Filed 11/13/13 P. v. Bankhead CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A135040
                   v.
JOE HENRY BANKHEAD,                                                      (Solano County
                                                                         Super. Ct. No. VCR206045)
         Defendant and Appellant.

         Defendant Joe Henry Bankhead appeals following his conviction by a jury of
voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 as a lesser included offense of
second degree murder. Appellant contends the trial court committed errors relating to the
lesser included offense, jury selection, and admission at trial of his statement to the
police. We affirm.
                                      PROCEDURAL BACKGROUND
         An information charged appellant with second degree murder (§ 187, subd. (a))
and alleged two prior strike convictions (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i))
and a prior prison term (§ 667.5, subd. (b)). In September 2011, a jury acquitted
appellant of murder, found him guilty of voluntary manslaughter, and found true one of
the prior strike allegations and the prior prison term allegation.


1   All undesignated section references are to the Penal Code.
                                                             1
       In March 2012, the trial court sentenced appellant to the upper term of 11 years,
doubled due to the prior strike and with an additional consecutive year for the prior
prison term, for a total prison term of 23 years. This appeal followed.
                              FACTUAL BACKGROUND
                                    Prosecution Case
       Thelma Washington lived in an apartment in Vallejo in a house that had been
divided into two apartments; the victim, Adrian Williams, lived in the second apartment.
Washington’s caregiver, Lawrence Newson, was in her apartment every day. Williams
was thin and frail; he walked with a cane and one side of his body seemed paralyzed.
       Appellant and Williams were friends. Washington and Newson last saw Williams
alive in appellant’s company, sometime during the day on December 31, 2009. Early the
morning of January 1, 2010, appellant knocked on Washington’s window or door.
Newson responded, and appellant asked Newson if he had seen Williams. Appellant
returned asking about Williams the next day; he said he had knocked on Williams’s door
but no one had answered. Appellant returned again the following morning, January 3;
appellant said he and Williams had been drinking on New Year’s Eve and got into an
argument. He also said he was concerned because Williams was sickly and had not been
feeling well. The same day, appellant called Lillie Hurd, who owned the building where
Williams and Washington lived. Appellant told Hurd that he had beaten up Williams
during a fight on New Year’s Eve.
       On January 5, 2010, on Hurd’s suggestion, appellant called 911 for assistance.
Vallejo Police Officer Munoz arrived at Williams’s home at 5:00 p.m. on January 5, in
response to a call for a welfare check. Munoz was told the caller was concerned because
he had not seen a friend for a few days; appellant met Munoz in front of the residence.
Appellant told Munoz that Williams suffered from seizures, but he did not say anything
about a fight. After Munoz received no response at the door, he called the fire
department to force entry into Williams’s apartment.
       Once inside, Munoz saw Williams on the floor with blood and other fluid coming
from his mouth. Williams was breathing and had a pulse, but he was not conscious.

                                             2
According to a forensic pathologist, Williams was admitted to a hospital in a “vegetative
state.” He had many broken facial bones and a large subdural hematoma. Williams died
in March 2010 and it was determined that the cause of death was “blunt force trauma to
the head, with complications.” The forensic pathologist testified there were at least four
impacts on Williams’s face, it took a lot of force to break Williams’s cheekbone, and
Williams’s injuries were not due to falling from a standing position.
       An expert in blood spatter pattern interpretation testified that, based on
observations of separate spatter areas, Williams was struck by at least three or four blows.
There were small blood spatters, which indicated the use of considerable amount of force.
       On January 8, 2010, former Vallejo Police Detective Mark Bassett interviewed
appellant about Williams. A recording of the interview was played for the jury.
Appellant said he had known Williams since childhood. He arrived at Williams’s house
on the afternoon of December 31, 2009, and appellant and Williams spent the afternoon
and evening together. Both were drinking, and they also shared some crack cocaine,
which appellant said made him paranoid. He and Williams fought. Appellant wanted to
leave, but Williams would not let him. Appellant explained, “I was leaving and he
grabbed me and . . . I punched him.” He also stated, “I kind of snapped him and . . . then
when he was going down I snapped him again.” He admitted hitting Williams two or
three times. He denied hitting Williams very hard or hitting him in the eye or the cheek.
                                       Defense Case
       A forensic pathologist testified for the defense that she could not tell from looking
at Williams’s “CT” scans whether his injuries were caused by punches, a fall, or another
mechanism. She believed most of the facial fractures Williams sustained involved thin
bones that were easily broken, and the cheekbone fracture could have been caused by
falling onto a hard object. She believed Williams was struck at least two times.
       An expert in blood spatter analysis testified for the defense that certain spatters
were of “fairly low velocity.” He did not disagree that the spatter pattern showed at least
three or four blows were struck.


