Filed 1/21/14 P. v. Mays CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055989

v.                                                                       (Super.Ct.No. BLF004795)

KIMBERLY KYLE MAYS,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Affirmed.

         Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Theodore Cropley and

Julianne Karr Reizen, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                     I. INTRODUCTION

       Defendant Kimberly Kyle Mays appeals from her conviction of second degree

murder (Pen. Code,1 § 187, subd. (a), count 1), possession of a firearm by a felon (former

§ 12021, subd. (a)(1),2 count 2), and infliction of corporal injury on a cohabitant (§ 273.5,

subd. (a), count 3), with true findings on allegations as to count 1 under sections 12022.5,

subdivision (a) and 12022.53, subdivision (d) and a prison term prior allegation under

section 667.5, subdivision (b).

       Defendant’s sole contention on appeal is that the trial court erred in finding that

her statement which was obtained in violation of Miranda 3 was voluntary and admissible

to impeach her testimony at trial. We conclude that any error was harmless beyond a

reasonable doubt, and we affirm.

                    II. FACTS AND PROCEDURAL BACKGROUND

       A. Prosecution Evidence

       Early in the morning of May 1, 2008, defendant’s mother, Patricia Gallo, called

911 to report a “man down” at defendant’s residence in Blythe. When sheriff’s deputies

arrived at 2:36 a.m., Gallo and defendant seemed “[f]airly calm.” The deputies found the

body of Sergio Lopez face down on the living room floor. Lopez had bruises and



       1   All further statutory references are to the Penal Code.

       2  Former section 12021, subdivision (a)(1) was repealed and replaced without
substantive change by section 29800, subdivision (a)(1), effective January 1, 2012.

       3   Miranda v. Arizona (1966) 384 U.S. 436.

                                               2
abrasions on his face and gunshot wounds to his chest and hip. The coroner determined

that Lopez had died from the wound to his chest, which had pierced his heart.

       Defendant told the deputies she arrived home between 1:00 and 1:30 a.m. and

discovered Lopez’s body. She thought he was drunk and passed out, and she and her

mother shook him to see if he would respond.

       The deputies found a .22-caliber shell casing next to or under Lopez’s body, a

second shell casing in the living room between the body and a loveseat, and a third shell

casing in the doorway to a bedroom. Three live rounds of ammunition were found near

the loveseat. There was a bullet hole in the wall behind and above the loveseat near

Lopez’s body. There were blood droplets on the floor of the bathroom. The deputies

located a plastic bag containing a .22-caliber rifle, two expended .22-caliber casings, and

additional live .22-caliber ammunition; the bag had been hidden in an old septic tank.

The deputies determined that the .22-caliber rifle had been used in the shooting. The

single-shot bolt action rifle had to be manually reloaded each time it was fired: “[Y]ou

have to pull the bolt back, opening up the chamber, actually place the round inside the

weapon, and close the bolt to fire it.” Defendant had a live .22-caliber bullet in her

pocket when she was booked.

       At the sheriff’s station for questioning, Gallo initially told the investigators that

defendant had been at her house the evening before the shooting. Gallo said she drove

defendant home, and after dropping defendant off, she realized that defendant had left her

purse in Gallo’s car. Gallo returned to defendant’s house and found defendant outside.

Defendant told Gallo that a man was drunk inside her house. Later, Gallo admitted

                                               3
defendant had not been at her house that evening, but instead had telephoned Gallo to tell

her that she had shot Lopez and needed Gallo’s help. Gallo admitted she lied to protect

defendant. Gallo said that defendant had seemed to be “acting nonchalant” when they

discussed the gun used in the shooting.

       After Gallo was interviewed, she and defendant were placed in a room together,

and their conversation was recorded; the recording was played for the jury. Defendant

said to Gallo, “I was only trying to scare ‘em mom, I didn’t even think I hit ‘em. She

also said, “The one time I just shot and he stood up. And then he walked out of the

bathroom and I was just going to shoot towards the wall, just to scare ‘em, ‘cause he was

making me so mad, and he came out. What are the chances, huh?” When Gallo said she

did not know, defendant responded, “My luck.” During the conversation, defendant

never said she was scared for her life or that she thought Lopez was going to hurt her.

