Filed 1/27/16 P. v. Bolden CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B260188

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA397880)
         v.

JAVIER BOLDEN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen
A. Marcus, Judge. Affirmed.
         Joshua L. Siegel for Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and Steven E. Mercer, Deputy Attorney General
for Respondent.
                                    INTRODUCTION

              Defendant and appellant Javier Bolden confessed twice to the double
murder and robbery of two University of Southern California (USC) graduate students.
He also confessed to an unrelated earlier attempted murder of a male outside a nightclub
near USC. We conclude that under the totality of the circumstances, the defendant’s
recorded confessions were not motivated by express or implied promises of leniency,
threats, or other coercive police activity, and these confessions are voluntary. We find
the omission of instruction on second degree murder and involuntary manslaughter is
harmless, and the trial court did not abuse its discretion in denying defendant’s mistrial
motion.
       The jury convicted defendant of the murders of Ying Wu (Wu) and Ming Qu (Qu)
in counts 1 & 2 (Pen. Code,1 § 187, subd. (a)); the attempted murder of Deionce Davance
(§§ 664/187, subd. (a); count 4),2 and assault on Zanae Flowers with a semi-automatic
firearm (§ 245, subd. (b); count 5). The jury found true two special circumstances—
multiple-murder and robbery-murder—as to the murder counts. (§ 190.2, subds. (a)(3) &
(a)(17).) The jury also found true the following allegations: that a principal was armed
with a handgun in all counts (§ 12022, subd. (a)(1)); that defendant personally and
intentionally used and discharged a handgun that caused great bodily injury in count 4
(§ 12022.53, subds. (b)-(d)); that defendant personally used and discharged a semi-
automatic firearm in count 4 (§ 12022.5); and that defendant personally inflicted great
bodily injury in count 5 (§ 12022.7, subd. (a)).3



1
       All further statutory references are to the Penal Code, unless otherwise specified.
2
       Count 3 originally charged defendant with a separate attempted murder but was
deleted in the final amended information.
3
       Bryan Barnes was appellant’s accomplice in the murders. He was originally
charged jointly with appellant, but later plead guilty to two counts of murder. He was
sentenced to consecutive terms of life without parole.
                                              2
       The trial court sentenced defendant for the murders on counts 1 and 2, to two
consecutive terms of life without parole, plus one additional year on each count for the
principal-armed allegations. For the attempted murder conviction on count 4 defendant
was sentenced to life, plus 25 years to life for the firearm enhancement. For the assault
with a deadly weapon conviction on count 5, defendant was sentenced to 22 years,
consisting of the upper term of 9 years, plus 13 years, consisting of 10 years for the
firearm use enhancement, and 3 years for the great bodily injury enhancement.4
       Defendant raises six issues in his appeal from judgment. First, he argues his
confession to the police was involuntary. Second, he contends his jail cell confession to a
confidential informant, posing as a fellow gang member was the tainted product of the
earlier involuntary confession. Third, he argues the booking exemption does not apply to
the Detective’s pre-Miranda question illiciting his phone number. Fourth, he argues he
was entitled to a lesser included jury instruction on second degree murder and
involuntary manslaughter. Fifth, he contends the trial court’s erroneous ruling on the
intent-to-kill requirement, which was corrected in the jury instructions required a mistrial,
and sixth, the errors were cumulatively prejudicial.
       We find no reversible error and affirm the judgment.




4
        The trial court struck the principal-armed allegation in count 5, in accordance with
its previous ruling granting the People’s motion to dismiss that allegation.
                                               3
                                     BACKGROUND


        1. The February 12, 2012 shootings of Deionce Devance and Zanae Flowers

        On the evening of February 12, 2012, a party was held at the Garr Banquet Hall,
near Western and 51st Street, south of the USC campus. At least 100 people were inside.
Devance attended the party with Tamara McKeever, his sister, Charles Darden, and
Zanae Flowers. Sometime before midnight, the lights came on, and the music was turned
down.
        As Devance and McKeever headed toward the exit, Bolden entered with a large
group of other African-American males and females. Bolden was “loud and irate and he
was gang banging.” Making hand gestures, he announced loudly “8 Tray Gangsters” and
also said “8 Tre Gangsters movin.” Flowers characterized Bolden as “riled up” and
“coming to start trouble.” Darden considered Bolden and his friends as being “ready to
start problems.” After Devance told Bolden he almost hit McKeever, Bolden punched
him, and the two fought. At least twenty others joined in the fight. A security guard
ejected Devance and Darden, who then stood on the sidewalk. Outside, McKeever and
Flowers began to fight a group of females.
        On the sidewalk Bolden approached Devance and asked “Who are you?”; and then
shot him. Grabbing his stomach, Devance said “I got hit” and fell. Devance had been
shot twice. One bullet went through the back of his head and exited his left eye. The
second entered his left abdomen and existed his back. He sustained permanent,
debilitating brain injuries resulting in paralysis, inability to speak, and the need for round-
the-clock nursing care.
        Upon hearing the gunshots, McKeever and Flowers began running south. Flowers
was shot in the leg and fell, screaming.
        McKeever and Darden were each “a hundred percent” that Bolden was the
shooter.


                                              4
          2. The April 12, 2012 Murder of Qu and Wu

          On April 12, 2012, about 1:00 a.m., Jovanny Ordonez was at home on Raymond
Avenue near USC when he heard what sounded like a loud firecracker and glass
breaking. Looking out the window, he saw a BMW with its hazard lights blinking parked
across the street. Qu exited the car; crawled to the porch of a house, and knocked on the
door, breaking the glass. When Ordonez approached Qu, the latter was on his back and
choking on blood. Ordonez called 911 and returned to Qu who indicated someone else
was in the car. At the BMW, Ordonez noted Wu, Qu’s girlfriend, slumped forward in the
front passenger seat. She was not responsive.
          While at home, Eury Maldonado, a neighbor, heard two rapid gunshots and the
sound of glass breaking. From his second floor balcony, Maldonado observed two
African-American males, one on each side of Qu’s BMW. They argued loudly and then
ran off together southbound. Maldonado could not see their faces, because they wore
head coverings, i.e., “hoodies.” When the bleeding Qu exited the car, Maldonado called
police.
          Wu had been shot twice and died from gunshot wounds to her chest. Qu died
from blood loss due to a single gunshot wound behind his left ear.


