Filed 3/30/15 P. v. Shockey CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G049364

                   v.                                              (Super. Ct. No. 11CF3468)

JESSE TAYLOR SHOCKEY,                                              OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
                   Robert V. Vallandigham, Jr., under appointment by the Court of Appeal,
for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              A jury found defendant Jesse Taylor Shockey guilty of voluntary
manslaughter (Pen. Code, § 192, subd. (a); all statutory references are to the Penal Code)
and found he personally used a knife (§ 12022, subd. (b)(1)). Shockey contends the trial
court prejudicially erred by admitting statements obtained during a custodial interrogation
because police officers did not expressly advise him of his right to have counsel present
during the interrogation. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) For the
reasons expressed below, we affirm the judgment.
                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              On December 21, 2011, Shockey and three friends, Matthew Bosco, Mel
Serrano, and Kendra Fuller, gathered at a Huntington Beach park. Around 9:00 p.m., a
car drove past Shockey’s group, and someone in the car shouted they would be back in
five minutes. When the car returned, Ernest Taylor, Dylan Austin, Jeff Quinn, and
Corrine Armstrong got out. Shockey and Taylor knew each other from juvenile hall and
engaged in a fistfight at the same park a few weeks earlier.
              Austin and Taylor aggressively approached and told Shockey’s group to
leave the park. Bosco aimed a rifle at Austin, who grabbed it and said “blast me.”
Shockey positioned himself behind Austin and poked him in the back with a kitchen
knife. Austin then turned toward Shockey and punched him in the face several times.
Shockey walked away from Austin stating, “You’re not worth it.” Austin pursued, and
Shockey plunged the knife into Austin’s chest. Austin later died from his injuries.
              Officers recorded a phone call between Fuller and Shockey during which
Shockey admitted stabbing Austin and made other incriminating statements. Shockey
also incriminated himself during police interviews conducted on December 22 and
December 27.




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              Following a trial in September 2013, a jury convicted Shockey as noted
above. In November 2013, the trial court imposed an 11-year upper term prison sentence
for manslaughter and struck the weapon enhancement (§ 1385).
                                             II
                                        DISCUSSION
No Miranda Violation
              Officers arrested Shockey around 10:30 a.m. the morning after the
stabbing. Detective Ellis questioned him at the police station around 3:00 p.m. Ellis told
Shockey he was under arrest and advised him of his Miranda rights as follows:
“Detective Ellis: I’m going to advise you of your Miranda rights. Okay? You know
what Miranda is? [¶] [] Shockey: Yes. [¶] [Q]: The right to remain silent. [¶] [A] Yes.
[¶] [Q]: Anything you say may be used against you in a court of law. You understand
that? [¶] [A] Yes. [¶] [Q]: If you can’t afford an attorney, one will be appointed to you
free of charge before questioning if you want. [¶] [A]: Yes. [¶] [Q]: Got a card. I’m
tired. With these rights in mind, would you mind telling me what happened last night?”
Shockey answered questions and made incriminating statements.
              Before trial, Shockey moved to suppress his statements under Miranda.
The trial court found “although there was a less than perfect recitation of the Miranda
rights, that appeared to be a sufficient admonition under Miranda and its progeny.”
              Shockey complains Ellis did not advise him of the right to have an attorney
present during questioning. The officer’s Miranda advisement, although not exemplary,
met the requirements of Miranda.
              When reviewing Miranda issues on appeal, we accept the trial court’s
resolution of disputed facts and inferences and its credibility determinations if supported
by substantial evidence, but apply the independent, de novo standard of review to
determine from undisputed facts and trial court findings whether police legally obtained



