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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph William GUILLEBEAU, Defendant and Appellant.

Cr. 4721.

Decided: May 26, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Charles M. Bonneau, Deputy State Public Defender, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel E. Carey and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Joseph William Guillebeau appeals from judgments of convictions of first degree murder, two counts of robbery with firearm use, assault with force likely to produce great bodily injury, and kidnapping for purpose of robbery with use of a firearm.


On the evening of June 18, 1978, Patrick Ikeda and Bob Hamilton, both 17 years old, stopped at a phone booth in Stockton.

Hamilton remained in the car while Ikeda used the phone.   Ikeda observed three young black men, appellant, Terry Howard, and Charles Davis, approach Hamilton's car.   Ikeda saw Hamilton give his wristwatch to one of the men and empty his wallet.   Then one of the men approached him with a .22 caliber gun.   The men took the contents of both boys' wallets and then ordered Ikeda into the car.

Hamilton was driving the car.   After driving around for awhile, Hamilton was instructed to stop the car.   One of the abductors had Hamilton assist him in taking a stereo from the car.   The victims were ordered to get into the trunk of the car.

The victims were first allowed to leave the trunk after three hours.   While the victims were out of the trunk, appellant fired the gun once or twice and then placed the muzzle into Ikeda's mouth.   Upon demand, both victims turned their wallets over to their captors.   The victims were returned to the trunk.   The trio went to a party at “Willie Poo Poo's” where appellant was involved in an altercation.   Appellant had to be carried from the party by Jeffary Hill and Robert Robinson.

After leaving the party, another vehicle followed them.   As the cars pulled out Ikeda overheard someone say that “they were going to push us into the lake.”   The car was driven into a parking lot where it became stuck and attempts to free it were unsuccessful.   Ikeda could hear them tearing the rear stereo speakers from the car.   It was stipulated that both of these speakers were, in fact, taken from the Hamilton car at this stop and later found in a Cadillac.   Hamilton and Ikeda were then released from the trunk and warned to keep their eyes covered.   The kidnappers still had the gun.   Ikeda stepped away from the car and was hit from behind.   Someone started kicking him in the head and demanding more money and he passed out.

The car following Hamilton's vehicle to the park was a Cadillac driven by Hill and Robinson.   This is the car in which the speakers were later found.   It was stipulated that the demand for more money was made either by Hill or Robinson, or both of them.   The victims had nothing left to give.

Ikeda regained consciousness the next morning.   He had numerous bruises and wounds, including severely lacerated hands from trying to protect himself from being beaten on the head.   He also had stab wounds near his kidneys and in the chest.   His wallet was missing.   Ikeda discovered the body of Bob Hamilton lying behind Hamilton's car.   A pathologist testified that Robert Hamilton died as a result of depressed skull fractures from two blows to the head.   The body also suffered numerous injuries consistent with being run over by a car.

A bumper jack was found in the trunk of the Cadillac.   Blood stains from the jack and from the right door of the Cadillac were compared positively with Hamilton's blood type.   Hair samples removed from the jack were consistent with Hamilton's hair.   Human blood was later found on the Levis worn by Hill and Robinson.   It was stipulated that Hill and Robinson drove the Cadillac over Hamilton's body.

On June 19, 1978, Sergeant Wingo of the Stockton police department and fellow officer Jackson were informed that someone with information about the killing had called the police department.   The caller wanted to meet with officers at a local drive-in theater.   It was appellant's mother who called the police.   She asked appellant to go with her.   Appellant testified he did not know they were going to speak to the police.   However, there was apparently some discussion about the police because appellant's father told him not to go.

The officers arrived at the designated location at the agreed time in an unmarked police car.   Shortly thereafter appellant, his mother, his older brother, Otis, a younger brother, and Charles Davis arrived.