          3. The Police Investigation
            a. Scene Investigation

          At the Devance and Flowers shooting scene, the police found an expended 9-mm
casing on the sidewalk in front of the nightclub and another about eight feet from where
Devance was lying. A live 9-mm round was retrieved on the ground about 30 feet away.
          At the Wu and Qu shooting scene, the police observed a hole in the BMW driver’s
side window, which had been broken partially inward. No third party fingerprint or DNA
evidence was found. A 9-mm bullet was on the front passenger seat, and a second bullet
was between that seat and the right front door jamb. Two expended 9-mm casings were

                                             5
in the street not far from the car. This firearm evidence and examination of the BMW
itself indicated someone had fired into the car through the driver’s window. All the 9-
mm casings found at both shooting scenes were fired from the same semiautomatic 9-mm
handgun. Qu’s and Wu’s cell phones had been stolen.


           b. Cell Phone Investigation

         With respect to the February 12, 2012 shootings, Bolden’s cell phone was used in
the vicinity of the banquet hall at 11:23 p.m. and at 12:06 a.m.
         As to the April 12, 2012 shootings, Bolden’s and Barnes’ cell phones were used in
the shooting vicinity at 12:14 a.m. and 1:02 a.m. At 12:55 a.m., a call was made from
Bolden’s phone to Barnes’ phone that lasted six and a half minutes. At 1:09 a.m., shortly
after Wu was shot, her cell phone received an incoming call in the area of Barnes’ house
that was not answered. Between 1:32 and 2:07 a.m., Barnes’ phone was used in the
vicinity of his house. At 1:36 a.m., Bolden’s phone was used not far from Barnes’ home.
Between 6:00 a.m. and 11:00 a.m., Wu’s phone was used in the vicinity of Barnes’
house.


           c. Wiretap Phone Conversations and Arrests of Barnes and Bolden

         Pursuant to a wiretap warrant, the police recorded two phone conversations, one
between Bolden and Barnes and the other between Bolden and an unknown female. The
recorded conversations were played for the jury. In the first conversation recorded on
May 17, 2012, Bolden and Barnes discussed their robbery of the “little Asia people”; the
shooting through the window; and “snatch[ing]” of cell phones. In a phone conversation
later the same day, Bolden told an unidentified woman he no longer partied on Western.
When asked why, Bolden responded, “Last time I partied on Western, I had to kill
somebody.”



                                             6
         Barnes was arrested just after he left a cell phone store in Compton where police
recovered an iPhone stolen during the Qu and Wu shooting incident.
         On May 18, 2012, at 6:03 p.m., the police arrested Bolden and seized his cell
phone.


           d. Bolden’s Statements During Police Interview

         At the police station following his arrest, Detectives Carreon and Hansen
conducted a videotaped interview of Bolden, which was played for the jury. Prior to his
Miranda advisement, Carreon asked Bolden for his name, date of birth, address, and
telephone number. Bolden responded his name was Javier Bolden; his date of birth was
“8/29/92”; he lived on Atmore Street in Palmdale; and his phone number was “323 599-
3681.” Bolden was then advised of his Miranda rights, which he understood and waived.

         During the interview, Bolden admitted he and Barnes were involved in the
shooting of Qu and Wu and identified “Tyrell,” Bolden’s cousin, as their driver. Bolden
indicated their plan was to rob Qu and Wu. Barnes shot both of them and snatched their
phones. Bolden stated because Barnes was his “boy,” “I just go with it.” Bolden denied
involvement in the 2012 February shooting of Devance and Flowers.


           e. Bolden’s Statements to Confidential Informant

         After the interview, Bolden was placed in a jail cell with a confidential informant
posing as a fellow Blood gang member. The recording of their conversion was played for
the jury. During this conversation, Bolden discussed both shooting incidents. Bolden
explained he “popped” Devance during a gang confrontation and gave this description of
the shooting: “Boom, [I] popped him. Hit him . . . he tried to run . . . Then he tried to
walk away.”
         Bolden characterized the shooting of Qu and Wu as the product of an unsuccessful
carjacking near USC while “we was out there robbin’ people.” He explained the people
                                               7
would not “get out of the car; so my brother bust through the window Boom Boom.” He
described the driver as being hit in the head and the passenger as “just slumped” and
identified the car as a BMW. Bolden admitted he also fired a shot but added the bullet
did not break the passenger’s window. He explained although they planned to steal the
car, they only “snatched the phones” because they “heard people come out [of] the
house.” “I got out of there and the two people in the car died.” He stated they later sold
the guns and complained “[w]e got caught because of the fucking phones.”


       4. Defense
       Bolden relied on a mistaken identification defense and on the theory the
prosecution failed to prove he had any involvement in the shootings.


                                       DISCUSSION

       Bolden’s Police Interview Statements Were Voluntary

       Bolden contends the trial court erred in refusing to suppress his incriminating
statements made during the police interview because his confession had been coerced
through threats, promises of leniency, and other unlawful police tactics. Admission of
Bolden’s statements was not error. The totality of the circumstances establishes his
statements during the recorded interview were voluntary.

       Circumstances Regarding Bolden’s Police Interview

       On May 18, 2012, Bolden’s police interview began at 9:00 p.m., and lasted two
hours and thirty-seven minutes, including a five-minute break. Less than three minutes
before any substantive questioning, Bolden was advised of and waived his Miranda
rights. About halfway into the interview, Bolden made statements incriminating himself
as an aider and abettor to the Qu and Wu murders. He denied any involvement in the
February 12, 2012 shooting incident.

                                             8
       During the initial hour, and prior to the incriminating statements, the detectives
exhorted Bolden to provide information about the shootings, tell the truth, and not lie.
[“You wouldn’t lie to me about that, would you?”], [“You need to – you need to come
clean with us. Okay?”], [“[W]e want to talk to you about it. And we want you to be very
honest.”], [“It’s . . . very important to you that you start telling the truth and start thinking
about yourself.”], [“I want you to be truthful to me. And I want you to tell me about the
shooting that you were involved in.”], [“I’m letting you know it’s over with now. Okay.
You need to be honest with me. You better start saving your ownself [sic].”], [“If you
want to go to jail for the rest of your life, if not until something else happens to you, you
know what, you better start talking.”], [“And some of the things that [Barnes] is saying
don’t really add up to me. But, I’m trying to get the truth out of you. All right?”], [“The
decision to not tell the truth will affect you for the rest of your life.”], [“The truth is the
only thing that’s gonna help you right now. And, let me tell you, you’re in a world of
hurt right now. And the only one that’s gonna . . . get you out of it, is you.”], [“[Y]ou
have an opportunity, right now, to tell the truth, to make sure that, hey, the truth came
out, at least.”]
       The detectives also exaggerated the state of the evidence connecting Bolden to the
shootings and accused him of lying when he denied any involvement, adding “we have
physical evidence to prove that.” They told Bolden he was implicated in the shootings
through the evidence they possessed, including DNA evidence, witness identification,
camera footage, Barnes’ statements,5 and one of the stolen phones. [“We have a lot of
data on you”], [“you guys were identified”], [physical evidence], [“Y]our buddy
[Barnes], your partner in crime there . . . he gave us his side of what happened”], [“We –
got everything. We have the phone. You know, we have people identifying you guys. I
mean . . . it couldn’t be a better case”], [“They got a lot of cameras [around USC]”],




