Filed 12/23/13 P. v. Valentine CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR



THE PEOPLE,                                                                   B238036

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA328306)
          v.

MICHAEL W. VALENTINE, JR.,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Perry, Judge. Affirmed.
          John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
          Defendant Michael Valentine appeals from the judgment entered upon his jury
conviction of first degree murder, committed during a burglary. Defendant argues the
court made reversible errors in denying his motion to suppress his statement to police,
and in not instructing the jury on mistake of fact and consensual entry as defenses to
burglary. He also argues counsel was ineffective for not seeking these instructions. We
disagree and affirm.


                         FACTUAL AND PROCEDURAL SUMMARY
          The victim, David Isaac, was shot in his home during the night of October 27,
1989. His daughter Galit, who was 10 years old at the time of the shooting, testified at
trial that she came out of her bedroom when she heard screaming and saw her father
pointing a gun at a man.1 The man was holding her mother in a chokehold and was
pointing a gun back and forth at her mother and father. Her parents were asking the
gunman what he wanted, and her mother was offering to give him her jewelry. The
gunman then pushed her mother down, and he and her father fought. Galit heard three
gunshots. She saw the gunman throw something through the dining room window and
run out. He did not take any of her mother’s jewelry. David Isaac died of gunshot
wounds to the chest and abdomen. His wife suffered bruises all over her body.
          One of the weapons found at the scene, a .9 millimeter semi-automatic Smith &
Wesson, belonged to David Isaac. The other, a .38 caliber Smith & Wesson revolver,
was registered to the owner of a motel in Valley Village. The motel had been robbed a
day earlier, and a revolver belonging to the owner had been taken from the front desk
during that robbery. The motel clerk described the robber as a light-skinned African-
American man and identified defendant as the robber at the preliminary hearing and at
trial.2

          1
        According to Galit Isaac’s statement to police after the shooting, the man had
sideburns and a moustache like one of her uncles.
          2
              The motel clerk had not been able to identify defendant in a photographic line-up
in 2006.
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       Fingerprints collected from a Western Union form, which the Isaacs turned over to
police in the days after the shooting, were enhanced, submitted for testing, and entered in
the Automatic Print Identification System in 2006. They matched defendant’s prints in
the system and prints taken at his preliminary hearing in 2008. In 2006 and 2008, DNA
testing was performed on material collected from the scene of the shooting in 1989.
Blood on glass from a broken window next to the dining room was traced to defendant.
Defendant also was a contributor to DNA samples recovered from the revolver, and a
predominant donor of DNA found on its trigger guard. Defendant could not be excluded
as a contributor to the genetic profile obtained from David Isaac’s fingernail clippings.
       Two detectives interviewed defendant in December 2006, while he was
incarcerated for another crime. During the interview, defendant admitted going to the
Isaacs’ house, but not to rob them. He claimed rather that a relative of the Isaacs, a
“nephew,” had arranged for him to scare David Isaac’s wife into doing something about
the family business, which had something to do with a jewelry store.3 David Isaac was
supposed to know about this plan. Defendant was caught off guard when David Isaac
pulled out a gun and used it to hit defendant in the head. Defendant claimed his gun went
off during the ensuing struggle.
       In 2008, defendant was charged in a three-count information, but his jury trial
proceeded on a single count of murder, with special allegations that the murder was
committed during a burglary or a robbery and that defendant personally used a firearm.
(Pen. Code, §§ 187, subd. (a); 190.2, subd. (a) (17); 12022.5, subd. (a).) The court
denied defendant’s motion to suppress his statement to police. The jury convicted
defendant of first degree murder, finding the special allegations that the murder was
committed during a burglary and that defendant personally used a firearm to be true. The
jury found the allegation that the murder was committed during a robbery to be not true.


       3
        The Isaacs owned a furniture store where one of David Isaac’s brothers operated
a jewelry counter. The store was in debt, and various relatives had lent David Isaac
money in the days before the shooting.

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Defendant was sentenced to life imprisonment without possibility of parole, plus two
years on the firearm enhancement. He timely appealed.