At first the conversation was led by Otis and Doris Guillebeau, who tried to describe an incident earlier that morning in which the Guillebeau house had been shot at because appellant and Davis had witnessed the homicide the night before.   Apparently Otis and Mrs. Guillebeau were the first persons to give the officers the names of Hill and Robinson (eventual codefendants tried separately).   The officers testified the Guillebeaus did not want to be seen talking to the police or have their identities made known.

The officers were not able to obtain a coherent statement because everyone was trying to talk at once.   It was clear, however, appellant and Davis had witnessed the crime.   The officers suggested that appellant and Davis go down to the police station where a better statement could be obtained.

Otis and Mrs. Guillebeau did not request to accompany appellant and Davis to the police station.   The police did not tell appellant and Davis they could refuse to go to the police station, but there was no coercion asserted to get them to go to the police station.   The police officers testified that had they refused to go, the officers would have simply continued to try and get their information at the drive-in.

Before taking the boys to the station, the officers promised to call Mrs. Guillebeau so she could pick up her son after he gave his statement.   The Guillebeaus were afraid of having police cars drive up to their house.   Later that afternoon she called the police station and was told by someone that “they weren't through with them.”

Appellant testified that when he and Davis were placed in the car and the door was shut, he felt he was under arrest.   He admitted, on the other hand, at that time the police told him he could call his parents to pick him up whenever he wanted to leave the police station.

At the station, appellant was taken to an interview room while Davis remained, totally unrestrained, in the waiting area of the department.   Appellant was questioned first.   He spoke with the officers for about 40 minutes.   At this time appellant gave a statement in which he claimed that he and Davis first met the victims when they hailed the victims' car after leaving a party.

The officers testified appellant was still not in custody and could have left at that time.   At this point they still did not consider appellant a suspect in any way.   There were inconsistencies in appellant's statement compared to the version they had received from Ikeda.

After appellant's statement, Davis was escorted to a different interview room where he gave a statement.   Due to some inconsistencies between Davis' version and appellant's version, however, about halfway through Davis' interview the officers advised him of his Miranda rights and that he had a right to consult his parents before making a further statement to the officers.   The inconsistencies were not major.   Davis waived his rights, also stating he did not want a parent there.   He continued to talk to the officers.

Following the interview with Davis, the officers returned to appellant's interrogation room where they immediately advised him of his Miranda rights and told him he could consult with a parent.   Appellant waived his Miranda rights and indicated he did not want to have his parents present.   Appellant then gave a second version of the events.

Appellant testified he did not understand his rights that he was giving up.   In support of his contention, appellant introduced school records which placed him in the lowest five percent of his age for scholastic ranking.   Appellant also acknowledged, however, that he had been read his rights on about a half dozen previous occasions.   The district attorney introduced two probation reports documenting prior arrests.

After receiving appellant's second statement, Officer Jackson informed appellant that the victim's version differed as to the beginning of the incident.

In the third statement to police, appellant admitted that he, Davis, and Terry Howard were walking in downtown Stockton when they encountered the victims near a telephone booth.   Appellant and his companions entered the car with the victims.   Howard took a watch off of one victim and Davis took money from the other.   The victims were eventually put in the trunk.   Appellant admitted having a .22-caliber gun, but claimed he “never pulled it out.”   Then they drove to various places and ended up at a party.   At the party, appellant claimed he got into a fight and someone named Willie knocked him down and took away his gun.   At this point Davis and appellant drove the victim's car, with Ikeda and Hamilton still in the trunk, over to Van Buskirk Park.   Appellant claimed they let the victims out and gave Hamilton his car keys.   At that point, however, Robert Robertson and Jeffary Hill drove up in a Cadillac, demanded money from the victims, beat them with weapons from their trunk, and drove over one of the victims.

Appellant moved to suppress his statements pursuant to Penal Code section 1538.5.

The trial court denied the motion to suppress appellant's statement.   The court found there was “no question that the contact was initiated either by or on behalf of the defendants, not by the police.”   The court further found appellant was not under arrest or detention until the time of his second statement and that he was advised of and waived his Miranda rights prior to giving the second and third statements.