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the challenged statement. (People v. Smith (2007) 40 Cal.4th 483, 502; People v. Waidla
(2000) 22 Cal.4th 690, 730.)
              Miranda warnings serve a prophylactic purpose and provide procedural
safeguards to protect an individual’s Fifth and Fourteenth Amendment right against self-
incrimination. (See Florida v. Powell (2010) 559 U.S. 50, 59 (Powell).) No “talismanic
incantation” is necessary to satisfy Miranda’s requirements. (California v. Prysock
(1981) 453 U.S. 355, 359 (Prysock).) But the advisement must “reasonably convey[]” to
a suspect the following four warnings: “‘[A suspect] must be warned prior to any
questioning [1] that he has the right to remain silent, [2] that anything he says can be used
against him in a court of law, [3] that he has the right to the presence of an attorney, and
[4] that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.’” (Powell, supra, 559 U.S. at pp. 59-60; Miranda, supra,
384 U.S. at p. 479.) Miranda’s third warning must clearly inform the suspect of his
“right to consult with a lawyer and to have the lawyer with him during interrogation.”
(Miranda, supra, 384 U.S. at p. 471.)
              The Attorney General argues Powell is dispositive. In Powell, the officers
advised the suspect he had the right “‘to talk to a lawyer before answering any of [the
officers’] questions’” and of the “‘right to use any of [his] rights at any time [he]
want[ed] during th[e] interview.’” (Powell, supra, 559 U.S. at p. 62.) The Supreme
Court reasoned the two statements in combination reasonably conveyed the right to have
an attorney present, not only at the outset of interrogation, but at all times. (Ibid.)
              Unlike the Miranda advisement upheld in Powell, where a “combination”
of statements informed the suspect of his right to talk to a lawyer before the interrogation,
and of his right to invoke any of his rights at any time during the interrogation, the
advisement here informed Shockey only that he could have an attorney appointed before
questioning. (cf. Powell, supra, 559 U.S. at p. 62.) No additional statement informed



                                               4
Shockey he could invoke his rights during the interrogation. Powell does not control the
outcome here.
               But Powell also does not support Shockey’s assertion officers must
“unambiguously inform the person being interviewed that he or she has the right to
counsel during police interrogation.” Powell rejected the contention Miranda requires
expressly advising a suspect of his right to have counsel present before and during
questioning. (Powell, supra, 559 U.S. at pp. 63-64.) The Court reasoned the issue is
whether the “words . . . used . . . communicated the same essential message [Miranda
requires].” (Id. at p. 64.)
               In People v. Wash (1993) 6 Cal.4th 215, 236, the California Supreme Court
held a Miranda warning “reasonably conveyed” to a suspect his right to have an attorney
present during questioning when police expressly informed the suspect of his right to
have an attorney present before questioning. (Id. at p. 237; see People v. Lujan (2001)
92 Cal.App.4th 1389, 1402 [“Wash stands for the proposition that there is sufficient
compliance with Miranda if the accused is advised of the right to have an attorney
present before questioning.”].) Wash reasoned that “[a]lthough the warning given to
defendant here deviated from the standard form . . . we are not persuaded . . . that the
language was so ambiguous or confusing as to lead defendant to believe that counsel
would be provided before questioning, and then summarily removed once questioning
began.” (Wash, supra, 6 Cal.4th at 236; see also People v. Valdivia (1986) 180
Cal.App.3d 657, 663-664 [unreasonable for a suspect to believe attorney must leave the
interrogation room during questioning when police advise a suspect he has a right to have
an attorney before questioning].)
               Shockey argues Wash is distinguishable because Ellis did not inform him of
his right to “speak” to an attorney or have an attorney “present” before questioning, but
rather advised him he had the right to have an attorney “appointed” before questioning.
A Miranda advisement is valid so long as “nothing in the warnings suggest[s] any

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limitation on the right to the presence of an appointed counsel different from the clearly
conveyed rights to a lawyer in general.” (Prysock, supra, 453 U.S. at pp. 360-361.)
Because police informed Shockey counsel could be “appointed to you free of charge
before questioning” and was not told his right to an attorney would be limited in any way
during questioning, his right to appointed counsel was not impermissibly “linked to a
future point in time after police interrogation.” (Id. at p. 360.)
              Shockey contends we should follow the Ninth Circuit’s decision in United
States v. Noti (9th Cir. 1984) 731 F.2d 610, 614-615.) Noti found a Miranda warning
inadequate because officers informed the suspect of his right to have the services of an
attorney before, but not during questioning. (Id. at p. 615; accord Windsor v. United
States (5th Cir. 1968) 389 F.2d 530, 533; but see United States v. Lamia (2d Cir. 1970)
429 F.2d 373, 376 [suspect advised “he had the ‘right to an attorney,’ [and that] if he was
not able to afford an attorney one would be appointed by the court”; advisement
reasonably implied attorney would be available during questioning].) We decline the
invitation because we are bound by Wash. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455; Valdivia, supra, 180 Cal.App.3d at p. 664; see Forsyth v.
Jones (1997) 57 Cal.App.4th 776, 783 [state appellate courts are not bound by federal
circuit court precedent].)
              The advisement here met Miranda’s requirements even though it deviated
from the standard form because it reasonably conveyed to Shockey his right to have an
attorney present before and during questioning. Because the advisement was adequate,
we need not address whether the introduction of Shockey’s statements resulted in
prejudice.




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                                      III
                                 DISPOSITION
          The judgment is affirmed.




                                            ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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