dr. Penrod.37 Penrod concluded it would be "practically impossible to impanel a fair and impartial jury in Fresno County" because a high proportion of the country's residents remembered reading or hearing about the case and had already formed a negative opinion with respect to Larissa and her guilt or innocence. Survey results38 showed that 45.8 percent of the Fresno County residents surveyed remembered the case without prompting, with the figure rising to 85.5 percent recognition after prompts; 54.8 percent of survey respondents, and 64 percent of those who were familiar with the case and willing to give an opinion, expressed negative impressions of Larissa personally; and 52.5 percent of those surveyed, and 61.4 percent with case recognition, believed she was definitely or probably guilty of murder.39 Penrod also analyzed media coverage and concluded the case had already been tried in the media, with negative portrayals of Larissa and the recounting of purported evidence. Based on the survey results and on research concerning the effects of pretrial publicity, Penrod opined that traditional safeguards designed to protect defendants from prejudicial pretrial publicity, such as delays in trials, extended voir dire, and jury instructions, would not "reliably identify or create jurors in the Fresno County venue" who would be "fair and objective in evaluating the evidence and rendering a verdict in this case." Appellant joined in the motion.

At the evidentiary hearing, Penrod explained that, in regionally publicized cases, which are of interest to people in the local community and reported by local media, people 50 to 100 miles outside the community will not be familiar with the case. Thus, it is preferable to conduct a survey in a legally viable county where the case possibly could be tried, in order to provide perspective on what movement to an alternative venue will produce in terms of reduced knowledge and prejudgment about a case. Based on the "impressive" difference between Fresno and Alameda Counties in terms of knowledge and predisposition in this case, Penrod believed there would be far less of a practical impediment to a fair trial if the case were tried in Alameda County as opposed to Fresno County. He further thought it was "very problematic" to conclude the high level of knowledge and predisposition in Fresno County could be cured through the voir dire process.40 In his opinion, based on research, people are not able to gauge whether they are biased, and the answer to the question whether a person is biased can depend on who is asking the question, as people give socially desirable response when they think there is a socially desirable response.41 People cannot mentally erase what they remember from the media, or the impressions they have formed of people. Exposure to pretrial publicity serves as the lens through which jurors view the evidence.

The prosecution's expert, Dr. Ebbesen, criticized the survey for failing to make any attempt to gain information regarding pro-prosecution or pro-defense attitudes, which might influence how people responded to the survey. In addition, neither the survey nor Penrod's report addressed the five categories that California courts traditionally consider in determining whether to change venue.

Ebbesen also took issue with the results of the survey in terms of recognition of the case. In his opinion, what people recognize is different than what they know. Thus, people may say they remember something sounds familiar, but they cannot recall any details. The survey lumped together all respondents who said they recognized the case. Ebbesen noted that 56 percent of the people who were asked said they did not follow the case closely or at all, while an additional five percent had not heard of the case, for a total of 61 percent.

In Ebbesen's opinion, a "critical problem" with the survey was its lack of reference to people being able to set aside any opinion they had and to follow judicial instructions regarding information they had heard about the case. Although one survey question asked whether the respondent could be fair and impartial, it did not test whether the respondent's opinion would endure into trial. Moreover, the survey failed to advise respondents, as would be done in voir dire when the respondent was under oath, that the presumption of innocence and burden of proof had to be strictly followed. Even without that information, the survey showed that approximately 47 or 48 percent of the respondents either knew nothing about the case or knew something but were not willing to say Larissa was definitely or probably guilty, and so would be good potential jurors using Penrod's own survey and standard. Survey responses also showed that only approximately 24 percent remembered something about the case, thought the defendant was guilty, and could not be fair and impartial. Given Fresno County's population, this meant that three-quarters — over half a million people — could be fair.

Following argument, the trial court concluded there were sufficient prospective jurors in Fresno County who had not formed a fixed opinion about this case so that there had not been a demonstration of a reasonable likelihood that either defendant would not receive a fair and impartial trial in Fresno County. Accordingly, it denied the motion for change of venue as to both defendants, subject, with respect to Larissa, to renewal after appellant's trial, and, with respect to appellant, to reconsideration after examination of the prospective jurors' questionnaires.

At the commencement of jury selection in appellant's trial, 217 prospective jurors appeared. The parties stipulated that the 89 who claimed hardship could be excused. The remainder filled out a questionnaire dealing, in large part, with their exposure to publicity about the case, what they recalled of the case, their impressions and opinions, and whether they could set all that aside and decide the case based solely on the evidence and jury instructions. The questionnaire also asked whether they would be able to avoid media accounts of, and talking about, the case for the duration of the trial. In addition, the trial court instructed the prospective jurors on the presumption of innocence and burden of proof beyond a reasonable doubt.

After reviewing the questionnaires, appellant renewed his motion for a change of venue. Defense counsel represented that, by his calculation, 83 percent recognized the case, and over 40 percent had formed the opinion, based on what they had heard, that appellant was guilty, albeit they said they could put it aside. The prosecutor responded that, assuming 40 people were excused, it would still leave a jury pool of 88 people who had not formed an opinion as to appellant's guilt, which was an adequate number with which to proceed. Based on the questionnaire responses, the court found no demonstration of a reasonable likelihood that appellant could not receive a fair trial in Fresno County, as the prospective jurors who remained either had no opinions about the case or their opinions were not strongly held. Accordingly, it denied the motion, subject to renewal after completion of the voir dire process. Ultimately, the court and parties agreed to summarily excuse approximately 50 prospective jurors who were subject to challenge for cause, primarily due to their opinions about this case. This left 76 prospective jurors who all parties agreed were qualified to serve. These jurors then underwent voir dire.

At the conclusion of voir dire, defense counsel renewed the motion, noting that a majority of the seated jurors recognized the case, although none expressed an opinion as to guilt. When the prosecutor noted that the defense had an additional peremptory challenge, defense counsel stated: "[A]s a practice I have to look when we have a randomized list and we know whose [sic] coming up I have to project ahead and look at what I will most likely have to exercise as opposed to what the prosecution may have to exercise, and make an intelligent decision in going to trial with a particular panel. So I know that issue is brought up occasionally. But for the record, that's — that's something I did in this case."

The court declined to require the defense to exhaust all of its peremptory challenges as a prerequisite to renewing the motion. Based on all of the evidence submitted to it and the responses of the trial and alternate jurors, however, it found no basis for concluding there was a reasonable likelihood appellant could not receive a fair trial. Accordingly, the renewed motion was denied.

B. Analysis

"`A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.'" (People v. Panah (2005) 35 Cal.4th 395, 447; § 1033, subd. (a).) "Reasonable likelihood" means something less than "more probable than not," but something more than "merely `possible.'" (People v. Bonin (1988) 46 Cal.3d 659, 673, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Each case is resolved on its own facts, and the defendant bears the burden of proof. (People v. Sanders (1995) 11 Cal.4th 475, 505.)

On appeal, we review the trial court's resolution of factual questions for substantial evidence, but we independently determine the ultimate question of whether a fair trial was obtainable. (People v. Sanders, supra, 11 Cal.4th at pp. 505-506; People v. Jennings (1991) 53 Cal.3d 334, 359-360.) This de novo standard of review applies to our consideration of the five factors to be examined in making that determination: (1) the nature and gravity of the offense: (2) the nature and extent of the media coverage; (3) the size of the community; (4) the status of the defendant in the community; and (5) the popularity and prominence of the victim. (People v. Panah, supra, 35 Cal.4th at p. 447; People v. Jennings, supra, 53 Cal.3d at p. 360.)

"In contrast to pretrial appellate review by way of a petition for a writ of mandate, review on appeal is retrospective. Thus, `any presumption in favor of a venue change is unnecessary, for the matter may then be analyzed in light of the voir dire of the actual, available jury pool and the actual jury panel selected. The question then is whether, in light of the failure to change venue, it is reasonably likely that the defendant in fact received a fair trial.' [Citation.]" (People v. Jennings, supra, 53 Cal.3d at p. 360.) Thus, "[o]n appeal, `"the defendant must show both that the [trial] court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial was not in fact had."' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 943.) We will reverse the judgment only if the record discloses a reasonable likelihood the defendant did not receive a fair trial. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 46.)

Neither appellant nor Timothy was an outsider to the community. (See People v. Daniels (1991) 52 Cal.3d 815, 852.) While it is apparent Timothy was generally loved and respected by those who knew him, he was not especially prominent prior to his death. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1323; People v. Pride (1992) 3 Cal.4th 195, 225.) Any posthumous prominence he achieved through news accounts of his death did not favor a change of venue; in light of the fact he led a relatively obscure life, "the community was not likely to have experienced a uniquely heightened sense of loss or anger which would presumably be alleviated by trial in another county. Any sympathetic features of the case would be apparent wherever it was tried." (People v. Webb (1993) 6 Cal.4th 494, 514-515.) Thus, these factors weighed against a change of venue.

Also weighing against a change of venue was the size of the community, which Penrod estimated to be approximately 890,000 people. According to California Department of Finance figures for 2006, when the motion was heard, Fresno County was the 10th most populous of California's 58 counties. (State of Cal., Statistical Abstract (48th ed. 2009) table B-3, at http://www.dof.ca.gov/html/fs_data/stat-abs/Statistical_Abstract.php [as of Feb. 25, 2009].) "[C]ases in which venue changes have been granted or ordered on review `have usually involved counties with much smaller populations' because the larger the local population, the more unlikely it is that preconceptions about the case have become imbedded in the public consciousness. [Citation.]" (People v. Edelbacher (1989) 47 Cal.3d 983, 1001-100242 [Fresno County was 14th most populous county, with 1983 estimated total population of 551,200]; accord, People v. Webb, supra, 6 Cal.4th at p. 514 [in contrast to San Luis Obispo County (population then almost 200,000), motions to change venue have been granted where county is relatively isolated and small]; People v. Fauber (1992) 2 Cal.4th 792, 818 [size and nature of community (Ventura, with then-population of 619,300) did not support venue change; "[v]enue changes are seldom granted from counties of such a large size"]; People v. Howard (1992) 1 Cal.4th 1132, 1167 [size of Tulare County, with then-population of 253,000, did "not weigh substantially in favor of" change of venue; "most recent successful venue motions have involved communities with substantially smaller populations"].)

Appellant relies primarily on the nature and gravity of the crimes and the extensive media coverage they engendered. "The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its `nature'; the term `gravity' of a crime refers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict." (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.) Special-circumstance murder is an offense of "utmost gravity," even where the death penalty is not sought. (Williams v. Superior Court (1983) 34 Cal.3d 584, 593.) The fact that Timothy's remains were found in a barrel of acid rendered this case unusual and attention-grabbing; allegations that he may have been alive when placed there moved it into the realm of the shocking and sensational. Thus, this factor weighed in favor of granting the motion, but was not dispositive. (People v. Panah, supra, 35 Cal.4th at pp. 447-448.)

Not surprisingly, the shocking nature of the case led to extensive and sometimes sensationalized media coverage, and resultant widespread and enduring recognition within Fresno County. We conclude, however, that this factor, which weighed in favor of a change of venue, was sufficiently balanced by the size of the community. (Compare People v. Daniels, supra, 52 Cal.3d at p. 852 [no change of venue; murder of two police officers garnered extensive media coverage, but community (Riverside County) had population exceeding 600,000] with People v. Williams (1989) 48 Cal.3d 1112, 1126-1132 [change of venue erroneously denied where county (Placer) had population of only approximately 117,000; media coverage was continuous; substantial portion of prospective jurors knew victim, family, or friends; smaller but significant number knew prosecutor or law enforcement witnesses].) "The relevant question is not whether the community remembered the case, but whether the jurors at [appellant's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant. [Citation.] It is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed." (Patton v. Yount (1984) 467 U.S. 1025, 1035.)

