Filed 3/26/13 P. v. Warren CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134632
v.
DESHANE EARL WARREN,                                                 (Contra Costa County
                                                                     Super. Ct. No. 081106-7)
         Defendant and Appellant.


         Following a jury trial and imposition of sentence, Deshane Earl Warren appeals
from his conviction of voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and
personally using a firearm in the commission of this offense (§ 12022.5, subd. (a)).
Appellant’s appointed counsel raises no issues, and requests an independent review of the
record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders). Based on our review of the record and appellant’s
contentions, we conclude that there are no arguable issues.
                                                 BACKGROUND
         The information filed by the Contra Costa District Attorney charged appellant and
codefendant Chad Walker with first degree murder (§ 187) and intentionally discharging
a firearm in the commission of this offense (§ 12022.53, subds. (b)-(d)).
         Richmond Police Officer Joanna Grivetti testified that she received a dispatch
regarding a shooting that occurred at 34th Street and Nevin Avenue in Richmond,


         1
             Further code section references are to the Penal Code unless otherwise indicated.


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California. Grivetti stated that the scene was “chaotic”; distressed family members yelled
frantically, and others crowded the area to observe what occurred. Amid the commotion,
Grivetti found the victim Davonte Wesley lying on the road. Wesley was gravely injured
and unresponsive.
       According to Grivetti, paramedics that aided Wesley discovered a gun in the
pocket of his pants. Grivetti further stated that she collected 14 shell casings at the scene.
       Ikechi Ogan, a forensic pathologist, testified that Wesley suffered six grazing
gunshot wounds and six gunshot wounds that punctured his body. Ogan indicated that
Wesley died seconds after suffering these injuries.
       Richmond Police Officer Thomas Hauschild testified that on the day of the
incident, he was on the lookout for a vehicle implicated in the shooting. Based on a
dispatch regarding where the vehicle was last seen, he headed to an area where he
thought the vehicle would most likely be found. When he got to that area, he spotted the
vehicle that matched the description. Hauschild stopped the car and arrested the driver,
codefendant Walker, and the passenger, appellant. Hauschild then searched the car, and
discovered appellant’s shirt in the back seat and a gun under the front passenger seat.
       The prosecution introduced expert witnesses who testified regarding the gun and
shirt Hauschild discovered. Terrence Wong, a firearms examiner for the Federal Bureau
of Investigation, indicated that the gun Hauschild discovered was not the gun used in the
shooting. Margaret Kaleuati, an expert in gunshot residue identification, found gunshot
residue on appellant’s shirt that Hauschild found. Kaleuati further testified that an
examination of appellant and Walker’s gunshot residue kits revealed both had gunshot
residue on their hands at the time of their arrest.
                                      Witnesses at the Scene
       Ashley Wicks testified that she was Wesley’s girlfriend, and that she was present
at the scene when Wesley was shot. Wicks recalled the event as follows: On the day of
the incident, she drove her car to Wesley’s cousin’s house, located near 34th Street in
Richmond, with Wesley and Wicks’s friend, Kela Spears. After Wicks parked her car on



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the corner of 34th Street and Nevin Avenue, Wesley left the car. Wicks remained in the
car.
       While in her car, Wicks heard Wesley greet and engage in a friendly conversation
with someone outside. She heard Wesley telling the person outside that he was going to
“ ‘lock him in.’ ” According to Wicks, this meant that Wesley was going to save that
person’s phone number in Wesley’s phone. Wesley reached back into Wicks’s car to
retrieve his phone from Spears, who was borrowing his phone. Wicks then heard a
gunshot, the first of more than 10 shots that were fired.
       Spears testified that she was borrowing Wesley’s phone when they were together
in Wicks’s car. According to Spears, when Wesley reached back into Wicks’s car and
asked Spears for his phone back, she heard gun shots.
       David Busby testified that on the day of the incident, from the garage of his home
on 35th Street in Richmond, he saw a black car park in front of his car. Ten to 15
minutes later, Busby heard gunshots. Busby then saw a man running up 35th Street who
mumbled “ ‘oh shit,’ ” as he passed by; the man got into the black car. Busby stated that
he called 911 to report the black car’s license plate, and identified appellant as the man
running up 35th Street during a police interview.
                                     Appellant’s Testimony
       Appellant testified that on the day of the incident, codefendant Walker picked
appellant up in a black car. They then drove to 34th Street and Nevin Avenue in
Richmond to purchase marijuana from an individual who lived in that area. After Walker
parked on 35th Street, appellant left the car alone, armed with Walker’s gun. While
walking down 35th Street to purchase the marijuana, appellant saw Wesley.
       Appellant was displeased to see Wesley because Wesley fired a gun at Walker not
long before. He also knew Wesley as a gang member who had killed people in the past.
Therefore, appellant tried to avoid Wesley, but could not because Wesley called
appellant’s name. A conversation between the two ensued.
       Wesley asked if appellant was with Walker, and appellant answered that he was
not. Wesley then reached into a car parked nearby and stated, “give it to me.” Appellant