       At trial, Gallo testified that on April 30, 2008, defendant and her ex-boyfriend,

Steven Vandiver, had visited Vandiver’s mother at the hospital in Indio. Sometime

between 11:30 p.m. and midnight, defendant called Gallo and asked her to come over

because something had happened; defendant was “hysterical.” When Gallo arrived, she

saw Lopez lying on the floor in the hallway near the bathroom; defendant said she

thought she had hurt him. Gallo did not see any wounds or blood on him; she testified it

looked like he had passed out drunk. Defendant said, “‘Mom, I shot him.’” Gallo and

defendant rolled the body over and dragged it into the living room to see if Lopez would

regain consciousness. Gallo testified that defendant told her Lopez had “entered her

house unwelcomed,” and that “[h]e came in and he was drunk, naturally, and she was

                                             4
afraid he was going to hurt her again. And she was afraid, and she was angry that he

wouldn’t leave the residence. . . . She has a little dog, and he threatened to hurt that dog.

And when he threatened [the dog], she went ballistic.” Gallo testified that she knew

Lopez had beaten defendant “a lot of times.”

       Gallo saw a gun lying on the coffee table in the living room, and she told

defendant to hide it because she did not want defendant to get into trouble. Defendant

hid the gun in the septic tank, and Gallo called 911. Gallo testified that she suggested

they tell the officers that defendant had been at Gallo’s house that night. However,

Investigator Joshua Button later testified that Gallo told him defendant had been the one

who wanted to cover up the crime.

Defendant also had told Gallo she was afraid Lopez would hurt her. However, Gallo

conceded she never told the deputies that defendant had indicated she had shot Lopez

because she was scared of him.

       Deputy Button testified that he had seen scratch marks on defendant’s left arm on

May 1, 2008.

       B. Defense Evidence

       Defendant presented evidence of two domestic violence episodes she had reported

to law enforcement. In September 2007, defendant had a black eye and bruising, which

she told deputies had been inflicted by Lopez. In December 2007, defendant reported

that Lopez had slapped her and he was arrested, although apparently no criminal charges

had been filed for either incident. Defendant had also reported domestic violence



                                              5
incidents in other relationships in 1998 and 1994 or 1995. The police had also been

called twice when defendant struck other men she had dated.

       Defendant’s son, Timothy Mays, testified that on the day of the murder, he,

Vandiver, and defendant visited Vandiver’s mother in the hospital. When they brought

defendant home, they noticed the screen door was partially open and defendant’s dog was

missing. Defendant was sad and angry, and she told her son and Vandiver to leave.

Timothy conceded he had never told the deputies that the dog was missing.

       A friend of defendant testified that Lopez had told him about doing “hits for the

Mexican Mafia.” The friend had seen bruises and scratches on defendant “[a]t least six

or seven times” between May 2007 and May 2008. Lopez did not like defendant’s dog.

       Defendant testified in her own behalf. She had been under psychiatric care for the

previous 14 or 15 years, and she took prescription medications for bipolar disorder,

manic-depressive disorder, and schizophrenia. She also suffered from short-term

memory loss.

       She dated Lopez for about a year before the shooting, and he spent several nights a

week at her house. The relationship quickly became “rocky”; she had thrown Lopez out

of her house several times and had called the police about five times. Both defendant and

Lopez were heavy drinkers, and Lopez was very jealous. Lopez had beaten her badly

around Thanksgiving. Defendant did not call the police more often because Lopez was a

“three-striker,” and she did not want to be responsible for putting him away for the rest of

his life. She had regularly let him stay at her house or submitted to sex with him to avoid

fighting, arguing, and getting hurt. She was five feet tall and weighed 110 pounds.