We recognize that the survey results showed a number of people had formed opinions with respect to guilt. Significantly, however, the survey did not take into account how many of those would be able to set their opinions aside and base their decision entirely on evidence presented in court. "Pervasive publicity alone does not establish prejudice. [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1214.) "`"It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."' [Citations.]" (People v. Panah, supra, 35 Cal.4th at p. 448.) Nearly half of those who recognized the case apparently had not formed an opinion concerning Larissa, and the figures were slightly more favorable with respect to appellant. According to Ebbesen's calculations, only 24 percent remembered the case, had formed an opinion, and could not be fair and impartial. Given the size of the community, that left an ample number of prospective jurors from whom to choose. (See People v. Leonard, supra, 40 Cal.4th at pp. 1395-1396 [change of venue properly denied where 85 percent of those surveyed had heard of case, and 58 percent of those had formed opinion as to guilt]; People v. Prince, supra, 40 Cal.4th at pp. 1211, 1214 [change of venue motion properly denied where survey showed 74 percent of respondents were aware of case despite little publicity in preceding six months, and of those, 25 percent were predisposed to find defendant guilty]; People v. Ramirez (2006) 39 Cal.4th 398, 432-434 [change of venue not compelled where, following media "`saturation,'" 94.3 percent of survey respondents had heard of case, and 51.7 percent thought defendant was responsible for Night Stalker murders]; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 45 [change of venue motion properly denied where survey showed almost 71 percent of participants who resided in judicial district from which jury was drawn recalled case, and over 80 percent of those had formed opinion as to guilt]; People v. Welch (1999) 20 Cal.4th 701, 743, 745 [change of venue not compelled where survey results disclosed 65 percent of jury-eligible individuals had heard of case, and 78 percent of those had prejudged defendant to be guilty]; People v. Proctor (1992) 4 Cal.4th 499, 524-525 [change of venue not compelled where survey showed 80 percent of those contacted had heard of case, and 31 percent of those had formed opinion as to guilt]; People v. Jennings, supra, 53 Cal.3d at pp. 359, 363 [change of venue motion properly denied where survey showed 72 percent of respondents recalled case, 51 percent thought they might be influenced by the publicity, and 31 percent believed district attorney had very strong case against defendant].) "The key consideration is `whether it can be shown that the population is of such a size that it "neutralizes or dilutes the impact of adverse publicity."' [Citations.]" (People v. Weaver (2001) 26 Cal.4th 876, 905.) As the California Supreme Court has observed, "Fresno County is `considerably more populous and ... less provincial' than other counties from which [that court] concluded a change of venue was necessary. [Citation.]" (People v. Jennings, supra, 53 Cal.3d at p. 363.)

In sum, the gravity and nature of the crime supported a change of venue, as did the extent and nature of the pretrial publicity. The size of the community weighed against a change, as did the status of both defendant and victim. Accordingly, we conclude the trial court did not err in denying the motion appellant made prior to jury selection.

Even assuming error occurred, moreover, we conclude appellant suffered no prejudice, and the trial court properly denied the renewed motion made after jury selection: "[A]ny inference that an impartial jury could not be impaneled was refuted by the actualities of voir dire." (People v. Edelbacher, supra, 47 Cal.3d at p. 1003.)43

A trial court may properly attempt to impanel a jury before making a final ruling on a motion for a change of venue. (See People v. Bolin (1998) 18 Cal.4th 297, 312; Cal. Rules of Court, rule 4.151(b).) The trial court here was not required to credit testimony that voir dire — the traditional method of obtaining a fair and impartial juror — would not be efficacious in weeding out bias resulting from pretrial publicity in the circumstances of this case.

We have examined the record of jury selection, and conclude it "bore out the trial court's conclusion that a fair jury could be chosen." (People v. Lewis (2008) 43 Cal.4th 415, 450; People v. Welch, supra, 20 Cal.4th at p. 745.) While a number of jurors had some familiarity with the case, each indicated he or she could be unbiased despite the publicity, and could decide the case based solely on the evidence and instructions received at trial. "Although the jurors' assurances of impartiality are not dispositive [citations], neither are we free to ignore them [citations]. [Courts] have in the past relied on jurors' assurances they could be impartial. [Citations.] Absent a showing that the pretrial publicity was so pervasive and damaging that we must presume prejudice [citations], we do the same here." (People v. Lewis, supra, 43 Cal.4th at p. 450.)

Appellant argues prejudice is to be presumed when the influence of the news media in the community has pervaded the proceedings, as when there has been extensive reporting of the accused's confession. Here, prospective jurors were questioned during voir dire concerning the effect of appellant's statements, which, significantly, were ultimately admitted into evidence and the substance of which he repeated in his trial testimony. By contrast, in Rideau v. Louisiana (1963) 373 U.S. 723, on which he relies, the defendant was filmed in his jail cell as he was interrogated without counsel, and the film of his confession was shown multiple times on a local television station in the small parish in which the crimes were committed. The film was seen by a substantial segment of the parish's populace. This case bears no resemblance to that one (see People v. Ramirez, supra, 39 Cal.4th at p. 435) or others in which a "circus atmosphere" (Murphy v. Florida (1975) 421 U.S. 794, 799) was allowed to pervade the court proceedings. Accordingly, the presumption of prejudice does not apply. (People v. Leonard, supra, 40 Cal.4th at p. 1395; People v. Coleman (1989) 48 Cal.3d 112, 136.)

Having independently reviewed the record, we find no error. Were we to find error, we would find no prejudice. There was no reasonable likelihood, at the time the motion and renewed motions for change of venue were denied, that appellant could not obtain a fair trial, and appellant has not shown a reasonable likelihood, as opposed to a mere possibility, that he did not in fact receive a fair trial before impartial jurors. (People v. Lewis, supra, 43 Cal.4th at p. 450; People v. Cummings (1993) 4 Cal.4th 1233, 1276.)

III

SUFFICIENCY OF THE EVIDENCE

The prosecutor proceeded on the theory that appellant was not the actual killer. In order to uphold a felony-murder special circumstance against an aider and abettor who is not the actual killer, the prosecution must show that the aider and abettor either harbored an intent to kill (§ 190.2, subd. (c)), or acted with reckless indifference to human life while acting as a major participant in the underlying felony (id., subd. (d).44 Jurors here were instructed on both concepts, although the prosecutor emphasized the "reckless indifference" alternative. As previously stated, the jury found true the burglary-murder special circumstance. Appellant now contends the evidence was insufficient to sustain this finding because there was no showing that he (1) was subjectively aware the criminal activity involved a grave risk of death, and (2) acted with reckless indifference to human life. We disagree.

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to special circumstances as well as substantive offenses (People v. Cunningham (2001) 25 Cal.4th 926, 1010).

Section 190.2, subdivision (d) conforms California law to the United States Supreme Court's holding in Tison v. Arizona (1987) 481 U.S. 137 (Tison). (Tapia v. Superior Court (1991) 53 Cal.3d 282, 298 & fn. 16.) In Tison, two brothers aided an escape by bringing guns into a prison and arming two murderers, one of whom they knew had killed in the course of a previous escape attempt. After the breakout, one of the brothers flagged down a passing car, and both fully participated in kidnapping and robbing the vehicle's occupants. Both then stood by and watched as these people were killed. The brothers made no attempt to assist the victims before, during, or after the shooting, but instead chose to assist the killers in their continuing criminal endeavors. (Tison, supra, 481 U.S. at pp. 151-152.) The Supreme Court held that the brothers could be sentenced to death despite the fact they had not actually committed the killings themselves, stating: "[R]eckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. [¶] The [brothers'] own personal involvement in the crimes was not minor, but rather, ... `substantial.' Far from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery, each ... was actively involved in every element of the kidnap[p]ing-robbery and was physically present during the entire sequence of criminal activity culminating in the murder[s] ... and the subsequent flight. The Tisons' high level of participation in these crimes ... implicates them in the resulting deaths." (Id. at pp. 157-158.)

The California Supreme Court subsequently read Tison to "instruct[] that the culpable mental state of `reckless indifference to life' is one in which the defendant `knowingly engag[es] in criminal activities known to carry a grave risk of death' [citation]," and, so "ascribe[d that meaning] to the statutory phrase" in subdivision (d) of section 190.2. (People v. Estrada (1995) 11 Cal.4th 568, 577.) The court concluded that the phrase "is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term `indifference,' referring to `the state of being indifferent,' is that which is `regarded as being of no significant importance or value.' [Citation.] To regard something, even to regard it as worthless, is to be aware of it. [Citation.]" (Ibid.) Thus, "the phrase `reckless indifference to human life' conveys the notion of a subjective appreciation or knowledge by the defendant of a grave risk of death ...." (Id. at p. 578.)

We conclude that, viewed in accordance with the standard principles of appellate review as set out ante, the evidence here was sufficient to establish the requisite mental state. According to appellant's trial testimony and his statements to police, he knew Larissa had previously vandalized Timothy's belongings. He was aware she had progressed from being angry over Timothy purportedly taking some of her things to increasingly deriding him as a man. He knew she wanted someone — possibly Timothy — roughed up. Appellant knew the primary motive for burglarizing Timothy the second time was revenge, and he was aware Timothy would almost certainly be present when the burglary was committed. He had heard Larissa say she wanted Timothy dead; once, she said she wished she could smash his head in with a crowbar. Although she immediately said she could never do that, appellant told the Fresno detectives that Larissa said she wanted to kill Timothy, and appellant knew she would try and pull him in. Appellant was aware the burglary plan involved using chloroform, which he knew would at least render Timothy unconscious. It was appellant's idea to use the stun gun, and he told the Fresno detectives he purchased a powerful Taser. He told his friend, Salehi, that he wanted his intended victim Tasered in the neck and admitted he did not know what would happen to someone who was Tasered there. Salehi told him the person might not pass out, but something worse might happen. Appellant did not appear to share Salehi's concern.45 Appellant helped Larissa plan how to get Timothy to open the door to the house. Appellant knew things could escalate. Larissa was becoming so forceful, and her venting so intense, that appellant feared for his own safety and what might happen if he opposed her. He was beginning to think Larissa was crazy, but he went along with her anyway. He hit Timothy with the Taser more than once, then held him down in a headlock, causing Timothy to pass out. Significantly, appellant saw Larissa coming toward Timothy with some plastic, yet made absolutely no attempt to stop her or to help Timothy at any time. Instead of removing the plastic from Timothy's face, he stood by until he believed Timothy was dead and then helped Larissa dispose of the body.

Considering all the circumstances, a rational trier of fact could have concluded appellant's role in events was that of a major participant, as his assistance to Larissa was "notable or conspicuous in effect or scope." (People v. Proby (1998) 60 Cal.App.4th 922, 933-934; see People v. Hodgson (2003) 111 Cal.App.4th 566, 579-580 [defendant was major participant where he was one of only two people involved in committing crime; he prevented automatic electric garage gate from closing, thereby allowing actual killer to finish robbing and killing victim, and to make his escape].) A rational trier of fact could further have concluded appellant acted with reckless indifference to human life. (See, e.g., People v. Smith (2005) 135 Cal.App.4th 914, 927-92846 [even if defendant remained outside room as lookout, jury could have found he gained subjective awareness of danger to human life during minutes it took for victim to be beaten and repeatedly stabbed; when killer emerged from victim's room, covered in blood, defendant chose to flee instead of aiding victim or summoning help]; People v. Hodgson, supra, 111 Cal.App.4th at p. 580 [after first shot, it must have been apparent victim was severely injured and likely unconscious, and defendant must have been aware using gun to commit robbery presented grave risk of death; defendant chose to assist killer instead of going to victim's aid]; People v. Proby, supra, 60 Cal.App.4th at pp. 929-930 [defendant provided cohort with gun; when they committed robbery together, cohort shot victim in head; defendant made no attempt to assist victim or determine if he was alive, but instead joined killer in taking money]; People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant planned to go to drug dealer's home at night to rob him by having cohort enter armed with rifle; after shooting, although defendant did not know whether victim was dead or alive, defendant did not attempt to aid victim, but carried through with original plan to steal victim's drugs]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1751, 1754-1755 [defendant planned robbery with two others, one of whom he knew possessed knife; defendant accosted victim in restroom, following which cohort ran in and stabbed her when she resisted; defendant did not attempt to prevent stabbing, but instead fled with cohorts and loot, leaving victim to die].)