                                              3
                                         DISCUSSION
I. Voluntary Manslaughter as a Lesser Included Offense
       Over the prosecutor’s objection, appellant asked for and received jury instructions
on lesser included offenses, including involuntary manslaughter and voluntary
manslaughter under both heat of passion and imperfect self-defense theories. The
Supreme Court has explained the relationship between murder and voluntary
manslaughter as follows: “ ‘ “Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and
unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)”
[Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] “But a
defendant who intentionally and unlawfully kills [nonetheless] lacks malice . . . when
[he] acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or . . . kills in
‘unreasonable self-defense’—the unreasonable but good faith belief in having to act in
self-defense [citations].” [Citation.]’ [Citations.] [¶] These mitigating circumstances
reduce an intentional, unlawful killing from murder to voluntary manslaughter ‘by
negating the element of malice that otherwise inheres in such a homicide [citation].’
[Citation.]” (People v. Rios (2000) 23 Cal.4th 450, 460-461 (Rios).)
       Appellant contends the trial court erred in instructing the jury on voluntary
manslaughter because there was no substantial evidence (People v. Thomas (2013) 218
Cal.App.4th 630, 643) supporting a finding of provocation under the heat of passion
theory or belief in an imminent threat under the imperfect self-defense theory. The
contention is forfeited because appellant’s counsel requested that the trial court give the
voluntary manslaughter instructions. (People v. Wader (1993) 5 Cal.4th 610, 658 [when
defense counsel makes a “conscious and deliberate tactical choice to request a particular
instruction” the invited error doctrine bars an argument on appeal that the giving of the
instruction was error]; see also People v. Lee (2011) 51 Cal.4th 620, 645.)
       We reject appellant’s argument that counsel’s request for the instructions was not
a deliberate tactical choice. Counsel’s request was express and unambiguous, it was
made in the face of the prosecutor’s argument that there was no evidentiary basis for the

                                                4
instructions, and there is no indication the request was the result of ignorance or mistake.
(People v. Bradford (1997) 14 Cal.4th 1005, 1057.) It appears counsel believed it was
tactically advantageous for the jury to have an alternative between murder and
involuntary manslaughter, even if the evidence supporting a conviction for voluntary
manslaughter rather than murder was weak.2
       Appellant also argues the invited error doctrine does not apply to requests for
instructions on lesser included offenses, as opposed to requests that an instruction on a
lesser not be given, but he cites no authority supporting that proposition. The invited
error doctrine was applied in directly analogous circumstances in People v. Barnard
(1982) 138 Cal.App.3d 400, 409, which concluded, “since the defendant’s trial counsel
requested the instruction on the lesser included offense of possession, the doctrine of
invited error applies, and [the] defendant will not be heard to complain that the
instruction he requested was in fact given by the judge and acted upon by the jury.” (See
also People v. Kozel (1982) 133 Cal.App.3d 507, 527; People v. Williams (1980) 102
Cal.App.3d 1018, 1025.)
       We conclude that the invited error doctrine precludes appellant from arguing on
appeal that the trial court erred in giving the voluntary manslaughter instructions.3
II. Denial of Motion for New Trial
       Appellant contends the trial court erred in denying his motion for new trial seeking
reduction of his conviction from voluntary to involuntary manslaughter. He argues there