                                             6
Lopez was a boxer who bragged about his prowess, and he shadowboxed when he was

angry and drunk.

       Before the shooting, defendant’s father had moved some items into her spare

bedroom; those items included a tool chest that contained a .22-caliber rifle and another

gun. Lopez and defendant had previously fired the rifle outside.

       A few days before May 1, 2008, defendant wrote a letter to Lopez asking him to

stay away; she taped it to the front door. A day or two before the shooting, Lopez left

defendant’s house because he was upset she was spending time with Vandiver.

Defendant told Lopez not to come back. On April 29, defendant and Vandiver visited

Vandiver’s mother at the hospital and then spent the night together at a motel.

       The day of the shooting, defendant drank a 40-ounce King Cobra malt liquor when

she woke up. She, Vandiver, and their son Timothy visited Vandiver’s mother in the

hospital. She continued to drink throughout the day. Vandiver drove her home that

evening. She noticed a table beside her bed was broken, and her dog and cell phone were

missing. She was scared, upset, and angry. She drank while she cleaned up the house.

       Lopez came to the house with her dog. He was angry with her, and she was afraid

he would hurt the dog because he did not like it and was jealous of it. He threw the dog

on the ground; the dog cried, and they began to argue. Lopez grabbed her arm, causing

scratches, and she pulled away. She went to the spare bedroom to get the gun because

she “wanted to scare him.” She was afraid Lopez would hurt her, and she wanted him to

leave. She did not remember if the gun was loaded when she grabbed it. She also put

ammunition in her pocket. She returned to the living room and sat down on a couch

                                            7
across from Lopez, who was sitting on the loveseat. She asked him to leave, and he

laughed and taunted her to shoot him. He appeared angry. She fired a shot into the wall

behind him to scare him and make him leave. He said, “‘Look what you’ve done,’” but

he did not leave, and she became more scared. She reloaded the gun. Lopez looked at

her and stood up, and she got scared and fired a second shot at him. He turned and went

toward the bathroom.

       Defendant continued to be afraid because Lopez would not leave. She remained

seated on the couch, and she reloaded the gun while Lopez was in the bathroom. When

he came out quickly, he startled her. She fired the gun, and he fell face down in the

hallway. She had meant to scare him, not to kill him.

       Defendant panicked and went to a friend’s house to call Gallo. When Gallo

arrived, they dragged Lopez’s body to the living room. They agreed they could not tell

the truth about what had happened, and they came up with an alibi. They went to

defendant’s father’s house to ask him what to do, and he told them to call 911. They did

so. She lied to the police because she was scared and did not want to believe she had shot

Lopez. She lied and minimized the extent of past domestic violence with Lopez because

she felt bad, and she did not want to “speak ill of the dead.”

       Defendant testified that on the night of the shooting, she had been drinking for

three days straight and had not taken her medications. She admitted prior felony

convictions for burglary, embezzlement, and spousal abuse. She stated she had been

truthful in her trial testimony.



                                              8
        On cross-examination, defendant admitted she shot Lopez because she was upset

that he had taken her dog and cell phone. She admitted she never told the police that she

believed Lopez was going to hurt or kill her that night. She admitted telling the police

that Lopez had not hurt or touched her since the incident in which he had given her a

black eye, and that she and Lopez had only been involved in three fights during their

relationship. She testified those statements had been lies.

        Defendant admitted that she drank a lot and that she had physical altercations with

previous boyfriends during which she had hit them. She admitted slapping Lopez in the

past.

        Dr. Michael Kania, a psychologist, stated his opinion that defendant suffered from

battered woman syndrome, which describes characteristics explaining why a person may

react to certain circumstances in an abusive relationship. He also stated his opinion that

defendant had suffered from posttraumatic stress disorder (PTSD) for 10 years. He based

those opinions on his interview of defendant and on police and medical records. He

admitted it is “very uncommon” for a battered woman to initiate the violence.