Although here appellant furnished no weapons as immediately and obviously deadly as a gun or a knife, that fact is not dispositive when considered among all the other circumstances. He participated fully in planning and executing the burglary and assault on Timothy, which rendered Timothy unconscious and completely vulnerable to Larissa. He then watched the killing, never attempting to help Timothy (despite being unsure, initially, whether Timothy was alive or dead), but choosing instead to aid the woman he knew had expressed a desire to have Timothy dead and whom he had placed in a position to kill. (See Tison, supra, 481 U.S. at p. 152.)

The evidence supports the finding appellant was a major participant who acted with reckless indifference to human life. Accordingly, we uphold the burglary-murder special circumstance.

IV

INSTRUCTIONAL ERROR47

A. Felony Murder Based on Burglary With Intent to Commit Assault

At trial, the prosecutor argued, and the jury was instructed, that burglary could be based on entry with intent to commit theft or assault with a stun gun, and that either alternative would support a conviction of felony murder based on burglary. Appellant now says the merger rule precludes felony murder based on an underlying felony that is assaultive in nature; hence, jurors were allowed to convict on an incorrect legal theory. He also says the trial court had a sua sponte duty to instruct on the merger rule, and that the errors require reversal of his murder conviction and attendant special circumstance.

Before we explain our reasoning in detail, we find it necessary briefly to address some of respondent's assertions at oral argument. At argument, respondent took the position that it was not clear what theory the jury relied on in reaching a first degree murder verdict, i.e., burglary based on entry with intent to commit assault or burglary based on entry with intent to commit theft. Further, respondent claimed the instructional error in this case must be reviewed under the standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), to wit, whether it was harmless beyond a reasonable doubt. We agree that the Chapman standard is appropriate; however, we do not agree that it is not clear upon what theory the jury reached its verdict. The clear and compelling weight of the evidence supports only one conclusion, that the act on appellant's part was committed for purposes of theft, and the assault was simply a means to that end. The reasonable and plain interpretation of appellant's own words do not support a conclusion the offense was only intended to be assaultive in nature. Appellant himself acknowledged, in his confession and at trial, that he intended to "rob" Timothy; that once entry was effectuated and Timothy was disabled, appellant was to look around and see if there was anything he wanted; that the purpose was revenge and that Timothy would wake up to find "everything" gone; and that Larissa wanted Timothy to know she had someone take "his" things. Absent strained interpretations of the evidence to find that appellant did not mean what he said or intend the normal import of the words he used, appellant points to no evidence that supports the conclusion he only intended to assault.

Further, the prosecutor, although erroneously acknowledging the use of assault as a basis for felony murder, argued that the theory for murder here was burglary, and that appellant intended to steal. In addition, the absence of elaboration by the prosecutor on the use of assault implicitly acknowledges the complexity such an argument would present in addressing issues of second degree murder and second-degree felony murder, as well as whether use of a stun gun constituted a dangerous felony for purposes of second-degree felony murder. The prosecutor's argument and force of evidence were all directed to burglary based on entry with the intent ultimately to steal, and that clearly was the basis urged to the trier of fact to support a verdict of first degree murder.

In People v. Ireland (1969) 70 Cal.2d 522 (Ireland), the California Supreme Court explained that "[t]he felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those ... felonies specifically enumerated in section 189 .... Accordingly, the giving of a ... felony-murder instruction in a murder prosecution has the effect of `reliev[ing] the jury of the necessity of finding one of the elements of the crime of murder' [citation], to wit, malice aforethought." (Ireland, at p. 538.) The court determined that utilization of the felony-murder rule in instances where the underlying felony is assault (in Ireland, specifically assault with a deadly weapon) "extends the operation of that rule `beyond any rational function that it is designed to serve.' [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at p. 539, fn. & italics omitted.)

Ireland's holding was extended to first degree felony murder in People v. Wilson (1969) 1 Cal.3d 431, a case involving a homicide occurring in the course of a burglary, where the only basis for finding a felonious entry was the intent to commit an assault with a deadly weapon. (Id. at p. 440.) The court stated: "When, as here, the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged, utilization of the felony-murder rule extends that doctrine `beyond any rational function that it is designed to serve.'" (Ibid.) The court explained: "`The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.' [Citation.] Where a person enters a building with an intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule. That doctrine can serve its purpose only when applied to a felony independent of the homicide." (Ibid.)

"The current state of the law regarding the Ireland merger doctrine is problematic ...." (People v. Chun (2009) 45 Cal.4th 1172, 1197 (Chun).) In Chun, the California Supreme Court undertook a historical review of the doctrine (id. at pp. 1189-1197), and concluded that "[w]hen the underlying felony is assaultive in nature, ... the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An `assaultive' felony is one that involves a threat of immediate violent injury. [Citation.] In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive." (Id. at p. 1200.)

The court declined to decide "exactly what felonies are assaultive in nature, and hence may not form the basis of a felony-murder instruction, and which are inherently collateral to the resulting homicide and do not merge." (Chun, supra, 45 Cal.4th at p. 1200, italics added.) It also cautioned that what it said about the second degree felony-murder rule, which was at issue in the case before it and in Ireland, does not necessarily apply to the first degree felony-murder rule, which is at issue in appellant's case. (Chun, supra, at p. 1189, fn. 6.) Nevertheless, we have found several cases that are instructive and that do not appear to have been altered by the holding in Chun.48

In People v. Garrison (1989) 47 Cal.3d 746, the trial court instructed the jury that burglary could be found if there was entry with the specific intent to steal or to commit murder. The California Supreme Court held that, while the instruction correctly stated the mental element of burglary, Ireland precluded use of entry with the specific intent to commit murder to support a felony-murder conviction. (Garrison, at p. 778.)

In People v. Sanders (1990) 51 Cal.3d 471 (Sanders), the defendant, Maxwell, and Thompson decided to rob Boender of drugs and money. They devised a plan whereby Maxwell would entice Boender to her home by claiming she had a friend who wanted to purchase a large quantity of cocaine. When Boender arrived, the defendant would knock him out and rob him. The defendant would then bind Boender with duct tape before leaving and would similarly bind Maxwell so she would appear also to have been a victim. Later, Thompson would arrive, "discover" the pair, and free them. The trio succeeded in getting Boender and his companion, Allen, to come to the house, where the defendant attacked Boender and began to beat him, but Boender and Allen escaped. (Id. at pp. 485-486.)

Several days later, Boender answered a knock on the door of his apartment and found the defendant and another man there. The defendant was armed with a gun. The defendant and his cohort forced Boender and Allen to the floor, then bound and blindfolded them. One of the assailants demanded to know where Boender kept his cocaine and money. Boender revealed the locations and heard the two intruders rummaging through the apartment. He was subsequently knocked unconscious by a blow to the head. Boender's roommates returned the next morning to find Boender lying in a pool of blood with a fractured skull but alive, but Allen dead from a fatal head wound. The apartment was in disarray, and a baggie of marijuana was missing. (Sanders, supra, 51 Cal.3d at pp. 486-487.)

At trial, the prosecutor presented the jury with six potential theories of first degree murder. In instructing on the various theories, the trial court told jurors that they could return a verdict of first degree murder if they found the murder was committed during a burglary in which the defendant entered Boender's home with the intent to (1) steal, (2) commit an assault, (3) falsely imprison the victims, or (4) dissuade the victims from testifying. (Sanders, supra, 51 Cal.3d at p. 509.) On appeal, the California Supreme Court cited People v. Wilson, supra, 1 Cal.3d at p. 441, in agreeing with the defendant's claim that it was error to instruct the jury that it could convict of first degree murder if it found the killing occurred during a burglary in which the defendant's intent was to commit an assault. (Sanders, supra, at p. 509.)

In People v. Seaton (2001) 26 Cal.4th 598, the prosecutor told the jury it should convict the defendant of first degree felony murder and find true burglary-murder and robbery-murder special circumstances if it believed the so-called two-beating theory (the defendant came to the victim's house without intending to steal, but, after administering the first beating, decided to loot the victim's house and began to take items, after which he administered the second, fatal beating) or if it believed the defendant formed the intent to steal before he arrived at the victim's house and killed the victim to accomplish the theft. (Id. at pp. 643-644.) On appeal, the California Supreme Court agreed with the defendant's claim that the two-beating theory was legally insufficient to establish that the killing occurred in the course of a burglary. (Id. at p. 646.) The court explained: "Although the intent to commit any felony or theft, including the intent to unlawfully kill or to commit felonious assault, would support a burglary conviction, the felony-murder rule and the burglary-murder special circumstance do not apply to a burglary committed for the sole purpose of assaulting or killing the homicide victim. [Citations.]" (Ibid.) The court found no prejudice, however, because — unlike in appellant's case — the trial court instructed the jury that there could only be a felony murder based on burglary if the entry was with the intent to steal, and that if, at the time of entry, the defendant had the intent to assault or kill but not the intent to steal, then the defendant could not be convicted of first degree felony murder based on burglary as the underlying felony. (Ibid.)

Based on the foregoing authorities, and especially in light of Sanders, in which, as here, the jury could have found the assault to have been committed merely to facilitate the intended theft, we conclude the trial court erred in permitting jurors to find felony murder as the result of burglary based on entry with intent to commit assault.49 We further conclude, however, that the error was harmless beyond a reasonable doubt. In so doing, we reject respondent's position, taken at oral argument, that if Chun applies, appellant's conviction must be reduced to second-degree implied-malice murder, because we cannot declare the instructional error harmless.

When the jury is given the option of relying on two theories of guilt, one of which is legally correct but the other of which is legally incorrect, reversal is required unless the record demonstrates, beyond a reasonable doubt, that the verdict was actually based on a valid ground.50 (Chun, supra, 45 Cal.4th at p. 1203; People v. Guiton (1993) 4 Cal.4th 1116, 1129; People v. Green (1980) 27 Cal.3d 1, 69 (Green), overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239 & People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; see Chapman, supra, 386 U.S. at p. 24; People v. Swain (1996) 12 Cal.4th 593, 607.)51 In making this determination, we must consider what effect the error had upon the guilty verdict in this case, and so we must look "to the basis on which `the jury actually rested its verdict.' [Citation.] The injury, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)

In the typical case, error of the type that is present here may be found harmless because, for example, the jury found true, pursuant to other, properly given instructions, that the defendant committed a robbery and so was guilty of robbery-felony-murder and its attendant special circumstance. (See, e.g., Sanders, supra, 51 Cal.3d at p. 510; People v. Garrison, supra, 47 Cal.3d at pp. 778-779.) In the present case, in contrast, the jury found not true the only other special circumstance allegation.

This is not the only way in which such error can be determined to be harmless, however. In Chun, supra, 45 Cal.4th at page 1204, the California Supreme Court approved use of the test articulated by Justice Scalia in his concurring opinion in California v. Roy (1996) 519 U.S. 2, 7, to wit: "The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well." In other words, "[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for [burglary based on entry with intent to commit theft], the erroneous felony-murder instruction was harmless." (Chun, supra, 45 Cal.4th at p. 1203, italics added.)

The record here permits us to conclude jurors did not rely on the erroneous theory as the sole basis for convicting appellant of burglary-felony-murder, because it does not furnish any basis upon which jurors could have concluded appellant entered Timothy's residence with the intent to assault Timothy, but not with the intent also to steal. Appellant both told police and testified that the plan was to disable Timothy with the stun gun and chloroform and then to rob him. Contrary to appellant's argument on appeal, the fact he may have been a reluctant participant or decided, once inside, that he did not want to take anything, does not remotely suggest he lacked the intent to steal upon entry; additionally, jurors were instructed on duress, but clearly rejected that defense by finding appellant guilty of burglary. Moreover, while the prosecutor did tell jurors they could base their finding on entry with intent to commit assault, he did not urge them to stop upon making that finding or suggest it was the only finding they needed to make. (Compare People v. Sanchez (2001) 86 Cal.App.4th 970, 981.) Instead, the prosecutor argued the theory of entry with intent to commit theft with equal or greater vigor than he did the improper theory, and he urged jurors to find both intents.52 Accordingly, any violation of the merger doctrine or error in failing to instruct thereon does not constitute cause for reversal.

