PEOPLE v. CASTILLO (1997)

A jury convicted appellant of first degree murder (Pen.Code, § 187;  count I;  statutory references, unless otherwise noted, are to the Penal Code), found true allegations he had personally used a firearm (§ 12022.5) as had a principal (§ 12022, subd. (a)(1)) but found not true an attempted robbery special circumstance allegation (§ 190.2, subd. (a)(17)) and acquitted him of attempted robbery (§§ 664/211;  count II).

Appellant contends the trial court erred in admitting (1) evidence of an uncharged crime (2) a former codefendant's statement against penal interest (3) appellant's confession and (4) “unrefreshed” testimony of his former wife.   Appellant also contends (5) there is insufficient evidence of premeditation.

We find appellant's contentions without merit and affirm the judgment.

FACTUAL BACKGROUND

We summarize the evidence with a perspective favoring the judgment.   (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.) ¹

In March 1990 appellant lived with his girlfriend Kathy Simpson at her mother's house.   On March 11, in the evening, two of appellant's friends-Jesse James Tarver (a male Black) and Juan Carlos Martinez ² -came to the house and appellant left with them.

Later that same night, about 10 p.m., Jose Villa, his fiancée Adriana, and two female friends were in his Honda Prelude, parked in an alley, waiting to enter the Mannequins nightclub on Sunset Boulevard in West Hollywood.   A male Black, wearing loose clothes (Tarver), approached and asked for a cigarette.   They gave him one and he left.³

About 10 minutes later, Tarver returned, accompanied by a male Hispanic (Martinez) wearing loose clothes.   Both had guns.   They pointed the guns at Mr. Villa and the three women and demanded money.   The women argued with Tarver and Martinez.   Martinez ordered everyone out of the car, entered, backed it up, Tarver entered, and they drove off in the Honda Prelude.

Appellant, Tarver, and Martinez-in two cars-drove to a movie theater parking structure at Victory and Coldwater Canyon.   They parked one car on the street and drove the Honda Prelude into the parking structure.   When they saw a uniformed security guard, Charles Doll, helping someone fix a flat, they stopped and loaned the guard a crow bar.   The guard told them to leave ⁴ and they did.

They soon returned, drove to the top level of the parking structure, and waited.

About 20 feet away, in an adjacent office building, freelance court reporter Jodie Robitaille had finished working and was about to leave when, just before midnight, she heard rapid gunfire.   She looked at the parking structure and saw an image of someone running and a moment later saw a second person, a tall, young Black man run toward the staircase.

Los Angeles Police Officer Rodriguez was two blocks from the parking structure when, at 11:50 p.m., he received a radio call that a security guard had been shot.   Within a minute he arrived at the scene.   He saw the guard, face down, arms under his body, and a gun barrel partly visible by his left shoulder.   Officer Rodriguez checked the guard's carotid artery for a pulse.   There was none.   Eleven feet from the guard's body was Mr. Villa's Honda Prelude, protruding from its parking space, with keys in the ignition, windows down, and front passenger seat forward.

Appellant's fingerprints were found on the Honda Prelude, both outside and inside.   Tarver's fingerprints were found on a cellophane cigarette wrapper inside the car.

An autopsy determined Mr. Doll, the guard, had been shot five times, front and back, by three different weapons:  a .22 caliber, a .9 millimeter, and a .38 caliber.

On April 25, 1990, Tarver was arrested after he discarded a loaded .38 caliber firearm-one of the weapons used to shoot Mr. Doll.

On December 21, 1990, appellant was arrested and brought to the North Hollywood police station.   His former girlfriend, Kathy Simpson, now his wife, was also transported to the station.   Both were interviewed.   Each made statements to the officers (which we later discuss).

Appellant was interviewed again on December 22, 1990.   On December 26, 1990, appellant asked to speak with Detective Medina and during the discussion wrote and signed a confession.

DISCUSSION

1. Appellant contends the trial court erred in admitting evidence of an uncharged crime.

Before trial, the prosecutor moved to admit evidence of two uncharged offenses, a March 4, 1990, robbery of security guard Jong Shik Jung (see People v. Martinez, supra, 26 Cal.App.4th 1098, 1101, 31 Cal.Rptr.2d 869) and the March 11, 1990, carjacking of Jose Villa.

The prosecutor argued the Jung robbery was admissible because appellant's coperpetrators, Tarver and Martinez, committed that robbery and the .38 caliber gun they stole from the victim was the same weapon appellant used in shooting Mr. Doll and which was recovered on April 25, 1990, when Tarver discarded it.   The trial court excluded the evidence.

As to the Jose Villa carjacking, the trial court initially ruled it was inadmissible.   But later, after there was evidence appellant had accompanied Tarver and Martinez to the carjack location and, in separate cars, had left with them, the trial court admitted the evidence.

Appellant contends under People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 it was error to admit this evidence of an uncharged offense.   He is mistaken.

In Ewoldt, as in the instant case, admissibility of the uncharged misconduct turned on Evidence Code section 1101:  “(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.

“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.

“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”  (Italics added;  this section was amended in 1995.)

 Ewoldt explained that “ ‘[t]he presence of a design or plan ⁵ to do or not to do a given act has probative value to show that the act was in fact done or not done.’ ”  (People v. Ewoldt, supra, 7 Cal.4th at p. 393, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   Such a common design or plan “may be proved circumstantially by evidence that the defendant has performed acts having ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’   Evidence of a common design or plan, therefore, is not used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.”  (Id. at pp. 393-394, 27 Cal.Rptr.2d 646, 867 P.2d 757;  citations omitted.)