                                      DISCUSSION
                                              I
       Defendant argues his confession should have been suppressed because it was
involuntary as the product of deception and implied promises of leniency. We granted
his motion to augment the record on appeal with the 164-page transcript of the recorded
2006 interview, which the trial court considered when denying the motion to suppress.
Since the interview was recorded and its content undisputed, we independently review
the issue of voluntariness. (See People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
       Early on in the interview, the detectives falsely told defendant that the motel clerk
had identified him in a photographic lineup. They showed him a fabricated lineup, on
which defendant’s photograph was circled, the clerk’s name was signed, and the
statement “This is the person that robbed me in 1986” was added. Defendant noticed that
the year of the robbery on the statement was incorrect and denied participating in the
motel robbery.
       The ploy the detectives used with regard to the motel robbery does not render
defendant’s statement about the shooting involuntary. Falsely telling a suspect that he
has been identified by a witness is not an objectionable tactic. (See People v. Smith
(2007) 40 Cal.4th 483, 505, citing Amaya-Ruiz v. Stewart (9th Cir.1997) 121 F.3d 486,
495.) Moreover, the tactic was evidently intended to elicit a confession about the motel
robbery rather than about the shooting at the Isaacs’ home, about which the motel clerk
knew nothing. (See id. at p. 506.)
       Defendant made no incriminating statements about the shooting until the
detectives represented that fingerprint and DNA evidence connected him to the scene and
all they needed to “put a case” on him was motive. He does not argue this representation
was false, and the evidence at trial indicates fingerprint and DNA evidence against
defendant was available in 2006. Faced with this evidence, defendant recognized he was

                                             4
“in a no-win situation.” He argues he made incriminating statements from that point on
because the detectives implied that “he would not be charged with murder if he did not
intend to harm anyone” and that “if someone else had hired him, he would be less
culpable and would not be prosecuted in exchange for information on that person’s
identity.”
       A confession is inadmissible if ‘“a person in authority makes an express or clearly
implied promise of leniency or advantage for the accused which is a motivating cause of
the decision to confess.”’ (People v. Tully (2012) 54 Cal.4th 952, 985.) To determine
whether a promise of leniency was made and whether it motivated the confession, we
examine “““all the surrounding circumstances—both the characteristics of the accused
and the details of the interrogation.””” (Id. at p. 986.) Pointing out a benefit that ‘“flows
naturally from a truthful and honest course of conduct”’ is proper, but promising that the
defendant ‘“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,”’ is not. (People v. Cahill (1994) 22 Cal.App.4th 296, 312 (Cahill),
quoting People v. Hill (1967) 66 Cal.2d 536, 549.) The promise ‘“need not be expressed,
but may be implied from equivocal language not otherwise made clear.’” (Cahill, at
p. 312.)
       Detective Marcia offered defendant three scenarios: that defendant had gone to
the victim’s house to hurt the victim; that defendant had intended to rob the victim, who
got hurt in the process; or that someone hired defendant to hurt the victim. As to the last
scenario, the detective stated: “And if somebody hired you, then you’re a small fish. . . .
[Y]ou give up the – the person, hey, then we move on.” Defendant reads the phrase “we
move on” as implicitly offering him immunity from prosecution. To the extent the
phrase is ambiguous, other portions of the interview make clear the detectives meant that
if someone else also was involved, the investigation was not over. The consequence for
defendant was that he would not be the only one prosecuted. Detective Marcia’s express
promise that the detectives would not “put a case just on” defendant, and the question
“should you go down for this all by yourself?” made that clear. The references to

                                              5
defendant as “a small fish” or not “the right fish” could not reasonably be understood to
mean defendant was not culpable at all since he was told that the forensic evidence
placed him at the scene of the shooting. Detective Marcia also told defendant, “I’m not
going to say that you’re not culpable here . . . .” The assurance that defendant’s
cooperation would be “taken into consideration” was too vague to amount to a promise of
leniency when no particular benefit was identified. (See People v. Holloway (2004) 33
Cal.4th 96, 117 [“suggesting that defendant might benefit in an unspecified manner” was
not improper].)
       At the time of the interview, defendant was 40 years old. His criminal history was
extensive and his prison experience substantial. (See People v. Vasila, supra, 38
Cal.App.4th at p. 876 [defendant’s “‘age, sophistication, prior experience with the
criminal justice system and emotional state”’ are relevant factors].) At various times
during the interview, defendant stated he understood that he was “screwed,” that he
would have to go to court, and that he might spend the rest of his life in prison. Under
the totality of the circumstances, we cannot conclude that defendant in fact believed he
was being promised immunity from prosecution, or that such a belief would have been
reasonable. (See People v. Tully, supra, 54 Cal.4th at p. 986 [statement is induced by
promise of leniency when inducement and statement ‘“are linked, as it were, by
“proximate” causation’”]; Cahill, supra, 22 Cal.App.4th at p. 312 [promise that defendant
“might reasonably expect” leniency is improper].)
       Relying on Cahill, supra, 22 Cal.App.4th 296, defendant argues the detectives
misrepresented the law of felony-murder when they implied he might be charged with
manslaughter if he did not intend to harm anyone. The 18-year-old defendant in that case
confessed to being present in the home of a robbery-rape-homicide victim after the
interrogating officers gave a “materially misleading” overview of the law of murder that
omitted felony-murder, and represented that the defendant might avoid a charge of first
degree murder if he had not premeditated the crime. (Id. at pp. 303, 315, 316–317.) The
court held the confession was involuntary, reasoning that to the young defendant
“‘unskilled and uncounseled in the law’ the representations that premeditation was an