5
       Detective Hansen told Bolden that Barnes said Bolden pulled the trigger.
Detective Carreon admitted attributing statements to Barnes was a ruse.
                                            9
[“We have overwhelming evidence that shows that you were there,” including video],
[“This DNA stuff, incredible. Incredible stuff”].)
       Additionally, the detectives told Bolden about the serious consequences of the
murders. Detective Hansen stated, “I guarantee you, you’re not getting out.” Detective
Carreon advised,“[Y]ou’re really making a huge mistake covering up for something
. . . that’s gonna affect you the rest of your life.” [“Some bad decisions can really affect
your life forever”].) Hansen asked Bolden if he was prepared to be in prison “for 25, 30
years plus, at a minimum[.]” He clarified, “I’m not threatening you, in any way. I’m just
saying you just don’t seem to be grasping how serious the situation is.” He added,
“You’re gonna be within four walls for a very, very long time.”
       At 55 minutes into the interview, Carreon advised Bolden he might be eligible for
life in prison or the death penalty: “And you’re gonna do the rest of your life in prison, if
not, the death penalty. It is – I mean, a death penalty eligible case. Okay. I’m not saying
that you’re gonna get the death penalty. But, this is something that’s possible. Okay.
Uhm, we don’t want to play games with you. We wanted to give you the opportunity to
. . . tell us what happened out there.” He then urged Bolden again to tell the truth. He
advised: “The only thing that’s gonna save you, right now, is if you tell the truth.
Besides that, you don’t have hope. There is no hope for you at all.” He denied “trying to
bullshit” Bolden or “trying to make [him] say something that isn’t true or anything like
that.” He added, “I wanted you to tell us the truth. And we gave you the opportunity.
And we – we went around with you for a little bit. We’re not gonna do that anymore.
Either you’re gonna tell us or you’re not.”
       Bolden asked if he could “step out of here.” Carreon responded no and
admonished “you don’t have control here” and “the only thing you’re in control of is
your own destiny – what’s gonna happen to you for the rest of your life.” He cautioned, a
jury would consider his failure to discuss truthfully what happened as proof he “don’t
even care” and it “wasn’t no big deal to you.” Through this portion of the interview,
Bolden had laughed and smiled repeatedly. Carreon advised him to “show some

                                              10
remorse” and asked if he wanted the jury to see him “laughing about it, chuckling it up”
as if “[y]eah, it’s- it’s funny.”
       Bolden asked “[W]hat is the truth gonna do for me?” Carreon responded the truth
would “show a jury that, hey, he shows a little bit of remorse. Right now, you’re a cold-
blooded killer to the jury.” Momentarily, Bolden stated “I didn’t have no gun.” Several
minutes later, he made additional incriminating statements regarding the Qu and Wu
murders, including the claims that it was his cousin’s idea to go out robbing people;
Barnes was the shooter; Bolden told him to get “whatever you can get”; and Barnes
snatched the victims’ phones.


       Admission of Bolden’s Police Interview Statements

       Prior to trial, the prosecution filed a motion for admission of Bolden’s statements
to the police. In opposition, the defense argued the statements should be suppressed as
involuntary, because the detectives used coercive tactics, namely, implying Bolden would
be better off if he told what happened and threatening him with the death penalty for the
murders.
       Following a hearing, the trial court, which had viewed the police interview video,
granted the motion, because the statements were voluntary under the totality of the
circumstances. The court found the brief reference to the death penalty was
inconsequential, explaining although “[t]hey do mention the death penalty, . . . in the
overall context of this fairly long interview, it’s mentioned a single time. And in my
view, it’s not either used as a threat or an inducement for some kind of leniency. And it’s
basically a truthful statement of what the law is and what the situation is.” The court
noted that for the most part, the detectives “emphasize[d] the prison aspect, not the death
penalty aspect” of the potential consequences of the murders. The court “found no
indication . . . that it’s some kind of trade-off, that [the detectives are] going to do
something about the death penalty, [that] they are going to help [Bolden] in some way
regarding the death penalty in exchange for his testimony.” The court also pointed out
                                               11
Bolden did not break down immediately in the face of the death penalty comment and his
incriminating statements “come many minutes later.”
       The court also found no “psychological coercion” was employed and there was
“[s]imply no indication” that Bolden’s “will was overborne or that he was
psychologically coerced.” The court characterized the interview as “a conversation
between [Bolden] and the [detectives]” and noted although Bolden “is soft spoken[, he] is
certainly dealing with the [detectives] in a conversational manner.” The court considered
Bolden as “almost interviewing” the detectives, because he “plays like a cat-and-mouse
game” and continually asked questions like “What do you guys know”; “What have you
got”; and “[S]how me what you got.”
       The trial court “couldn’t find any implied promise of leniency” or that the
detectives had “misexplain[ed] something in such a way that [Bolden] thought that he
would be dramatically helped by telling them” what happened. The court did find
Bolden was both familiar with the criminal justice system and “knows his way around
this kind of situation” and that in the interview, “he is holding his own.”
       In addition to the above reasons, the trial court’s finding of “no evidence of
coercion” also was based on these factual findings: The fact Bolden was smiling
demonstrated he was not overwhelmed by the death penalty; the detectives were “not
overly aggressive or overbearing”; rather, they were “[v]ery conversational, soft spoken”;
Bolden was “bantering with the police”; and their conversation had a “free-flowing
style[.]”


       Standard of Review

       “An involuntary confession may not be introduced into evidence at trial.
[Citation.] The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant's confession was voluntarily made. [Citations.] In determining
whether a confession was voluntary, ‘“[t]he question is whether defendant's choice to
confess was not ‘essentially free’ because his [or her] will was overborne.”’ [Citation.]
                                             12
Whether the confession was voluntary depends upon the totality of the circumstances.
[Citations.] ‘“On appeal, the trial court's findings as to the circumstances surrounding the
confession are upheld if supported by substantial evidence, but the trial court's finding as
to the voluntariness of the confession is subject to independent review.”’ [Citation.]”
(People v. Carrington (2009) 47 Cal.4th 145, 169.
       “‘A finding of coercive police activity is a prerequisite to a finding that a
confession was involuntary under the federal and state Constitutions. [Citations.] A
confession may be found involuntary if extracted by threats or violence, obtained by
direct or implied promises, or secured by the exertion of improper influence. [Citation.]
Although coercive police activity is a necessary predicate to establish an involuntary
confession, it “does not itself compel a finding that a resulting confession is involuntary.”
[Citation.] The statement and the inducement must be causally linked. [Citation.]’
[Citation.]” (People v. McWhorter (2009) 47 Cal.4th 318, 347.)
       “It is well settled that a confession is involuntary and therefore inadmissible if it
was elicited by any promise of benefit or leniency whether express or implied.
[Citations.] However, mere 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.] The distinction that is to be
drawn between permissible police conduct on the one hand and conduct deemed to have
induced an involuntary statement on the other ‘does not depend upon the bare language
of inducement but rather upon the nature of the benefit to be derived by a defendant if he
speaks the truth as represented by the police.’ [Citation.] Thus, ‘[when] the benefit
pointed out by the police to a suspect is merely that which flows naturally from a truthful
and honest course of conduct,’ the subsequent statement will not be considered
involuntarily made. [Citation.] On the other hand, ‘if . . . the defendant is given to
understand that he might reasonably expect benefits in the nature of more lenient
treatment at the hands of the police, prosecution or court in consideration of making a
statement, even a truthful one, such motivation is deemed to render the statement

