People v. Shockey CA4/3

Filed 3/30/15 P. v. Shockey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049364

v. (Super. Ct. No. 11CF3468)

JESSE TAYLOR SHOCKEY, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury found defendant Jesse Taylor Shockey guilty of voluntary manslaughter (Pen. Code, § 192, subd. (a); all statutory references are to the Penal Code) and found he personally used a knife (§ 12022, subd. (b)(1)). Shockey contends the trial court prejudicially erred by admitting statements obtained during a custodial interrogation because police officers did not expressly advise him of his right to have counsel present during the interrogation. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) For the reasons expressed below, we affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND On December 21, 2011, Shockey and three friends, Matthew Bosco, Mel Serrano, and Kendra Fuller, gathered at a Huntington Beach park. Around 9:00 p.m., a car drove past Shockey’s group, and someone in the car shouted they would be back in five minutes. When the car returned, Ernest Taylor, Dylan Austin, Jeff Quinn, and Corrine Armstrong got out. Shockey and Taylor knew each other from juvenile hall and engaged in a fistfight at the same park a few weeks earlier. Austin and Taylor aggressively approached and told Shockey’s group to leave the park. Bosco aimed a rifle at Austin, who grabbed it and said “blast me.” Shockey positioned himself behind Austin and poked him in the back with a kitchen knife. Austin then turned toward Shockey and punched him in the face several times. Shockey walked away from Austin stating, “You’re not worth it.” Austin pursued, and Shockey plunged the knife into Austin’s chest. Austin later died from his injuries. Officers recorded a phone call between Fuller and Shockey during which Shockey admitted stabbing Austin and made other incriminating statements. Shockey also incriminated himself during police interviews conducted on December 22 and December 27.

Following a trial in September 2013, a jury convicted Shockey as noted above. In November 2013, the trial court imposed an 11-year upper term prison sentence for manslaughter and struck the weapon enhancement (§ 1385). II DISCUSSION No Miranda Violation Officers arrested Shockey around 10:30 a.m. the morning after the stabbing. Detective Ellis questioned him at the police station around 3:00 p.m. Ellis told Shockey he was under arrest and advised him of his Miranda rights as follows: “Detective Ellis: I’m going to advise you of your Miranda rights. Okay? You know what Miranda is? [¶] [] Shockey: Yes. [¶] [Q]: The right to remain silent. [¶] [A] Yes. [¶] [Q]: Anything you say may be used against you in a court of law. You understand that? [¶] [A] Yes. [¶] [Q]: If you can’t afford an attorney, one will be appointed to you free of charge before questioning if you want. [¶] [A]: Yes. [¶] [Q]: Got a card. I’m tired. With these rights in mind, would you mind telling me what happened last night?” Shockey answered questions and made incriminating statements. Before trial, Shockey moved to suppress his statements under Miranda. The trial court found “although there was a less than perfect recitation of the Miranda rights, that appeared to be a sufficient admonition under Miranda and its progeny.” Shockey complains Ellis did not advise him of the right to have an attorney present during questioning. The officer’s Miranda advisement, although not exemplary, met the requirements of Miranda. When reviewing Miranda issues on appeal, we accept the trial court’s resolution of disputed facts and inferences and its credibility determinations if supported by substantial evidence, but apply the independent, de novo standard of review to determine from undisputed facts and trial court findings whether police legally obtained