B. Claim of Right Defense

Appellant says the trial court erred by instructing that intent to commit theft could support burglary (and, by extension, burglary-felony-murder and the burglary-murder special circumstance) because, under the Toledo doctrine,53 the People were bound by appellant's statement, which, he says, established claim of right as a matter of law. Alternatively, he argues that the trial court erred by failing to instruct, sua sponte, on the claim-of-right defense.54 We find no error.

"For felony murder in the commission of a ... burglary in which entry is made for the purpose of theft, the only specific intent that the prosecution must prove is the specific intent to steal the victim's property, which includes a specific intent to permanently deprive the victim of the property. [Citation.] A defendant who has this specific intent has the only specific intent required for liability under the felony murder rule. [Citations.]" (People v. Pollock (2004) 32 Cal.4th 1153, 1175.)

"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft .... At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. [Citation.]" (People v. Tufunga (1999) 21 Cal.4th 935, 938.)55

The defense of an "open and notorious taking under claim of right" is an affirmative one. (People v. McManus (1960) 180 Cal.App.2d 19, 40.) "`It is well settled that a defendant has a right to have the trial court ... give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation] — evidence sufficient for a reasonable jury to find in favor of the defendant [citation] — unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether "there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt ...." [Citations.]' [Citations.] On appeal, we likewise ask only whether the requested instruction was supported by substantial evidence — evidence that, if believed by a rational jury, would have raised a reasonable doubt ...." (People v. Mentch (2008) 45 Cal.4th 274, 287-288; accord, Mathews v. United States (1988) 485 U.S. 58, 63.) A defendant raising an affirmative defense bears the burden of producing evidence that supports a reasonable doubt. (People v. Cole (2007) 156 Cal.App.4th 452, 483-484.) "Even if it does not inspire confidence, a defendant's testimony constitutes substantial evidence. [Citations.]" (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1446.)

Citing Toledo, supra, 85 Cal.App.2d 577, appellant contends his statements to police and testimony at trial established claim of right as a matter of law; hence, reversible instructional error occurred.56 In Toledo, the defendant was charged with murder and convicted of manslaughter. He admitted striking the fatal blow, but claimed self-defense. The physical evidence was consistent with his version of events. Construing former section 1105,57 the appellate court held that a defendant need only raise a reasonable doubt with respect to self-defense; that the defendant's statement did so; and that there was no rational way to believe the defendant's concession that he struck the victim, yet reject the remaining exculpatory portion of his statement. Accordingly, the appellate court ruled, the record did not support the defendant's manslaughter conviction. (Toledo, supra, 85 Cal.App.2d at pp. 579-582.)

Based on Toledo, it has been stated that "if the prosecution presents as a part of its case a statement of the defendant evidencing justification for the alleged crime, the prosecution is bound by that evidence in the absence of proof to the contrary. [Citations.]" (People v. Griego (1955) 136 Cal.App.2d 51, 56.) As has been recognized, however, "the so-called Toledo doctrine ... actually refers to a principle of judicial review invoked in homicide prosecutions obviating a defendant's burden of showing mitigation or justification where the prosecution's proof itself tends to show same or a lesser unlawful homicide. [Citations.] The rule in its amended form is properly restricted to those cases where `all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse of mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. [Citations.]' [Citation.] To the extent that the doctrine is founded upon a notion that the prosecution is bound by their witnesses' statements [citation] on the antiquated theory of vouchsafing one's own witnesses [citation], that theory has long since been discarded in favor of the modern rule allowing impeachment of a witness by any party, `including the party calling him.' [Citations.] In the final analysis the question of defendant's guilt must be resolved from all the evidence considered by the jury. [Citations.]" (People v. Ross (1979) 92 Cal.App.3d 391, 400, fn. omitted; accord, Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 393-394.)58

Here, appellant does not claim his statements and testimony show his commission of a homicide under circumstances involving excuse or justification (see §§ 195, 197) or a lesser unlawful homicide (see § 192; In re Christian S. (1994) 7 Cal.4th 768, 771). Instead, he says they showed he believed he and Larissa were entering Timothy's house to retrieve Larissa's property. Assuming, because a claim of right negates an intent to steal, this is the type of excuse or mitigation to which Toledo and cases interpreting it refer — which we doubt — "`it does not necessarily follow that appellant's account of the killing, though [purportedly] uncontradicted by direct evidence, should control the jury.'" (People v. Acosta (1955) 45 Cal.2d 538, 541, quoting People v. Salaz (1924) 66 Cal.App. 173, 181.) "[C]redibility is governed by more than just the words transcribed by a court reporter. A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so. [Citations.]" (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.)

"`[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that appellant acted with a subjective belief he or she had a lawful claim on the property.' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) In this regard, California courts distinguish between self-help restitution and revenge. (People v. Romo (1990) 220 Cal.App.3d 514, 518.)

Viewed most favorably to appellant, the evidence showed that at the time he participated in the 2002 break-in at Timothy's house, appellant believed he was helping Larissa retrieve property that Timothy had wrongly taken from her. With respect to the events leading up to the homicide, however, appellant told Fresno detectives that he thought he and Larissa were going to rob the place and make Timothy fall asleep and forget about it. Appellant subsequently told Clovis detectives that Larissa had given him chloroform to keep for her and that, when she talked about using it, he figured it was to put Timothy to sleep while she and appellant "cleaned out the place." (Italics added.) Appellant later said he figured Larissa just wanted to give Timothy some hell because of something. Appellant testified at trial that sometime after the first burglary, Larissa said Timothy still had some items that belonged to her. The reason for the second burglary, however, basically was revenge. Larissa said the chloroform would wipe out Timothy's memory, and that he would wake tied up and "everything would be gone." (Italics added.) Larissa's discussions with appellant never concerned putting Timothy in a barrel of acid, but only robbing him. She wanted revenge and wanted him to know that she had someone take "his things." (Italics added.) Once Timothy was unconscious, appellant further testified, Larissa told him to look around and see if there was "something [he] want[ed]." (Italics added.)

It is apparent that, when taken as a whole and viewed most favorably to appellant, evidence supporting a claim-of-right defense in this case was at best minimal and insubstantial, if not nonexistent, the Toledo doctrine notwithstanding. Whatever appellant may have initially thought Larissa's intent was, and regardless of whether Timothy still possessed anything that belonged to her, appellant knew, by the time he and Larissa entered Timothy's house early on the morning of July 10, 2003, that the plan and intent went well beyond merely recovering specific items Larissa claimed were hers. As the evidence does not support an inference appellant acted with a subjective belief Larissa had a lawful claim on the property, appellant was not entitled to an instruction on the claim-of-right defense. (See People v. Sakarias, supra, 22 Cal.4th at pp. 622-623 [claim-of-right defense unavailable where no substantial evidence defendant's intent, upon entering house or attacking victim, was limited to taking property to which cohort purportedly had good-faith claim of right or property of equivalent value; evidence instead showed only generalized intent to steal]; People v. Barnett, supra, 17 Cal.4th at pp. 1145-1147 [trial court should not have instructed on claim-of-right defense where no substantial evidence supported inference defendant acted with requisite bona fide belief; defendant's testimony, even if believed, showed he simply seized whatever items of value victims had, without regard for whether items came from person who supposedly owed him a debt]; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021-1022 [trial court properly refused to give claim-of-right instruction where only evidence on point was ambiguous statement by one defendant's mother that defendant had once said she and codefendant intended to recover property victim had stolen from them; evidence disclosed defendants conducted general ransacking of victim's bedroom, indiscriminately taking items of value never specifically related to any claim of right].)

C. CALCRIM No. 540B

Pursuant to CALCRIM No. 540B, the jury was instructed:

"The defendant is also guilty of first-degree murder if the People have proved that the murder was committed during the commission of a kidnapping or a burglary in the first-degree under a theory of felony murder. "Under a theory of felony murder, the defendant may be guilty of murder in the first-degree even if another person did the act that resulted in the death. I will call the other person the perpetrator. "To prove that the defendant is guilty of first-degree murder under this theory, the People must prove that one, the defendant committed or aided and abetted the crime of burglary in the first degree or kidnapping; two, the defendant intended to commit or intended to aid and abet the perpetrator in committing the crime of burglary in the first-degree or kidnapping; and three, while committing the crime of burglary in the first-degree or kidnapping, the perpetrator did an act that caused the death of another human being."

The trial court omitted the optional paragraph of the instruction that would have required jurors also to find a logical connection between the act causing the death and the felonies, and would have told jurors that the connection must involve more than just occurrence at the same time and place. Relying primarily on People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt), appellant now says the omission constituted prejudicial error because, although appellant entered Timothy's house with the intent to commit burglary, Larissa secretly premeditated the murder, which accordingly was not committed by her to carry out the burglary. We conclude the trial court did not err.

"Penal Code section 189 provides that any killing committed in the perpetration of specified felonies, including [burglary], is first degree murder. Under long-established rules of criminal complicity, liability for such a murder extends to all persons `jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of [burglary] [citation] `when one of them kills while acting in furtherance of the common design.' [Citation.]" (People v. Pulido (1997) 15 Cal.4th 713, 716, fn. omitted.) "[I]t is no defense to felony murder that the nonkiller did not intend to kill, forbade his associates to kill, or was himself unarmed. [Citations.]" (Cavitt, supra, 33 Cal.4th at p. 198, fn. 2; People v. Boss (1930) 210 Cal. 245, 249.)

In Cavitt, the defendants plotted with one's girlfriend, Mianta, to enter her home, catch her stepmother unaware, and tie up the stepmother and steal her jewelry and other property. With Mianta's assistance, they went forward as planned, leaving the stepmother beaten, hog-tied, and facedown on the bed. Before they escaped with the loot, the defendants made it appear that Mianta was a victim by pretending to tie her up as well. By the time she untied herself and telephoned her father to report the burglary/robbery, the stepmother had died from asphyxiation. At trial, the prosecution's theory was that the defendants were the direct perpetrators of the murder. The defense theory was that Mianta deliberately suffocated her stepmother out of a private animus, and not to aid or promote the burglary/robbery, after the defendants had escaped and reached a place of temporary safety. On appeal, they claimed that the felony-murder rule would not apply to that scenario and that the trial court's instructions erroneously denied the jury the opportunity to consider the defense theory. (Cavitt, supra, 33 Cal.4th at p. 193.)

The California Supreme Court affirmed the convictions, holding that, with respect to "a nonkiller's liability for a killing `committed in the perpetration' of an inherently dangerous felony under ... section 189's felony-murder rule," "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Cavitt, supra, 33 Cal.4th at p. 193, fn. omitted.) In so holding, the court rejected the position of the defendants — "that a nonkiller can be liable for the felony murder committed by another only if the act resulting in death facilitated the commission of the underlying felony" — as well as that of the Attorney General — that no causal relationship need exist between the underlying felony and the killing, it being enough that the act resulting in death occurred at the same time as the burglary and robbery. (Id. at p. 196.) The court held that neither formulation accurately described the complicity aspect of California's felony-murder rule, and instead "that the felony-murder rule does not apply to nonkillers where the act resulting in death is completely unrelated to the underlying felony other than occurring at the same time and place. Under California law, there must be a logical nexus — i.e., more than mere coincidence of time and place — between the felony and the act resulting in death before the felony-murder rule may be applied to a nonkiller. Evidence that the killing facilitated or aided the underlying felony is relevant but is not essential." (Ibid.)