                                              13
involuntary and inadmissible. . . .’ [Citations.]” (People v. Jimenez (1978) 21 Cal.3d
595, 611-612, superseded in part by constitutional amendment as stated in People v.
Markham (1989) 49 Cal.3d 63, 65 and overruled on another ground in People v. Cahill
(1993) 5 Cal.4th 478, 509, fn. 17.)
       “[C]ourts look to the totality of circumstances to determine whether a confession
was voluntary. Those potential circumstances include not only the crucial element of
police coercion, [Citation]; the length of the interrogation, [Citation]; its location,
[Citation]; its continuity, [Citation]; the defendant's maturity, [Citation]; education,
[Citation]; physical condition, [Citation]; and mental health, [Citation.]” (Withrow v.
Williams (1993) 507 U.S. 680, 693 (Withrow).)


       No Indicia of Involuntariness Infected Bolden’s Statements

       We have listened to and watched defendant’s videotaped police interrogation in
fulfilling our obligation to make an independent determination of the voluntariness of
defendant’s confession. We find no indicia of involuntariness infected Bolden’s
statements during the police interview. Bolden claims his statements were involuntary in
part due to coercive police tactics. He points out the police were in force when they
arrested him and that they transported him by helicopter from his home in Victorville to
the Los Angele police station, which he contends “only served to scare [him] by showing
him the amount of police resources that were being devoted to him.” He faults the police
for not waiting until the next morning to interview him “so that [he] would be rested for
the questioning.” Further, although he complained of being cold during the interview, the
detectives “never gave him a blanket or jacket.”
       We are not persuaded these matters amount to coercive police tactics which would
render his statements involuntary. First, Bolden does not assert or demonstrate that the
show of force during his arrest and/or the helicopter ride to the police station so
intimidated and frightened him that his free will was impaired. Granted, deprivation of
sleep might affect the voluntariness of a suspect’s statement. (Withrow, supra, 507 U.S.
                                              14
at p. 693.) However, he cites no authority for his novel proposition that the police must
wait until morning to interview a criminal suspect, because the suspect is entitled to a
night of rest before questioning. (People v. Taylor (2004) 119 Cal.App.4th 628, 643 [“A
legal proposition asserted without apposite authority necessarily fails”].) Further, Bolden
points to no evidence that during the interview, which took place at 9:00 p.m., not the
middle of the night, and ended at 11:00 p.m., he was so sleep-deprived that his will was
overborne. That the two shooting incidents occurred about midnight and 1:00 a.m.,
respectively, leads to a contrary inference. His contention is further belied by the fact he
was sufficiently rested to engage in a lengthy conversation with the confidential
informant shortly after his police interview. Bolden’s several complaints of being cold
during the interview also lack significance. In response to his first complaint, Carreon
observed “it’s kind of warm in here” and appeared surprised Bolden felt cold despite his
pajamas. Bolden himself later acknowledged “I’m always cold.” In any event, his
smiling, laughing, and banter with the detectives reveal his state of being cold was not so
severe as to overcome his free will. Rather, as reflected in the video and as the trial court
observed, Bolden was “holding his own” and playing “cat-and-mouse” with the
detectives. Also, Bolden told the detectives it was “[n]ice talking to you.”
       Bolden contends his age and only “minor criminal record” also allowed his will to
be overborne. The record refutes this contention. At the time of the interview, Bolden
was almost 20 years old. He did not display any indicia of vulnerability or susceptibility
to coercion. During the interview, he was composed and unfazed by the situation, nor
was he intimidated by the detectives with whom he smiled, laughed, and bantered.
Throughout the interview, Bolden is calm, relaxed, and soft spoken. He demonstrates he
is not easily intimidated, and is able to spar evenly with his questioners, attempting to
turn the tables on them by repeatedly asking “what have you got,” “what do you guys
know.” Although he confessed to the murders of Qu and Wu, he steadfastly denied any
involvement in the February 12, 2012 shooting. This is a significant compelling fact
demonstrating his will was not overborne by the police.

                                             15
       Additionally, his criminal record was not trivial. At the time of his arrest in this
matter, Bolden was on formal felony probation for making a criminal threat against a
school officer and a prior arrest and conviction for animal cruelty.
       Bolden further contends his incriminating statements were induced through
improper promises of leniency and threats of increased punishment. No such promises or
threats were made. The detectives made no express or implied promises of leniency to
induce Bolden to incriminate himself. Rather, they merely exhorted him to tell the truth,
be honest, and show remorse. Such exhortations unaccompanied by promises of leniency
are permissible. (People v. Williams (2010) 49 Cal.4th 405, 444 (Williams); People v.
Holloway (2004) 33 Cal.4th. 96, 115 (Holloway).) Similarly, the detectives did not
threaten Bolden with the death penalty unless he told them what happened. Carreon
brought up the death penalty only on one occasion and in so doing, he merely mentioned
the death penalty in the context of pointing out to Bolden the severity of the potential
punishment flowing from a conviction for multiple murders. Such advisement was
truthful and permissible. (See, e.g., Holloway, supra, 33 Cal.4th at p. 115.) The “save
you” reference was sufficiently attenuated from the factual death penalty comment so it is
clear Bolden did not understand it as a quid pro quo. This is not the constitutionally
proscribed situation “‘where officers threaten a vulnerable or frightened suspect with the
death penalty, promise leniency in exchange for the suspect’s cooperation, and extract
incriminating information as a direct result of such express or implied threats and
promises.’ [Citations.]” (Williams, supra, 49 Cal.4th at p. 443.) Further, later in the
interview, after having incriminated himself, Bolden told the detectives: “You talking
about that death penalty. Just give me that. I’ll take that. I ain’t getting out.”
       Additionally, contrary to Bolden’s claim, the detectives’ exaggeration about the
extent of the evidence and their questioning regarding the perpetrators’ intent to kill did
not render his statements involuntary. Generally speaking, unless likely to produce a
false confession, deception on the part of police is allowed. (People v. Smith (2007) 40
Cal.4th 483, 505-506 (Smith).) Often the detective’s exaggerations are in response to