Appellant contends he was a suspect of the instant crime as soon as he met the officers at the drive-in theater, the process of interrogation began as soon as the officers arrived at the drive-in theater and that he was in custody as soon as the officers placed him in the police car for the ride to the police station.

In Miranda v. Arizona (1966) 384 U.S. 436, 467–473, 86 S.Ct. 1602, 1624–27, 16 L.Ed.2d 694, the United States Supreme Court held that to insure that any statement a suspect makes in a custodial interrogation setting is a product of his free will, the interrogation must be surrounded by certain essential procedural safeguards:  “[B]efore any questioning begins the police must give the suspect the now-familiar ‘Miranda warnings,’ advising him primarily of his right to remain silent and to have the assistance of counsel ․;  to be valid, any waiver thereof must be both knowing and intelligent;  and the questioning must terminate if the suspect directly or indirectly invokes any of these rights.”  (People v. Pettingill (1978) 21 Cal.3d 231, 237, 145 Cal.Rptr. 861, 578 P.2d 108.)

 Absent proof beyond a reasonable doubt of proper advisement and valid waiver of rights, any admission or confession obtained is deemed coerced.  (People v. Murtishaw (1981) 29 Cal.3d 733, 753, mod. 29 Cal.3d 836a, 175 Cal.Rptr. 738, 631 P.2d 446 [as modified].)  The trial court's ruling on a Miranda issue may not be set aside by an appellate court unless it is “palpably erroneous.”  (In re Eric J. (1979) 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.)

 Whether appellant was in custody is not dependent upon the subjective intent of the interrogator; 1  the question is “whether the suspect was actually deprived of his freedom in any significant way or, as a reasonable person, was led to believe his freedom of movement was restricted by the pressures of official authority.”  (People v. Blouin (1978) 80 Cal.App.3d 269, 283, 145 Cal.Rptr. 701.)   As mentioned above, whether custody is attached short of actual arrest depends upon a number of factors, including:  (1) the site of the interrogation;  (2) whether the investigation has focused on the suspect;  (3) whether the indicia of arrest are present;  and (4) the length and form of questioning.  (People v. Herdan (1974) 42 Cal.App.3d 300, 306–307, 116 Cal.Rptr. 641;  People v. Blouin, supra, 80 Cal.App.3d 269, 282–283, 145 Cal.Rptr. 701;  In re Danny E. (1981) 121 Cal.App.3d 44, 50, 174 Cal.Rptr. 123;  People v. Murphy (1982) 127 Cal.App.3d 743, 748, 179 Cal.Rptr. 732.)

 Applying these factors to the case at bar we conclude that appellant was not in custody when he made the first statement at the police station.   Although an interrogation at the police station tends to imply “custody,” one is not required to draw that inference if the person being questioned comes to the police station on his own initiative or voluntarily.  (People v. Hill (1969) 70 Cal.2d 678, 693–694.)   Appellant here voluntarily went to the police station.

As soon as Davis' statement differed from appellant's, they read Davis his Miranda rights.   The investigation having then focused also on appellant, they “Mirandized” him before any further questioning and obtained a waiver.2

Further, in this case, although the back of the police car was locked, other indicia of arrest such as handcuffs and advisement of the fact of arrest and charges (Pen.Code, § 841) are absent.   While appellant was giving his first statement, his companion was left unrestrained in a public waiting room.

Lastly, appellant testified that the police said hardly anything during the first interview.   He gave a long statement.   Where the length of the “questioning” is determined primarily by a loquacious respondent, that circumstance does not imply “custody.”

 Considering all four factors above, appellant's contention that he was in custody when he made his first statement at the police station cannot stand.  (See People v. Davis, supra, 29 Cal.3d 814, 820–822, 176 Cal.Rptr. 521, 633 P.2d 186.)


