Filed 7/11/13 P. v. Goldman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063883
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF130094A)
                   v.

DON GOLDMAN,                                                                             OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.

         Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel
B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Don Goldman was charged with first degree premeditated murder (Pen.
Code,1 § 187, subd. (a)) with the personal use of a firearm causing death (§ 12022.53,
         1All further references are to the Penal Code unless otherwise indicated.
subd. (d)) and possession of a firearm by a felon (former § 12021, subd. (a), now
§ 29800, subd. (b)). It was further alleged that defendant suffered three prior felonies
resulting in prison terms within the meaning of section 667.5 subdivision (b). After a
jury trial, defendant was convicted of the lesser included offense of voluntary
manslaughter (§ 192, subd. (a)) and being a felon in possession of a firearm. In a
bifurcated proceeding the trial court found the prior conviction allegations true. The trial
court subsequently sentenced defendant to a 14-year prison term.
       On appeal, defendant contends the trial court erred in denying his motion to
exclude evidence of a gun and the testimony of a witness pertaining to the gun as the
evidence was discovered as the fruit of a violation of Miranda v. Arizona (1966) 384 U.S.
436 (Miranda). He further argues the trial court erred in admitting certain phone records
as the records were irrelevant to the proceedings. We find defendant’s contentions
without merit and affirm the judgment.
                                            FACTS
       On November 17, 2009, defendant shot and killed his uncle, Steven Henderson,
while at the home of his ex-wife, JoAngel Goldman. There was no dispute at trial that
defendant shot Henderson; rather, the issue was whether the killing was premeditated and
deliberate, or whether defendant acted in self-defense or from a heat of passion.
       Charmaine Goldman, defendant’s mother, was with Eric Peterson on the day of
the shooting. The two visited her sister, Gwendolyn Davis, at her home. Henderson,
Charmaine’s2 brother, was there at the time; when she arrived, he asked her what was
going on. She responded she did not know, and Henderson said he was going to check
on defendant. Peterson then gave Henderson a ride to JoAngel’s house.
       Charmaine did not recall talking to JoAngel anytime before the shooting on the
day in question although she had attempted to contact her during the day. She stated she


       2Due to the fact that several of the witnesses have the same last name, we will refer to
them by their first names. No disrespect is intended.


                                                2.
did not have a working cell phone at the time, and JoAngel did not know Peterson’s
number.
       Davis testified that on the day in question she was at home with Charmaine,
Peterson, and Henderson. They were outside talking when Davis decided she needed to
go to the store to get cigarettes. She, her sister and Peterson went to the store. On the
way back from the store, Charmaine appeared frustrated and rattled. Charmaine told
Davis she had had a conversation with JoAngel. Davis told her not to worry, they would
send Henderson to handle it. When they got back from the store, Davis told Henderson
what Charmaine had relayed to her, and Henderson said not to worry, he would handle it.
Davis asked Henderson to go talk to defendant and he said he would. Subsequently,
Peterson gave Henderson a ride over to JoAngel’s house. Approximately two to three
hours later they found out Henderson had been shot. Davis was unsure as to what time
the initial call from JoAngel would have taken place but she guessed it could have been
an hour or two prior to the incident.
       On the day in question, JoAngel came home at approximately 4:00 p.m.
Defendant was at the home at that time and had been watching two of their children.
Once JoAngel arrived, she went into her room with three of her young children. A fourth
child was in another room. Sometime later, JoAngel heard a pop, left her room to check
on the noise, and found Henderson lying on the ground. Defendant asked her to help him
get the children to safety, and she complied. JoAngel was unsure what time Henderson
had arrived at her home as she had gone directly to her room when she arrived home.
JoAngel denied having any sort of heated argument with defendant on the day of the
shooting.
       JoAngel testified she did not see the shooting take place. She further testified her
daughter D. was in the bedroom doing her homework from the time they got home until
the shooting. The only exception was when D. left the room briefly to get bottles for the
baby. At the time of the shooting, D. was in the bathroom next to the master bedroom.



                                             3.
       D., defendant’s daughter, was eight years old at the time of trial. She testified she
did not see the shooting as she was in the bathroom at the time. She had previously been
in her mother’s room doing her homework.
       Bakersfield police officer Kennisha Short spoke with D. in the hours following the
shooting and recorded their conversation. The recording was played for the jury. On the
recording, D. told the officer that defendant shot her “Uncle Red” in the head while the
two were talking about defendant. They were not arguing. She stated that at the time of
the shooting, she was doing her homework at the living room table. Detective Herman
Caldas also spoke with D. after the shooting. D. again relayed she had seen defendant
shoot Henderson in the head and added she saw defendant put the gun in his pocket
afterwards.
       Bakersfield police officer Andrea Pflugh was the first officer to arrive after the
shooting at approximately 5:00 p.m. She found Henderson with a gunshot wound lying
on the floor inside the house. She searched the area around Henderson as well as his
person and did not locate any firearms.
       Defendant was arrested that same evening. Detective James Moore of the
Bakersfield Police Department interviewed defendant after the shooting. Defendant did
not give him any information about where he was during the shooting or where the gun
was located. In addition, Detective Moore did not observe any injuries to defendant
suggesting he was in any sort of physical struggle. Additionally, nothing in the home
appeared disturbed.
       Bakersfield police officer Ryan Kroeker transported defendant to the jail on the
night of the shooting after defendant was interviewed by detectives. On the way,
defendant appeared distraught and began crying. The officer asked him what was wrong
and defendant replied he had let the detectives down. When asked what he meant,
defendant stated, “I should have told them that I dropped my uncle.” On cross-
examination, defendant’s counsel elicited the fact that the officer had also questioned