                                              16
Bolden’s questions, “What do you guys know,” “What have you got,” “Show me what
you got.” The police are not barred from confronting a suspect with evidence that is
nonexistent or which they do not in fact have. (Id. at p. 506 [suspect falsely told gun
residue test positive]; People v. Farnam (2002) 28 Cal.4th 107, 182 [misrepresentation as
to defendant’s fingerprints]; People v. Jones (1998) 17 Cal.4th 279, 299 [implication
permitted that detective “knew more than he did or could prove more than he could”];
People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [suspect falsely told his fingerprints
on getaway car].) Further, the police are not prohibited from falsely representing the
suspect’s accomplice gave him up. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739;
People v. Felix (1977) 72 Cal.App.3d 879, 885.)
       Bolden faults the detectives for failing to explain first degree felony murder does
not require an intent to kill before they asked him who had come up with the robbery
plan, whether he and his accomplices intended to shoot the victims, and whether they
intended to kill them. He contends the sole import of this line of questioning was to
imply, wrongly, that Bolden would be guilty of a lesser homicide if the robbery had not
been his idea and he had not intended to kill anyone and thereby lead him to admit to
being involved in the killings but with a less culpable role. His position is without merit.
Although Bolden was arrested for the murders of Qu and Wu during a robbery, he had
not been charged with any particular crime at the time of his interview. The interview
was part of the ongoing police investigation into the circumstances leading up to and
resulting in the shooting deaths of Qu and Wu. The challenged line of questioning was
within the permissible scope of such investigation. It is not the function of the police to
determine what charges are to be brought against a suspect. Rather, the prosecuting
authority makes that determination based in part on the matters elicited in the police
interview. The detectives did not cross the line by promising Bolden he would be




                                             17
charged with a lesser offense or obtain a lighter punishment if he admitted his
involvement but denied any intent to rob and shoot the victims, much less kill them.6


       Bolden’s Jail Cell Statements to Confidential Informant Were Voluntary

       Bolden contends the trial court committed reversible error in denying his motion
to suppress his jail cell statements to the confidential informant, because these statements
were the “tainted product of his prior involuntary statements to police.” Initially, we
point out his underlying premise is fatally flawed. As discussed above, his incriminating
statements during the police interview were voluntary. Further, any connection or “taint”
between that confession and his confession to the confidential informant was attenuated
to such an extent that Bolden’s subsequent confession was not the exploited product of
his first. Even if we assumed for argument sake the first confession was involuntary, we
would still hold on this record that any connection or “taint” between this confession and
this first confession is sufficiently attenuated so that this confession is voluntary and
admissible.
       “‘[W]here—as a result of improper police conduct—an accused confesses, and
subsequently makes another confession, it may be presumed the subsequent confession is
the product of the first because of the psychological or practical disadvantages of having
“‘let the cat out of the bag by confessing.’” [Citations.]’” (McWhorter, supra, 47 Cal.4th
at pp. 318, 359.) This “presumption is rebuttable, with the prosecution bearing the
burden of establishing a break in the causative chain between the first confession and the
subsequent confession.” (Ibid.) “‘The degree of attenuation that suffices to dissipate the


6
       In any event, admission of this confession was harmless beyond a reasonable
doubt in view of Bolden’s more detailed incriminating jail cell confession to the
confidential informant, which, as we shall discuss, clearly was not tainted in any way by
Bolden’s police interview confession. (Chapman v. California (1967) 386 U.S. 18, 24
(Chapman); cf. Arizona v. Fulminante (1991) 499 U.S. 279, 297-300; see also, People v.
Gonzalez (2012) 210 Cal.App.4th 875, 884 [“improper admission of a confession can be
harmless if, for example, the defendant confessed multiple times”].)
                                            18
taint “requires at least an intervening independent act by the defendant or a third party” to
break the causal chain in such a way that the second confession is not in fact obtained by
exploitation of the illegality. [Citations.]’ [Citation.]” (Id. at p. 360.)
       We have listened to and watched defendant’s videotaped jail cell confession to the
informant. The totality of the circumstances surrounding Bolden’s jail cell statements
reveal they were not obtained by exploitation of what transpired during the earlier police
interview, and that no coercive tactics were employed. (People v. Bradford (1997) 14
Cal.4th 1005, 1041.) The jail cell conversation took place more than an hour after the
police interview, in a different setting, and before a third party. The exchange between
Bolden and the confidential informant was not conducted in an adversarial or hostile
atmosphere. Following the police interview that ended at 11:03 p.m., Bolden was alone
for 27 minutes. At 12:30 a.m., he was placed in the jail cell with the confidential
informant. The detectives were not present. Bolden was alone with the informant, who
represented himself to be a fellow Blood gang member. Moreover, the nature of the
exchange reflected their encounter was friendly and intimate. Bolden freely and without
hesitation bragged to the informant about what had occurred in both shooting incidents
and details about his own participation. It is noteworthy in the police interview Bolden
denied involvement in the February 2012 shooting with its gang overtones but readily
bragged about it to the informant, who he thought to be a fellow older Blood gang
member. 7




7
        Our decision is limited to the facts, and we do not decide as a general matter that a
recorded jail informant confession following a confession to police is always sufficiently
attentuated to be admissible (cf. Missouri v. Seibert (2004) 542 U.S. 600 [improper two
step interrogation technique to avoid Miranda].)
                                               19
       Is The Miranda Booking Exception Applicable to Bolden’s Phone Number
Statement?

       Following the close of evidence, defense counsel moved to suppress Bolden’s
telephone number statement to police prior to his Miranda advisements. He argued the
police already had this information and the question was “investigative in nature” and
designed to “elicit incriminating evidence.” The trial court acknowledged Bolden’s cell
phone number had “more significant relevance in this case than it would in an ordinary
case.” The court, however, denied the suppression motion, concluding the phone number
“falls into the category of prebooking-type questions, prebooking information that does
not require Miranda” admonishments. The court found the detectives were not asking for
the number to obtain incriminating evidence and the police eventually would have
obtained his number through other investigatory means. Defendant’s cell phone number
and subscriber information were in the hands of the police well before he was booked.
       At trial, a Tracfone subpoena compliance analyst testified Bolden’s cell phone
number was (323) 599-3681. Detective Lait testified (323) 599-3681 was one of the
target numbers in his wiretap application and during his investigation, he learned this
number was a cell phone primarily used by Bolden. Two incriminating recorded calls
from this phone number involving Bolden were played for the jury.
       Bolden contends the trial court erred in refusing to suppress his statement
regarding his phone number, because it was elicited in violation of Miranda.
       Without deciding whether the telephone number question is exempt from Miranda
under the booking exception, any error introducing this admission is harmless, in that
there was ample, independent, uncontradicted evidence that it was Bolden’s telephone
number.
       An error in admitting a statement obtained in violation of Miranda is reviewed
under the “harmless beyond a reasonable doubt” standard of Chapman. (People of
Johnson (1993) 6 Cal.4th 1, 32-33.) Such an error is generally deemed harmless if there
was other, properly admitted evidence establishing the fact sought to be proven by means
                                            20
of the statement. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.) Here, other
overwhelming independent evidence established it was Bolden’s phone number.
       As Bolden concedes, the police had already obtained admissible phone records
showing he was the cell phone subscriber for (323) 599-3681. The jury heard evidence
that the police had obtained Bolden’s cell phone records through a court order, and that
those records established that “Javier Bolden” was the subscriber for number “(323) 599-
3681.” Detective Lait testified he learned through his investigation, which preceded
Bolden’s interview, that (323) 599-3681 was the number for a cell phone being used
primarily by him. And the jury heard Bolden’s voice on two incriminating cell phone
calls for number (323) 599-3681 that had been recorded before his arrest and police
interview. There is nothing to support Bolden’s speculation that without his statement,
the jury might have concluded that the cell phone was not actually his. Thus, any error in
failing to suppress the phone number portion of the statement was harmless beyond a
reasonable doubt.