        C. Prosecution Rebuttal

        Investigator Button was recalled to provide brief rebuttal after defendant testified.

The investigator testified that defendant first told him she had been at Gallo’s house the

night of the shooting. About three hours into the interview, defendant admitted shooting

Lopez; however, she never said she shot Lopez because she was afraid of him.

Defendant told Investigator Button about the incident during which Lopez had given her

black eyes, and she said he had not hit her again after that incident. Defendant said she

                                              9
had been upset “[b]ecause she came home, her dog was missing, her cell phone was

missing, and there was a broken table in her house.” Defendant said that Lopez entered

the house and threw the dog on the ground; however, she said the dog had not made any

sound. She said Lopez had asked her what she was doing, and she replied, “‘Shooting.

Shooting a gun.’” She had also told Lopez, “‘I don’t want you beating up on me no

more.’” Defendant said both that she did not realize she had shot Lopez and that she

believed she had. She always maintained that her intent had been to scare Lopez.

       D. Stipulations

       The prosecution and defense stipulated that five shell casings found in defendant’s

house and the bullet recovered from Lopez’s body came from the .22-caliber rifle that

was recovered from the septic tank. Defendant’s hands tested positive for gunshot

residue, and both defendant and Lopez had alcohol in their systems at the time of the

shooting.

       E. Verdict and Sentence

       The jury found defendant guilty of second degree murder (§ 187, subd. (a), count

1) possession of a firearm by a felon (former § 12021, subd. (a)(1), count 2), and

infliction of corporal injury on a cohabitant (§ 273.5, count 3), and found true allegations

as to count 1 under sections 12022.5, subdivision (a), and 12022.53, subdivision (d). The

trial court found true the allegation of a prison term prior. (§ 667.5, subd. (b).)

       The trial court sentenced defendant to 15 years to life on count 1, with a

consecutive enhancement of 25 years to life for the weapon use (§ 12022.53, subd. (d)) as

to that count. The court imposed a consecutive sentence of two years for count 2 and

                                              10
imposed and stayed under section 654 a concurrent term of four years for count 3.

Finally, the court imposed a consecutive term of one year for the prison term prior.

       Additional facts are set forth in the discussion of the issues.

                                     III. DISCUSSION

       Defendant contends the trial court erred in finding that her statement which was

obtained in violation of Miranda was voluntary and admissible to impeach her testimony

at trial. Specifically, defendant contends that four statements of Lieutenant Brandon Ford

during the interrogation sent a misleading message and psychologically coerced her into

admitting she had killed Lopez: (1) calling her a liar; (2) equating the truth with being a

“witness” and with freedom; (3) pressuring her to think about where she wanted to be at

the end of the day; and (4) challenging her to choose between being a witness and being a

suspect. She further argues that “the officers’ deliberate violation of Miranda, [her] lack

of sleep, heavy drinking, diagnosed mental disorders,” and failure to take her prescribed

medications, caused her confession to be involuntary.

       A. Additional Background

       Defendant moved before trial to exclude her statement to the deputies as having

been taken in violation of Miranda and as involuntary. At the hearing on her motion,

defendant called Dr. Richard Leo, a professor of law at the University of San Francisco,

to testify as an expert witness on police investigation, psychological coercion, and

involuntary confessions. He testified that when Lieutenant Ford asked defendant whether

she wanted to be a witness or a suspect, her will was so overborne that she had no choice

but to confess to murdering Lopez. He also testified the statement was an implicit

                                             11
suggestion that she would benefit from going along with what the investigator was saying

and would possibly avoid arrest and incarceration. On cross-examination, Dr. Leo

conceded that the suspect-versus-witness technique, accusing a suspect of lying,

challenging a suspect, and lying about discovering evidence, were accepted law

enforcement practices that are not inherently coercive. Furthermore, he conceded that the

fact that an interrogation is stressful does not make it coercive. He had never spoken to

defendant before testifying. He testified that his sole reason for his opinion that the

interrogation had been coercive was the use of the suspect-versus-witness technique.