2   The jury was instructed that involuntary manslaughter applies “[w]hen a person
commits an unlawful killing but does not intend to kill and does not act with conscious
disregard for human life.” In light of the overwhelming evidence that appellant delivered
multiple forceful facial blows to Williams, who was very frail, defense counsel may have
believed it was unlikely the jury would convict appellant of only involuntary
manslaughter.
3   To the extent appellant contends his conviction for voluntary manslaughter is not
supported by substantial evidence because there is no evidence of provocation or belief in
an imminent threat, the claim fails because those are not elements the prosecution was
required to prove to support the voluntary manslaughter conviction. (Rios, supra, 23
Cal.4th at p. 462.)
                                             5
was insufficient evidence he demonstrated conscious disregard for life, and, therefore, the
most he could be convicted for was involuntary manslaughter.
       As explained in People v. Butler (2010) 187 Cal.App.4th 998, 1006, “Involuntary
manslaughter is a lesser offense of murder, distinguished by its mens rea. [Citation.] The
mens rea for murder is specific intent to kill or conscious disregard for life. [Citation.]
Absent these states of mind, the defendant may incur homicide culpability for involuntary
manslaughter. [Citations.]” (See also Rios, supra, 23 Cal.4th at p. 460.) Appellant
argues insufficient evidence existed to support a finding of conscious disregard for life
because he only used his fists in attacking Williams and because the defense forensic
pathologist testified Williams’s injuries were not necessarily the product of great force.4
       In denying the motion for new trial, the trial court focused on Williams’s known
frailty, the number of blows, and the fact that one of the blows was delivered after
Williams was already on the ground. A finding of conscious disregard for life is also
supported by the testimony of the prosecution’s forensic pathologist that Williams’s
injuries reflected the use of a great deal of force. (Cf. People v. Spring (1984) 153
Cal.App.3d 1199, 1206 [the defendant’s “assault consisted of but a single punch and was
not even of sufficient force to knock down an elderly man or cause more than slight
outward damage”].) Appellant has not shown the trial court abused its discretion in
denying his motion for a new trial. (People v. Homick (2012) 55 Cal.4th 816, 894.) To
the extent appellant argues a finding of conscious disregard for life is not supported by
substantial evidence (People v. Pensinger (1991) 52 Cal.3d 1210, 1237), we reject that
contention as well.
III. Appellant’s Batson/Wheeler Claim
       Exercising peremptory challenges on the basis of race violates the guarantee of
equal protection of the laws under the Fourteenth Amendment to the United States

4  Appellant asserts the jury found there was no implied malice when it acquitted
appellant of second degree murder. He is incorrect. The jury’s finding he was guilty of
voluntary manslaughter demonstrates the jury found the killing would have been murder,
but the malice was negated by circumstances amounting to provocation or imperfect self-
defense. (CALCRIM Nos. 570 & 571; Rios, supra, 23 Cal.4th at pp. 460-461.)
                                              6
Constitution (Batson v. Kentucky (1986) 476 U.S. 79 (Batson)) and the right under the
California Constitution to be tried by a jury drawn from a representative cross-section of
the community (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)). (People v. Huggins
(2006) 38 Cal.4th 175, 226 (Huggins).) Appellant contends the prosecutor below
exercised peremptory challenges on the basis of race and the trial court erred in rejecting
appellant’s objections thereto.
       Batson requires a three-step analysis in response to a defendant’s claim that a
prosecutor’s peremptory challenges are race based:
       “ ‘First, the defendant must make out a prima facie case “by showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.”
[Citations.] Second, once the defendant has made out a prima facie case, the “burden
shifts to the State to explain adequately the racial exclusion” by offering permissible
race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral
explanation is tendered, the trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination.” ’ [Citation.]” [Citation.] Excluding
even a single prospective juror for reasons impermissible under Batson and Wheeler
requires reversal. [Citation.] And although a party may exercise a peremptory challenge
for any permissible reason or no reason at all [citations], ‘implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination’ [citation].
       “In evaluating a trial court’s Batson–Wheeler ruling that a party has offered a race-
neutral basis for subjecting particular prospective jurors to peremptory challenge, we are
mindful that ‘ “[i]f the trial court makes a ‘sincere and reasoned effort’ to evaluate the
nondiscriminatory justifications offered, its conclusions are entitled to deference on
appeal.” ’ [Citations.] In a case in which deference is due, ‘[t]he trial court’s ruling on
this issue is reviewed for substantial evidence.’ [Citation.]” (Huggins, supra, 38 Cal.4th
at pp. 226-227.)
       On appeal, appellant objects to peremptory challenges to two prospective jurors,
both of whom are African-American. First, Prospective Juror B.C. (B.C.) worked as a