The Supreme Court noted that the felony-murder rule was intended to "eliminate the need to plumb the parties' peculiar intent with respect to a killing committed during the perpetration of" a felony. (Cavitt, supra, 33 Cal.4th at pp. 197-198.) Under the "`well-settled' formulation" of the rule that permits imposition of felony-murder liability on a nonkiller "`if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the [underlying felony], whether such killing is intentional, or unintentional, or accidental' [citations]," "the parties [must] have been jointly engaged in the perpetration or the attempt to perpetrate the felony at the time of the act resulting in death. A confederate who performs a homicidal act that is completely unrelated to the felony for which the parties have combined cannot be said to have been `jointly engaged' in the perpetration or attempt to perpetrate the felony at the time of the killing. Otherwise, `if one of two burglars ransacking a home glances out of a window, sees his enemy for whom he has long been searching and shoots him, the unarmed accomplice, party only to the burglary, will be guilty of murder in the first degree.' [Citation.]" (Id. at p. 200.)

On the facts before it, the court found substantial evidence of a logical nexus between the burglary/robbery and the murder. (Cavitt, supra, 33 Cal.4th at p. 202.) The evidence supported a conclusion that the defendants and/or Mianta killed the victim to eliminate the sole witness to the burglary/robbery, or that the victim died accidentally as a result of being bound and gagged, either of which was sufficient to support the judgment if even the jury believed the defendants did not want to kill the victim or conditioned their participation in the burglary/robbery on the understanding that she not get hurt. (Ibid.) The court recognized, however, that the record might also have supported a finding that Mianta killed the victim out of a private animus and not to aid or promote the burglary/robbery. Turning to the defendants' contention that the jury instructions, by omitting any requirement that the homicidal act be in furtherance of the burglary/robbery, failed to apprise the jury of this possibility, the court stated:

"The instructions ... tracked CALJIC No. 8.27 and provided in relevant part: `If a human being is killed by one of several persons engaged in the commission of the crimes of robbery or burglary, all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging or facilitating the commission of the offense, aid, promote, encourage or instigate by act or advice its commission, are guilty of murder in the first degree, whether the killing is intentional, unintentional or accidental.'... "The instructions adequately apprised the jury of the need for a logical nexus between the felonies and the homicide in this case. To convict, the jury necessarily found that `the killing occurred during the commission or attempted commission of robbery or burglary' by `one of several persons engaged in the commission' of those crimes. The first of these described a temporal connection between the crimes; the second described the logical nexus. A burglar who happens to spy a lifelong enemy through the window of the house and fires a fatal shot ... may have committed a killing while the robbery and burglary were taking place but cannot be said to have been `engaged in the commission' of those crimes at the time the shot was fired. "We further find that the trial court had no sua sponte duty to clarify the logical-nexus requirement. The existence of a logical nexus between the felony and the murder in the felony-murder context ... is not a separate element of the charged crime but, rather, a clarification of the scope of an element.... "Hence, if the requisite nexus between the felony and the homicidal act is not at issue and the trial court has otherwise adequately explained the general principles of law requiring a determination whether the killing was committed in the perpetration of the felony, `it is the defendant's obligation to request any clarifying or amplifying instructions on the subject.' [Citation.]" .... "Because the evidence here did not raise an issue as to the existence of a logical nexus between the burglary-robbery and the homicide, the trial court had no sua sponte duty to clarify this requirement. This is not a situation in which Mianta just happened to have shot and killed her lifelong enemy, whom she coincidentally spied through the window of the house during the burglary-robbery. [Citation.] Betty, the murder victim, was the intended target of the burglary-robbery. As part of those felonies, Betty was covered in a sheet, beaten, hog-tied with rope and tape, and left facedown on the bed. Her breathing was labored at the time defendants left. These acts either asphyxiated Betty in themselves or left her unable to resist Mianta's murderous impulses. Thus, on this record, one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the burglary-robbery." (Cavitt, supra, 33 Cal.4th at pp. 203-204, fn. omitted.)

The court noted that cases raising a genuine issue concerning the existence of a logical nexus between the felony and homicide are few, and found it "difficult to imagine how such an issue could ever arise when the target of the felony was intentionally murdered by one of the perpetrators of the felony." (Cavitt, supra, 33 Cal.4th at p. 204, fn. 5.) The court also rejected any notion that Mianta's personal animus toward the victim of the felony, if credited, should somehow absolve the other participants of their responsibility for the victim's death. (Id. at p. 205.)

In the present case, Timothy was the target of the burglary. A logical nexus existed between the burglary and the homicide because, even assuming theft was not Larissa's primary motive, the evidence was uncontradicted that she intended that Timothy's property would be stolen: Once appellant subdued Timothy, Larissa told him to take a look around and see if there was anything he wanted; she herself was looking around for something while appellant was watching out the front window to see if anyone was coming; and she said something about finding another logbook that Timothy had kept about her. CALCRIM No. 540B adequately apprised the jury of the need to find a logical nexus; to convict, jurors necessarily found that the act causing death was performed by the perpetrator while committing the burglary. Under the circumstances, and pursuant to Cavitt, the trial court had no sua sponte duty to clarify the requirement by giving the omitted paragraph of the instruction.

D. CALCRIM No. 1702

With respect to count 3, the burglary charge, jurors were instructed that the prosecution had to prove appellant entered a building with the intent to commit theft or assault with a stun gun. After instructions on the degrees of burglary, jurors were told, pursuant to CALCRIM No. 1702: "To be guilty of burglary as an aider and abettor the defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate or encourage the commission of the burglary before the perpetrator finally left the structure."

CALCRIM No. 1702 is derived from People v. Montoya (1994) 7 Cal.4th 1027, in which the California Supreme Court determined that, for the purpose of assessing the liability of an aider and abettor (whose intent to encourage or facilitate the actions of the perpetrator must be formed prior to or during commission of the offense), a burglary is considered ongoing while the perpetrator remains inside the structure. (Id. at pp. 1039, 1045.) Accordingly, "if an individual happens upon a scene in which a perpetrator unlawfully has entered with intent to commit a felony or theft, and, upon learning of that circumstance, forms the intent to facilitate the perpetrator's illegal purpose in entering, that individual incurs the liability of an aider and abettor, commensurate with the liability of the perpetrator." (Id. at pp. 1044-1045.) Thus, "the aider and abettor may be liable if he or she, with knowledge of the perpetrator's unlawful purpose, forms the intent to commit, encourage or facilitate the commission of the offense at any time prior to the perpetrator's final departure from the structure." (Id. at p. 1046.)

The California Supreme Court noted that it was addressing only the issue of an aider and abettor's liability for burglary, and it explicitly stated that it was expressing no opinion on the issue of an aider and abettor's liability for murder based on a theory of felony murder in which the underlying felony was burglary. (People v. Montoya, supra, 7 Cal.4th at p. 1045, fn. 9.) The Bench Notes to CALCRIM No. 1702 (2006-2007) page 1276 state, however, that the instruction is not to be given if the defendant is charged with felony murder.

Appellant argues that CALCRIM No. 1702 erroneously told jurors that he could be found guilty of burglary, which would include felony murder based on burglary, if he became aware of Larissa's unlawful purpose — murder — and formed the intent to aid her in that purpose before leaving the structure. Thus, he says, the instruction permitted jurors to impose felony-murder liability on appellant for aid he rendered after Larissa killed Timothy, but before she left the structure. Because a person cannot be liable for felony murder where he or she aids and abets the felony after the other person has killed (see People v. Pulido, supra, 15 Cal.4th at p. 716), appellant says he could not properly be convicted of felony murder if he saw Larissa suffocate Timothy and then decided to aid her in removing the body.

We see no reasonable likelihood the jury misunderstood and misapplied the instruction as appellant now claims. (People v. Smithey (1999) 20 Cal.4th 936, 963; Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4.) "`"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."' [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 943; Estelle v. McGuire, supra, 502 U.S. at p. 72.) We must also consider the arguments of counsel in assessing the probable impact of the instruction on the jury (People v. Young (2005) 34 Cal.4th 1149, 1202), and we presume jurors are able to understand and correlate the instructions given to them (People v. Williams (1995) 40 Cal.App.4th 446, 456).

In the present case, jurors were instructed that appellant had been prosecuted for first degree murder under two theories: murder by lying in wait and felony murder. With respect to felony murder, jurors were told that the People had to prove appellant committed or aided and abetted first degree burglary or kidnapping; he intended to commit or intended to aid and abet the perpetrator in committing first degree burglary or kidnapping; and, while committing first degree burglary or kidnapping, the perpetrator did an act that caused death. Jurors were referred to separate instructions on kidnapping, first degree burglary, and aiding and abetting in making these determinations, and were told to apply those instructions when deciding whether the People had proved first degree murder under a theory of felony murder. Significantly, however, jurors were then immediately instructed: "The defendant must have intended to commit or aid and abet the crime of burglary in the first-degree or kidnapping before or at the time of the act causing the death." (Italics added.) This instruction was repeated in conjunction with the instructions on the felony-murder special circumstances. Nothing in the arguments of counsel suggested felony-murder liability could be predicated on intent appellant formed, and assistance he rendered, only postmortem.

In light of the foregoing, assuming jurors could have found appellant guilty of burglary on an aiding-and-abetting theory despite the fact that, by his own admission, he actually entered Timothy's house with the requisite intent as opposed merely to assisting Larissa, they nevertheless would have understood that they could not convict appellant on a felony-murder theory if he did not form the intent to aid Larissa until after she killed Timothy. Accordingly, assuming the trial court erred by giving CALCRIM No. 1702, no cause for reversal has been shown.

E. CALCRIM No. 730

Pursuant to CALCRIM No. 730, jurors were instructed:

"The defendant is charged with a [sic] special circumstances of murder committed while engaged in the commission of the crime of burglary in the first-degree ..., and while engaged in the commission of the crime of kidnapping .... "To prove that either of these special circumstances is true, the People must prove that one, the defendant committed or aided and abetted the crime of burglary in the first-degree or kidnapping; two, the defendant intended to commit or intended to aid and abet the perpetrator in committing the crime of burglary in the first degree or kidnapping; three, if the defendant did not personally commit the crime of first-degree burglary or the crime of kidnapping then the perpetrator who the defendant was aiding and abetting personally committed either of those crimes; four, the defendant or the perpetrator did an act that cause the death of another person; and five, the act causing the death and the crime of first-degree burglary or kidnapping were part of one continuous transaction. [¶]... [¶] "The defendant must have intended to commit or aid and abet the commission of the crime of burglary in the first-degree or kidnapping before or at the time of the act causing the death. "In addition, in order for this special circumstance to be found true, the People must prove that the defendant intended to commit the crime of burglary in the first-degree or kidnapping independent of the killing. If you find that the defendant only intended to commit murder and the commission of the crime of burglary in the first-degree or kidnapping was merely a part of or incidental to the commission of that murder, then the special circumstance has not been proved."

Appellant contends the trial court erred by omitting the optional paragraph that would have required jurors further to find there was a logical connection, involving more than mere occurrence at the same time and place, between the act causing death and the underlying felony. We find no error for the same reasons set out in part IVC., ante.

Appellant challenges the giving of the final paragraph on the basis that there was no evidence he knew of Larissa's plan to commit murder; hence, there was no support in the evidence for this portion of the instruction. Although we have essentially accepted appellant's statements and testimony for purposes of our analyses of the issues he raises, we conclude the record contains some evidence that could have caused jurors to reject his assertion that he thought only a burglary was planned. Accordingly, the instructional paragraph was proper in that regard.