Appellant next contends that by appearing for questioning with his mother at the drive-in theater, he asserted his right to have a parent present during questioning thus invoking his Miranda rights.

Appellant cites People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, a case in which the California Supreme Court held that when a minor is in custody and subjected to interrogation, his request to see a parent must, in the absence of evidence demanding a contrary conclusion, be construed to indicate an invocation of his Miranda rights.  (Id., 6 Cal.3d at p. 383–384, 99 Cal.Rptr. 1, 491 P.2d 793.)

 Once Miranda warnings have been given, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.  (Miranda v. Arizona, supra, 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694;  People v. Burton, supra, 6 Cal.3d 375, 381, 99 Cal.Rptr. 1, 491 P.2d 793;  People v. Randall (1970) 1 Cal.3d 948, 954, 83 Cal.Rptr. 658, 464 P.2d 114.)   In cases where the suspect makes no express assertion of his right to remain silent, the crucial question becomes what behavior is necessary to constitute an invocation of the Fifth Amendment privilege.   No specific form of words or conduct is necessary to constitute such an indication.   A suspect may indicate such a wish in many ways.  (People v. Ireland (1969) 70 Cal.2d 522, 535, 75 Cal.Rptr. 188, 450 P.2d 580;  People v. Randall, supra, 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.)   The court in Randall stated that any words or conduct which “reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]” must be held to amount to an invocation of the Fifth Amendment privilege.  (Id., at p. 956, 83 Cal.Rptr. 658, 464 P.2d 114.)   In People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, the California Supreme Court held that a refusal by a suspect to sign a waiver of his constitutional rights amounted to an invocation of his Fifth Amendment privilege.   In Ireland, supra, the Court held that when the suspect stated, “Call my parents for my attorney” he thereby asserted the privilege.   In Randall, supra, the court held that a suspect's telephone call to his attorney in and of itself invoked the privilege.

 In the instant case, appellant contends that the combined acts of appellant's mother's calling the police saying they wanted to give information concerning the crime, arranging a meeting at a drive-in theater, and keeping the appointment for the meeting should be construed by this court as an invocation by appellant of his right to remain silent.   To state the contention is to demonstrate the fallacy.


 Appellant next contends that his mother's telephone call to the police was an invocation of his right to remain silent.

Appellant cites In re Patrick W. (1978) 84 Cal.App.3d 520, 148 Cal.Rptr. 735 in support of his contention.   The issue in In re Patrick W. was not whether a parent could invoke a minor's Miranda rights for him, but whether the police should have informed a 13-year-old boy, in custody for murdering his stepfather, that his paternal grandparents were nearby after the boy justifiably declined the presence of his very recently widowed mother.   In the instant case, on the other hand, appellant seeks to claim that his mother could invoke his Miranda rights for him, by telephoning the police station.   Such a contention cannot stand.

All of the parties in the instant case agreed that prior to taking the boys to the station, the officers promised to call and tell Mrs. Guillebeau that she could come down and pick up her son after he gave his statement.   The record does reflect that Mrs. Guillebeau called the police station but it does not establish she asked to speak to her son.

 In any event the only person who can exercise the right to remain silent is the person being questioned.   There is no basis in logic to hold that Miranda rights may be asserted by a third party on behalf of another.


Next appellant contends he had an absolute right to the presence of a parent during questioning.   Recognizing that the California Supreme Court in People v. Lara (1967) 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202, rejected the argument that a Miranda waiver by a minor could not be effective unless made on the advice of a parent or other responsible adult, appellant nonetheless now urges that a “per se rule for exclusion of uncounseled Miranda waivers by minors should be adopted as a matter of State constitutional law.”