       Investigator Albert Loureiro testified he had arrived at defendant’s house just

before 3:00 a.m. on May 1, 2008. Three other officers were already there. The

investigator told defendant and her mother that they were “important people in [the]

investigation,” and the officers “needed their full cooperation to the full extent.” Gallo

told him defendant had been with her all day. Defendant was patted down, and she and

her mother were placed in separate patrol cars. Defendant was not handcuffed, but she

was locked in the back seat of the patrol car, and she was told that if she needed anything,

she should knock on the window. The investigator told defendant she was not under

arrest. There was a delay transporting defendant to the sheriff’s station because Gallo felt

sick, and an ambulance was called to transport her to the hospital.

       Investigator Joshua Button testified that he arrived at the sheriff’s station after

7:00 a.m. on May 1, 2008. He was wearing civilian clothing, but he also wore a badge

and carried a firearm in his belt. When he entered the interview room at about 9:00 a.m.,

defendant was covered in a blanket and was dozing. She said she was tired and wanted to

                                              12
go home, and she asked about her mother, who had been taken to the hospital because of

an asthma attack. He told her that her mother was fine. He said she was not under arrest

and was free to leave. She did not appear to be impaired in any way, and she seemed

able to understand his questions. She responded to the questions in a logical fashion, and

she was not slurring her words. The investigator spoke to defendant for approximately

six to eight hours with breaks.

       Lieutenant Ford testified that he monitored Investigator Button’s interview of

defendant. After an hour or so, he entered the interview room and began interrogating

defendant himself. He was wearing a suit and a badge. He had a gun, but it was

concealed on his ankle. He told defendant he believed she was lying because her story

did not make sense. He did not say she would be arrested if she did not give him a

logical statement; he did not make any promises to her.

       After viewing the videotape of defendant’s interview, the trial court ruled that

defendant had been taken into custody at her home when she was placed in a locked

police car and then held in the interview room at the sheriff’s department. The trial court

ruled defendant should have been given her Miranda rights before the interview began,

and her statements both before and after the Miranda advisements were therefore

inadmissible in the People’s case-in-chief. The court further ruled that defendant’s

statement was not coerced or involuntary because there was only a “brief indication of

whether or not she wants to be a witness or a defendant”; the fact that she gave up

incriminating information meant she knew she was not going to be a witness; and she had



                                            13
been through the system before. Thus, the statement was admissible to impeach

defendant’s testimony.

       B. Standard of Review

       On appeal, we apply the substantial evidence standard of review to the trial court’s

findings as to the circumstances surrounding the confession, including the characteristics

of the defendant and the details of the interrogation. (People v. Benson (1990) 52 Cal.3d

754, 778-779.) We independently review the trial court’s conclusion as to the

voluntariness of the confession. (People v. Boyette (2002) 29 Cal.4th 381, 411.)

       C. Analysis

       “[A] statement taken in violation of [Miranda] is inadmissible at trial in the

prosecution’s case-in-chief, but is admissible to impeach the defendant’s credibility as a

witness, so long as the statement otherwise is voluntary. [Citations.]” (People v. Peevy

(1998) 17 Cal.4th 1184, 1188.) “The shield provided by Miranda cannot be perverted

into a license to use perjury by way of a defense, free from the risk of confrontation with

prior inconsistent utterances.” (Harris v. New York (1971) 401 U.S. 222, 226.)

       “‘Under both state and federal law, courts apply a “totality of circumstances” test

to determine the voluntariness of a confession. [Citations.] Among the factors to be

considered are “‘the crucial element of police coercion [citation]; the length of the

interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant ’s

maturity [citation]; education [citation]; physical condition [citation]; and mental

health.’” [Citation.]” (People v. Boyette, supra, 29 Cal.4th at p. 411.)