                                             4.
defendant about the location of the gun used and defendant told him he had given the gun
to “Rock” who was later identified as Gregory Allen.
      Defendant’s friend, Gregory Allen, testified that on the date in question, after the
shooting, defendant walked up to him outside a market and asked him to hold a .357
revolver for him until he could come back for it. The following day, Detective Moore
contacted Allen, asking about the gun. Allen turned the gun over to the police.
      After defendant was arrested, he called Charmaine from jail. She claimed
defendant told her he shot Henderson after the two got into a tussle, however, there was
no mention of any struggle on the recording of the call which was played for the jury.
Charmaine further testified Henderson liked to carry guns, and shortly before the
shooting she had seen him with a .357 revolver.
      Dr. Thomas Beaver, a forensic pathologist, testified the victim died from a single
gunshot wound to the head. The bullet traveled from the front to the back of the head.
      Bullet fragments recovered from the victim’s brain were compared to bullets that
were test fired from the gun defendant had given Allen. A firearms ballistics expert
opined the .357 revolver recovered by Detective Moore fired the bullet fragments
recovered from the victim’s brain.
      The parties stipulated defendant had suffered a prior felony conviction within the
meaning of former section 12021.
Defense Case
      Defendant testified in his own defense. Defendant had known Henderson his
whole life and had spent a lot of time with him except when Henderson had been in
prison. According to defendant, Henderson had a violent temper and could become
angry very quickly over any perceived wrong or disrespect. Henderson liked to fight and
made defendant fight others when he was a child.
      Defendant related numerous prior instances where Henderson had been violent
towards others. When defendant was a young boy, Henderson “gutted” a man in front of
him. Although defendant was present at the time, he also heard about the incident from

                                            5.
other family members. He had also heard of other incidents from Henderson himself and
from others. Defendant recalled an incident in September of 2009 where Henderson
pulled a gun, specifically, a .357 magnum, on Donald Divers. Divers relayed this
incident to defendant. Henderson did not shoot Divers, and Divers was able to walk
away. Divers also testified regarding this incident, adding that Henderson did not seem
to recognize him when he threatened him with the gun and noting defendant was present
when the incident occurred.3 He also identified the gun in this case as the gun Henderson
had used to threaten him.
       Defendant recounted another incident which occurred in October of 2009 where
Henderson pushed Alisha Blackwell and tried to get other women to fight with her. This
incident was relayed to defendant by Henderson as well as by Davis who was present at
the time.
       In November of the same year, defendant observed an incident between his
mother’s neighbor, Ray King, and Henderson. Defendant was aware Henderson had lost
his dog and saw King with a dog that looked similar to Henderson’s. Defendant called
Henderson to come look at the dog and, after looking at it, Henderson claimed the dog
was his. When King would not give the dog to Henderson he became angry and
threatened King, saying he was a gangster and if he did not get the dog someone would
lose a life. Henderson walked to the car, and defendant followed and calmed him down
saying he would get his dog back for him. The following day, King gave the dog to
defendant saying he did not want any problems over the dog. Defendant gave King $50
for the dog. King testified to the incident as well, explaining Henderson was very
aggressive and threatened to kill him.
       During the week of the shooting, defendant learned of an incident where
Henderson hit a man when he confronted Henderson over parking in his parking spot.

       3Defendant retook the stand after Divers testified and stated he was present for this
incident and he had been mistaken earlier when he testified he only heard about the incident from
others.


                                                6.
That same week, defendant learned Henderson had hit a woman, Elizabeth Heard,
knocking her out after she confronted Henderson for hitting her child. Heard confirmed
this incident and added that Henderson referred to himself as “machete man” because he
had gutted a man in his past.
       According to defendant, Henderson would not tolerate being disrespected and
would take action if he felt he had been disrespected. In fact, Henderson had previously
stabbed his own brother over a perceived wrong. That incident occurred about 20 years
earlier.
       On November 13, 2009, Henderson threatened another man and friend of his,
Alden Rowel. While at a party, Rowel had called Henderson’s ex-wife for a ride home.
When Henderson saw his ex-wife, he ran up and tried to hit her. Defendant intervened by
grabbing Henderson and trying to calm him down. Henderson said he would kill Rowel
over the incident. After Rowel left, defendant had Henderson’s girlfriend take him home.
       Approximately 30 minutes later, defendant’s aunt called and told him to come get
Henderson. Henderson had confronted another man, Tyrone White, with a gun. White
told defendant that Henderson put a gun in his face and White had to wrestle Henderson
to the ground. Henderson then left.
       Regarding the day of the shooting, defendant stated Henderson called him saying
he was going to come over and “hang out.” Defendant initially told him not to come over
if he was on drugs because Henderson had been acting very violently and he did not want
to deal with his behavior. Defendant had been very busy trying to keep the peace with
others due to Henderson’s behavior; he was tired of the situation and having to constantly
act as the peacemaker. Even though Henderson had a violent temper and had been acting
out a lot recently, defendant allowed him to come over and visit because he was family.
       A few days before the shooting, Henderson gave defendant his dog. Defendant
did not want to take the dog since Henderson had already gotten into one altercation over
the dog, but Henderson insisted. Defendant and Henderson gave the dog to defendant’s
children as an early Christmas present. On the day of the shooting, while Henderson was