 “Ewoldt carefully distinguished proof of common design and plan from proof of intent or identity.  (See People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, 27 Cal.Rptr.2d 646, 867 P.2d 757.) When evidence is offered to prove intent the act is conceded or assumed.

Similarly, when evidence is offered to prove identity it is conceded or assumed that the charged offense was committed by someone.

Unlike proof of intent or identity, with proof of common design or plan the criminal act is not conceded or assumed, it is contested.

Ewoldt held “that evidence of a defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.”  (Id. at p. 401, 27 Cal.Rptr.2d 646, 867 P.2d 757;  italics added.)

By “common design or plan” Ewoldt made clear it did not mean a “single conception or plot.”  (Id. at p. 398, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   Ewoldt expressly disavowed such a meaning of a “grand design” (ibid.) or single all-embracing blueprint by overruling the two cases which had promulgated such a meaning for “common design or plan”:  People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 and People v. Ogunmola (1985) 39 Cal.3d 120, 215 Cal.Rptr. 855, 701 P.2d 1173.  (Id. at p. 401, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

In explaining what it did mean by common design or plan, Ewoldt first observed “it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity.”  (Id. at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.) Ewoldt then stated the least degree of similarity is required to prove intent, a greater degree to prove common design or plan, and the greatest degree to prove identity.  (Id. at pp. 402-403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   As to the requisite degree of similarity to prove common design or plan, Ewoldt stated:  “Evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if those acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.   Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive;  it need only exist to support the inference that the defendant employed that plan in committing the charged offense.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757;  italics added;  citations omitted.)

 We find substantial evidence to support the trial court's ruling that evidence of the Jose Villa carjacking satisfied the Ewoldt standard for common design or plan.

The charged and uncharged offenses were committed on the same evening within two hours of each other;  both were committed by multiple perpetrators;  both were committed with firearms;  both were committed in the Hollywood area;  both involved the theft or use of a Honda Prelude.

We also find evidence of the Jose Villa carjacking was admissible to prove identity.

The seminal companion cases of People v. Haston (1968) 69 Cal.2d 233, 70 Cal.Rptr. 419, 444 P.2d 91 and People v. Cavanaugh (1968) 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110 held that a single “common mark,” if sufficiently distinctive, may allow the inference of identity.   In both Haston and Cavanaugh the determinative “common mark” was the presence of the same confederate in both the charged and uncharged robberies.   In the instant case, there was the presence of not just one identical confederate but two, Tarver and Martinez.

The contention is without merit.

2. Appellant contends the trial court erred in admitting a former codefendant's statement against penal interest.

Originally codefendants with appellant, Martinez's trial was severed on November 20, 1992, and Tarver's on January 12, 1994.

By January 17, 1995, when appellant's trial began, Martinez's conviction had been affirmed on appeal (People v. Martinez, supra, 26 Cal.App.4th 1098, 31 Cal.Rptr.2d 869) and was final.

The prosecution called Martinez as a witness, the trial court ordered him to testify and, when he refused, held him in contempt ⁶ and ruled he was “unavailable.”  (Evid.Code, § 240.)

The prosecution then sought to introduce inculpatory statements Martinez had testified to at his trial.   The trial court ruled the inculpatory testimony-redacted to omit both coperpetrator names and pronouns-was admissible as a declaration against penal interest.

Appellant contends the trial court erred.   Appellant is mistaken.

In relevant part Evidence Code section 1230 provides that “a statement ․ is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ․ so far subjected him to the risk of ․ criminal liability ․ that a reasonable man in his position would not have made the statement unless he believed it to be true.”

 “The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.  [Citations.]  In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.”  (People v. Frierson (1991) 53 Cal.3d 730, 745, 280 Cal.Rptr. 440, 808 P.2d 1197.)

 “The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.   Such an endeavor allows, in fact demands, the exercise of discretion.”  (People v. Gordon (1990) 50 Cal.3d 1223, 1251, 270 Cal.Rptr. 451, 792 P.2d 251.)   The appellate review standard is abuse-of-discretion.  (Id. at p. 1252, 270 Cal.Rptr. 451, 792 P.2d 251;  see also People v. Chapman (1975) 50 Cal.App.3d 872, 878-879, 123 Cal.Rptr. 862;  People v. Lucas (1995) 12 Cal.4th 415, 462, 48 Cal.Rptr.2d 525, 907 P.2d 373;  People v. Cudjo (1993) 6 Cal.4th 585, 606-609, 25 Cal.Rptr.2d 390, 863 P.2d 635.)

 We find no abuse of discretion.   There was no question but that Martinez made the subject statements (see People v. Cudjo, supra, 6 Cal.4th at pp. 608-609, 25 Cal.Rptr.2d 390, 863 P.2d 635) and good reason to find them trustworthy.⁷  The redaction avoided any violation of appellant's confrontation rights.  (Richardson v. Marsh (1987) 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176;  People v. Fletcher (1996) 13 Cal.4th 451, 53 Cal.Rptr.2d 572, 917 P.2d 187.)

3. Appellant contends the trial court erred in admitting his confession.

At an Evidence Code section 402 hearing appellant sought to exclude some or all of his extrajudicial statements.   Detective Medina and appellant testified at the hearing.

Detective Medina testified he talked to appellant three times.   The first was December 21, 1990, at 7:20 a.m.   The conversation lasted about an hour and a half, was tape recorded, and a transcript was prepared.   It began with Detective Medina advising appellant of his Miranda rights, appellant acknowledging he understood his rights, waived them, and wanted to talk to Detective Medina.