                                               14
       “[C]oercive police activity is a necessary predicate to the finding that a confession

is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” (Colorado v. Connelly (1986) 479 U.S. 157, 167; see also People v.

McWhorter (2009) 47 Cal.4th 318, 347.) Moreover, the coercive police activity must be

causally related to the defendant’s statement. (People v. Williams (2010) 49 Cal.4th 405,

437.) “‘In assessing allegedly coercive police tactics, “[t]he courts have prohibited only

those psychological ploys which, under all the circumstances, are so coercive that they

tend to produce a statement that is both involuntary and unreliable.” [Citation.]’

[Citation.]” (Id. at p. 436.)

       D. Violation of Miranda

       Defendant contends the officers deliberately violated Miranda.4 However, even a

deliberate violation of Miranda, without more, does not render a confession involuntary

and require exclusion for impeachment purposes. For example, in People v. Peevy,

supra, 17 Cal.4th 1184, officers admitted they had intentionally violated the defendant’s

Miranda rights by continuing to question him after he requested counsel; the officers

hoped to obtain impeaching evidence. (People v. Peevy, supra, at pp. 1189-1190.) The

court held the defendant’s statements were nonetheless admissible for impeachment. (Id.

at pp. 1196-1202; see also People v. Demetrulias (2006) 39 Cal.4th 1, 29-30 [officers

failed to honor the defendant’s invocation of his right to remain silent, but statement was


       4 The trial court held that the officers had violated Miranda by failing to give
admonishments before the interrogation began; however, the trial court made no finding
as to whether the violation had been deliberate.

                                             15
nonetheless voluntary and admissible for impeachment].) Here, likewise, we conclude

the failure to administer timely Miranda warnings did not render defendant’s statements

involuntary.

       E. Witness-versus-suspect Comparison

       Defendant argues that Lieutenant Ford’s use of the witness-versus-suspect

comparison was a deceptive and coercive interrogation technique that rendered her

confession involuntary. She contends the comparison implied a promise of leniency in

exchange for her confession. Our review of the transcript of the interview convinces us

that the lieutenant was merely pointing out that defendant’s story was inconsistent and

unreasonable. He questioned why she was lying and asked her to tell the truth.

“‘“[M]ere advice or exhortation by the police that it would be better for the accused to

tell the truth when unaccompanied by either a threat or a promise does not render a

subsequent confession involuntary.’” [Citation.]’” (People v. McWhorter, supra, 47

Cal.4th at p. 357.)

       Moreover, during the interview, the officers asked defendant numerous questions

regarding the possible involvement of defendant’s sons, Vandiver, or other family

members.5 Notably, the first thing defendant said when placed in the interview room


       5 Investigator Button asked if Lopez had been in any recent fights with
defendant’s family members, if he had any problems with either of defendant’s sons, or if
he had any problems with Vandiver. The investigator asked how Lopez got along with
defendant’s father, stepfather, mother, and son Brandon. He asked about possible
jealousy between Vandiver and Lopez and asked if it was possible that Lopez and
Vandiver had an argument. He again asked if there had ever been an argument between
Lopez and Vandiver. Lieutenant Ford also asked if Lopez and Vandiver had had any
                                                                 [footnote continued on next page]

                                            16
with Gallo was, “They were thinking I was covering up for Brandon or [Vandiver] or

somebody.” Thus, in context, the witness-versus-suspect question appears to have been

directed at least in part to the possibility that defendant was shielding another person

rather than a technique designed to induce her to confess her own guilt.

        Defendant relies heavily on her own characteristics and circumstances, including

“lack of sleep, heavy drinking, diagnosed mental disorders,” and failure to take her

prescribed medications to support her argument that her statement was coerced. During

the interview, she told the officers that she was “schizophrenic, bipolar, and all that.” Dr.