Appellant's main contention is that, because the final paragraph focused on the defendant's intent, as opposed to the killer's primary purpose, when, as here, the defendant and the killer are not the same person, the paragraph allows application of the special circumstance when the killing is committed independently — unconnected to the defendant's felony. Because appellant did not intend to commit murder, the argument runs, the paragraph denied him the benefit of the rule excluding incidental felonies from the felony-murder special circumstance.59

In Green, supra, 27 Cal.3d 1, the defendant made his wife remove her clothes, then, after fatally shooting her, directed his companion to remove her wedding rings. (Id. at pp. 15-16.) The California Supreme Court affirmed the defendant's conviction of premeditated murder, but reversed the jury's finding, under the 1977 death penalty statute, of a robbery-murder special circumstance, which was based on the defendant's taking of the victim's clothes, purse, and rings in order to thwart identification of the body. (Id. at p. 55.) While finding the evidence sufficient to support the defendant's conviction for robbery (id. at pp. 56-59), the high court found it insufficient to establish, as required by statute for a felony-murder special circumstance, that the murder was committed "during the commission" of the underlying felony. (Id. at p. 59.) Instead, the court found, the case involved "the exact opposite, a robbery in the commission of a murder." (Id. at p. 60.) The court reasoned that the Legislature, in enacting the death penalty statute, "must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not" (id. at p. 61, fn. omitted), and that the purpose of the special circumstance was to single out those "defendants who killed in cold blood in order to advance an independent felonious purpose" (ibid.). It found that "[t]he Legislature's goal is not achieved ... when the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder ... because its sole object is to facilitate or conceal the primary crime." (Ibid.) The court concluded that when, "in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other [statutorily enumerated] felonies ... such a crime is not a murder committed `during the commission' of" a felony within the meaning of the special circumstance statute. (Id. at pp. 61-62.) The Supreme Court subsequently explained, however, "that when the defendant has an independent purpose for the commission of the felony, and it is not simply incidental to the intended murder, Green is inapplicable." (People v. Clark (1990) 50 Cal.3d 583, 608, citing People v. Robertson (1982) 33 Cal.3d 21, 51-52.)

In Cavitt, supra, 33 Cal.4th 187, the California Supreme Court rejected the argument that a nonkiller can be liable for felony murder only if the act resulting in death facilitated or advanced the commission of the underlying felony. (Id. at pp. 196-198.) The court further rejected the notion that the alleged actual killer's personal animus toward the victim of the felony should somehow absolve the other participants of their responsibility for the victim's death, stating: "Liability for felony murder does not depend on an examination of `the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental .... Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration....' [Citation.] `The felony-murder rule generally acts as a substitute for the mental state ordinarily required for the offense of murder.' [Citation.] Accordingly, a nonkiller's liability for felony murder does not depend on the killer's subjective motivation but on the existence of objective facts that connect the act resulting in death to the felony the nonkiller committed or attempted to commit." (Id. at p. 205, italics omitted.)

Despite the seeming applicability of the foregoing reasoning to cases involving a felony-murder special circumstance, as distinguished from use of the felony-murder rule as a basis for conviction of murder itself, the Cavitt court did not address the issue with regard to a nonkiller's liability for felony-murder special circumstances. Although the substantive offense of murder committed during commission of a felony and a felony-murder special circumstance based on the same underlying felony are often identical or nearly so, each has a different purpose: the felony-murder rule, to deter felons from killing negligently or accidentally in the course of the commission of dangerous felonies (People v. Hansen, supra, 9 Cal.4th at p. 315); and the felony-murder special circumstance, to distinguish between murderers who are and are not worthy of consideration for the death penalty (Green, supra, 27 Cal.3d at p. 61). In light of these different purposes, we will assume Cavitt is not dispositive of appellant's argument, and that a nonkiller is not subject to a felony-murder special circumstance where the killer has not committed murder "while ... engaged in" a felony, within the meaning of section 190.2, subdivision (a)(17), because he or she did not kill in order to advance an independent felonious purpose, but instead committed an intended murder and commission of the felony was merely incidental thereto. (See People v. Abilez (2007) 41 Cal.4th 472, 511; People v. Valdez (2004) 32 Cal.4th 73, 113.)

"The `independent felonious purpose' rule ... is a mechanism for ensuring that a felony-murder special circumstance finding is based upon proof that the defendant intended to commit the underlying felony separately from forming an intent to kill the victim; that is, the felony was not merely an afterthought to the murder ...." (People v. Rundle, supra, 43 Cal.4th at p. 156.) "[T]he focus is on the relationship between the underlying felony and the killing ...." (People v. Hernandez (1988) 47 Cal.3d 315, 348.) "For those who kill, however, we need not discern their various mental states in too fine a fashion; a `concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.' [Citation.]" (People v. Abilez, supra, 41 Cal.4th at p. 511; People v. Maury, supra, 30 Cal.4th at p. 402.) "It is only when the underlying felony is merely incidental to the murder that the felony-murder special circumstance does not apply. [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 554.) These principles apply even where the killing may have been premeditated (People v. Prince, supra, 40 Cal.4th at p. 1262), and although commission of the felony was not necessarily the killer's primary motivation (see People v. Guerra, supra, 37 Cal.4th at pp. 1133-1134).

Assuming an instruction in language similar to that contained in optional paragraph 2 of CALJIC No. 8.81.17 is applicable where, as here, a nonkiller's liability for a felony-murder special circumstance is concerned, it need be given "without request only if some significant evidence would have allowed the jury to conclude that the [burglary was] merely incidental to [Timothy's] murder[]. [Citations.]" (People v. Davis (2005) 36 Cal.4th 510, 568-569; People v. Valdez, supra, 32 Cal.4th at pp. 113-114; People v. Navarette (2003) 30 Cal.4th 458, 505; People v. Kimble (1988) 44 Cal.3d 480, 501-503.) In the present case, a reasonable jury could have found, based on Larissa's procurement of the blue barrel and quantities of acid well in excess of what was normally used in her business, that she had been thinking about killing Timothy for a long time as of July 10, 2003. From the evidence presented at appellant's trial, however, it cannot be determined whether she definitely planned to do it that night, or simply decided to see whether a good opportunity would present itself. Significantly, she did not arm herself, or have appellant arm himself, with any weapon capable of being immediately fatal, such as a gun or a knife. Instead, she used a means she found in the house once Timothy was unconscious and bound — binding being a step that would itself seem unnecessary if she had been certain she meant to kill him right then. More significantly, Larissa said something about finding another logbook Timothy had been keeping on her, and she went to locate the item. Even assuming Larissa intended from the outset to kill Timothy at that time and never intended to have him wake and find everything gone as she told appellant, the evidence established her intent to steal that book, and does not support an inference she intended to do so only as a souvenir or memento or to cover up her complicity in the murder. (Compare, e.g., People v. Marshall (1997) 15 Cal.4th 1, 41 [no felony-murder special circumstance where rapist-murderer took letter from victim as token of incident]; Green, supra, 27 Cal.3d at p. 61 [same; killer took victim's clothes and rings to forestall later identification of victim and thus avoid responsibility for murder].) Accordingly, the evidence does not reasonably suggest Larissa entered Timothy's house or committed a burglary solely in order to murder Timothy. It follows that there was no instructional error. (See People v. Monterroso (2004) 34 Cal.4th 743, 767; People v. Navarette, supra, 30 Cal.4th at p. 505.)

F. Ineffective Assistance of Counsel

In conjunction with his claims of instructional error, appellant contends his trial attorney was ineffective for failing to request proper instructions and failing to object to improper ones. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)

We reject each of appellant's claims. As previously discussed, any error with respect to the trial court's instructing the jury so as to permit it to find burglary-felony-murder based on entry to commit felonious assault, or with the court's failure to instruct on the merger rule, was harmless beyond a reasonable doubt. It follows that appellant has not shown prejudice from any failings of counsel in this respect. As appellant was not entitled to an instruction on the claim-of-right defense and, Toledo notwithstanding, the trial court properly instructed on burglary based on intent to commit theft, trial counsel properly refrained from requesting or objecting to related instructions. Since counsel reasonably could have concluded the "logical connection" requirement was adequately covered by the instructions given, he did not render ineffective assistance by failing to request the trial court include the related portions of CALCRIM Nos. 540B and 730. As there is no reasonable likelihood jurors misunderstood and misapplied CALCRIM No. 1702, it follows that appellant has not suffered prejudice as the result of defense counsel's failure to object thereto. Last, as counsel reasonably could have determined the evidence conclusively established Larissa harbored concurrent intents, he did not render ineffective assistance by failing to object to the final paragraph of CALCRIM No. 730.

V

SENTENCING ISSUES

A. Cruel and/or Unusual Punishment

Prior to sentencing, appellant moved the court to strike the special circumstance finding. He recognized that the court lacked statutory authority to do so (§ 1385.1; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284), but argued that a sentence of life in prison without the possibility of parole constituted cruel and/or unusual punishment under the federal and state Constitutions. Appellant placed particular emphasis on People v. Dillon (1983) 34 Cal.3d 441 (Dillon), arguing the purported parallels between that case and his. The People opposed the motion. Both sides submitted juror interviews and declarations indicating appellant was convicted of first degree murder with a special circumstance because of the felony-murder rule. Some of the jurors expressed disagreement with a potential sentence of life without parole or requested leniency.

After often eloquent argument from both sides, the trial court denied the motion. It observed that, assuming it was unfair, in light of all the circumstances and particularly Larissa's manipulation of appellant, to impose on appellant what might ultimately be the same sentence as Larissa received, the court did not have the authority to strike the special circumstance to correct the unfairness unless imposing the sentence would constitute cruel and unusual punishment under the federal and state Constitutions. It noted that since Dillon was decided, the United States Supreme Court had issued several opinions concerning the type of analysis courts were to undertake in evaluating punishments, not involving the death penalty, with respect to the Eighth Amendment. Based on these cases,60 the court stated:

"... Sandra Day O'Connor writing on behalf of the majority in Andrade said the following: The Eighth Amendment does not require strict proportionality between the crime and the sentence. It forbids only extreme sentences that are grossly disproportionate to the crime. She also said ... this proportionality principle reserves a constitutional violation for only the extraordinary case. "Justice [David Souter] writing in that very same case said because of the reason of that requirement of extraordinary disproportionality because it is the legislative branch of government and not the courts that decide what penalty is merited by a particular behavior. So only punishments which are grossly disproportionate to a defendant's behavior violate the Eighth Amendment. "That is really nothing different than what the California Supreme Court has itself referred to with respect to California's Constitution. And that is, to violate California's cruel and unusual punishment provisions the punishment must shock the conscious [sic] and offend fundamental notions of human dignity. That's the principle of — or those are the principles by which this court is guided. [¶]... [¶] "And for those reasons, recognizing the behavior that the defendant himself admitted in this court during the course of this trial, that he stunned the victim Mr. Schuster with a stun gun, that he held him on the ground in his own home in a choke hold while Ms. Schuster administered chloroform, this court cannot say that that conduct in the context of this crime resulting ultimately in Mr. Schuster's death is the — imposition of a [sentence of] life without the possibility of parole is grossly disproportionate to that behavior. It simply would be a violation of this court's duty, it seems to me, to find to the contrary. "And so the court is denying the request to strike the special circumstance or find the imposition of the life without possibility of parole term would be cruel and unusual punishment in this case."

Appellant now contends the trial court erred. He says (1) the trial court applied an incorrect standard because it believed the analysis under the California Constitution was the same as under the Eighth Amendment to the United States Constitution, and (2) on the facts of this case, a sentence of life in prison without the possibility of parole violates the cruel or unusual punishments clause of the California Constitution. Accordingly, he asks us either to remand the matter for a new sentencing hearing at which the trial court applies the correct standard, or to reduce his sentence in the first instance. We conclude appellant's punishment is not unconstitutional.

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual" punishment. (Italics added.) Article I, section 17 of the California Constitution prohibits infliction of "[c]ruel or unusual" punishment. (Italics added.) The distinction in wording "is purposeful and substantive rather than merely semantic. [Citations.]" (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) As a result, we construe the state constitutional provision "separately from its counterpart in the federal Constitution. [Citation.]" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.) This does not make a difference from an analytic perspective, however. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7.) The touchstone in each is gross disproportionality. (See Ewing v. California, supra, 538 U.S. at p. 21 (lead opn. of O'Connor, J.); Rummel v. Estelle (1980) 445 U.S. 263, 271; Dillon, supra, 34 Cal.3d at p. 479.) As the California Supreme Court has explained: "`"The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant's `personal responsibility and moral guilt.' [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition."' [Citations.] To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is `grossly disproportionate to the defendant's individual culpability' [citation], so that the punishment `"`"shocks the conscience and offends fundamental notions of human dignity'"' [citation], the court must invalidate the sentence as unconstitutional." (People v. Lucero (2000) 23 Cal.4th 692, 739-740.)