                                            7.
visiting, Henderson said he needed the dog back. Defendant told Henderson he was not
going to give him the dog and, technically, it was defendant’s dog since he had paid King
for it. Henderson became very agitated, began pacing, said “you think I’m playing” and
headed toward the house. Defendant followed Henderson, thinking he was going to try to
take the dog. As Henderson walked into the house, defendant saw him pull a gun from
his waistband. Defendant ran up to Henderson, bear-hugged him, put a hand over the
gun, and elbowed him to get possession of the gun. Once he had the gun, defendant
pushed Henderson away. Henderson continued to say he was not “playing” and came at
defendant. When Henderson came toward him, defendant fired the gun one time and
Henderson fell to the ground. At the time he fired the gun, defendant feared for his life
because he knew if Henderson pulled a gun he intended to use it. Defendant felt that if
Henderson were able to get the gun back, he would have killed him. When he fired the
gun, defendant was afraid for his life.
       After the shooting, JoAngel came out of her room and defendant saw D. looking at
him, although he testified she did not see the shooting. Concerned for his children,
defendant put the gun in his pocket, covered D.’s eyes, and asked JoAngel to help him
remove the children from the house. After getting all of the children to a neighbor’s
house, he told JoAngel to call the police. Wanting to get the gun away from the house
and kids, defendant left the area on foot.
       Defendant later saw Allen and asked him to hold the gun and told him to “give it
to the boys if they come looking for it.” Defendant explained he did not wait for the
police to respond because he had recently gotten out of jail and did not want to go back.
He felt the police would not believe him, so he wanted to “tie up a couple loose ends”
before turning himself in. He did not tell the police what happened when they
interviewed him because he wanted to have a lawyer present; he knew anything he said
could be used against him.




                                             8.
       Defendant admitted being convicted of felonies in 1999, 2006, and 2008.
Defendant identified the .357 magnum revolver that was recovered by Detective Moore
as Henderson’s gun.
       Henderson was about 49 years old and weighed about 130-140 pounds at the time
he was shot, while defendant was 33 at the time of trial and weighed 300 pounds.
Defendant admitted he was a good fighter and could defend himself well. Although
defendant was aware of prior incidents when Henderson had threatened others with a
gun, he admitted he knew Henderson never actually shot anyone.
       Defendant claimed he did not have a hot temper; however, he did admit to
shooting a man in the leg as he was running away from him in 2007, as well as hitting
JoAngel on two occasions when they were married.
       Bobbie Hawkins, Henderson’s ex-girlfriend, testified Henderson often had guns
and had held her at gunpoint a few years earlier. She also described an incident where
Henderson threatened her cousin with a knife a few months before the shooting.
       Several witnesses described defendant as a calm and nonviolent person.
Charmaine testified Henderson was a violent man and he could become violent very
quickly. She also confirmed Henderson liked to carry guns and she identified the gun in
this case as belonging to Henderson. Rowel also testified, confirming Henderson had
previously threatened him and that Henderson often carried guns.
       Cell phone records belonging to Eric Peterson were admitted into evidence after
both sides rested. Officer Richard Dossey obtained JoAngel’s cell phone number on the
date of the shooting. The records showed nine calls between Eric Peterson and JoAngel
on the day of the shooting.
I.     The Gun Evidence Was Properly Admitted
       Defendant contends the trial court erred in denying his motion to suppress
evidence of the gun as well as the testimony of Allen as these items were obtained in
violation of Miranda and Edwards v. Arizona (1981) 451 U.S. 477 (Edwards).
Defendant argues the officer’s continued questioning of him regarding the gun after he

                                            9.
invoked his right to an attorney required suppression of the above evidence. Plaintiff
counters the trial court was correct in its ruling that a violation of the Miranda/Edwards
rules does not require suppression of physical or third party evidence where the
defendant’s statements were voluntary. In addition, plaintiff argues the evidence was
admissible pursuant to the public safety exception. We find the evidence was properly
admitted.
       Prior to trial, defendant moved to exclude the gun and any testimony from Allen
regarding the gun as the evidence was obtained as the fruit of a Miranda violation. The
court held an Evidence Code section 402 hearing, where it was established Detective
Moore interviewed defendant after the shooting. Prior to beginning the interview,
Detective Moore read defendant his Miranda rights. At some point during the course of
the interview defendant invoked his right to counsel, stating he would prefer to talk to a
lawyer. Moore ceased questioning defendant any further and contacted other officers to
transport defendant to the jail.
       Officer Kroeker escorted defendant to the jail after he was interviewed by
Detective Moore. Kroeker was informed defendant had invoked his Miranda rights. On
the way to the jail, defendant began crying and appeared quite upset. Kroeker asked
defendant what was wrong. Defendant replied “[M]an, I let those detectives down.”
When the officer asked defendant what he meant by that, defendant stated, “I should have
told them that I dropped my uncle.” Knowing defendant had invoked his rights, Kroeker
ceased any further conversation on that topic.
       As the officer arrived at the jail, he asked defendant some questions regarding the
location of the firearm. He did so out of concern for the public’s safety because he knew
the gun had not yet been recovered, that the area is populated, and there was an
elementary school in the vicinity. In questioning defendant about the location of the gun,
the officer explained to defendant it would be a shame for a child to pick up a firearm and
have something bad happen. Defendant informed the officer he had given the gun to “my
boy Rock.” The officer further inquired as to whether Rock was in a vehicle or on foot to