                                             6
element of first degree murder ‘might have offered a hope’ that if defendant confessed
but denied premeditation he might be cleared of the most serious charges against him.”
(Id. at p. 317, quoting People v. Johnson (1969) 70 Cal.2d 469, 479.)
       Cahill, supra, 22 Cal.App.4th 296 is distinguishable. Before defendant made any
incriminating statements, Detective Marcia explained: “If you went there to intentionally
kill him, what’s that? That [is] called premeditated. If you went there . . . to rob him and
got into an altercation and accidentally shot him, what’s that? That could be your
homicide two or it could be a manslaughter or it could be anything. [¶] Or, if somebody
hired you to do it or put you up to it, now we have a whole different type of crime. And
we might not be with the right fish.” Although Detective Marcia failed to expressly
mention felony-murder, he suggested that a homicide during a robbery “could be
anything,” negating any implication that he was offering an exhaustive review of the law
of murder. Defendant’s mature age and extensive experience with the criminal justice
system made it much less likely that he was materially misled by anything the detective
said, and the fact that defendant did not confess he intended to rob the Isaacs suggests he
was not actually misled. Moreover, later in the interview, defendant acknowledged that if
he went to the Isaacs’ house to rob them, that would be “murder-robbery” and “bad
things” would happen, suggesting he was familiar with the felony-murder rule.
       Cahill, supra, 22 Cal.App.4th 296 also is distinguishable because, until 2009, the
merger doctrine applied to first degree felony-murder in the course of a burglary if the
defendant’s intent was to assault the homicide victim. (See People v. Farley (2009)
46 Cal.4th 1053, 1117, prospectively overruling People v. Wilson (1969) 1 Cal.3d 431.)
But the merger doctrine did not necessarily apply if the defendant intended to assault
someone other than the murder victim. (People v. Farley, supra, 46 Cal.4th at pp. 1115–
1116.) If defendant’s intent had been to “hurt” David Isaac, as Detective Marcia
suggested, the assault would have merged with the murder, and the felony-murder rule
would not have been necessary. Since there was no evidence of a robbery, defendant’s
admission that he was present in the Isaacs’ home, by itself, would not necessarily have
brought the felony murder-rule into play. The transcript of the interview does not

                                             7
indicate it was reasonably foreseeable defendant would state he went to the Isaacs’ home
intending to scare David Isaac’s wife. In all these respects, the case is different from
Cahill, where there was evidence of robbery and rape, and the court concluded, “It is not
plausible to suppose that a homicide investigator . . . was unaware . . . that a statement
admitting defendant’s presence in the house would amount to a confession of felony
murder.”
       The vague suggestions that defendant could “help himself” because “there could
be somebody else involved . . . or something could have just [gone] wrong” did not
amount to promises of leniency in exchange for cooperation as they simply encouraged
defendant to tell what happened without promising a particular benefit. (See People v.
Holloway, supra, 33 Cal.4th at p. 116 [suggestions that killings during commission of
burglary “might have been accidental or resulted from an uncontrollable fit of rage during
a drunken blackout” not improper]; People v. Bradford (1997) 14 Cal.4th 1005,1043–
1044 [suggestion killing was in “heat of passion” not improper]; People v. Ditson (1962)
57 Cal.2d 415, 433 [exhortations to tell truth or help oneself by revealing acts of others
not improper].)
       Throughout the interview, Detective Marcia also suggested he cared about
defendant, would “work with” him, would not “give up on” him, and would “do the right
thing.” The detective apparently meant that the investigation would continue, but he did
not imply any particular benefit to defendant. (See People v. Vance (2010) 188
Cal.App.4th 1182, 1212 [no “implied promise of leniency” where officer stated “‘[w]e
are here to listen and then to help you out’”].) Towards the end of the interview, the
detective suggested the prosecutor was a like-minded individual and “a very close
friend,” who would “do what’s right.” But defendant already had asked what his “deal”
was for cooperating, and the detective had explained he could not “give [him] that.”
Defendant had acknowledged he understood. Defendant also understood the detectives’
job was “to detect,” to not give up on the case, and to take “the bad guy off the street,”
rather than to help him out or not to give up on him personally. Without evidence that
any particular promise of leniency reasonably motivated defendant to make incriminating