In light of the foregoing, the trial court's comments do not suggest it was applying an incorrect standard. We presume that that court knew and applied the correct law in the exercise of its official duties. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) Appellant has not overcome this presumption here.

We turn now to the merits of the issue. In this regard, "`[w]hether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]' [Citation.]" (People v. Mantanez, supra, 98 Cal.App.4th at p. 358.)61 A defendant must overcome a "considerable burden" when challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)

In In re Lynch (1972) 8 Cal.3d 410 (Lynch), the California Supreme Court identified three "techniques" that courts use to aid in determining proportionality. (See Dillon, supra, 34 Cal.3d at p. 479.) The first is an examination of "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425.) The second is a comparison of "the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which ... must be deemed more serious." (Id. at p. 426, italics omitted.) The third technique, which is closely related to the second, is "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at p. 427, italics omitted.)

As appellant relies only on the first prong of the test, we do not undertake any comparison of penalties. (See People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846.) Instead, we examine the nature of the offense and the offender, with particular attention to the seriousness of the crime in the abstract, the nature of the offender "in the concrete" (i.e., the particular individual before the court), and the totality of the circumstances surrounding the commission of the offense. (Dillon, supra, 34 Cal.3d at p. 479.)

When viewed in the abstract, appellant's crime presents a high level of danger to society, "second only to deliberate and premeditated murder with malice aforethought." (Dillon, supra, 34 Cal.3d at p. 479.) Moreover, a consideration of the circumstances surrounding the actual commission of the offense do not suggest appellant's sentence was unconstitutional. Appellant was not merely a passive or minor participant. Instead, he played a major role in planning a nighttime intrusion into a residence where, from the outset, a violent confrontation with the victim was not only anticipated or its potential foreseen, but was virtually a foregone conclusion. Significantly, appellant did not merely suggest, for example, ways in which entry into the house and theft could be accomplished without detection, but instead proposed the weapon to be used to attack and disable the victim, as to whom he knew his coparticipant harbored intense enmity. Appellant did so even though he was aware Larissa wanted revenge and that things could escalate. He even tried to recruit some of his friends to join in his and Larissa's criminal endeavor.

Although it deals with the federal Constitution, the appellate court's statement in People v. Mora, supra, 39 Cal.App.4th at pages 616-617 is pertinent: "The Constitution does not forbid even the death penalty (and here defendant received the lesser penalty of life imprisonment without parole [citation]) for a person who was not the actual killer and did not actually intend to kill, but who was a major participant in the underlying felony, acting with reckless indifference to human life.... Here the jury was accordingly instructed that if defendant was not the actual killer, the jury could find special circumstances only if it found defendant acted with the intent to kill or reckless indifference to human life and as a major participant in the underlying felony. [Citation.] By its verdict the jury impliedly so found." Such was also the case here, and the record amply supports the jury's conclusion.

Nor is appellant assisted by the "branch of the inquiry [that] focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.) In this regard, a comparison of appellant's circumstances with those in Dillon is helpful.

In Dillon, the defendant was a 17-year-old high school student who, with two other juveniles, decided to take marijuana from a nearby illegal growing operation. When Dennis Johnson, one of the proprietors of the marijuana farm, saw them, he appeared with a shotgun, cocked the weapon, told them his brother would have shot them, and warned that the next time the boys came on his property, he might shoot them himself. When Johnson saw the defendant, who did not depart with the other two boys, he pointed the shotgun at him and ordered him to go. Several weeks later, when the defendant brought his brother to see the operation, a shotgun blast was heard. Nevertheless, the defendant and a friend recruited six other boys to steal the marijuana.

The defendant's plan for Johnson was to hit him over the head "or something" and tie him to a tree. The boys armed themselves, split into pairs, and spread out, but then hid when they saw one of the Johnson brothers. One of the boys twice accidentally discharged his shotgun; while the boys were discussing their next move, Johnson approached. He was carrying a shotgun, and when he drew near, the defendant began rapidly firing his rifle at him and then fled. Johnson sustained nine bullet wounds and died a few days later. (Dillon, supra, 34 Cal.3d at pp. 451-452.)

Tried as an adult, the defendant testified that, when he heard the first accidental shotgun blast, he became concerned that one of his friends had been shot. He saw one of the marijuana operation's guards walking toward the sound while carrying a shotgun, then subsequently heard a second shotgun blast from the same direction. The defendant's anxiety turned to alarm; he wanted to flee, as he thought his friends were being killed. Shortly after, he and the boys who were with him heard a man coming stealthily up the trail behind them. It was Johnson, and he was carrying a shotgun. The boys could neither retreat nor hide, and, as Johnson drew near, he shifted his shotgun and pointed it outwards. The defendant thought he was getting ready to shoot and fired when he saw Johnson swing the weapon. He was afraid Johnson was going to shoot him. An expert witness testified, without contradiction, that the defendant was immature intellectually, socially, and emotionally, and functioned, in some respects, like a much younger child. (Dillon, supra, 34 Cal.3d at pp. 482-483.)

Significantly, the defendant in Dillon (whose testimony was credited by both the trial judge and the jury) essentially believed he was acting in defense of himself and his friends. Also significantly, the trial judge expressed sympathy with jurors' evident reluctance to apply the felony-murder rule and, despite the defendant's conviction of first degree murder, committed him to the Youth Authority. (Dillon, supra, 34 Cal.3d at pp. 484-486.) When the People successfully collaterally attacked the commitment order on the ground that a minor convicted of first degree murder was ineligible as a matter of law for a Youth Authority commitment, however, the judge was left with no alternative but to sentence the defendant to life in prison. (Id. at pp. 486-487.)

In reducing the defendant's conviction to second degree murder (which permitted a Youth Authority commitment), the California Supreme Court observed: "[A]t the time of the events herein defendant was an unusually immature youth. He had had no prior trouble with the law, and ... was not the prototype of a hardened criminal who poses a grave threat to society. The shooting in this case was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger. To be sure, he largely brought the situation on himself, and with hindsight his response might appear unreasonable; but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate." (Dillon, supra, 34 Cal.3d at p. 488.)

In contrast to the minor in Dillon, appellant was 21 years old at the time of the murder — young, but legally an adult, with a partial college education, employment experience, and sufficient drive and intelligence to obtain a military academy appointment. Assuming some level of immaturity on his part, there was no evidence it was anywhere near as extensive or pervasive as in Dillon. While appellant had had no prior trouble with the law and could certainly not be termed a hardened criminal, this was not his first foray into illegal conduct, as shown by his involvement in the 2002 break-in at Timothy's house and his admitted burning of his car in order to collect the insurance proceeds. Assuming he truly was confronted with a rapidly developing situation and had had no idea Larissa intended to kill Timothy, appellant foresaw the risk being created that the situation could escalate. Moreover, again crediting appellant's testimony that he feared Larissa, there was no evidence that when she came out of the other room with plastic and proceeded to wrap it around Timothy's head, appellant perceived his life to be in immediate danger.

That jurors were sympathetic to appellant and felt the penalty was too harsh, especially in light of the fact Larissa likely would not be punished any differently, does not mean appellant's sentence "is so disproportionate to the crime for which it [was] inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) Many, if not all, of the jurors understandably felt appellant's sentence should be less than that faced by Larissa. Even if the trial court shared this view, however, it would only be an important consideration in a discretionary sentencing scheme. "Here, however, the sentencing scheme provides no discretion. The question is whether the Constitution compels that [appellant's] sentence be something less than [Larissa's]. In light of [appellant's] major participation, we do not find it shocking to the conscience or offensive to fundamental notions of human dignity that [appellant's] sentence be the same as [Larissa's]. In capital cases, the California Supreme Court considers irrelevant that a codefendant received a lesser penalty. [Citation.] In Dillon, the Supreme Court did take into account that the other youths involved in the crime received `petty chastisements,' compared to Dillon's life imprisonment. [Citation.] Here, however, Penal Code section 190.2 treats both participants equally; it does not treat [appellant] worse than [Larissa]." (People v. Mora, supra, 39 Cal.App.4th at pp. 617-618, fn. omitted.)

In sum, imposition of a term of life in prison without the possibility of parole upon appellant does not offend the Constitution.

B. Parole Revocation Restitution Fine

Appellant contends the $5,000 parole revocation restitution fine (§ 1202.45), which was imposed but stayed, should be stricken as unauthorized because his sentence does not include parole (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183). Respondent agrees.

DISPOSITION

The parole revocation restitution fine (§ 1202.45) is stricken. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting said modification and to forward a certified copy of same to the appropriate authorities.

WE CONCUR:

Vartabedian, J.

Cornell, J.

FootNotes


1. All statutory references are to the Penal Code.
2. Appellant was jointly charged, but not tried, with Larissa Schuster, whose case is not before us in this appeal. On April 7, 2006, a first amended information was filed with respect to both defendants, but it did not alter any of the charges or special allegations against appellant.
3. For the sake of clarity, we refer to Larissa and Timothy Schuster by their first names. No disrespect is intended.
4. Videotapes of appellant's statements were played for the jury.
5. Records showed that three distinct orders were placed. The first, on June 13, 2003, was for one case of sulfuric acid and one case of hydrochloric acid. The second, on June 18, 2003, was for a second case of hydrochloric acid. The third, on July 1, 2003, was for a case of hydrochloric acid and another item. All three orders were placed by Larissa.
6. Appellant had recently been in a motorcycle accident.
7. Appellant said he had purchased the stun gun at Herb Bauer Sporting Goods store a few weeks earlier, as he figured it was something he could use anyway.
8. Larissa mentioned "James" frequently, but never by last name. Lopez had the impression that he and T. had a close relationship. At one point, Larissa said that she paid "James" too much money for him not to do what she told him to.
9. A tape recording of messages from Larissa that detectives found at Timothy's house was played for the jury.
10. One friend suggested just having some people beat Timothy up with baseball bats if the plan was simply about revenge. Appellant rejected the idea, as he did not want anybody to get hurt. Appellant admitted that attacking someone with a stun gun, then chloroforming and tying that person up was violent and wrong, but it was not the same as beating someone with a baseball bat, because the victim would wake up without any serious injury.
11. Appellant recalled telling detectives that she tapped on his window. He heard a noise at the window, but, in thinking about it further, some of the details he told detectives, even in the second interview, were inaccurate. Some things came back to him as he thought about them more. As of trial, he was not certain she called him, but he vaguely remembered seeing his phone light up.
12. Appellant ultimately took nothing except a key ring bearing keys for Timothy's truck and house that Larissa handed him.
13. Appellant acknowledged not telling detectives about the plastic, but thought he had done so.
14. Appellant acknowledged twice telling detectives that Larissa told him to get it, and that he got it out of a particular closet. He did not know why he said that; there were a couple of points where he said he did more than he did. There were other points where he said he did less than he did.
15. Appellant was unable to recall whether she had gotten a truck or still needed one.
16. Dr. Terrell, a forensic psychiatrist, testified in rebuttal that, in determining whether a person is malingering (fabricating a mental illness for secondary gain, such as avoiding criminal responsibility), the examiner should look for exculpation and double exculpation (the use of excuse or justification to imply that the person is not responsible, or is less responsible than he or she should be, for the crime). Having multiple excuses to try to deflect responsibility is a strong indication the person is putting on an act. Terrell saw several examples of double exculpation in appellant's interviews with police. In Terrell's opinion, the fact appellant repeatedly lied in the videotaped interviews meant he was a dishonest or unreliable historian and, since the history is the most important part of a psychiatric examination, an honest historian is essential to an accurate diagnosis.
17. We have viewed the videotapes of the interviews, as did the trial court. We have also reviewed the various police reports and other documents that were attached as exhibits to the motions and response, and which the parties stipulated could be considered by the trial court.
18. Kirkhart's theory of the case changed drastically when he interviewed Fichera late in the afternoon of July 14.
19. The police report concerning the 2002 break-in related that, approximately three weeks earlier, Timothy's neighbor had seen Timothy's garage door open and a newer, white Volkswagen bug parked in the garage. Timothy told the reporting officer that he did not know anyone who owned that type of car. When the interview of appellant began, Kirkhart was unaware appellant had owned such a vehicle.
20. The videotape shows that the detectives' voices did not become confrontational or intimidating, but instead remained quiet and conversational throughout the interview.