 The totality of the circumstances test adopted in People v. Lara is clearly still good law.   Such a standard for determining whether a minor's statements are voluntary is substantially more desirable than a per se rule.   It permits judicial review to protect a minor from having his substantial rights abridged while at the same time providing for the admissibility of competent evidence legally obtained.   Appellant presents no compelling arguments why this court in this case should depart from the well established rule of People v. Lara, supra, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202.   Appellant was only four months short of being 18 years old at the time of the commission of the offense.   He was certified and tried as an adult pursuant to Welfare and Institutions Code section 707.   He had at least two prior felony “offenses.”   He had been read Miranda rights on numerous occasions.   The “totality of the circumstances test” is clearly applicable to the facts of this case.

This court finds no error in admitting appellant's statements.


Appellant's last contention on appeal is that the trial court erred when it did not give a second degree felony-murder instruction to the jury.   The record indicates jury instructions were originally submitted to the trial court by appellant's counsel.   These original instructions included a second degree felony-murder instruction which did not specify the underlying felony to which it referred.

Counsel and the trial judge had a discussion regarding the jury instructions.   The court stated which instructions would be deemed withdrawn (including the second degree felony-murder instruction with an unspecified qualifying felony).   No objection was voiced by anyone.   Consequently, appellant's contention that a second degree felony murder instruction was erroneously rejected cannot stand.

Thus, the issue then becomes whether the trial court in the instant case was under a sua sponte duty to instruct on the theory of second degree felony murder.

 It is the general rule that in a criminal case the court must, even without request, instruct the jury on all general principles of law pertinent to the issues raised by the evidence, but need not instruct on its own motion on specific points developed at trial.  (People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370.)   The California Supreme Court in People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913,3 reviews and summarizes much of the law on the duty to instruct, sua sponte.

 Where there is evidence which, if accepted by the jury, would absolve the defendant from guilt of a greater offense but would support a finding of guilt of a lesser included offense, an instruction on the lesser included offense must be given sua sponte, if not requested.  (Witkin, Cal. Criminal Procedure (1978 supp.) Trial, § 480A, p. 785;  People v. Morrison (1964) 228 Cal.App.2d 707, 712, 39 Cal.Rptr. 874.)   The courts have recognized that a defendant may have refrained from requesting the instruction because he preferred that it not be given, but nonetheless have held he is privileged to demand a reversal because the jury was not offered the opportunity to convict him of the lesser offense.  (Witkin, Cal.Criminal Procedure, supra, at p. 786.)   Where the court is under a duty to give a lesser included offense instruction, the court's failure to give such instruction constitutes “invited error” only where the defense counsel deliberately and expressly, as a matter of trial tactics, objects to the giving of such instruction.  (People v. Phillips (1966) 64 Cal.2d 574, 580–581, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353.)

 On the other hand, where “the evidence of the lesser offense does not absolve a defendant of the greater offense but nevertheless is sufficient to support a finding of guilt of either the greater or lesser offense, the instruction on the lesser offense is not mandatory and should be given only if requested by the defendant.”  (People v. Grigsby (1969) 275 Cal.App.2d 767, 775, 80 Cal.Rptr. 294;  People v. Morrison, supra, 228 Cal.App.2d 707, 713, 39 Cal.Rptr. 874.)

 It is appellant's contention that a second degree felony-murder instruction (with the underlying felony being kidnapping) was mandated in this case.   In the instant case appellant was charged and convicted of kidnapping for robbery.   His trial counsel conceded in closing argument that the kidnapping was proven beyond a reasonable doubt.   Kidnapping is a felony inherently dangerous to human life, supporting a charge of second degree felony murder.  (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892.)

According to appellant's version of the facts, the robbery upon which the first degree felony-murder theory was based was completed by the time of the murder thus absolving him of any liability for murder on a felony-murder robbery theory.   He conceded he was guilty of kidnapping.   Consequently, appellant argues, since there was evidence which, if accepted by the jury, would absolve him from first degree felony-murder robbery, and there was evidence which would support a finding of guilt on the second degree felony-murder kidnapping theory, this instruction should have been given sua sponte by the trial court.