While Detective Medina talked to appellant, another detective interviewed Kathy Simpson, appellant's wife.   Periodically, during his interview of appellant, Detective Medina was advised of the statements Kathy Simpson made to the other detective.

During this first interview appellant initially claimed that when he first joined Tarver and Martinez on March 11, 1990, they had already carjacked the Honda Prelude.   When confronted with evidence his fingerprints were found inside the car, he said he only drove it around the block.

Similarly, appellant first denied being at the movie parking structure.   Then he admitted following Tarver and Martinez there.

Appellant first claimed he waited below while Tarver and Martinez went to the parking structure upper level.   Then he admitted being on the upper level with them.

Appellant told Detective Medina the guard approached them on the upper level and told them to leave.   Tarver, appellant said, lifted his shirt and showed the guard his .22 caliber gun in his waistband.   Appellant said the guard withdrew his gun, shot at Tarver, and Tarver and Martinez shot at the guard.   Appellant, during this interview, denied shooting the guard, denied having a gun, and denied taking home a .38 caliber gun.

The next day, December 22, 1990, Detective Medina reminded appellant of his Miranda rights, and interviewed him for about 25 minutes.   The interview was tape recorded and a transcript was prepared.   Appellant repeated his denials:  he was not present during the Honda carjacking, did not have or use a gun during the shooting of the guard, and did not bring home a .38 caliber gun and put it in his closet.   At conversation's end appellant told Detective Medina:  “I can't tell you no more lies, man.”

During the next three days there was no contact between appellant and Detective Medina.   On the fourth day, December 26, 1990, appellant told a jailer he wanted to speak to Detective Medina.   Detective Medina went to appellant's cell, reminded him of his Miranda rights, and appellant “said he wanted to tell the truth.”   Detective Medina asked him if he wanted to make a written statement and when appellant said yes, he got pen and paper.   Appellant then wrote and signed a two-page statement.

In his written statement appellant admitted he, Tarver, and Martinez went to the upper level of the parking structure and that he knew Martinez and Tarver wanted to take the guard's gun.

Appellant stated that when the guard arrived Tarver drew his gun and when the guard tried to draw his own gun, Martinez grabbed it and repeatedly told appellant to shoot the guard but appellant did not.   When the guard grabbed for Tarver's gun, Tarver shot him.   Appellant stated he intended to shoot the guard only once but emptied his gun at the guard.   Appellant stated the three of them ran to their car, he drove home, and kept the .38 caliber gun for a week.

The trial court found appellant's statements voluntary and admitted them.   Appellant contends his December 26, 1990, confession was involuntary, the trial court erred in admitting it, and the error requires a reversal.   Appellant is mistaken.

 We begin our consideration of appellant's claim with this perceptive historical observation by Justice Fleming:  “Defendant's argument relies on an evidentiary rule which has evolved from our aversion to the use of torture, whose modern manifestation is known as the third degree, a term which includes both beatings and physical abuse and the brainwashing that comes from repeated suggestion and prolonged interrogation.   Confessions obtained by coercive practices which overcome the will of the person confessing are tainted, and both the confession and its products will be suppressed.

 “Two reasons of policy support the rule requiring the suppression of coerced confessions.   The first is the unreliability of a coerced confession, which may express the words and thoughts of the interrogator rather than those of the person confessing.   It is a truism of the modern world that when sufficient pressures are applied most persons will confess, even to events that are untrue.   The second reason for suppression of a coerced confession, even one demonstrably true, is to eliminate brutality in the conduct of interrogation, to require police interrogators to conform to the standard of due process and the Fifth Amendment by making the products of coercive interrogation unusable.   As put by Traynor, J., concurring in People v. Garner (1961) 57 Cal.2d 135, 156, 18 Cal.Rptr. 40, 367 P.2d 680, ‘In the case of coerced confessions, the evidence may be unreliable;  even if reliable, a free society cannot condone police methods that outrage the rights and dignity of a person whether they include physical brutality or psychological coercion.’

 “An offshoot of the rule against coerced confessions prohibits the use of confessions obtained by false promises, which are looked upon as a type of coercion which overcomes by unacceptable means the will of the person being questioned.   It proscribes false promises of immunity or of leniency offered as a material benefit in return for a confession.   It should be noted that true promises of leniency are not proscribed when made by persons authorized to make them, as for example promises of immunity or pardon extended to witnesses in return for testimonial confessions, and promises of reduced charges or reduced sentences tendered to defendants and potential defendants by plea bargains in return for judicial admissions of guilt.   The reason for the rule proscribing confessions obtained by false promises is not so much the likelihood of false confession as it is the unworthiness of the method used, which is deemed to impinge upon the constitutional guaranty of due process and the constitutional prohibition against self-incrimination.

 “In sum, coercive questioning which overcomes the volition of the suspect by means of threats or false promises is proscribed.

