Filed 3/28/14 P. v. Hunter CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B246241

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA080857)
         v.

SAMUEL HUNTER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J.
Ferrari, Judge. Affirmed with directions.
         Mark Alan Hart, 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, Eric E. Reynolds and Stephanie
C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
          Appellant Samuel Hunter was convicted, following a jury trial, of one count of
shooting at an occupied motor vehicle in violation of Penal Code section1 246 and one
count of being a felon in possession of a firearm in violation of section 12021,
subdivision (a)(1). The jury found true the allegations that appellant personally used and
intentionally discharged a firearm within the meaning of section 12022.53, subdivisions
(b) and (c) and committed the offense for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b). The jury could not reach a verdict on the
counts 1 and 2 murder and attempted murder charges. Those counts were retried. The
jury found appellant guilty of second degree murder and attempted murder. The jury
found not true the allegation that the attempted murder was willful, deliberate and
premeditated. The jury found the section 12022.53 firearm allegations and the section
186.22 gang allegations true. Appellant admitted he had suffered a prior conviction for
robbery, a serious felony within the meaning of section 667, subdivision (a) and sections
667, subdivisions (b) through (i) and 1170.12 (the “three strikes” law). The trial court
sentenced appellant under the three strikes law to 55 years to life in prison for the murder
conviction and related enhancement terms and 53 years in prison for the attempted
murder conviction and related enhancement terms, for a total of 108 years to life in
prison.
          Appellant appeals from the judgment of conviction, contending the trial court
erred in admitting his statements to police, imposing two five-year enhancements for one
prior conviction and calculating his custody credit. He requests we order the abstract of
judgment corrected to accurately reflect his presentence custody credits. Respondent
requests we order the abstract of judgment corrected to reflect four $30 assessments
pursuant to Government Code section 70373. We order the requested corrections made,
as set forth in detail in our disposition. We affirm the judgment of conviction in all other
respects.



1
          All further statutory references are to the Penal Code unless otherwise specified.

                                                2
                                           Facts
       On December 25, 2008, at about 9:00 p.m., Sarah Spartalis, her mother Denise
Spartalis and her boyfriend Brett were in a car stopped at the intersection of Senator
Avenue and 255th Street in Los Angeles County. Sarah and Brett heard popping noises
which sounded like gunshots. Sarah and Denise saw three men run across Senator
Avenue from the direction of the gunshots. The third man was about 20 feet behind the
other two men. As he crossed in front of the Spartalis car, he slowed down and looked at
the car. Sarah and Denise were able to see his face. It was appellant.2
       At about 9:30 p.m., police responded to a 911 call and found two gunshot victims
on the ground near a red car in the alley south of 254th Street. Angela Willis, one of the
victims, died from her gunshot wounds. The second victim, Olaju Ferguson, survived.
       In late December 2008, appellant was shot in the neck while at a barbershop. He
was hospitalized, then released on January 6, 2009. Officer Fernando Rivas and
Detective Benavides took appellant from the hospital to the police station, where they
questioned him for at least four hours about the December 25 shooting. Appellant
essentially said he left his house with two fellow gang members but did not follow them
into the alley, then he heard shots and when the men ran by him he followed. After the
interview, Officer Rivas advised appellant and his mother, Samantha Graham, to go to
Riverside because it was too dangerous for them to stay in Harbor City.
       Appellant went to his father’s home in Riverside. Police interviewed him there on
January 12 and 14, 2009. On January 21, 2009, police took appellant from his father’s
home to the Harbor City police station. They advised him of his Miranda3 rights and
interviewed him again. After the interview was concluded, appellant spoke with his




2
       A week or two after the shooting, Sarah and Denise selected appellant from a
photographic line-up as the man they saw on Christmas night. They also identified
appellant in court.
3
       Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

                                             3
mother and his mentor Mitchell Gardner in the interview room. The conversation was
videotaped. Appellant was arrested.
       At the first trial, the prosecutor did not introduce any evidence of the contents of
the first three interviews. The prosecutor played the recording of the January 21
interview. During this interview, appellant said that Ferguson and Jerome Downs got
into a fight prior to Thanksgiving 2008 and Ferguson beat up appellant on Thanksgiving.
On Christmas Day 2008, appellant was at home with his girlfriend. Downs and his friend
Trevon came over. Downs wanted appellant to go the liquor store with them. When
appellant refused, they roughed him up, pulled guns on him and forced him to walk
outside, down the street and into the alley near the intersection of 255th Street and
Senator Avenue. At the mouth of the alley, Trevon gave appellant a gun. Appellant
stood next to the front fender of the red car, and Downs and Trevon started shooting.
Appellant fired one shot, toward Belle Porte Avenue and away from the car. His gun
jammed. As the men left, Trevon took appellant’s gun, then hit appellant. They ran back
to appellant’s apartment. When Downs and Trevon realized the gun used by appellant
had jammed, they beat him up. Appellant marked the locations of the three men during
the shooting on a diagram. He showed himself standing on the front passenger side,
Trevon in front of the car and Downs behind the car.
       The prosecutor also played the videotape of appellant’s conversation with his
mother and Gardner which took place after the January 21 interview. Appellant gave
virtually the same account of the shooting to his mother and Gardner as he had just given
to police.
       A ballistics expert testified that tests showed three guns were fired at Willis and
Ferguson: two .9 mm guns and a .380 revolver. A forensic expert testified about the
bullets’ trajectories, which were all fired from behind the victims’ car and from the left
(driver’s) side.
       A gang expert testified that appellant and Downs were both members of the
Harbor City Crips gang and had previously committed a robbery together. Given a