                                              3
thought that Wesley might have been reaching for a weapon, so he observed him closely.
Appellant saw Wesley reach for what appeared to be a gun, at which point appellant
panicked and started shooting. Appellant then ran back to 35th Street to the car he came
in, and told Walker what happened.
       After Walker heard what occurred, Walker told appellant to take appellant’s shirt
off and give Walker the gun. They drove to South 35th Street, where Walker got out of
the car with the gun and returned without it. They then drove to appellant’s father’s
house, and were stopped by police along the way.
                                     Walker’s Testimony
       Walker testified that on the day of the incident, he picked up appellant and headed
to 34th Street in Richmond to purchase marijuana. Walker dropped appellant off at 35th
Street and parked nearby.
       While waiting for appellant in the car, Walker heard gunshots. Soon after,
appellant returned to the car and told Walker what happened. Walker then told appellant
to give Walker the gun. Walker took the gun to his cousin’s house and placed the gun
under a mattress.
       Walker further testified that Wesley fired a gun at him in the past, but denied any
longstanding problems with Wesley. However, Walker stated that he entered Wesley’s
contact information in Walker’s phone as “Dead Man Walking” after Wesley fired a gun
at him.
                               Riando Gaines’s Testimony
       Riando Gaines testified that he was housed in the same jail cell as Walker. While
in their cell, Walker recounted the incident to Gaines. Walker stated that on the day of
the incident, he was driving with appellant on Nevin Avenue, when he saw Wesley
standing near a parked car. Walker told Gaines that he did not like Wesley because
Wesley had robbed Walker in the past and had fired a gun at him two weeks after that
robbery. Walker mentioned that Wesley’s name in Walker’s cell phone was listed as
“Dead Man Walking.”



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       According to Gaines, Walker stated that he feared a possible shootout if Wesley
saw him, so Walker asked appellant, who had no longstanding problems with Wesley, to
shoot Wesley. Walker claimed that he gave the gun used in the shooting to his girlfriend,
and instructed her to keep it at her mother’s house. Walker further stated that he used
code words during a call he made in jail regarding the location of the gun used in the
shooting.
       In response to Gaines’s testimony, Walker testified that he never told Gaines that
he asked appellant to kill Wesley, and claimed that Wesley never robbed him.
                                 Other Prosecutorial Evidence
       Over appellant’s objection, the prosecution introduced the following evidence: a
letter discovered in Walker’s jail cell allegedly instructing people to testify falsely on his
behalf; Walker’s statement urging people to contact witnesses to cover up his complicity
in the shooting; Walker’s recorded phone conversation, in which Walker allegedly
discusses the whereabouts of the gun used in the shooting; and statements appellant made
during a police interrogation.
       Based on the foregoing testimony, the jury convicted appellant of the lesser
included charge of voluntary manslaughter (§ 192, subd. (a)), and found sufficient
support that appellant personally used a firearm pursuant to section 12022.5, subdivision
(a). The jury acquitted Walker of all charges. Appellant was sentenced to 16 years in
prison, six years for the voluntary manslaughter and a consecutive, aggravated term of 10
years for the firearm enhancement.
       Appellant filed a timely notice of appeal.
                                       DISCUSSION
       In accordance with Wende and Anders, appellant’s counsel elected to file a
supplemental brief, raising the following three points for our consideration: (1) whether
the court violated the confrontation clause of the Sixth Amendment or hearsay rules when
it permitted introduction of Walker’s incriminating statements implicating appellant; (2)