 “The practical application of the rule against coercive questioning presents great difficulty whenever a police investigator talks to a reluctant witness who is also a suspect.   When a person under questioning would prefer not to answer, almost all interrogation involves some degree of pressure as in the instance of the bystander to a gang murder or the spouse who returns home at 2 a.m.   after an unexplained absence.   Both would prefer not to answer, yet the pressure of the question requires them to weigh the factors involved and decide whether to answer or not.   The pressure posed by the question is self-evident, but if the person questioned does not feel compelled to answer, the pressure is not considered excessive and hence not coercive.   For many years courts wrestled with the problem of determining the point at which the pressure of questioning becomes coercive.   Ultimately, the United States Supreme Court concluded that the matter could best be handled by formula.   In Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the court adopted a rule requiring a suspect under interrogation in custody to be advised he need not answer questions;  if he does, his answers can be used against him;  he is entitled to consult a lawyer;  if he cannot afford a lawyer one will be provided at no expense.   The court has interpreted custody broadly, to include any situation where a suspect is under interrogation in police surroundings and does not feel free to leave.   But the Miranda court rejected a rule that would prohibit all questioning of suspects.  ‘Confessions remain a proper element in law enforcement.’  (Miranda v. Arizona (1966) supra, at p. 478, 86 S.Ct. at p. 1630.)   Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits.   Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.   As noted by Friedman, J., good faith confrontation is an interrogation technique possessing no apparent constitutional vice.  (People v. Lantz (1968) 265 Cal.App.2d 5, 8, 71 Cal.Rptr. 188.) Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession.   It is apparent that when the police interview a suspect, they must skate a fine line.   They are employed to protect the public, to solve crimes, to discover missing persons, and to determine whether missing persons have been the victims of foul play.   They are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.”  (People v. Andersen (1980) 101 Cal.App.3d 563, 574-576, 161 Cal.Rptr. 707.)

Appellant's involuntariness contention-both in the trial court and on appeal-relies upon conversational snippets from the first and second interviews “presented ․ in disembodied form separated from the remainder of the interview as evidence of ․ coercion.”  (Id. at p. 578, 161 Cal.Rptr. 707.)   Although the first and second interviews were tape recorded, with transcripts, neither tapes nor transcripts were offered as exhibits in the trial court and are not part of the record on appeal.   Similarly, appellant's two-page signed confession was not an exhibit and is not part of the record on appeal.

We consider the snippets.

At the Evidence Code section 402 hearing defense counsel, in cross-examination of Detective Medina, attempted to prove police threats against appellant's wife and child.   He cited page 39, beginning at line 16, of the December 21 transcript, where appellant said “It's my life,” Detective Medina responded “That's right,” and Detective Sullivan added “And your wife's life and your baby.”

Later, a fuller context gave a different meaning to this snippet:

“Detective Medina:  Well, what did he tell you?   It's not like you're telling us something we don't know already.   We have to hear it from you, Nelson [appellant].   How straight do you want to be?

“[Appellant]:  What's in it for me?

“Detective Medina:  Huh?

“[Appellant]:  It's my life.

“Detective Medina:  That's right.

“Detective Sullivan:  And your wife's life and your baby.

“[Appellant]:  I wasn't talking about jail.   I'm talking about outside.” ⁸  (Italics added.)

A second snippet underscores appellant's concern for the safety of his family if he were to tell the truth and implicate his confederates.

“[Appellant]:  All I'm worried about is my life and my baby's and my wife's life.

“Detective Medina:  That's right.

“Detective Sullivan:  We're experts.   We'll take care of that.

“Detective Medina:  Do you know what I mean?

“Detective Sullivan:  We'll take care of you.   The truth has to come out.   We don't want you to tell us anything but the truth.   Don't make it out to be more.   Just tell us what happened.”

As Detective Medina testified, by this colloquy appellant “was ․ indicating that he was in fear for himself and his wife and child if he talked about what somebody else said[.]”

A third snippet was referred to as follows:

“Q. By Mr. Morse [defense counsel]:  Take a look at page 50, line 14.   Do you recall telling Mr. Castillo that his wife was going to be in some big trouble?

“A. Yes.

“Q. And do you recall Mr. Castillo asking if he could talk to his wife?

“A. Yes.

“Q. And do you recall refusing to let him do it at that time?

“A. Yes.

“The Court:  This is being taken out of context, Mr. Morse.   If you are going line by line, I need to know what was surrounding that.”

Finally, the snippet primarily relied on is this one starting on line 5, page 78 of the December 21 transcript:

“[Appellant]:  What's going to happen to my wife and kid?

“Detective Medina:  Well, I know what she's telling us now is the truth․

“[Appellant]:  Uh-huh.   Why do you think she's telling the truth?

“Detective Medina:  ‘Cause she told us-she told us you told her what happened.

“[Appellant]:  Why do you think she's telling the truth?

“Detective Medina:  Well, it depends on what you say.   Listen to me.   I don't want her to get in trouble for something you did.   And you told her-you told her what happened.   Now she didn't call the police, number 2. She knows about it.

“Is she going to be an accessory because she knows?   Don't make her one.   I wouldn't do that to my wife.   Your mistake is that you told her after it happened.   You never should have done that.   Now she knows and she's involved in it.

“[Appellant]:  I know.

“Detective Medina:  I don't want to see her go to jail for something that you did or something that fricken J-bird [Tarver] or that fricken Carlos [Martinez] did.   Or her story is more truthful.   I know it happened She's telling us what happened, what you told her.   She doesn't want to have anything happen to her baby.   She doesn't want to be taken away from her baby.   And I don't want it either.   But I'm not going to let you sit there and lie to me like I don't know what's going to happen to me [sic].

“[Appellant]:  What's going to happen to me?

“Detective Medina:  What's going to happen to you?   You'll probably go to jail for murder until I get Carlos.”

 In considering whether appellant's December 26 confession was voluntary “our decision must be based on the totality of the circumstances.”   (People v. Thompson (1990) 50 Cal.3d 134, 166, 266 Cal.Rptr. 309, 785 P.2d 857.)

 “This court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat.   With respect to the conflicting testimony, the court must accept that version of events which is most favorable to the People, to the extent that it is supported by the record.”  (Ibid.;  internal quotation marks omitted.)