                                               7
pharmacy technician at a state correctional institution. During questioning by the
prosecutor about her work, B.C. stated, “when I see the inmates, I know that they’ve
already been to trial, so I don’t think that with what’s happening here now — we’re
looking at what happened in his life before and determining if what happened is his fault,
and that’s all I can take from it.” In answer to a follow-up question from the prosecutor,
B.C. discussed a friend who was murdered by her husband, stating, “it sort of makes you
wonder what could have happened in their life that would have caused him to get to the
point where he would kill his wife, but I think I can put that aside, because that’s
something that happened in the past, and be fair to — to the guy here.” In explaining her
decision to use a peremptory challenge on B.C., the prosecutor stated “my primary
concern with her was she was struggling with what happened in people’s backgrounds to
make them behave the way that they’re behaving. She mentioned that on more than one
occasion in relation to people who perpetrate crimes . . . .” The prosecutor continued, “I
found that to be troublesome, because as a juror, I want a person who is going to be
looking at these discrete facts, what comes from the evidence, and not thinking about
what happened in somebody’s background to make them behave this way.”
       The trial court denied the Batson/Wheeler claim as to B.C., reasoning, “I do find
there would be a prima facie case, but I do accept the prosecutor’s reasons as to [B.C.].
There are some reasons based on the record, based on the questioning of [B.C.], that
would support a race neutral peremptory against her. That being what [B.C.] said
regarding a comment about the background. That would be a race neutral reason. I
accept that explanation as to [B.C.].” We conclude B.C.’s comments quoted above
constitute substantial evidence supporting the trial court’s finding that appellant did not
prove purposeful racial discrimination in the peremptory challenge to B.C.
       The second peremptory challenge at issue was as to Prospective Juror J.M. (J.M.).
His questionnaire indicated he had completed 12th grade, but provided no information
concerning a “degree” or “present employment.” The prosecutor explained her decision
to challenge J.M. as follows: “My biggest concern with [J.M.] was his immaturity. Not
only was he physically bopping around and moving his head, distracted is what he

                                              8
appeared to me. He had his headphones in his pocket, and every time he left that box, he
immediately stuck his headphones in his ears. [¶] My concern here is that he is not
necessarily paying attention to the proceedings. He’s isolating himself from everyone
else. Given that, in combination with his response to my question of ‘Are you able and
willing to do this?’ his response was, ‘I know how to play the game. I can follow the
rules of the game’ — that was concerning to me.[5] That tells me he’s not taking this
seriously. This is not a game. [¶] In addition, his questionnaire . . . is completely devoid
of any information. He has no high school degree. He has no children. He has no job.
He has no life experience. I think it is important to note he is by far the youngest person
on this jury. And given that he has no life experience whatsoever, and his lack of
seriousness and his lack of maturity, I have great concerns about his ability to sit as a
juror.”
          The trial court denied the Batson/Wheeler claim as to J.M., reasoning, “I am
somewhat concerned as to [J.M.], although in terms of the explanation, I am going to find
it to be credible. There is this basis that [the prosecutor] has described, although it is
based on the subjective factors which are certainly more difficult to gauge. The nature of
peremptory strikes — at this point I don’t find it to be based on race. I will — I accept
the prosecutor’s representation as to the reasons.” On appeal, appellant argues, as he did
below, that other jurors also put down 12th grade as their highest education level
completed. However, the prosecutor also stated her peremptory challenge was based on
J.M.’s perceived immaturity and distractedness; the subjective nature of those
assessments does not render them improper bases for a peremptory challenge. (People v.
Mai (2013) 57 Cal.4th 986, 1053, as modified Oct. 3, 2013 (Mai) [“the prosecutor’s
demeanor observations, even if not explicitly confirmed by the record, are a permissible
race-neutral ground for peremptory excusal, especially when they were not disputed in
the trial court”]; see also People v. Lenix (2008) 44 Cal.4th 602, 622 [“[m]yriad subtle
nuances” shape an assessment of a prospective juror’s answers during voir dire

5 J.M. stated: “We’re under the roof of this building, and there are rules. And, hey, I
mean, if you agree to play a game, you agree to play by those rules. Rules are rules.”
                                               9
“including attitude, attention, interest, body language, facial expression and eye
contact”].) Moreover, the prosecutor emphasized J.M.’s comments analogizing the trial
process to a game. Even if his comment can be interpreted in different ways, the
prosecutor’s assertion that the comment gave her concern was not “ ‘implausible or
fantastic.’ ” (Huggins, supra, 38 Cal.4th at p. 227; see also Mai, at p. 1051 [“the
prosecutor was not obliged to accept” defendant’s proffered interpretation of a juror’s
“ambiguous remarks”].) We conclude substantial evidence supports the trial court’s
conclusion that appellant did not prove purposeful racial discrimination in the peremptory
challenge to J.M.
       The trial court did not err in denying appellant’s Batson/Wheeler claim.6
IV. Admission of Appellant’s Statement to the Police
       Appellant contends the statement he gave to Bassett at the police station was given
while he was in custody and should have been excluded because he was not advised of
his rights under Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda), prior to
questioning.
       “An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ‘a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.’ [Citation.] Custody consists of a formal arrest
or a restraint on freedom of movement of the degree associated with a formal arrest.
[Citations.] When there has been no formal arrest, the question is how a reasonable
person in the defendant’s position would have understood his situation. [Citation.] All
the circumstances of the interrogation are relevant to this inquiry, including the location,
length and form of the interrogation, the degree to which the investigation was focused