                                            10.
determine whether the gun was possibly still in an area accessible by the public.
Defendant explained Rock was on foot and further stated he had told Rock he would be
back to pick up the firearm at a later point. The officer subsequently asked defendant to
describe Rock so he could identify him.
       According to Officer Kroeker, the conversation, which took place in the patrol car,
was very casual and informal. The officer explained his entire contact with defendant
was respectful. He never raised his voice, displayed any weapons, and did not promise
defendant anything during the conversation. Defendant answered the questions in a
normal conversational manner without any noticeable time gaps.
       The trial court held that defendant had invoked his Miranda rights, but his
statements to Officer Kroeker were voluntary and not coerced. As the gun was located as
a result of the voluntary statement, evidence of the gun itself was admissible. The
prosecutor indicated he was not seeking the introduction of defendant’s statements
regarding the location of the gun as those statements constituted a violation of Miranda,
and the court agreed those statements would be excluded.4 He indicated he would,
however, be seeking to introduce Allen’s testimony regarding his contact with defendant
and the resulting gun evidence. When asked if he sought an Evidence Code section 402
hearing on the matter, defense counsel informed the court it would not be necessary as



       4The court also appeared to rule that defendant’s statements and resulting gun evidence
fell within the public safety exception to Miranda. Pursuant to the exception, a defendant’s
statements taken in violation of Miranda are fully admissible when the need for public safety
outweighs the need for providing a suspect with his Miranda rights. (New York v. Quarles
(1984) 467 U.S. 649, 653-658.) Under this doctrine, the statements themselves are admissible as
an exception to the Miranda requirements. (New York v. Quarles, at pp. 657-658.) However, the
prosecutor in this case seemed to concede the statements made to Officer Kroeker about the gun
were inadmissible as violations of Miranda even while arguing the public safety exception
applied to the facts of this case. Based on the prosecutor’s statements, the court ruled the
statements were inadmissible, which would be at odds with a finding that the public safety
exception applied. We need not address this curiosity because were this court to assume
defendant’s statements were taken in violation of Miranda, the resulting physical evidence
would still be admissible.


                                              11.
the court’s ruling regarding the gun evidence would require the defense to produce
evidence regarding all of defendant’s statements regarding the gun.
Analysis
       We begin with a brief review of the well-settled principles regarding Miranda and
Edwards.

       “As a prophylactic safeguard to protect a suspect’s Fifth Amendment
       privilege against self-incrimination, the United States Supreme Court, in
       Miranda, required law enforcement agencies to advise a suspect, before any
       custodial law enforcement questioning, that ‘he has the right to remain
       silent, that anything he says can be used against him in a court of law, that
       he has the right to the presence of an attorney, and that if he cannot afford
       an attorney one will be appointed for him prior to any questioning if he so
       desires.’ [Citations.] If the suspect knowingly and intelligently waives
       these rights, law enforcement may interrogate, but if at any point in the
       interview he invokes the right to remain silent or the right to counsel, ‘the
       interrogation must cease.’ [Citations.]” (People v. Martinez (2010) 47
       Cal.4th 911, 947.)
       In Edwards, the United States Supreme Court “superimposed a ‘second layer of
prophylaxis’” to implement Miranda when a suspect invokes his right to counsel.
(Maryland v. Shatzer (2010) 559 U.S. 98, 104.)

       “[A]n accused …, having expressed his desire to deal with the police only
       through counsel, is not subject to further interrogation by the authorities
       until counsel has been made available to him, unless the accused himself
       initiates further communication, exchanges, or conversations with the
       police.” (Edwards, supra, 451 U.S. at pp. 484–485.)
The Supreme Court has “frequently emphasized that the Edwards rule is not a
constitutional mandate, but a judicially prescribed prophylaxis.” (Shatzer, supra, at p.
105.) And “[b]ecause Edwards is ‘our rule, not a constitutional command,’ ‘it is our
obligation to justify its expansion.’” (Ibid.)
       Defendant argues the failure to honor the invocation of his right to counsel
requires the suppression of any evidence obtained as a result of further questioning under
the “fruits” doctrine of Wong Sun v. United States (1963) 371 U.S. 471. While
acknowledging the United States Supreme Court has rejected this very argument in the