                                              8
statements, the detectives’ expressed sympathy, whether feigned or real, and vague
promises to do right by him did not render his confession involuntary.
                                             II
        Defendant told the detectives that David Isaac knew or was supposed to have
known of the plan to scare his wife. He argues that, based on these statements, the court
should have instructed the jury sua sponte on consensual entry and mistake of fact as
defenses to burglary, and that defense counsel was ineffective in not requesting such
instructions.
        We review de novo defendant’s claims of instructional error. (People v. Waidla
(2000) 22 Cal.4th 690, 733.) A court’s sua sponte duty to instruct on a defense arises
only when the instruction is not inconsistent with the defendant’s theory of the case and
there is substantial evidence to support it. (People v. Breverman (1998) 19 Cal.4th 142,
157.) The failure to request a factually and legally unsupported instruction is not
ineffective assistance of counsel. (People v. Szadziewicz (2008) 161 Cal.App.4th 823,
836.)
        Consent to burglary is an affirmative defense, available “when the owner actively
invites the accused to enter, knowing the illegal, felonious intention in the mind of the
invitee. [Citation.]” (People v. Felix (1994) 23 Cal.App.4th 1385, 1397–1398; People v.
Sherow (2011) 196 Cal.App.4th 1296, 1304.) But as defendant acknowledges, under
People v. Clayton (1998) 65 Cal. App.4th 418 (Clayton), a co-occupant’s consent to a
felonious act to be perpetrated on another occupant is not a defense to burglary.
Defendant argues that ex post facto concerns preclude the retroactive application of
Clayton to his conduct in 1989, which predated that case. An unforeseeable judicial
enlargement of a criminal statute may not be applied retroactively. (People v. Farley,
supra, 46 Cal.4th at p. 1122; see People v. Morante (1999) 20 Cal.4th 403, 431 [“If a
judicial construction of a criminal statute is unexpected and indefensible by reference to
the law that had been expressed prior to the conduct in issue, it must not be given
retroactive effect”].) But Clayton did not unforeseeably enlarge the burglary statute (Pen.
Code, § 459).

                                              9
       The holding in Clayton was applied retroactively to affirm the defendant’s
burglary conviction, which was based on his entry into a house to kill the victim at her
husband’s behest. (Clayton, supra, 65 Cal. App.4th at p. 420.) The Court of Appeal in
that case relied on People v. Gauze (1975) 15 Cal.3d 709 (Gauze). There, the Supreme
Court explained that burglary laws are primarily aimed at “the dangers to personal safety
‘created by the usual burglary situation’— the danger that the intruder will harm the
occupant in attempting to gain entry to perpetrate the intended crime or in attempting to
escape, or that the occupant will react in anger or panic and thus create more violence.”
(Clayton, at pp. 421, 423, quoting Gauze, at p. 715.) The defendant in Gauze had entered
his own home intending to assault his roommate, but the court concluded his entry into
the home, by itself, did not engender the panic, emotional distress, or violence of the
usual burglary situation. (Gauze, at pp. 715–716.)
       Clayton, supra, 65 Cal. App.4th 418, 420–421 distinguished the facts in Gauze
and another case, People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478,
where a defendant entered an apartment possessed only by the person who had consented
to his entry. The Clayton court concluded that, in contrast, an occupant’s consent to a
third person’s entry to perpetrate a felony on an unsuspecting co-occupant creates
precisely the independent danger to personal safety that Gauze, supra, 15 Cal.3d 709, 715
reasoned was inherent in the usual burglary situation. (Clayton, at p. 423.) Since the
Clayton holding relied on the reasoning in Gauze, it cannot be said to have been
unexpected or indefensible, and its retroactive application to defendant’s conduct does
not violate due process. (See People v. Morante, supra, 20 Cal.4th at p. 431.)
       Whether or not defendant’s confession was substantial evidence that David Isaac
consented to defendant’s armed entry to scare Mrs. Isaac, Clayton, supra, 65 Cal.
App.4th 418 precludes a consent defense based on one occupant’s consent to a third
person’s entry with intent to perpetrate a felony on a co-occupant. Defendant was not
entitled to a consent defense under the circumstances. Nor was he entitled to a mistake of
fact defense based on a mistaken belief that David Isaac consented to his entry. The
mistake of fact defense “requires, at a minimum, an actual belief ‘in the existence of

                                             10
circumstances, which, if true, would make the act with which the person is charged an
innocent act . . . .’ [Citations.]” (People v. Lawson (2013) 215 Cal.App.4th 108, 115,
italics added.) A mistake of fact is not a defense to an unlawful act where defendant’s
actions would still be unlawful if the facts had been as he believed them to be. (See
People v. Watkins (1992) 2 Cal.App.4th 589, 594.) Under Clayton, defendant’s entry
would still be unlawful even had David Isaac consented to it.
       Defendant was not entitled to instructions on the defenses of consent and mistake
of fact. Therefore, counsel’s failure to request these instructions was not ineffective
assistance, and the court’s failure to give them sua sponte was not error.


                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
       We concur:



              WILLHITE, J.



              SUZUKAWA, J.




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