       Omission of Lesser Offense Instruction Harmless

       Bolden contends the trial court committed reversible error by failing to instruct sua
sponte on second degree murder and involuntary manslaughter as lesser included
offenses of the premeditated murder charged in counts 1 (Wu) and 2 (Qu). Omission of
such instruction was harmless, because there is no reasonable probability of a better result
if the instructions had been given.
       Counts 1 and 2 each charged Bolden with first degree murder on the theory of
premeditated murder, i.e., he “did unlawfully, and with malice aforethought” kill the
victim. In his opening statement, however, the prosecutor proceeded on a felony murder
theory instead. During the case in chief, the trial court confirmed the People were “only
proceeding on the theory of felony murder” and were “not proceeding on malice murder.”
When the court asked if the prosecutor wanted the words “malice aforethought” removed
from these counts, he asked for time to consider such removal. The court indicated
                                            21
removal was not critical, “[be]cause I don’t think there’s any issue derived from it.”
During a discussion on jury instructions, the court reaffirmed the prosecutor’s earlier
indication of proceeding under a felony murder theory only. Defense counsel did not
request instruction on any other theory and declined to request instructions on lesser
offenses. During argument, the prosecutor relied only on the felony murder theory.
       “A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser.’ [Citation.]” (People v. Shockley (2013) 58 Cal.4th 400, 403
(Shockley).) In other words, the state of the evidence must be such that a reasonable jury
could conclude that the defendant committed the lesser, but not the greater, offense. (Id.
at p. 404.) This duty exists even where the lesser included offense is inconsistent with
the defendant's own theory of the case and the defendant objects to the instruction.
(People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks).)
       “To determine if an offense is lesser and necessarily included in another
offense . . . , we apply either the elements test or the accusatory pleading test. ‘Under the
elements test, if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former. Under the
accusatory pleading test, if the facts actually alleged in the accusatory pleading include
all of the elements of the lesser offense, the latter is necessarily included in the former.’
[Citation.]” (Shockley, supra, 58 Cal.4th at p. 404.) “When applying the accusatory
pleading test, ‘[t]he trial court need only examine the accusatory pleading.’ [Citation.]
‘[S]o long as the prosecution has chosen to allege a way of committing the greater
offense that necessarily subsumes a lesser offense, and so long as there is substantial
evidence that the defendant committed the lesser offense without also committing the
greater, the trial court must instruct on the lesser included offense.’ [Citation.]” (Banks,
supra, 59 Cal.4th at p. 1160, italics added.)
       The evidence is substantial if a reasonable jury could find such evidence
persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.) Any doubts regarding the

                                                22
sufficiency of the evidence to support the lesser offense are resolved in favor of the
defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Whether the trial court
improperly failed to instruct on a lesser included offense is reviewed de novo. (Banks,
supra, 59 Cal.4th at pp. 1113, 1160.)
       “Even if second degree murder and manslaughter are not lesser included offenses
of first degree felony murder, they are lesser included offenses of a premeditated and
deliberate murder with malice. [Citations.]”8 (People v. Campbell (2015) 233
Cal.App.4th 148, 161-162) “Second degree murder is the unlawful killing of a human
being with malice, but without the additional elements (i.e., willfulness, premeditation,
and deliberation) that would support a conviction of first degree murder. [Citations.]”
(People v. Hansen (1994) 9 Cal.4th 300, 307; overruled on other grounds in People v.
Chun, supra, 45 Cal.4th at p. 1119.) “Involuntary manslaughter” involves an unintended
killing “in the commission of an unlawful act, not amounting to a felony; or in the
commission of a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection.” (§ 192, subd. (b).)
       The issue presented by Bolden can be phrased: Does substantial evidence exist
from which a reasonable jury could find Bolden committed second degree murder or
involuntary manslaughter but not premeditated murder. (People v. Breverman (1998) 19
Cal.4th 142, 162.) We need not, and therefore do not, reach this issue. The absence of
instruction on second degree murder and involuntary manslaughter was harmless beyond
a reasonable doubt. (Banks, supra, 59 Cal.4th at pp. 1113, 1116 [harmless error test
under People v. Watson (1956) 46 Cal.2d 818, 837].) Under this test, “evidence
sufficient to warrant an instruction on a lesser included offense does not necessarily



8
       “First degree felony murder is a killing during the course of a felony specified in
section 189, such as rape, burglary, or robbery. Second degree felony murder is ‘an
unlawful killing in the course of the commission of a felony that is inherently dangerous
to human life but is not included among the felonies enumerated in section 189 . . . .’
[Citation.]” (People v.Chun (2009) 45 Cal.4th 1172, 1182.)

                                             23
amount to evidence sufficient to create a reasonable probability of a different outcome
had the instruction been given. [Citations.]” (Banks, supra, 59 Cal.4th at p. 1161.)
       In this matter, overwhelming evidence supports the jury’s guilty first degree
murder verdicts on counts 1 and 2 based on a felony murder theory, and the evidence in
support of a lesser offense is minimal and not reasonably persuasive to the jury. (Banks,
supra, 59 Cal.4th at p. 1161; People v. Lipscomb (1993) 17 Cal.App.4th 564, 570 [“‘no
evidence that the offense is less than or other than that charged.’”])
       In returning a verdict of guilty on counts 1 and 2, the jury found true the felony
special circumstance allegation as to each count, namely, the murders of Wu and Qu were
committed while Bolden “was engaged in the commission of the crime of robbery . . .
within the meaning of . . . Section 190.2(a)(17).” The jury thus found Bolden
participated in the robbery of Wu and Qu. Bolden was convicted as an accomplice to the
actual murderer. As an aider and abettor, the jury necessarily found Bolden acted with
the intent to kill in finding true the felony murder special circumstance allegation.9 These
findings are supported by overwhelming evidence, mainly from Bolden’s own
statements. When asked what the plan was, Bolden told police to “get some cash” from
USC “kids,” because “it’s easy to take their stuff” and he joined in the plan because
Barnes did; and he told Barnes he was with him. After Barnes shot Qu and Wu, Bolden
directed him to “get what you can get” to complete the robbery. Barnes responded by