                                             12.
context of the failure to provide Miranda warnings (United States v. Patane (2004) 542
U.S. 630), he contends a different rule should apply when the derivative evidence is
obtained in violation of Edwards. The deliberate failure to honor the invocation of these
rights, defendant argues, requires the imposition of the “fruits” doctrine. We disagree.
       In United States v. Patane, the Supreme Court held the failure to provide warnings
in accordance with Miranda does not require the suppression of physical fruits of the
unwarned statement. (United States v. Patane, supra, 542 U.S. at pp. 641-644.) There,
the defendant was arrested for violating a restraining order. (Id. at p. 635.) Officers also
had information the defendant was in illegal possession of a firearm. (Id. at p. 634.)
Upon his arrest, officers attempted to read the defendant his Miranda rights. However,
he interrupted, asserting he knew his rights and the rights were never fully provided.
(Patane, at p. 635.) The officers proceeded to question the defendant about the presence
of a gun and the defendant ultimately provided information to its location. (Ibid.) The
question before the Supreme Court was “whether a failure to give a suspect the warnings
prescribed by Miranda … requires suppression of the physical fruits of the suspect’s
unwarned but voluntary statements.” (Id. at pp. 633-634.)
       In answering the question in the negative, the Supreme Court, in a plurality
opinion authored by Justice Thomas, pointed out that the core purpose of the Fifth
Amendment’s self-incrimination clause is to protect a defendant from being compelled to
testify against himself at trial. (United States v. Patane, supra, 542 U.S. at p. 637.) The
court explained “the Miranda rule is a prophylactic employed to protect against
violations of the Self-Incrimination Clause,” which “is not implicated by the admission
into evidence of the physical fruit of a voluntary statement.” (Id. at p. 636.) This is
because the admission of physical evidence obtained through voluntary statements cannot
violate the right against self-incrimination as the right itself is a trial right. (Id. at pp.
637, 641.)
       Because the Miranda rule is a prophylactic measure that “necessarily sweep[s]
beyond the actual protections of the Self-Incrimination Clause,” its extension “must be

                                               13.
justified by its necessity for the protection of the actual right against compelled self-
incrimination.” (United States v. Patane, supra, 542 U.S. at p. 639.) As the right against
self-incrimination is fundamentally a trial right, it is not violated “by negligent or even
deliberate failures to provide the suspect with the full panoply of warnings prescribed by
Miranda.” (Id. at p. 641.) Rather, “violations occur, if at all, only upon the admission of
unwarned statements into evidence at trial. And, at that point ‘[t]he exclusion of
unwarned statements … is a complete sufficient remedy’ for any perceived Miranda
violation.” (Id. at pp. 641-642.) Thus, there is no reason to exclude fruits of unwarned
statements. (Patane, at p. 642.) Similarly the court rejected a deterrence argument,
noting that admitting nontestimonial fruit of a voluntary statement “presents no risk that a
defendant’s coerced statements (however defined) will be used against him at a criminal
trial.” (Id. at p. 643.) Consequently there is no reason to extend the rule to that context.
       We find the reasoning of United States v. Patane to be fully applicable to a
situation such as this, where there is continued questioning after the invocation to the
right to counsel. As we have already noted, the rule requiring cessation of questioning
after a suspect invokes the right to counsel is simply a second layer of prophylaxis to
protect the rule announced in Miranda. (Maryland v. Shatzer, supra, 559 U.S. at p. 105.)
Furthermore, like Miranda, the rule in Edwards sweeps more broadly than the
constitutional right it protects, therefore, its expansion must be limited to the right it
protects. (Maryland v. Shatzer, supra, at p. 105 [“because Edwards is ‘our rule, not a
constitutional command,’ ‘it is our obligation to justify its expansion’”].) Similarly, like
Miranda, the Edwards rule simply creates a generally irrebuttable presumption of
coercion when statements are obtained outside of its mandates forbidding the use of such
statements in the prosecution’s case-in-chief. (Id. at pp. 106-111 [after a 14-day break in
custody, Edwards presumption no longer applies]; Oregon v. Hass (1975) 420 U.S. 714,
722 [defendant’s statements after requesting an attorney admissible to impeach
defendant’s testimony]; People v. Peevy (1998) 17 Cal.4th 1184, 1193 [statement taken



                                              14.
in deliberate violation of Edwards, while inadmissible in prosecution’s case-in-chief, is
admissible to impeach defendant’s testimony].)
       Further, longstanding Supreme Court precedent supports this conclusion. In
Michigan v. Tucker (1974) 417 U.S. 433, the Supreme Court declined to extend the
exclusionary rule to suppress testimony of a witness who was discovered as a result of a
defendant’s statement taken in violation of Miranda. Likewise, in Oregon v. Elstad
(1985) 470 U.S. 298, the court declined to extend the “fruit” analysis to a situation where
an initial unwarned statement was followed by a subsequent statement which was
properly Mirandized. The court held it “is an unwarranted extension of Miranda to hold
that a simple failure to administer the warnings, unaccompanied by any actual coercion or
other circumstances calculated to undermine the suspect’s ability to exercise his free will,
so taints the investigatory process that a subsequent voluntary and informed waiver is
ineffective for some indeterminate period.” (Elstad, at p. 309.) More recently, in
Missouri v. Seibert (2004) 542 U.S. 600, a majority of the court continued to reject using
the “fruit” analysis in a sequential confession case. (Id. at p. 612, fn. 4 (plur. opn. of
Souter, J.) [“Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility
of subsequent warned confession following ‘an initial failure … to administer the
warnings required by Miranda’”]; id. at p. 623 (dis. opn. of O’Connor, J.) [“the plurality
appropriately follows Elstad in concluding that Seibert’s statement cannot be held
inadmissible under a ‘fruit of the poisonous tree’ theory”].)
       In People v. Whitfield (1996) 46 Cal.App.4th 947, this court had occasion to
analyze the Elstad and Michigan v. Tucker decisions in determining whether the “fruits”
doctrine applied to physical evidence obtained by a noncoercive Miranda violation.
After reviewing those cases we held, as did the United States Supreme Court later did in
Patane, that the reasoning of those cases applied equally to physical evidence obtained
from a Miranda violation. (Whitfield, at p. 957.) There we explained:

       “the United States Supreme Court has stated unequivocally, in Elstad and
       Tucker, that a noncoercive Miranda violation is not a constitutional
       violation. As the Elstad court stated in summarizing Tucker, ‘Since there
                                              15.
       was no actual infringement of the suspect’s constitutional rights, the case
       was not controlled by the doctrine expressed in Wong Sun that fruits of a
       constitutional violation must be suppressed ….’ (Oregon v. Elstad, supra,
       470 U.S. at p. 308.) Thus, while the high court has not actually decided a
       case involving physical evidence seized as a result of a Miranda violation,
       it has decided the premise from which it necessarily follows that physical
       evidence seized as a result of a noncoercive Miranda violation is not
       excludable under the Wong Sun doctrine.” (Ibid.)
       Likewise here, it is clear from a review of United States v. Patane that the United
States Supreme Court has decided the premise which controls this case. As the court has
held, the admission of nontestimonial physical “fruit” of a voluntary statement does not
implicate the self-incrimination clause. (United States v. Patane, supra, 542 U.S. at pp.
641-642.)
       Indeed our own Supreme Court has indicated its willingness to apply United States
v. Patane to an Edwards violation in People v. Davis (2009) 46 Cal.4th 539, 598-599.
There the California Supreme Court noted that a violation of Miranda and Edwards
would not “taint the admissibility of any physical evidence derived from those
confessions.” (Davis, at p. 598.) Citing Patane, the court explained the “fruit” doctrine
does not apply to noncoercive Miranda violations, and further pointed out that a violation
of Edwards “does not mean that any ensuing confession was coerced.” (Davis, at p.
598.) Davis discussed these principles in determining that any admission of statements
taken in violation of Edwards was harmless, as the derivative physical evidence would
have nevertheless been fully admissible. (Davis, at pp. 598-599.)
       Defendant argues that applying the exclusionary rule to fruits of an Edwards
violation would provide an appropriate deterrent for police from intentionally violating a
suspect’s rights. We disagree. Like the court articulated in Patane, the exclusion of a
suspect’s statements from trial is a complete remedy for the violation of the right against
self-incrimination. (United States v. Patane, supra, 542 U.S. at pp. 642-643.) As the
Edwards rule provides a right over and above that required by the Fifth Amendment,
extension of the rule to that context is unwarranted. Further, as to a deterrent effect, we


                                             16.
note that under well-settled law, not only are statements obtained by a violation of
Edwards already inadmissible, but so are the fruits of an actually coerced statement.
(Patane, at p. 644.)
       Further, the Supreme Court in Oregon v. Hass rejected a similar deterrence
argument. There, the court held that a statement taken after valid Miranda warnings were
given and the defendant requested to speak to an attorney, while not admissible in the
prosecution’s case-in-chief could, in fact, be admitted to impeach the defendant’s
contrary testimony. (Oregon v. Hass, supra, 420 U.S. at pp. 721-723.) The court
explained that while one could argue that an officer may have an incentive to question a
suspect further after the invocation of the right to counsel in the hopes of securing
impeachment evidence, those cases could “be taken care of when it arises measured by
the traditional standards for evaluating voluntariness and trustworthiness.” (Id. at p. 723.)
Indeed, when a statement is taken in violation of Edwards and found to be involuntary, it
is excluded for all purposes. (People v. Neal (2003) 31 Cal.4th 63, 79-85.)
       We note several state Supreme Courts as well as some federal circuit courts have
come to the same conclusion. (Baker v. State (Tex.App. 1997) 956 S.W.2d 19, 22-23
[“fruits” doctrine inapplicable to noncoercive violation to honor invocation of Miranda
rights]; In re H.V. (Tex. 2008) 252 S.W.3d 319, 327-329 [same]; People v. Bradshaw
(Colo. 2007) 156 P.3d 452, 459-460 [continued questioning of suspect after invocation of
right to counsel did not invalidate subsequent voluntary consent to mouth swab that led to
admission of inculpatory DNA evidence]; People v. Gosselin (Colo.App. 2008) 205 P.3d
456, 460-461 [physical “fruit” of Edwards violation obtained from voluntary statement
admissible] cert. den. sub nom. Gosselin v. People (Colo. Apr. 13, 2009, 08SC978) and
Gosselin v. Colo. (2009) 558 U.S. 1026; Wilson v. Zant (1982) 249 Ga. 373, 377-379
[“the exclusionary rule does not apply to evidence derived from a voluntary statement[]
obtained in violation of Edwards, … and that it was not error to admit the ‘fruits’ of the
defendant’s statement”], overruled on other grounds in Morgan v. State (1996) 267 Ga.
203; Taylor v. State (2001) 274 Ga. 269, 276 [553 S.E.2d 598, 604-605] [exclusionary