the challenged statement. (People v. Smith (2007) 40 Cal.4th 483, 502; People v. Waidla (2000) 22 Cal.4th 690, 730.) Miranda warnings serve a prophylactic purpose and provide procedural safeguards to protect an individual’s Fifth and Fourteenth Amendment right against self- incrimination. (See Florida v. Powell (2010) 559 U.S. 50, 59 (Powell).) No “talismanic incantation” is necessary to satisfy Miranda’s requirements. (California v. Prysock (1981) 453 U.S. 355, 359 (Prysock).) But the advisement must “reasonably convey[]” to a suspect the following four warnings: “‘[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.’” (Powell, supra, 559 U.S. at pp. 59-60; Miranda, supra, 384 U.S. at p. 479.) Miranda’s third warning must clearly inform the suspect of his “right to consult with a lawyer and to have the lawyer with him during interrogation.” (Miranda, supra, 384 U.S. at p. 471.) The Attorney General argues Powell is dispositive. In Powell, the officers advised the suspect he had the right “‘to talk to a lawyer before answering any of [the officers’] questions’” and of the “‘right to use any of [his] rights at any time [he] want[ed] during th[e] interview.’” (Powell, supra, 559 U.S. at p. 62.) The Supreme Court reasoned the two statements in combination reasonably conveyed the right to have an attorney present, not only at the outset of interrogation, but at all times. (Ibid.) Unlike the Miranda advisement upheld in Powell, where a “combination” of statements informed the suspect of his right to talk to a lawyer before the interrogation, and of his right to invoke any of his rights at any time during the interrogation, the advisement here informed Shockey only that he could have an attorney appointed before questioning. (cf. Powell, supra, 559 U.S. at p. 62.) No additional statement informed

Shockey he could invoke his rights during the interrogation. Powell does not control the outcome here. But Powell also does not support Shockey’s assertion officers must “unambiguously inform the person being interviewed that he or she has the right to counsel during police interrogation.” Powell rejected the contention Miranda requires expressly advising a suspect of his right to have counsel present before and during questioning. (Powell, supra, 559 U.S. at pp. 63-64.) The Court reasoned the issue is whether the “words . . . used . . . communicated the same essential message [Miranda requires].” (Id. at p. 64.) In People v. Wash (1993) 6 Cal.4th 215, 236, the California Supreme Court held a Miranda warning “reasonably conveyed” to a suspect his right to have an attorney present during questioning when police expressly informed the suspect of his right to have an attorney present before questioning. (Id. at p. 237; see People v. Lujan (2001) 92 Cal.App.4th 1389, 1402 [“Wash stands for the proposition that there is sufficient compliance with Miranda if the accused is advised of the right to have an attorney present before questioning.”].) Wash reasoned that “[a]lthough the warning given to defendant here deviated from the standard form . . . we are not persuaded . . . that the language was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began.” (Wash, supra, 6 Cal.4th at 236; see also People v. Valdivia (1986) 180 Cal.App.3d 657, 663-664 [unreasonable for a suspect to believe attorney must leave the interrogation room during questioning when police advise a suspect he has a right to have an attorney before questioning].) Shockey argues Wash is distinguishable because Ellis did not inform him of his right to “speak” to an attorney or have an attorney “present” before questioning, but rather advised him he had the right to have an attorney “appointed” before questioning. A Miranda advisement is valid so long as “nothing in the warnings suggest[s] any

limitation on the right to the presence of an appointed counsel different from the clearly conveyed rights to a lawyer in general.” (Prysock, supra, 453 U.S. at pp. 360-361.) Because police informed Shockey counsel could be “appointed to you free of charge before questioning” and was not told his right to an attorney would be limited in any way during questioning, his right to appointed counsel was not impermissibly “linked to a future point in time after police interrogation.” (Id. at p. 360.) Shockey contends we should follow the Ninth Circuit’s decision in United States v. Noti (9th Cir. 1984) 731 F.2d 610, 614-615.) Noti found a Miranda warning inadequate because officers informed the suspect of his right to have the services of an attorney before, but not during questioning. (Id. at p. 615; accord Windsor v. United States (5th Cir. 1968) 389 F.2d 530, 533; but see United States v. Lamia (2d Cir. 1970) 429 F.2d 373, 376 [suspect advised “he had the ‘right to an attorney,’ [and that] if he was not able to afford an attorney one would be appointed by the court”; advisement reasonably implied attorney would be available during questioning].) We decline the invitation because we are bound by Wash. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Valdivia, supra, 180 Cal.App.3d at p. 664; see Forsyth v. Jones (1997) 57 Cal.App.4th 776, 783 [state appellate courts are not bound by federal circuit court precedent].) The advisement here met Miranda’s requirements even though it deviated from the standard form because it reasonably conveyed to Shockey his right to have an attorney present before and during questioning. Because the advisement was adequate, we need not address whether the introduction of Shockey’s statements resulted in prejudice.

III DISPOSITION The judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.