9
        “[I]ntent to kill” must be established where, as here, the defendant is an aider and
abettor rather than “the actual killer.” (§ 190.2, subd. (c); People v. Anderson (1987) 43
Cal.3d 1104, 1147 [“intent to kill is not an element of the felony-murder special
circumstance; but when the defendant is an aider and abetter rather than the actual killer,
intent must be proved”]; see also, People v. Jones (2003) 30 Cal.4th 1084, 1117.) The
trial court did not instruct the jury on intent to kill as to this special circumstance. At best
this omission is harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.)
Bolden does not challenge the sufficiency of the evidence on intent to kill. Importantly,
the court did instruct on the necessity of intent to kill as to the multiple murder special
circumstance allegation, i.e., “[t]he defendant, in this proceeding, has been convicted of
more than one offense of murder in the first or second degree” (§190.2, subd.(a)(3)),
which the jury also found true. The jury therefore also found intent to kill in finding true
the felony murder special circumstance.
                                                24
taking the victim’s phones. Additionally, Bolden told the confidential informant the
shooting resulted from an unsuccessful carjacking while “[w]e was out robbin’ people.”
He explained, “We was about to take the car but then we heard people come out the
house, and [Barnes] just snatched the phones. We got caught because of the fucking
phones.” As for the shootings, he told the informant that he also shot, but the bullet he
fired did not break the passenger’s window. Measured against such damning evidence,
Bolden’s statements to police that “I just – I didn’t want to,” shoot anyone and “as along
[as Bolden] ain’t got to shoot nobody,” Barnes should take “whatever [he] can get” are
simply self-serving and inconsequential


       Denial of Mistrial Not Abuse of Discretion

       Bolden contends the trial court abused its discretion in denying his mistrial
motion. We disagree. The court’s initial erroneous ruling that intent to kill was not an
element of the multiple-murder special circumstance was nonprejudicial, because the jury
was instructed correctly on the law and defense counsel was afforded the opportunity to
re-open his argument to address the issue of intent to kill before the jury, which
opportunity the defense declined.
       During a discussion about jury instructions, the trial court indicated CALJIC Nos.
8.80.1 and 8.81.3 regarding the multiple murder special circumstance would be given. No
objection was made. Pursuant to CALJIC No. 8.80.1, the jury would be instructed that a
defendant who was an aider and abetter must have acted with the intent to kill.10



10
       The applicable CALJIC No. 8.80.1 reads: “ [If you find that a defendant was not
the actual killer of a human being, [or if you are unable to decide whether the defendant
was the actual killer or [an aider and abettor] [or] [co-conspirator],] you cannot find the
special circumstance to be true [as to that defendant] unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill [aided,] [abetted,]
[counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in
the commission of the murder in the first degree] [.] [, or with reckless indifference to
human life and as a major participant, [aided,] [abetted,] [counseled,] [commanded,]
                                              25
Following the prosecution’s closing argument, defense counsel raised the issue of intent
to kill. After reviewing the use note for this instruction, the court initially ruled “[t]here
is no requirement to show an intent to kill for multiple murder.” In his closing argument,
defense counsel argued the prosecution failed to prove Bolden was involved at all in the
shootings. He did not address Bolden’s mental state. The prosecutor then made his
rebuttal argument.
       On the next day, the court reconsidered its prior ruling on the intent to kill issue.
After indicating the court had reviewed section 190.2, subdivision (c)11 and People v.
Nunez and Satele (2013) 57 Cal.4th 1 (Nunez),12 the trial court stated a trial court “must
instruct the jury that to find true a multiple murder special circumstance allegation as to
the defendant, [the jury] must find that the defendant intended to kill the murder victims.”
Defense counsel responded, “I should have been able to argue the intent to kill and I was
precluded by the court from doing so. It’s not a big part of my argument, but obviously
because - -.” In interrupting counsel, the court stated, “Well, I got an easy answer. I’m
going to allow you to reopen and argue.” Counsel declined the court’s invitation,
explaining: “I don’t want to re-open and argue because I feel that… I’m prejudiced in the



[induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime . . .
which resulted in the death of a human being, namely .]”

11
        Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who,
with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or
assists any actor in the commission of murder in the first degree shall be punished by
death or imprisonment in the state prison for life without the possibility of parole if one
or more of the special circumstances enumerated in subdivision (a) has been found to be
true under Section 190.4.”

12
       In Nunez, the Court held: “When there is evidence from which a jury could base
its convictions for multiple counts of murder on the theory that the defendant was guilty
as an aider and abettor, and not as the actual perpetrator, the trial court must instruct the
jury that to find true [this] allegation as to that defendant, it must find that the defendant
intended to kill the murder victims. [Citations.]” (Nunez, supra, 57 Cal.4th at p. 45.)
                                                 26
sense that… the whole basis of my closing argument . . . was that Mr. Bolden was not
involved.”
       Defense counsel moved for dismissal of the multiple-murder special circumstance
allegation for lack of intent to kill evidence. The court denied the motion, finding “the
intent to kill can be shown by going up to a car to rob it and being armed with a gun” and
Bolden asserted he himself shot at the car with a “deuce 5.” Bolden does not contend on
appeal that the finding of intent to kill is not supported by substantial evidence.
       After stating he did not want to present additional argument because in so doing,
such argument would “draw[] attention to that and it takes away from . . . the crux of my
argument,” counsel moved for a mistrial. The trial court denied the motion. The court
pointed out his objection was he did not “get a chance to argue” and “I’m offering you a
complete and total opportunity to re-argue. I will give you whatever time you need to
argue regarding the issue of whether there needs to be an intent to kill on the multiple
murder, which I believe that there does.” Later, the court noted this was a situation of
“clearly invited error because I’m giving [the defense] a chance to re-open”; the problem
is “easily curative”; and it “only relates to one of the special circumstances.”
       The jury was expressly instructed that the multiple murder special circumstance
allegation “requires the specific intent to kill.” Mindful of this instruction, the jury found
the multiple murder special circumstance to be true.
       “‘A trial court should grant a mistrial only when a party's chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of discretion
standard to review a trial court ruling denying a mistrial.’ [Citations.]” (People v. Clark
(2011) 52 Cal.4th 856, 990 (Clark).)
       The trial court did not abuse its discretion in denying Bolden’s mistrial motion.
Contrary to his claim, the trial court’s initial mistaken ruling that the multiple murder
special circumstance does not require intent to kill where the defendant is an aider and
abettor, rather than actual killer, was inconsequential. The court had not instructed the
jury, and when the court did instruct the jury on the multiple murder special