6   Appellant contends the trial court erred in failing to conduct a thorough comparative
juror analysis. However, he makes no showing that any other jurors made comments or
exhibited behaviors similar to those mentioned by the prosecutor in explaining her
peremptory challenges to B.C. and J.M. (See Miller-El v. Dretke (2005) 545 U.S. 231,
241 [“If a prosecutor’s proffered reason for striking a black panelist applies just as well to
an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.”].)
                                             10
on the defendant, and whether any indicia of arrest were present.” (People v. Moore
(2011) 51 Cal.4th 386, 394-395 (Moore).) “The test for custody does not depend on the
subjective view of the interrogating officer or the person being questioned. [Citation.]
The only relevant inquiry is ‘ “how a reasonable man in the suspect’s shoes would have
understood his situation.” ’ [Citation.]” (People v. Mosley (1999) 73 Cal.App.4th 1081,
1088-1089.) This determination is based on the totality of the circumstances; “no one
factor is controlling.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster); see
also People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 [“we look at the interplay and
combined effect of all the circumstances to determine whether on balance they created a
coercive atmosphere such that a reasonable person would have experienced a restraint
tantamount to an arrest”].) On appeal, “[w]e apply a deferential substantial evidence
standard to the trial court’s factual findings, but independently determine whether the
interrogation was custodial. [Citation.]” (Pilster, at p. 1403; see also Moore, at p. 395.)
       In the present case, Bassett testified at a pretrial evidentiary hearing on the
Miranda issue that, on January 7 or 8, 2010, he left a voicemail message for appellant
asking to speak about Williams. Bassett also testified he told appellant that he “needed
to” speak to him. Appellant agreed to come to the police station and suggested a 1:30
p.m. meeting time. Bassett greeted appellant in the lobby, and they walked to an
interview room in a secured area of the police station. Bassett asked appellant if he had
any weapons and then, with appellant’s consent, searched him for weapons. Bassett
confirmed appellant was there “voluntarily” and told appellant, “you’re free to leave at
any time, you’re not under arrest or anything like that. I just had some questions for you
about what, what went on with [Williams]. So, just understand if you have, if you don’t
want to talk anymore, just let me know. We’ll stop the interview and I’ll walk you out
and you can leave.” Appellant said he understood. Nevertheless, Bassett had already
decided he would be arresting appellant after the interview. The interview lasted about




                                              11
an hour.7 At some point Bassett asked appellant if he had any injuries to his hands.
Appellant responded affirmatively, showed his hands to Bassett, and asked if he was
required to allow Bassett to photograph his hands. Bassett responded that he was. After
the interview, appellant asked if he was free to leave and Bassett told appellant he was
under arrest.
       The trial court concluded appellant was not in custody at the outset of the
interview because he went voluntarily to the police station and spoke with Bassett. The
interview became custodial more than halfway through, when Bassett told appellant he
was required to allow Bassett to photograph his hands, and the subsequent portions of the
interview were inadmissible. Nevertheless, the entirety of the interview was played for
the jury because Bassett was cross-examined at trial regarding comments in the excluded
portion of the interview.
       On appeal, appellant argues he was in custody during most or all of the
questioning. Appellant emphasizes that contact was initiated by Bassett, the questioning
took place in a secured area of the police station, Bassett searched appellant for weapons,
Bassett’s questions made it clear appellant was being questioned as a suspect, and
appellant was arrested after the interview.8
       The present case is analogous to the California Supreme Court’s decision in
Moore, supra, 51 Cal.4th 386. There, a police officer asked the defendant, who was the
last person to see the victim alive, to come give a statement at the police station. (Id. at p.
396.) Once in the interview room at the station, a police investigator told the defendant