 Appellant argues he had reached a place of “temporary safety” and therefore the jury could find the robbery had ended.  (Cf. People v. Salas (1972) 7 Cal.3d 812, 823, 103 Cal.Rptr. 431, 500 P.2d 7.)   Appellant is in error.   Appellant points to no authority which has held that a robbery has “ended” while the robbers were still restraining their victims and discussing how to get rid of them, as in the instant case.4  In addition, contrary to appellant's contention that the robbery ended long before the homicide, the stereo speakers were removed from Hamilton's vehicle at the scene of the murder.   The larcenous spoils were still being secured at that time.   There was ample evidence to enable the jury to find the robberies and the murder were integral parts of one continuous transaction.

 As to the issue of a lesser, but necessarily included offense, “The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”  (People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649;  People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183.)   Thus, respondent contends that second degree felony-murder kidnapping is not a necessarily included offense within first degree felony-murder robbery.   It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged.  (People v. Bedolla (1979) 94 Cal.App.3d 1, 9, 156 Cal.Rptr. 171.)

No cases have been found which hold that a second degree felony-murder charge based on one underlying felony is a lesser included offense of first degree felony murder where the underlying charge is a different felony.   For this court to so hold would eliminate the “necessarily included” element from the doctrine of a lesser and necessarily included offense.   The trial judge's duty to give sua sponte instructions would be constrained only by the limits of creative review of the evidence for miscellaneous misdeeds.   In addition, the defendant would have no idea of the sanctions to which he was subject until a post hoc analysis of the evidence.

 The following issue is thus presented:  Is second degree felony murder an offense, lesser and necessarily included within the definition of first degree felony murder when the qualifying felonies as to each degree differ?   We are compelled to say that it is not.   To do so would be to “abandon the statutory definition of the felony as such and substitute the factual elements of the defendant's actual conduct.”  (People v. Phillips, supra, 64 Cal.2d 574, 583, 51 Cal.Rptr. 225, 414 P.2d 353.)

It is obvious that a victim may be killed by a robber without being kidnapped and/or by a kidnapper without being robbed.   The lesser is therefore not “necessarily included” within the greater.  (People v. Pendleton, supra, 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649.)

 Consequently, we conclude that the following rule applies:  Where the evidence would support a finding of guilt of either the greater offense or a lesser but similar offense having some incongruous elements, an instruction on the lesser offense is not mandatory and must only be given if requested by the defendant.  (People v. Morrison, supra, 228 Cal.App.2d 707, 713, 39 Cal.Rptr. 874.)   In the instant case, while appellant originally requested the second degree felony-murder instruction, he acquiesced in or requested its withdrawal.   Consequently, it was not error for the trial court in the instant case to fail to instruct, sua sponte, on the theory of second degree felony-murder kidnapping.

The judgment is affirmed.



1.   However, in Dunaway v. New York (1978) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, emphasis was placed on the officer's subjective intent.   The state of the law in this area is now unclear.  (See United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, and People v. Davis (1981) 29 Cal.3d 814, 821, fn. 3, 176 Cal.Rptr. 521, 633 P.2d 186.)

2.   Appellant contends that the victim, Ikeda, while still in the hospital, had given a “full description” of appellant and Davis and thus the investigation focused on them early on.   However, to the contrary, Ikeda gave only a brief statement to the police while at the hospital.   He described his assailants as three black males, 16 to 22 years old, between 5 feet 6 inches and 5 feet 10 inches tall.   This is not the kind of unique physical description which would necessarily focus attention on appellant in particular.

3.   Overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, footnote 12, 160 Cal.Rptr. 84, 603 P.2d 1.

4.   Ikeda testified to hearing their captors discussing “․ push [ing] [them] into the lake” while they were driving to the park where the murder took place.

CONKLIN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

ZENOVICH, Acting P. J., and PAULINE DAVIS HANSON, J., concur.

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