Leo testified he had reviewed a report that indicated defendant had chronic schizophrenic

condition, PTSD, and anxiety disorder, but no medical documentation or other evidence

was introduced at the hearing to substantiate those diagnoses; rather, defendant cites only

to evidence from her trial. She has therefore forfeited a claim that such evidence

supported a finding of involuntariness. (People v. Rundle (2008) 43 Cal.4th 76, 121,

overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) Moreover,

nothing in the record indicates that defendant’s mental disorders materially affected her

ability to make a voluntary statement.




[footnote continued from previous page]

fights. He asked if there would be any evidence, such as fingerprints or DNA, showing
that Vandiver had been in defendant’s bedroom or if there would be any “evidence of
[Vandiver] on [Lopez].” Lieutenant Ford told defendant, “that’s not reasonable that your
boyfriend gets killed in your living room, or is dead in your living room, and you don’t
know who did it. Right about the time your baby’s daddy gets out of prison and you’re
off screwing him in a hotel room. You see how that looks?”

                                             17
       Defendant further argues she had been drinking “three days straight” before the

interview. She had told the officers she had been drinking intermittently the past few

days and had been “drinking a lot during the day” before the shooting. She argues she

was visibly shaking from alcohol withdrawal by the time she admitted the murder. Near

the end of the interview, Lieutenant Ford noted she was shaking, and she responded that

it was because of her nerves or because she had not had a drink in a while. In People v.

Weaver (2001) 26 Cal.4th 876, the defendant suggested his statements were involuntary

because he had been under the influence of medication. The court rejected the claim,

explaining, “The due process inquiry focuses on the alleged wrongful and coercive

actions of the state . . . and not the mental state of defendant. [Citation.] Because the

trial court determined that neither officer engaged in wrongful conduct, the mere fact

defendant was taking medication prescribed by the prison medical staff is insufficient to

establish a claim of involuntariness. [Citations.]” (Id. at p. 921.) The same analysis

applies to defendant’s consumption of alcohol.

       Defendant argues that several officers at the scene knew her family well and had

responded to other 911 calls from her home over the years and that Lieutenant Ford and

Investigator Button “did not hesitate” to use that information to their advantage.

However, that evidence was presented at trial through Gallo’s testimony; it was not

presented at the evidentiary hearing. Moreover, defendant has not provided any

persuasive explanation of how that fact made her statement involuntary.




                                             18
       As to defendant’s other characteristics, she was 45 years old when she made her

statement. She had previously been convicted of burglary, embezzlement, two separate

instances of corporal injury on a spouse, among other crimes, and had previously served

time in prison; thus, she was familiar with the criminal justice system.

       As to the conditions of the interview, the officers offered defendant multiple

breaks and opportunities to use the restroom. She was offered food and drink, and when

she requested a soda, one was provided to her. She was never placed in handcuffs. The

two interrogators were dressed in civilian clothes and remained seated during the

interview. The interview was indeed lengthy, and defendant had a lengthy wait at the

sheriff’s station before it began because the interviewers had to be summoned from their

distant homes. However, the length of an interview does not render a defendant’s

statement inherently involuntary.

       Defendant relies on People v. Flores (1983) 144 Cal.App.3d 459, in which the

court held that a defendant’s statement was involuntary. The police told the defendant,

who was suspected of murder, “‘we need you to help yourself out of this mess’”; that

statement followed statements about the death penalty, and the clear implication was that

“[o]nly by confessing his involvement in the decedent’s death could the appellant avoid

the possible death penalty.” (Id. at p. 471.) Here, unlike in Flores, the record shows no

discussion of possible penalties, let alone a discussion of the death penalty.

       Considering all the circumstances, we conclude the trial court did not err in

determining that defendant’s statement was voluntary.