                                             27
circumstance, the court specifically directed the jury that it had to find Bolden acted with
the intent to kill.
       Further, no prejudice flowed from the court’s misapprehension of the law with
respect to Bolden’s ability to present a defense. The trial court did not foreclose or
preclude defense counsel from reopening to argue lack of intent to kill. Rather, the
decision not to argue against intent to kill was that of defense counsel alone. As a
general matter, trial tactics are a matter within the sole province of defense counsel. (See,
e.g., People v. Williams (1997) 16 Cal.4th 153, 219 [“Counsel's decision to so argue ‘is a
matter of trial tactics and strategy that a reviewing court generally may not second-
guess.’”]; cf. People v. Najera (1972) 8 Cal.3d 504, 516 [“withdrawing a crucial defense
from the case, reducing the trial to a farce or sham” amounts to ineffective assistance of
counsel under the Sixth Amendment of the United States Constitution].)
       Defense counsel here acknowledged that the issue of intent to kill was “not a big
part of [his] argument” and that “the whole basis of [his] closing argument . . . was that
Mr. Bolden was not involved.” Counsel decided, and later reaffirmed his decision, not to
reopen and argue lack of intent to kill because, in so doing, he would emphasize the issue
of intent to kill while distracting the jury from “the crux of [his] argument,” which was
Bolden was not involved. This was a tactical choice on counsel’s part, and reasonable.
Intent to kill on the part of Bolden was not an equivocal issue. As the trial court pointed
out, not only did he entertain the intent to rob when he positioned himself on the
passenger side of the car, he necessarily shared the actual shooter’s intent to kill when he
stood there armed with his own gun and by firing his gun after the shooter had fatally
shot the victims seated in their car. Additionally, not only would argument about the lack
of intent to kill focus the jury’s attention on the issue of intent to kill, such argument
would no doubt allow the prosecutor during rebuttal to draw the jury’s attention to the
overwhelming evidence of Bolden’s intent to kill .
       Accordingly, the withdrawal of a crucial defense did not result from the absence of
defense argument on Bolden’s lack of intent to kill in the context of the multiple murder

                                              28
special circumstances allegation. The trial court’s initial misapprehension of the law that
the multiple murder special circumstances does not require intent to kill did not lead to
Bolden’s opportunity “of receiving a fair trial” being “irreparably damaged” and thereby
necessitating the grant of the mistrial motion. (Clark, supra, 52 Cal.4th at p. 990). The
denial of the mistrial motion was not an abuse of discretion.


       Cumulative Effect of Claimed Errors Harmless

       Bolden contends the cumulative effect of the errors committed is prejudicial and
necessitates reversal of the judgment. We disagree. The cumulative effect of the claimed
errors is harmless. (People v. Homick (2012) 55 Cal.4th 816, 884. )

       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                            29
                                     DISPOSITION

      The judgment is affirmed.




                                  KIRSCHNER, J.




      I concur:




             TURNER, P.J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                              30
The People v. Javier Bolden
B260188

BAKER, J., Concurring


       I concur in the judgment. I write separately to explain the reasons why I conclude
the trial court’s decision not to give lesser included offense instructions on second degree
murder and involuntary manslaughter was harmless.
       A reviewing court assesses a claim that a trial court erred in declining to give a
lesser included offense instruction under the People v. Watson (1956) 46 Cal.2d 818 test
for prejudice, namely, whether “it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” (Id. at p. 836;
People v. Banks (2014) 59 Cal.4th 1113, 1161 (Banks), overruled on other grounds by
People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Breverman (1998) 19 Cal.4th
142, 176-177 [appellate review focuses on what “a jury is likely to have done in the
absence of the error under consideration” and may consider whether the evidence
supporting the verdict “is so relatively strong, and the evidence supporting a different
outcome is so comparatively weak,” that there is no reasonable probability the claimed
error affected the result] (Breverman).)1 As I read the majority opinion, it concludes the
absence of instructions on second degree murder and involuntary manslaughter was not
prejudicial error because (1) overwhelming evidence proved defendant guilty of felony
murder and because (2) overwhelming evidence proved defendant had the intent to kill
victims Wu and Qu. (Ante, at p. 24.) The first conclusion is sound and it is dispositive;
the second conclusion—that there is overwhelming evidence of defendant’s intent to
kill—is both unnecessary and questionable on this record.



1
       Although the majority cites Banks for the proposition that the People v. Watson
standard applies, the majority appears to go further and hold the “absence of an
instruction on second degree murder and involuntary manslaughter was harmless beyond
a reasonable doubt.” (Ante, at p. 23.) My analysis and conclusion rest solely on the
People v. Watson standard.
         Supreme Court cases establish the failure to give instructions on second degree
murder and involuntary manslaughter in this case was not prejudicial error. The jury in
Banks convicted the defendant of first degree felony murder for shooting a victim who
was using an ATM. (Banks, supra, 59 Cal.4th at p. 1155.) Our Supreme Court held the
omission of a second degree murder instruction was harmless because the “far more
plausible inference” was that the defendant killed the victim to obtain money, rather than
“out of malice unrelated to any robbery.” (Id. at p. 1161.) Here, there is overwhelming
evidence—including defendant’s own admissions—that he and Bryan Barnes (Barnes)
were jointly engaged in robbing Wu and Qu when Barnes shot and killed them. (See
generally People v. Cavitt (2004) 33 Cal.4th 187 [discussing the elements of felony
murder].) Because the evidence overwhelmingly supports the jury’s verdict that Wu and
Qu were killed during the commission of a robbery, it is not reasonably probable the jury
would have convicted defendant of second degree murder or involuntary manslaughter
rather than first degree felony murder. The absence of lesser included offense
instructions was harmless for precisely that reason. (Banks, supra, at p. 1161; People v.
Castaneda (2011) 51 Cal.4th 1292, 1328.)
         The majority goes further and relies on the jury’s two special circumstance murder
findings to hold any error in failing to give lesser included offense instructions was not
prejudicial. This, however, complicates an otherwise straightforward resolution of the
issue.
         As the majority recognizes, the trial court’s instruction on the robbery-murder
special circumstance omitted an essential element: it did not require the jury to find that
defendant, who was an aider and abettor, had the intent to kill. The jury was instructed,
however, that it must find defendant intended to kill in order to conclude the prosecution
had proven the multiple murder special circumstance. The majority relies on the multiple
murder finding of an intent to kill to conclude the omission of the intent element from the
trial court’s robbery-murder special circumstance instruction was harmless. (See ante, at
p. 24, fn. 9.) I believe sufficient evidence supports the jury’s finding, implicit in its

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determination the multiple murder special circumstance had been proven, that defendant
had the intent to kill. I therefore agree that the omission of the intent to kill element from
the robbery-murder special circumstance was harmless beyond a reasonable doubt.
       Where the majority and I part company, however, is on the question of the
strength of the evidence that defendant intended to kill Wu and Qu. I believe the
evidence of such an intent, while sufficient, was not overwhelming. I therefore do not
rely, as the majority does, on the jury’s resolution of the robbery-murder special
circumstance finding to conclude the absence of lesser included offense instructions was
harmless. The rationale on which I rely also avoids placing heavy emphasis on an intent
finding made by the jury in the absence of any argument to the contrary by defense
counsel.
       There was overwhelming evidence that defendant was guilty of first degree felony
murder. In light of that evidence, there is a de minimis chance, if any, that the jury would
have returned not guilty verdicts on first degree murder and convicted defendant only of
second degree murder or involuntary manslaughter. When addressing defendant’s
argument in favor of lesser included offense instructions, I would leave it at that.




                                    BAKER, J.




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