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whether the court violated appellant’s Miranda2 and Fifth Amendment rights when it
admitted statements appellant made to police; and (3) whether the court properly denied
appellant’s Wheeler/Batson motions made in response to the prosecution’s preemptory
challenges to exclude African-American jurors. We have reviewed the entire record and
considered the matters suggested by appellant’s counsel, and find no arguable issues.
             I.     Appellant’s Sixth Amendment and Hearsay Contentions
       Relying on Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v.
Aranda (1965) 63 Cal.2d 518 (Aranda), appellant sought to sever his trial in response to
the prosecution’s intention to introduce Walker’s admissions to Riando Gaines, Walker’s
phone calls in jail, an incriminating letter seized from Walker’s jail cell, and Walker’s
statement urging people to contact one of the witnesses. Because Walker could not be
cross-examined, appellant asserted that the admission of these statements implicating
appellant in the charged offense violated his Sixth Amendment right to confrontation
according to Bruton and Aranda. Alternatively, appellant moved to exclude Walker’s
statements on hearsay grounds.
       On appellant’s claim of severance, “ ‘Aranda and Bruton stand for the proposition
that a “nontestifying codefendant’s extrajudicial self-incriminating statement that
inculpates the other defendant is generally unreliable and hence inadmissible as violative
of the defendant’s right of confrontation and cross-examination, even if a limiting
instruction is given.’ ” 3 (People v. Homick (2012) 55 Cal.4th 816, 874, citing People v.
Jennings (2010) 50 Cal.4th 616, 652.) In such cases, Bruton and Aranda necessitate
severance, or exclusion of statements implicating a defendant. (See Homick, at p. 874.)
However, because the confrontation clause does not apply to nontestimonial evidence,
Bruton and Aranda, likewise, do not apply to nontestimonial evidence. (See People v.

       2
         Miranda v. Arizona (1966) 384 U.S. 436.
       3
         To the extent Aranda “ ‘require[d] the exclusion or relevant evidence that need
not be excluded under federal constitutional law, it was abrogated in 1982 by the “truth-
in-evidence” provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)).’ ” (Homick,
supra, 55 Cal.4th at p. 874, fn. 34, quoting People v. Fletcher (1996) 13 Cal.4th 451,
465.)

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Cage (2007) 40 Cal.4th 965, 984 [“the confrontation clause is concerned solely with
hearsay statements that are testimonial”]; see also People v. Arceo (2011) 195
Cal.App.4th 556, 572 [“the confrontation clause has no application to out-of-court
nontestimonial statements].”) Testimonial statements are “statements made with some
formality, which, viewed objectively, are for the primary purpose of establishing or
proving facts for possible use in a criminal trial.” (Cage, at p. 984, fn. 14.) Because the
record demonstrates that Walker’s out-of-court statements were not for the purpose of use
in a criminal trial, his statements are nontestimonial. As a result, Bruton and Aranda do
not require severance because they do not apply to Walker’s statements.
       Regarding appellant’s alternative hearsay ground, under the hearsay exception for
declaration against interest: “Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the statement . . . subjected him to the risk of civil or
criminal liability . . . that a reasonable man in his position would not have made the
statement unless he believed it to be true.” (Evid. Code, § 1230.) “[U]navailable as a
witness” includes the circumstance that a declarant is exempted or precluded from
testifying on the ground of privilege. (Evid. Code, § 240.) In addition, a statement made
against one’s interest must be trustworthy. (People v. Duarte (2000) 24 Cal.4th 603,
611.) To determine whether a statement is sufficiently trustworthy, the court “ ‘ “may
take into account . . . the circumstances under which they were uttered, the possible
motivation of the declarant, and the declarant’s relationship to the defendant.” ’ ” (Id. at
p. 614, quoting People v. Cudjo (1993) 6 Cal.4th 585, 607.)
       The record demonstrates that Walker’s statements fall within the declaration
against interest exception. First, Walker was an unavailable witness as defined in section
1230 because his assertion of his Fifth Amendment right of silence precluded him from
testifying. Second, statements that Walker made to Gaines were against his penal interest
because they subjected Walker to criminal liability for his part in the shooting. While we
recognize Gaines’s history of criminality and the presumed benefits he might have
received for testifying, his friendship with Walker and other corroborating evidence are