                                             19
       F. Harmless Error

       Even if we were to assume the trial court erred in concluding that defendant’s

statement was voluntary, we review such error “in the context of other evidence

presented” to determine whether the admission of her statement was harmless beyond a

reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 308.) In other words, the

burden is on the government “to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” (Chapman v. California

(1967) 386 U.S. 18, 24.) In People v. Mil (2012) 53 Cal.4th 400, the court explained the

standard as follows: “[O]ur task in analyzing the prejudice from the . . . error is whether

any rational fact finder could have come to the opposite conclusion.” (Id. at p. 418,

original italics.) Defendant argues that this standard cannot be met because the admission

of her “prior inconsistent statements left the damaging impression, whether it was true or

not, that she was skewing her trial testimony to present herself in a more sympathetic

light and thus, was not worthy of belief.”

       Defendant argues that “the evidence of her prior inconsistent statements

concerning the extent and frequency of domestic abuse inflicted by Lopez [citation],

whether she responded at the time of the shooting to a certain ‘look’ in Lopez’s eye

[citation], or if she told police she shot Lopez out of fear of being hurt or killed [citation]

had to have been damaging to her credibility and most certainly affected the jury’s

consideration of the critical issue of [her] mental state at the time of the shooting.”

       To determine whether defendant was prejudiced, we must first identify which

specific portions of her pretrial statements were in fact presented to the jury. Neither a

                                              20
recording nor a transcript of defendant’s statement was admitted into evidence; rather, the

prosecutor cross-examined defendant on inconsistencies in her various statements and

testimony, and Investigator Button testified briefly on rebuttal about pretrial statements

defendant made that were inconsistent with her trial testimony.

       With respect to her statements about prior domestic abuse by Lopez, before

Lieutenant Ford even entered the interview room, defendant had told Investigator Button

that Lopez had beaten her up four or five months earlier and had given her black eyes, but

“[h]e never hit [her] again after that.” Defendant’s arguments that similar statements

were involuntary are entirely based on Lieutenant Ford’s later statements and

interrogation techniques; those arguments simply do not apply to her earlier statements to

Investigator Button.

       With respect to defendant’s failure to tell the officers that she shot Lopez because

she feared being hurt or killed, she also failed to tell that to her own mother.

       Even in the absence of the challenged testimony, other evidence called defendant’s

credibility into serious question. First, her conduct after the murder was significant—

instead of calling 911, she called her mother and asked for help to “cover it up.” She hi d

the rifle and bullets in the septic tank, and she and her mother concocted an alibi.

       Next, her credibility was damaged by the manner of the killing: the rifle had to be

manually reloaded each time it was fired; specifically, for each shot, the used shell casing

had to be removed, a new bullet placed in the chamber, and the bolt closed. Thus, she

had time to reflect before firing the rifle three separate times. Defendant was familiar



                                              21
with the rifle and had recently fired it. In addition, defendant had no physical injuries

apart from a scratch on her arm.

       Gallo’s testimony also damaged defendant’s credibility. During her police

interview, Gallo at first lied to protect defendant and claimed that defendant had been

with her that evening. She then admitted that defendant shot Lopez and had called her to

ask for help. Gallo testified at trial that defendant said she had gone “ballistic” when

Lopez threatened her dog. Defendant repeatedly said she wanted to cover it up. Gallo

described defendant as “nonchalant” when discussing the gun used. Defendant never told

Gallo she had shot Lopez because she was scared of him. Instead, in the recorded

conversation between Gallo and defendant at the police station, defendant admitted she

had shot Lopez because she was mad: “The one time I just shot and he stood up. And

then he walked out of the bathroom and I was just going to shoot towards the wall, just to

scare ‘em, ‘cause he was making me so mad, and he came out. What are the chances,

huh? [¶] My luck.”

       Finally, defendant was impeached with prior felony convictions for burglary,

embezzlement, and spousal abuse. She admitted she had struck previous boyfriends. She

admitted she had lied to the officers “for quite a while” during the interrogation.

       We conclude that any error in the admission of defendant’s pretrial statements was

harmless beyond a reasonable doubt.




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                                   IV. DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     HOLLENHORST
                                                                   J.
We concur:


      RAMIREZ
                            P.J.

      CODRINGTON
                              J.




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