                                             17.
rule does not apply to physical “fruit” of voluntary Edwards violation]; United States v.
Cherry (5th Cir. 1986) 794 F.2d 201, 207-208 [“fruits” doctrine does not apply to
Edwards violation where underlying statement was voluntary]; U.S. v. Gonzalez-Garcia
(5th Cir. 2013) 708 F.3d 682; 686-687 [Edwards violation does not require suppression
of physical “fruits” of statement]; Martin v. Wainwright (11th Cir. 1985) 770 F.2d 918,
928 [police failure to honor suspect’s request to “cut off” questioning does not make
fruits of ensuing voluntary confession inadmissible], aff. as mod. (11th Cir. 1986) 781
F.2d 185, abrogated on other grounds in Coleman v. Singletary (11th Cir. 1994) 30 F.3d
1420; U.S. v. Mendoza-Cecelia (11th Cir. 1992) 963 F.2d 1467, 1474 [“fruits” doctrine
did not bar use of subsequent voluntary confession after suspect invoked right to
counsel], abrogated on other grounds in Coleman v. Singletary (11th Cir. 1994) 30 F.3d
1420; see Greenawalt v. Ricketts (9th Cir. 1991) 943 F.2d 1020, 1026-1027 [following
United States v. Cherry finding that “a voluntary confession inadmissible on the ground
of Edwards does not taint a subsequent voluntary confession].)
       Defendant argues this court should follow the decision in State v. Venegas
(Fla.App. 2012) 79 So.3d 912. There, a Florida appellate court declined to apply United
States v. Patane to a situation where a defendant was advised of and invoked his Miranda
rights, but was subsequently questioned resulting in the discovery of physical evidence.
The court reasoned that Patane did not apply because the defendant had been advised of
and invoked his right to counsel. In distinguishing Patane, the court stated that the
defendant’s statement could not be considered voluntary simply because it occurred after
the defendant invoked his right to counsel. (State v. Venegas, supra, at p. 915.)
However, our own Supreme Court has held that mere questioning after a suspect invokes
his right to counsel is not necessarily coercive. (People v. Bradford (1997) 14 Cal.4th
1005, 1040; People v. Storm (2002) 28 Cal.4th 1007, 1033; People v. Davis, supra, 46
Cal.4th at p. 598.) Thus, as the reasoning in Venegas conflicts with our own California
Supreme Court, we decline to follow its holding.



                                            18.
       Concluding that fruit of the poisonous tree doctrine does not apply to the physical
evidence in the case, namely the firearm as well as Allen’s testimony, does not end our
analysis. We must also consider whether defendant’s statement was in fact voluntary and
not coerced.
       The rules regarding whether a statement is voluntary are well-settled. A statement
is considered involuntary “if it is not the product of ‘“a rational intellect and free will.”’
[Citation.] The test for determining whether a confession is voluntary is whether the
[witness’s] ‘will was overborne at the time he confessed.’” (People v. Maury (2003) 30
Cal.4th 342, 404.) A statement may be coerced by either physical intimidation or
psychological pressure. In cases of psychological coercion, the question is “‘“whether
the influences brought to bear upon the accused were ‘such as to overbear [the accused’s]
will to resist and bring about confessions not freely self-determined.’ [Citation.]”’”
(Ibid.) “‘“The 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.”’” (People v. Williams, supra, 49 Cal.4th at p. 436; see also
People v. Ray (1996) 13 Cal.4th 313, 340; People v. Thompson (1990) 50 Cal.3d 134,
166-167.)
       Defendant does not argue his statements as to the location of the gun were
coerced, and nothing in the record would support such a conclusion. The record does,
however, support a finding that defendant voluntarily made the statements regarding the
location of the gun to Officer Kroeker. The officer testified that upon arriving at the jail,
he had said something to the effect that it would be a shame if a child were to come
across the gun and be harmed. Defendant then immediately provided the officer with the
statement that he had given the gun to “Rock.” Officer Kroeker testified he made no
threats toward defendant, the exchange was in a conversational tone, and defendant
answered the question without delay. No weapons were used, nor was there any evidence
that defendant was in any way badgered into making the statement. It appeared to be a
very short exchange during which defendant freely made the statement. As there is no