At the hearing, Kirkhart explained that he mentioned the difference between a trespass and a felony burglary because often in interviews, especially when trying to confirm whether someone is truthful, he gives the best- and worst-case scenarios. It is a common interview technique to say, for example, that the detectives did not know whether it could be something as serious as a felony burglary in which someone entered with the intent to commit a felony or steal property, or something as simple as assisting another person in taking property believed to belong to him or her. Kirkhart knew, prior to the interview, that the 2002 incident had been classified as a trespass. He was not trying to extract information under an implied threat of prosecution; he was truthful when he told appellant they were not going to pursue that case. He was letting appellant know the range of the investigation and that it was going to be thorough. When it appeared appellant was being deceptive, Kirkhart needed to let him know the consequences of lying and that sticking to a lie would not be good for him in the judicial process. Kirkhart explained: "This was his time to tell the truth. And I laid it on the line for him." In the interview and his subsequent report, Kirkhart referred to the incident as a burglary, as the Fresno Police Department originally had investigated it as such, and it had then been reclassified.

21. Havlik and Detective Sullivan had been in the area since about 6:00 a.m. They had instructions to keep appellant under surveillance.
22. If closed, the door would lock automatically. The detectives did not want the door to be locked, as appellant was not in custody. Appellant was not advised that the interview was being videotaped.
23. The videotape of the interview confirms Alcorn's description.
24. According to Alcorn, the detectives were not leading the interrogation at this point. Instead, appellant basically was offering the information. At no time during the interview did the detectives attempt to use information about the 2002 incident to get appellant to provide information concerning the homicide investigation.
25. According to Alcorn, it is not unusual for confessions to come out in stages. If he has evidence, further questioning may develop information that is consistent with that evidence. That is what he was attempting to do with appellant.
26. Weibert was not present for any of appellant's interview with the Fresno detectives.
27. The videotape shows that the tone of the interview was conversational. As was the case with the Fresno interview, appellant said nothing about Larissa wrapping plastic around Timothy's head.
28. In a related motion, appellant sought to have his statements excised from affidavits in support of certain arrest and search warrants, and those warrants then quashed as unsupported by probable cause. The trial court also denied this motion.
29. We need not determine the extent to which appellant's statements constituted admissions rather than confessions, since the same legal principles apply to each. (Miranda, supra, 384 U.S. at p. 476; People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
30. Appellant had received an appointment to the Naval Academy in Annapolis.
31. Disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.
32. Overruled on other grounds in People v. Cahill, supra, 5 Cal.4th at pages 509-510, footnote 17.
33. Disapproved on other grounds in People v. Badgett (1995) 10 Cal.4th 330, 350.
34. We address appellant's claim this was a custodial interrogation, post.
35. Because we have concluded the statements appellant made during the first interview were voluntary, we reject any claim the second interview was tainted. (See, e.g., Clewis v. Texas (1967) 386 U.S. 707, 710-711; Leyra v. Denno (1954) 347 U.S. 556, 561; People v. Beardslee (1991) 53 Cal.3d 68, 108; People v. Jimenez, supra, 21 Cal.3d at p. 614.)
36. He makes no claim a violation of Miranda occurred with respect to the first interview.
37. Also submitted were a compilation of articles concerning the case that were published in the Fresno Bee between July 12, 2003, and October 12, 2006, and a local radio broadcast in which the case was discussed.
38. At the outset of the evidentiary hearing, the defense exchanged the final version of Penrod's report, which contained some changes in calculations, for the version submitted as an exhibit to the written motion. We use Penrod's corrected figures.
39. Penrod's report compared Fresno County figures to those obtained in a survey of Alameda County residents, that county having been chosen as "a legally viable alternative county." Percentages from Alameda County were consistently much lower than those obtained for Fresno County.
40. Although survey respondents asked specifically about appellant had somewhat lower levels of prejudgment of guilt and somewhat more positive impressions than with respect to Larissa, the differences were not overwhelming.
41. For instance, when a court asks whether a prospective juror can be fair, the socially desirable response is yes. It is a different matter when an individual receives a call from someone conducting a public opinion survey.
42. Disapproved on other grounds in People v. Loyd (2002) 27 Cal.4th 997, 1008, footnote 12.
43. A defendant's failure to exhaust his or her peremptory challenges or to express dissatisfaction with a jury as selected is frequently deemed a strong indication the defense itself recognized the jurors were fair. (People v. Sanders, supra, 11 Cal.4th at p. 507; see also People v. Prince, supra, 40 Cal.4th at pp. 1215-1216; People v. Panah, supra, 35 Cal.4th at p. 448.) In People v. Daniels, supra, 52 Cal.3d at page 854, the California Supreme Court found the fact "decisive," stating: "In the absence of some explanation for counsel's failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel's inaction signifies his recognition that the jury as selected was fair and impartial." Here, by contrast, defense counsel explained his failure to exhaust his challenges and also renewed his motion for a change of venue at the conclusion of jury selection. The circumstances demonstrate the defense did not implicitly recognize the jury was fair and impartial.
44. Section 190.2, subdivision (d) provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsel, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."
45. While jurors were free to infer this meant appellant lacked awareness of the danger of his planned conduct, they were also free to infer appellant's lack of concern indicated lack of caring and disregard for the possible consequences. Similarly, jurors reasonably could have inferred that appellant's rejection of his friend's suggestion that he use a baseball bat simply meant he did not specifically intend to kill Timothy, not that he did not know his planned activities carried a grave risk of death.
46. Overruled on other grounds in People v. Garcia (2008) 168 Cal.App.4th 261, 291.
47. We include appellant's related claims of ineffective assistance of counsel.
48. Respondent argues that Chun does not apply to the instant case. Our discussion assumes application of Ireland's merger doctrine, as articulated in Chun, pursuant to People v. Wilson, supra, 1 Cal.3d 431. Recently, as shown by its April 8, 2009, docket entry, the California Supreme Court requested supplemental briefing on whether Wilson was correct in extending the merger doctrine to first degree felony murder; whether a ruling overturning Wilson should be retroactive; and the effect, if any, of Chun. (People v. Farley (S024833, app. pending, argued April 7, 2009).) Should the merger rule not apply to first degree felony murder, then appellant's argument on this point necessarily fails, as no error occurred.
49. Our analysis is the same whether we conclude the error occurred in affirmatively instructing the jury that it could so find, or in failing to instruct the jury on the merger rule as the court did in People v. Seaton, supra, 26 Cal.4th at page 646.
50. A "legally incorrect theory" is one "which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense." (People v. Harris (1994) 9 Cal.4th 407, 419, fn. omitted.)
51. Appellant argues such error is structural and requires reversal unless we can determine with "absolute certainty" that he was convicted of murder on the proper theory of burglary based on entry with intent to steal. (See, e.g., Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, 1086.) Recently, however, the United States Supreme Court rejected this position and affirmed that, while "[a] conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one," such error is subject to harmless-error review under Chapman. (Hedgpeth v. Pulido (2008) 555 U.S. ___, ___ - ___ [129 S.Ct. 530, 531-532]; see Chun, supra, 45 Cal.4th at p. 1201.)
52. The prosecutor told jurors: "[I]n this particular case there's two felonies; kidnapping, residential burglary, which would qualify, if you found that the defendant did those acts, one of those crimes to find him guilty of first-degree murder. [¶] You know, at this time I think what is really required — maybe I should talk to you about burglary a little bit.... And it's committed when a person enters another person's house with what we call specific intent. That mental aspect of the crime. [¶] You know, a specific intent for burglary can be a few different things in this case. Usually burglary involves an intent to steal. People go into another person's house to steal items, commit a theft.... [¶] So a burglary is complete ... if you enter a house with that intent, with mental state. But it doesn't matter ... if you are met by force and you turn around and leave ... or even after you get in the house you change your mind. Once you enter the house with the intent, burglary has been committed. [¶] Burglary can also be committed if a person enters a house ... with an intent to commit a felony. One of the felonies you can consider in this particular case is an assault with a stun gun.... [¶] So maybe there's multiple felonies that Mr. Fagone intended to commit upon entering into Tim Schuster's house. False imprisonment with violence, assault with a stun gun .... [¶] And also how about this: Theft. You know, in his ... third taped interview, he says that after he, basically, choked out Tim Schuster, ... Ms. Schuster administered the chloroform. And he went in the house looking for stuff. His words. He went through the house looking for stuff to take."

The prosecutor subsequently stated, in discussing how to determine what was in a person's mind, "Mr. Fagone was armed with the things he needed to be armed with, the stun gun, the ties. He knew his purpose. And it's stated throughout this trial numerous places in all of his statements, the statements of his friends. There was definitely a plan to take property, permanently deprive Mr. Schuster of his property." He also asked: "How about the numerous times and conversations with his buddies and in the interview with the police that James Fagone repeatedly indicated he intended to steal, even months from the burglary on July 10? He maintained that intent to steal. And you'll remember he took [Timothy's] keys."

Later, the prosecutor stated: "Mr. Fagone clearly intended to permanently deprive Mr. Schuster of property.... And he's guilty of burglary, felony murder, and the special circumstances [sic] of murder committed during the course of a burglary." He concluded: "And the just verdict is the verdicts I suggested before, guilty of felony murder, guilty of residential burglary with all the intent elements, intent to steal, intent to use the [T]aser, the stun gun and, of course, the special circumstances because he did act with reckless disregard when he choked out the victim, when he stunned him, when he held him as Larissa binded him."

53. People v. Toledo (1948) 85 Cal.App.2d 577.
54. CALCRIM No. 1863, the pertinent instruction, reads: "If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/[or] robbery). [¶] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it. [¶] In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] [The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.] [¶] [The claim-of-right defense does not apply to offset or pay claims against the property owner of an undetermined or disputed amount.] [¶] [The claim-of-right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal.] [¶] If you have a reasonable doubt about whether the defendant had the intent required for (theft/[or] robbery), you must find (him/her) not guilty of ___ insert specific theft crime."
55. We have been directed to no authority addressing the question whether a claim-of-right defense can be raised where, as here, the defendant purports to have been assisting the person who had the actual right or claim to the property. As the California Supreme Court has implicitly assumed the defense is available in such a scenario (see People v. Sakarias (2000) 22 Cal.4th 593, 622), so will we.
56. In discussing prejudice here and with respect to other instructions, appellant points to a juror statement in which the juror expressed his or her determination that appellant entered Timothy's home to help Larissa get her property back. Appellant says that because the People submitted this statement, they have waived any objection to its use in determining whether instructional error was prejudicial. Not so. The juror statements in this case were submitted strictly in conjunction with posttrial determinations of possible jury misconduct and sentencing issues. As they manifestly were not submitted in terms of claims of instructional error, the People had no occasion to object to their use for that purpose. They are not properly before us at this juncture. (See People v. Dewberry (1992) 8 Cal.App.4th 1017, 1021, fn. 1.)
57. See now section 189.5. Subdivision (a) of this statute, which is substantively unchanged from subdivision (a) of former section 1105, provides: "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." (Italics added.)
58. People v. Coppla (1950) 100 Cal.App.2d 766, 769, on which appellant relies and which applied Toledo in a bookmaking case, thus constitutes an unwarranted extension of the doctrine.
59. Appellant contrasts the corresponding optional paragraph 2 of CALJIC No. 8.81.17, which does not specify an actor but instead requires proof that "[t]he murder was committed in order to carry out or advance the commission of the crime of ___ or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [attempted] ___ was merely incidental to the commission of the murder."
60. Harmelin v. Michigan (1991) 501 U.S. 957; Ewing v. California (2003) 538 U.S. 11; Lockyer v. Andrade (2003) 538 U.S. 63.
61. A determination whether a sentence results in unconstitutional punishment may be made by either the trial court or the appellate court. (People v. Sandoval (1987) 194 Cal.App.3d 481, 487.)

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