 The prosecution must prove voluntariness by a preponderance of the evidence.  (People v. Markham (1989) 49 Cal.3d 63, 71, 260 Cal.Rptr. 273, 775 P.2d 1042.)

 “The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were such as to overbear petitioner' will to resist and bring about confessions not freely self-determined.   In determining whether or not an accused's will was overborne, an examination must be made of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.”  (People v. Thompson, supra, 50 Cal.3d 134, 166, 266 Cal.Rptr. 309, 785 P.2d 857, internal quotation marks omitted;  People v. Benson (1990) 52 Cal.3d 754, 778, 276 Cal.Rptr. 827, 802 P.2d 330.)

 Our independent review of the totality of circumstances satisfies us appellant's December 26, 1990, confession was voluntary.   The following factors support our conclusion:

• Appellant, not the detectives, raised the subject of his wife and child.

• There were no threats or promises made to appellant.

• The possibility of appellant's wife being an accessory was truthful.

• Appellant had experience with the criminal justice system.

• On December 21 appellant was told his wife had told the truth.

• On December 21, after his interview, appellant was allowed to speak to his wife.

• Appellant's wife was not arrested and went home on December 21.

• Appellant persisted in his denials on December 22.

• Appellant ended the December 22 interview by saying “I can't tell you no more lies, man.”

• Appellant knew the police had evidence of his guilt, knew that his wife had told them the truth, and knew that they were questioning Tarver and Martinez, both of whom had been arrested.

• Four days after being questioned, appellant asked to speak with Detective Medina, and without any reference to his wife or child, wrote and signed a confession.  (See People v. Thompson, supra, 50 Cal.3d 134, 169, 266 Cal.Rptr. 309, 785 P.2d 857 [Four hour gap between reference to defendant's girlfriend/possible accessory and his admissions.];  People v. Benson, supra, 52 Cal.3d 754, 778, 276 Cal.Rptr. 827, 802 P.2d 330 [“A confession is ‘obtained’ by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by ‘proximate’ causation.   This is certainly true for the federal right.   The requisite causal connection between promise and confession must be more than ‘but for’:  causation-in-fact is insufficient.”];  People v. Hill (1967) 66 Cal.2d 536, 549, 58 Cal.Rptr. 340, 426 P.2d 908 [“We recognize, of course, that coercion can be psychological as well as physical.   But in this we must exercise great care not to become confused:  intellectual persuasion is not the equivalent of coercion.”].)

“The compulsion to confess is rooted in the criminal's need to purge himself of his overbearing guilt.”  (People v. Andersen, supra, 101 Cal.App.3d 563, 584, 161 Cal.Rptr. 707.)   Appellant, who on December 26, 1990, told Detective Medina his conscience had bothered him, apparently had such a need.  (See generally People v. Mayfield (1993) 5 Cal.4th 142, 176, 19 Cal.Rptr.2d 836, 852 P.2d 331 “Nor was the confession rendered involuntary as a matter of law because the police threatened to quit listening to defendant.   The police were entitled to do so.   Their remark, about a course of action they could legally follow, was not sufficiently coercive to make the subsequent statement involuntary.”];  People v. Morris (1991) 53 Cal.3d 152, 279 Cal.Rptr. 720, 807 P.2d 949 [Defendant obtained concession-a 5-minute talk with his girlfriend.   Confession voluntary.], disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 38 Cal.Rptr.2d 394, 889 P.2d 588;  People v. Steger (1976) 16 Cal.3d 539, 550, 128 Cal.Rptr. 161, 546 P.2d 665 [“Defendant's involuntariness contention is based on the claim that she spoke to police only to free her husband Ralph.   A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid.   However, where no express or implied promise or threat is made by the police, a suspect's belief that his cooperation will benefit a relative will not invalidate an admission.”];  People v. Wimberly (1992) 5 Cal.App.4th 773, 787, 7 Cal.Rptr.2d 152 [Police told defendant his mother was in the other room and he could see her when they were finished];  People v. Johns (1983) 145 Cal.App.3d 281, 193 Cal.Rptr. 182 [Police implied defendant might get death penalty;  four days later he asks to speak to them and confesses];  People v. Jackson (1971) 19 Cal.App.3d 95, 96 Cal.Rptr. 414 [Defendant made statements out of concern for his ill wife who had a heart condition];  People v. Daniels (1969) 1 Cal.App.3d 367, 81 Cal.Rptr. 675 [Defendant was arrested for incest and when he refused to talk to officers they told him his wife and son had been arrested for incest, his other six children were detained at juvenile hall, and his 16-year-old daughter (incest victim) was 10-12 weeks pregnant.   Defendant's confession nine hours later held voluntary.];  People v. Sisto (1968) 261 Cal.App.2d 315, 317, 67 Cal.Rptr. 724 [Defendant said his primary concern was what would happen to his wife and children.   The officer told him if his wife was not involved she would be freed, if involved, prosecuted.   If she was booked, the children would be released to a reliable relative or placed in a receiving home.   His confession was voluntary.];  People v. Boggs (1967) 255 Cal.App.2d 693, 698-699, 63 Cal.Rptr. 430 [A sergeant advised defendant, in the presence of his wife, that he had information they were both involved in the crime and he intended to detain both of them “unless [he] learned otherwise.”   Defendant's confession voluntary.];  People v. Abbott (1958) 156 Cal.App.2d 601, 604, 319 P.2d 664 [Officer told defendant if he told truth “and there was no evidence to hold Miss Bell, she would be released.”   Defendant confession voluntary.].) ⁹

4. Appellant contends the trial court erred in admitting the “unrefreshed” testimony of his former wife.

When the murder occurred in March 1990, Kathy Simpson was appellant's girlfriend.   They married in November 1990 and on December 21, 1990, when the police questioned her, she was appellant's wife.   At trial, she was no longer married to appellant.