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sufficient indicia of trustworthiness. Similarly, Walker’s phone calls in jail regarding the
gun’s whereabouts, his incriminating letter instructing a person to testify falsely to avoid
blame, and his statements urging people to contact one of the witnesses all constitute
statements made against his interest. That these statements were confided to people that
Walker trusted is sufficient proof of trustworthiness.
             II.    Appellant’s Attempt to Exclude His Statements to Police
       Appellant also moved to exclude statements he made to police during a custodial
interrogation on Fifth Amendment grounds. First, appellant claimed that he never waived
his right to remain silent before the interrogation, and that he invoked that right during
the interrogation when he asked the interrogating detective to send him back to his jail
cell. He asserted that subsequent questioning constituted violation of his Miranda right
to remain silent. In addition, appellant claimed that his statements were otherwise
involuntary, rendering them inadmissible as a violation of his Fifth Amendment rights.
       The Miranda right to remain silent can be waived explicitly or implicitly. (See
Berghuis v. Thompkins (2010) 130 S.Ct. 2250, 2261.) For implied waivers, if a suspect is
read his Miranda rights and he understands them, the suspect’s subsequent uncoerced
statements constitute an implied waiver of his right to remain silent. (Berghuis, at p.
2262 [suspect implicitly waived his right to remain silent when he began answering
questions after remaining silent for nearly three hours].)
       The record demonstrates that appellant implicitly waived his Miranda right to
remain silent. Before the interrogation, the detective who conducted the interrogation
advised appellant of his Miranda rights. The detective then asked if appellant understood
his rights, and appellant stated that he did. Immediately after being advised of his rights,
appellant initiated a discussion with the detective by asking him a question, and appellant
proceeded to freely answer all the questions that followed. In doing so, appellant
implicitly waived his right to remain silent.
       Appellant also claims that he invoked his Miranda right to remain silent during the
interrogation. However, a mid-interrogation invocation to remain silent must be clear
and unambiguous. (People v. Williams (2010) 49 Cal.4th 405, 434.) “ ‘A defendant has


                                                8
not invoked his or her right to silence when the defendant’s statements were merely
expressions of passion frustration or animosity toward the officers . . . .’ ” (Id. at p. 433.)
Here, the record demonstrates that appellant’s request to return to his cell during the
interrogation was an expression of his frustration with the detective’s refusal to accept
appellant’s denials of his involvement in the shooting, rather than an unambiguous
invocation of his right to remain silent.
       Appellant further asserts that his statements were otherwise involuntary, rendering
them inadmissible as a violation of his Fifth Amendment rights. A statement is
involuntary if it is not the product of “ ‘ “a rational intellect and free will.” ’ ” (People v.
Maury (2003) 30 Cal.4th 342, 404, citing Mincey v. Arizona (1978) 437 U.S. 385, 398.)
The test is whether the appellant’s “ ‘will was overborne at the time he confessed.’ ”
(Maury, at p. 404, citing Mincey, at p. 398.) In view of the foregoing facts surrounding
the interrogation, we conclude that appellant’s statements were not involuntary.
                        III.   Appellant’s Batson/Wheeler Motions
       In response to the prosecution’s use of peremptory challenges to exclude five
African-American jurors, appellant made Wheeler/Batson motions in each case. (Batson
v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.) In each case,
the prosecution offered race neutral explanations in exercising his preemptory
challenges.4
       We must review the court’s findings concerning sufficiency of reasons proffered
for exercising peremptory challenges “ ‘ “ ‘with great restraint.’ ” ’ ” (People v. Lenix
(2008) 44 Cal.4th 602, 613, quoting People v. Burgener (2003) 29 Cal.4th 833, 864.)
“ ‘So long as the trial court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are entitled to deference on
appeal.’ ” (Lenix, at p. 614, quoting Burgener, at p. 864.) The prosecution offered race


       4
         The court denied appellant’s Batson/Wheeler motion made in response to the
prosecution’s first challenge to exclude an African-American because appellant failed to
establish a prima facie case. The prosecution still elected to offer race neutral reasons for
excluding that juror.


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neutral reasons for exercising preemptory challenges to exclude African-American jurors,
and the court considered these explanations before denying appellant’s Wheeler/Batson
motions. The record shows that the court made a sincere and reasoned effort to evaluate
the prosecution’s race neutral reasons.
                                     DISPOSITION
       Our independent review of the record reveals no arguable issues that require
further briefing. The judgment is affirmed.
                                                   _________________________
                                                   Lambden, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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