7   Bassett testified the interview lasted “Thirty to 45 minutes . . . . Maybe a little
longer,” but the trial court stated the interview lasted “roughly about an hour” based on
the court’s calculations.
8   Appellant asserts the door to the interview room was locked and his driver’s license
was taken away from him, but the cited portions of the record do not support those
assertions. At oral argument, appellant’s counsel referred to the video of the
interrogation as support for the assertion that Bassett held on to his driver’s license, but
appellant failed to designate a copy of the video recording for transmittal to this court.
(See Cal. Rules of Court, rules 8.224, 8.320(e).) In any event, that circumstance would
not change our determination based on the totality of the circumstances.
                                               12
he was not under arrest and was free to leave. (Id. at p. 402.) The defendant was not
restrained, and he was interviewed for one hour and 45 minutes. (Ibid.) The questioning
initially focused on filling in the details of the defendant’s story as a witness rather than
as a suspect; but, “[a]fter a while . . . , the detectives interjected some more accusatory
and skeptical questions.” (Ibid.) The investigators asked the defendant whether he
burglarized the victim’s house; they urged the defendant to be honest; and they asked
various questions about the defendant’s prior arrests and other matters that “conveyed
their suspicion of [the] defendant’s possible involvement.” (Ibid.) The police ultimately
declined the defendant’s request to be taken home and read the defendant the Miranda
advisements. (Moore, at pp. 401-402.)
       The Supreme Court concluded the defendant in Moore was not in custody during
the bulk of the interview, reasoning, “At least until [the] defendant first asked to be taken
home and his request was not granted, a reasonable person in [the] defendant’s
circumstances would have believed, despite indications of police skepticism, that he was
not under arrest and was free to terminate the interview and leave if he chose to do so.”
(Moore, supra, 51 Cal.4th at p. 403.) The court emphasized that the defendant had gone
to the station voluntarily and was expressly told he was free to leave. (Id. at p. 402.) The
court pointed out, “Miranda warnings are not required ‘simply because the questioning
takes place in the station house, or because the questioned person is one whom the police
suspect.’ [Citation.]” (Moore, at p. 402, italics omitted.) Regarding the accusatory
questioning, the court noted that the interview as a whole was not “particularly intense or
confrontational” and stated that “police expressions of suspicion, with no other evidence
of a restraint on the person’s freedom of movement, are not necessarily sufficient to
convert voluntary presence at an interview into custody.” (Ibid.)
       The present case is not materially distinguishable from Moore. There is no basis
to conclude the atmosphere in the interview room in the present case was more coercive
than the interview room in Moore. In Moore, there were two investigators involved in
the questioning, while in the present case only Bassett was present, and the interview in
Moore lasted significantly longer than the interview in the present case. Appellant was

                                              13
searched for weapons, which apparently did not occur in Moore, but that security
precaution would not have conveyed to a reasonable person that they were not free to
leave. Portions of the interview were clearly accusatory: For example, Bassett probed
appellant’s failure to call the police more promptly, asked pointed questions about
appellant’s fight with Williams , and urged appellant to admit he punched Williams more
than once. Nevertheless, as the trial court found, Bassett did not use intimidating or
threatening tactics in questioning appellant. The questioning in the present case was not
significantly more intense or confrontational than that in Moore, where the investigators
accused the defendant of burglarizing the victim’s home and stabbing her with a knife.
(See Moore, supra, 51 Cal.4th at pp. 398-400.) Finally, although appellant heavily relies
on the fact he was arrested after the interview, in Moore the defendant also was formally
detained at the end of the interview (id. at pp. 401-402).
       Appellant has failed to distinguish this case from Moore or direct us to more
analogous authority. We follow Moore in concluding the trial did not err in concluding
appellant was not in custody prior to the point at which Bassett required appellant to
allow his hands to be photographed. The trial court did not err in admitting that portion
of the interview at trial, and appellant does not contend the court erred in admitting the
remainder of the interview following the cross-examination of Bassett.9
                                      DISPOSITION
       The trial court’s judgment is affirmed.



9   Appellant also contends the trial court erred in denying his request to redact certain
questions posed by Bassett and in permitting the prosecutor to include certain excerpts
from the interview in her closing argument. The trial court instructed the jury, “During
the trial, you heard the taped interview of the police interrogation of [appellant]. The
officer’s statements cannot be considered as evidence by themselves. You may,
however, consider the officer’s statements to understand [appellant’s] answers. Just
because the officer makes a statement to [appellant] does not necessarily make the
statement true.” We assume the jury followed this instruction. (People v. Wilson (2008)
44 Cal.4th 758, 798.) Appellant has not shown the trial court erred or the prosecutor
committed misconduct.
                                             14
                     SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




                15