The prosecution called her as a witness.   She testified to certain events before and after March 11, 1990, and to appellant's statements on March 12, 1990, when he returned home from the shooting.

In testifying to these statements Kathy Simpson often began by stating she didn't remember or was not sure.   The prosecutor then showed her, or asked her about, a three-page summary of what she had told the police on December 21, 1990.   Kathy Simpson testified what she told the police was the truth, the three page summary, which she had signed, was accurate, and-almost without exception-that her memory was refreshed.

Kathy Simpson testified appellant told her the following:  On March 11, 1990, he went with Martinez and Tarver to Hollywood or someplace in Los Angeles;  he waited in Tarver's car while Tarver and Martinez stole a car;  then, in two cars, they drove to a movie theater parking structure;  the three of them were “upstairs” in the structure when a security guard approached;  Martinez asked the guard “to give him his gun”;  the guard refused;  Martinez shot the guard;  then Tarver “started shooting”;  the security guard fell down;  the three of them ran to Tarver's car and left.

Kathy Simpson further testified that appellant did not say whether or not he had shot the guard.   But, she testified, appellant returned from the shooting with a .38 caliber revolver which he put in a closet.   Later, she called Martinez, told him she didn't want the gun in her house, and Martinez came over and took it.

Appellant contends the trial court should not have permitted Kathy Simpson to recount his extrajudicial statements because her testimony was not truly “refreshed” (see Evid.Code, § 771) nor did her signed statement qualify as past recollection recorded.  (See Evid.Code, § 1237.)   Appellant cites nine instances when her testimony should have been excluded on these grounds.   We have examined each.   On five occasions appellant made no objection, on three occasions appellant only objected on the ground of leading, speculation, or vagueness, and on the ninth occasion appellant elicited the testimony on cross-examination.

 Having failed to object in the trial court on these two grounds (not “refreshed” and not past recollection recorded), appellant may not do so now.   (Evid.Code, § 353;  People v. Ghent (1987) 43 Cal.3d 739, 762, 239 Cal.Rptr. 82, 739 P.2d 1250;  People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Rogers (1978) 21 Cal.3d 542, 547-548, 146 Cal.Rptr. 732, 579 P.2d 1048.)

5. Appellant contends there is insufficient evidence of premeditation.

Appellant, relying upon People v. Anderson (1968) 70 Cal.2d 15, 26-27, 73 Cal.Rptr. 550, 447 P.2d 942, contends there is insufficient evidence of premeditation to support his first degree murder conviction.   But as our Supreme Court has stated:  “Unreflective reliance on Anderson for a definition of premeditation is inappropriate.   The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations.   It did not refashion the elements of first degree murder or alter the substantive law of murder in any way․  Anderson identifies categories of evidence relevant to premeditation and deliberation that we ‘typically’ find sufficient to sustain convictions for first degree murder.”  (People v. Thomas (1992) 2 Cal.4th 489, 517, 7 Cal.Rptr.2d 199, 828 P.2d 101;  People v. Pride (1992) 3 Cal.4th 195, 246-247, 10 Cal.Rptr.2d 636, 833 P.2d 643.)

 “Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt.”  (People v. Perez (1992) 2 Cal.4th 1117, 1124, 9 Cal.Rptr.2d 577, 831 P.2d 1159;  People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, 17 Cal.Rptr.2d 375, 847 P.2d 55.)

 We find the following constitutes substantial evidence of premeditation:

• Appellant knew his coperpetrators had committed an armed robbery only hours before the murder of Security Guard Charles Doll;

• Appellant knew there was a security guard in the parking structure, that he was armed, and that he patrolled the parking structure;

• After being ordered by the security guard to leave the premises, appellant and his coperpetrators returned;

• Appellant and his coperpetrators drove to the top level of the parking structure and waited;

• Appellant (and each of his coperpetrators) had a loaded firearm (see People v. Miranda (1987) 44 Cal.3d 57, 87, 241 Cal.Rptr. 594, 744 P.2d 1127;  People v. Adcox (1988) 47 Cal.3d 207, 240, 253 Cal.Rptr. 55, 763 P.2d 906;  People v. Williams (1995) 40 Cal.App.4th 446, 455, 46 Cal.Rptr.2d 730);

• Just prior to the murder, appellant's coperpetrator asked the security guard for his gun;

• The security guard was shot five times, both front and back, by three different weapons;

• Appellant emptied his .38 caliber weapon at the security guard, shooting him at least once;

• Appellant and his coperpetrators escaped by running to a getaway car parked on the street, near the parking structure.

DISPOSITION

The judgment is affirmed.

I respectfully dissent.   In my view Castillo's confession was involuntary and its admission prejudicial.

A confession is involuntary if it was extracted from the defendant by threats or violence, direct or indirect promises or by the exertion of any improper influence.  (People v. Benson (1990) 52 Cal.3d 754, 778, 276 Cal.Rptr. 827, 802 P.2d 330.)   In order to show the confession was involuntary, the defendant must show “coercive police activity” and that such activity was the “proximate cause” of the confession.  (Ibid.)