                                              19.
hint of compulsion on the record, we find the subsequent fruits of the statement were
fully admissible.
II.    Admission of the Phone Records Was Proper
       Defendant argues the trial court abused its discretion in admitting evidence of cell
phone records as the evidence was irrelevant. We disagree.
       Evidence Code section 351 provides that “all relevant evidence is admissible”
unless it is otherwise prohibited. Relevant evidence is defined as evidence “having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Id., at § 210.) “Evidence is relevant if it tends ‘“logically,
naturally, and by reasonable inference” to establish material facts such as identity, intent,
or motive.’” (People v. Williams (2008) 43 Cal.4th 584, 633-634.) A trial court enjoys
broad discretion in determining the relevancy of evidence. (People v. Cash (2002) 28
Cal.4th 703, 727.) We review a trial court’s rulings on relevance and the admissibility of
evidence for abuse of discretion. (People v. Aguilar (2010) 181 Cal.App.4th 966, 973.)
       Defendant contends the evidence of the phone records was irrelevant because
there was no evidence showing the phone records at issue belonged to the same Eric
Peterson referred to by the witnesses. Defendant is mistaken.
       Evidence at trial established JoAngel’s phone number. The phone records,
admitted as People’s exhibit 57, included a summary page establishing the records
belonged to “Eric Peterson” and listed a Bakersfield address. The phone number
belonging to Peterson is listed. The records themselves showed nine telephone calls
between JoAngel’s phone number and Peterson’s on the day of the shooting, which
would establish this was in fact the same Peterson to which the witnesses referred.
       Additionally, Davis testified Charmaine took a phone call from JoAngel sometime
before coming back from the store and that afterwards she was frustrated and rattled. She
relayed that only she, Charmaine, and Peterson went to the store together, and the phone
call took place a few hours before the shooting. Davis recalled that Peterson had a phone
number with a 510 area code and the phone records at issue were for a phone number

                                             20.
with a 510 area code. The records further established there was a phone call between
Peterson’s and JoAngel’s telephones at 3:12 p.m., exactly within the time frame to which
Davis testified. This further establishes the relevance of the records at issue.
       Moreover, Charmaine testified Peterson was with her on the day of the shooting
and he had given Henderson a ride to JoAngel’s home. She claimed she had not spoken
to JoAngel before the shooting because she did not have a cell phone at the time and
JoAngel did not have Peterson’s phone number. However, Charmaine further stated she
called JoAngel sometime after the shooting, while she was with Peterson, and JoAngel
told her to come over immediately but did not tell her what had happened. The phone
records at issue show a very brief call from Eric Peterson’s phone to JoAngel at 6:21
p.m., which further established the records in question were for the same Eric Peterson
involved in this case.
       JoAngel testified she did not know anyone by the name of Eric Peterson.
However, the records show nine telephone calls between JoAngel’s number and the
number listed for Peterson on the day of the shooting. This further establishes the
relevance of the records.
       In light of the above testimony, the records were relevant to corroborate Davis’s
testimony that Charmaine took a call from JoAngel on the date in question, and also to
impeach JoAngel’s testimony that she did not know anyone by the name of Eric Peterson.
Defendant’s main argument is that the records are irrelevant because they could have
belonged to another Eric Peterson and had nothing to do with this case. However,
defendant’s arguments go to the weight of the evidence, not its admissibility. (People v.
Sorrentino (1956) 146 Cal.App.2d 149, 162.) Considering the above testimony in light
of the actual phone records, it is clear that a reasonable person could conclude that the
records belonged to the Eric Peterson to whom the witnesses referred, and the jury could
give those records whatever weight they saw fit. Thus, the records were relevant and
properly admitted.



                                             21.
       Defendant argues the phone records were irrelevant because they did not
demonstrate a call between JoAngel and Peterson within a few hours of the shooting as
she testified. First, we note the timing of the calls would go to the weight of the
evidence, not its admissibility. Second, a review of the actual phone logs at issue reveals
there was in fact a 32-second call between Peterson’s and JoAngel’s telephones at 3:12
p.m., exactly within the time frame defendant argues would be consistent with the
testimony. This, of course, is entirely consistent with Davis’s testimony that Charmaine
and JoAngel spoke shortly before Henderson went to JoAngel’s house, and that the call
occurred a few hours before the shooting.
       As the records were relevant, the trial court did not err in admitting them. Even if
this court were to conclude the records were irrelevant, we would find any error harmless.
The erroneous admission of the evidence does not require reversal of the judgment unless
it is reasonably probable defendant would have obtained a more favorable result had
there been no error. (People v. Earp (1999) 20 Cal.4th 826, 878.) The admission of the
phone records added little to the case. The issue presented to the jury was whether
defendant killed Henderson with premeditation or if he was acting in self-defense. At
most, the challenged evidence shows there were calls between JoAngel’s phone and
Peterson’s phone on the day in question. However, the fact of the phone call does not
establish what was said on the call. Defendant seems to argue the phone records
somehow established the prosecution’s theory that Henderson came to the home at
JoAngel’s request. But there was never any evidence regarding the content of the call,
and the admission of the records did not change that in any way. Davis had already
testified that Charmaine spoke to JoAngel sometime before Peterson drove Henderson to
JoAngel’s house. While the records corroborate a conversation took place, that is all they
could establish. Defendant argues the jury obviously relied on the phone records in
deliberations. To support this conclusion he points to the fact the jury requested to see
the records during deliberations. However, defendant neglects to mention the jury never
had the opportunity to observe the records during trial. Indeed, the records were not even

                                             22.
admitted until both parties had rested their cases. The records were mentioned by both
the prosecutor and defense in their closing arguments. As that is the first time they were
ever mentioned, it is hardly surprising the jury requested to see them.
       Considering the record as a whole, the admission of the records was clearly
harmless.
                                     DISPOSITION
       The judgment is affirmed.

                                                          __________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
CORNELL, Acting P.J.


 ________________________________
KANE, J.




                                            23.