The ultimate issue of the voluntariness of a confession is one which we review de novo.   The trial court's determinations as to whether the police acted coercively and, if so, whether those acts were the proximate cause of the confession are also subject to our independent review.   Factual findings including the characteristics of the accused and the details of the interrogations are reviewed for substantial evidence.  (People v. Benson, supra, 52 Cal.3d at p. 779, 276 Cal.Rptr. 827, 802 P.2d 330.)

In the present case there are no disputed facts as to defendant's characteristics or what was said during his interrogations.   Thus, we make our own determination whether defendant's confession was involuntary.   For the reasons explained below, I reach a different conclusion than my colleagues.

A. The Threats to Arrest Defendant's Wife and Place Their Child in Foster Care Constituted Coercive Police Activity.

Defendant was interrogated on December 21 and 22 and again on December 26.   It was during the third interrogation he confessed to shooting the security guard.

Detective Medina conducted all three interrogations.   Medina admitted telling defendant during the first interrogation his wife was “going to be in some big trouble.”   Asked why he made that statement, Medina responded:  “Because he [defendant] is lying or was giving some false statements of what she knew had occurred on that date of the murder.

Medina also admitted making the following statements to defendant during the first interrogation:

“Listen to me.   I don't want her to get in trouble for something you did.  * * *   Is she going to be an accessory because she knows?   Don't make her one.   I wouldn't do that to my wife.   Your mistake is that you told her after it happened.   You never should have done that.   Now she knows and she's involved in it.  * * *   I don't want to see her go to jail for something that you did.  * * *   She's telling us what happened, what you told her.   She doesn't want to have anything happen to her baby.   She doesn't want to be taken away from her baby.   And I don't want it either.   But I'm not going to let you sit there and lie to me like I don't know what's going to happen to me.”  (Italics added.)

During his second interrogation of defendant, Medina admitted making the following statements.

“Well, why does she have a reason to lie to me?   Look at me.   Because she doesn't want something bad to happen to her baby or her.   She won't like being in jail.   As I told you, you screwed up after the murder and told her what happened, right?”  * * *  “What's going to happen if she is there [in jail] by herself?   What's going to happen to that baby if that baby goes to a foster home and that can actually happen?”  (Italics added.)

At his third interrogation, four days later, defendant confessed to shooting the guard.   No mention of defendant's wife or baby was made at that interrogation.

It is well established in this state and most other jurisdictions the police are not allowed to use threats to arrest or harm a close relative of the defendant in order to secure a confession.

In People v. Trout (1960) 54 Cal.2d 576, 580, 6 Cal.Rptr. 759, 354 P.2d 231, the court invalidated the defendant's confession where the police told him if he confessed his wife would be released to care for their children.   In People v. Rand (1962) 202 Cal.App.2d 668, 674, 21 Cal.Rptr. 89 the court held defendant's confession was involuntary where police told defendant unless he confessed they would take both him and his wife to jail and that “ ‘possibly’ ” their children “ ‘would go to juvenile.’ ”   In Lynumn v. Illinois (1963) 372 U.S. 528, 531-532, 83 S.Ct. 917, 918-920, 9 L.Ed.2d 922 the police told defendant unless she “cooperated” her children “would be taken away and strangers would have them.”   Here, Medina asked defendant:  “What's going to happen to that baby if that baby goes to a foster home and that can actually happen?”   Indeed, Medina made the threat even more explicit, telling defendant his wife didn't want anything to happen to her baby “[a]nd I don't want it either.   But I'm not going to let you sit here and lie to me․”

In People v. Mellus (1933) 134 Cal.App. 219, 225, 25 P.2d 237 the interrogator, referring to defendant's mother, stated:  “The question is, do you want to come clean on it yourself and exonerate her, or are we going to have to hold both of you?”   In In re Shawn D. (1993) 20 Cal.App.4th 200, 213-214, 24 Cal.Rptr.2d 395, the officer told defendant he “ ‘did not want to see [defendant's girlfriend] get into trouble.’ ”   In the present case, Officer Medina used almost the same words, telling defendant that because he was lying his wife was “going to be in some big trouble.”   In Rogers v. Richmond (1961) 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 the interrogating officer threatened to arrest defendant's wife and told defendant he would be “ ‘less than a man’ ” if he let this happen.   Here, Medina also challenged defendant's manhood, telling defendant:  “Is she going to be an accessory because she knows?   Don't make her one.   I wouldn't do that to my wife.”

The transcripts of defendant's interrogation leave no room for doubt Officer Medina made explicit threats to arrest defendant's wife and have their baby placed in a foster home if defendant did not confess to the murder of the security guard.¹

B. The Threats Against Defendant's Wife and Baby Were a Proximate Cause of Defendant's Confession.

To establish the involuntariness of a confession it is not enough to show the police made coercive statements and then the defendant confessed.  (People v. Benson, supra, 52 Cal.3d at pp. 778-779, 781, 276 Cal.Rptr. 827, 802 P.2d 330.)   It must also be shown the coercive statements were “a motivating cause” of the confession.  (People v. Brommel (1961) 56 Cal.2d 629, 632, 15 Cal.Rptr. 909, 364 P.2d 845;  see People v. Benson, supra, 52 Cal.3d at pp. 778-779, 276 Cal.Rptr. 827, 802 P.2d 330.)   In making this determination courts look to the characteristics of the accused and the details of the interrogation.  (People v. Haydel (1974) 12 Cal.3d 190, 198, 115 Cal.Rptr. 394, 524 P.2d 866.)

At the time the police interrogated defendant he was approximately 23 years old.   He and his wife, Kathy, had been married a month after dating for about a year.   They had an infant daughter.   Defendant had completed the 11th grade.   He had three prior convictions but there is no indication in the record he had confessed to any of those crimes.

In denying defendant's motion to exclude his confession the trial court contrasted defendant to Shawn D. who was 16-years-old, described as “ ‘unsophisticated and naive’ ” and suffered from posttraumatic stress disorder.  (In re Shawn D., supra, 20 Cal.App.4th at p. 212, 24 Cal.Rptr.2d 395.)   While the defendant's sophistication is a relevant factor, it is not determinative.   For example, the defendant in People v. Haydel, supra, was “a mature individual with three years of college [and] had retired as a master sergeant after 23 years in the military.”  (12 Cal.3d at p. 198, 115 Cal.Rptr. 394, 524 P.2d 866.)   Nevertheless, the Supreme Court concluded the psychological pressure on Haydel to cooperate with law enforcement in the hope of obtaining the release from custody of his wife and child overbore his will and resulted in his involuntary consent to a search of his home.  (Id. at p. 201, 115 Cal.Rptr. 394, 524 P.2d 866.)   Furthermore, it is likely the defendant in the present case was under even greater psychological pressure than Shawn D. because the threats of harm were directed to defendant's wife and baby while in Shawn D. the officers' threats were made against the defendant's girlfriend.  (Cf. People v. Haydel, supra, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 [wife and child];  People v. Trout, supra, 54 Cal.2d 576, 6 Cal.Rptr. 759, 354 P.2d 231 [wife];  People v. Rand, supra, 202 Cal.App.2d 668, 21 Cal.Rptr. 89 [wife and child].)   Finally, we note if the will of a veteran master sergeant can be overborne by concern for his wife and child then surely the same thing can happen to an “ordinary” person such as defendant.

In considering the interrogations themselves, it is important to note the threat to arrest and jail defendant's wife and place their baby in a foster home was not made once, as an off-hand remark, but repeatedly, in both interrogations, leading me to conclude the police were deliberately attempting to coerce a confession from defendant by playing on his concern for his wife and child.   Indeed, defendant testified it was his concern for his wife and baby which finally caused him to implicate himself in the crime.   The People point to the fact defendant did not confess during the first or second interrogations as evidence his confession was not motivated by Detective Medina's threats.   On the other hand, the fact defendant had four days to sit in jail and think about Medina's threats of harm to his family if he did not confess may have served to embed those threats more deeply in his mind.   As the Supreme Court observed in People v. Haydel, supra, “the psychological pressure on [defendant] to cooperate in the hope of freeing his wife and child undoubtedly increased with the passage of time.”  (12 Cal.3d at pp. 200-201, 115 Cal.Rptr. 394, 524 P.2d 866;  fn. omitted.)

I conclude from the undisputed facts defendant's confession was the product of wrongful psychological coercion.   Hence, it was error not to suppress it.

C. The Error Was Prejudicial.

The testimony of defendant's wife and his alleged accomplice, Martinez, might have been enough to convict defendant of murder on a felony-murder theory as an aider and abettor.   However, the jury did not convict defendant on this theory.   The jury found the special circumstance of murder in the course of a robbery not true and acquitted defendant of attempted robbery.   Therefore, the only evidence which could have supported defendant's conviction of first degree murder was his own coerced confession.   Thus, we cannot say admission of the confession was harmless beyond a reasonable doubt.  (People v. Cahill (1993) 5 Cal.4th 478, 487, 510, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

FOOTNOTES

1.   Except for preliminary facts (Evid.Code, § 402), the evidence was without conflict.   Appellant did not testify nor call any defense witnesses.

2.   See People v. Martinez (1994) 26 Cal.App.4th 1098, 31 Cal.Rptr.2d 869.

3.   At the earlier Martinez trial, when the events were fresher, Mr. Villa testified Tarver asked for cigarettes and they did not give him any.  (People v. Martinez, supra, 26 Cal.App.4th 1098, 1101, 31 Cal.Rptr.2d 869.)

4.   Apparently because they had or were drinking beer.

5.   Although Evidence Code section 1101, subdivision (b) only uses the word “plan,” Ewoldt amplifies “plan” into the phrase “common design or plan,” a transmutation of significance, as we explain.

6.   Unsurprisingly, considering Martinez was serving a life without possible of parole sentence, the contempt sanction failed to induce Martinez's testimony.

7.   Detective Medina testified he attended Martinez's trial and on May 24, 1993, observed Martinez testify to the following:  that he robbed Jose Villa's car on March 11, 1990;  that later that evening he went to the upper level of a movie parking structure because he was considering robbing someone;  .38 caliber and .22 caliber guns were used in the robbery;  he knew the security guard had a gun and patrolled the parking structure.

8.   Appellant and his confederates were members of the 18th Street Gang. Appellant feared that if he implicated them there would be retaliation against his wife, child, and himself.

9.   Having found appellant's confession voluntary and properly admitted we need not consider whether, had it been error to admit it, that error-in light of Kathy Simpson's unchallenged testimony concerning appellant's admissions, the fingerprint evidence, the three gun evidence, Martinez's statement against penal interest, and appellant's decision not to testify (he would have been impeached with a prior robbery conviction)-would have been harmless.

1.   The majority opinion seeks to convey the impression Castillo's concern was about the 18th Street gang retaliating against his wife and child if he confessed and implicated Tarver and Martinez, not about his wife going to jail and his child to foster care.   I do not read the record this way, but even if the majority was correct, in pledging to protect Castillo's wife and child from the gang's retaliation Detective Medina made a patently false promise-if the police were to provide impregnable round-the-clock protection to the families of every witness who testified against a gang member there would be no officers left to do anything else.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.