                                              4
hypothetical based on the facts of this case, the expert opined that the crimes were
committed for the benefit of a criminal street gang.
       Appellant testified in his own behalf at trial and gave an account of events at
Thanksgiving and Christmas 2008 that was similar to the one he had given to police in
the January 21 interview, with one key difference. At trial, appellant denied firing the
gun at all. Appellant explained he initially told police (in the January 6 interview) that he
did not shoot a gun, but then his father’s house was broken into and he believed he was
going to be killed by Downs or Trevon. Downs and Trevon had warned him not to tell
anyone about the shooting or they would kill him. Thereafter, during the January 21
interview, he told the police he shot the gun toward Belle Porte Avenue. He did not
really fire the gun. He believed that if he implicated himself in the shooting, Downs and
Trevon would not think he was a snitch.
       The jury convicted appellant of one count of shooting at a motor vehicle and one
count of being a felon in possession of a firearm, but could not reach a verdict on the
murder and attempted murder charges.
       The People retried appellant on the murder and attempted murder charges. At this
trial, the prosecutor introduced evidence of the contents of appellant’s January 6
interview, in which appellant initially denied being involved in the Christmas shooting.
When told during that interview that eyewitness identification put him at the scene,
appellant said he left his house with Downs and Trevon, but did not follow them down
the alley. He heard gunshots, and when Downs and Trevon ran by, he followed. He did
not fire a gun.
       The prosecutor again introduced evidence of the contents of appellant’s January
21 interview, which differed significantly from that of the January 6 interview. Officer
Rivas testified that in the January 21 interview appellant said he followed Trevon and
Downs into the alley after they hit and threatened him. Trevon gave appellant a gun as
they entered the alley. Downs and Trevon fired their guns. Appellant fired one shot, but
not at the car. Trevon took the gun back from appellant, saw there were no bullets fired
and hit appellant. Back at appellant’s apartment, Downs and Trevon beat up appellant.

                                              5
       The prosecutor introduced more extensive ballistics and trajectory expert evidence
at the second trial. The ballistics evidence showed the two .9 mm guns each fired
multiple bullets. Only one round fired by the .380 revolver was recovered. That round
was found by the coroner in the victim’s body. The trajectory expert explained that all
the shots fired at the victim’s car came from the rear and the left of the car. If a person
were standing on the front passenger side, he or she would be in the line of fire.
       Appellant again testified in his own behalf. His account of events leading up to
the Christmas shooting, and the shooting itself was very similar to his account at the first
trial. Appellant added that he did not see Willis and Ferguson in the car. He repeated
that he did not fire the gun. He told police he fired the gun because that meant he was not
snitching on Downs and Trevon.
       Appellant also testified about the circumstances of his January 6 interview with
police, explaining he was on pain medication, and was tired and in pain. Appellant did
not want to say anything to police about the shooting because he did not want to be
considered a snitch and killed. The interview lasted until 3:00 a.m., and appellant fell
asleep on the ground at one point. At the end of the interview, detectives told him they
would put him and his family in the witness protection program
       Appellant’s mother and Gardner again testified on appellant’s behalf. Appellant’s
mother was in New York when she heard appellant had been shot. She returned and
visited him in the hospital. Police took appellant from the hospital to the police station at
about 5:00 p.m. The police did not finish questioning appellant until 3:00 a.m. The first
time appellant spoke to her about the Christmas shooting was after the January 21
interview with police. He told her he was beaten up by Downs and Trevon, given a gun
and then shot the gun because Downs and Trevon were looking at him. He fired the gun
towards Belle Porte Avenue, not the car. Downs and Trevon checked the gun, saw that it
did not fire and beat him.
       Gardner acknowledged appellant told him that he had shot a gun at the Christmas
shooting, but fired away from the car.



                                              6
                                         Discussion
       1. Statements to police
       Appellant was interviewed by police four separate times between January 6 and
21, 2009. Before the first trial, appellant moved to suppress the January 21 statement on
the ground that it was tainted by coercive tactics used at the first three interviews.4
Appellant contends the trial court failed to apply the correct standard in ruling on his
motion to suppress evidence and so his statements to police were improperly admitted at
trial, violating his Fifth Amendment privilege against self-incrimination and right to due
process.
       Courts look to the totality of the circumstances to determine if a confession was
voluntary. (Withrow v. Williams (1993) 507 U.S. 680, 693 [113 S.Ct. 1745, 123 L.Ed.2d
407].) Factors to be considered when applying the totality of the circumstances include
police coercion, the length and continuity of the interrogation, and the suspect’s maturity,
education, physical condition and mental health. (People v. Massie (1998) 19 Cal.4th
550, 576.) “[W]here – as a result of improper police conduct – an accused confesses, and
subsequently makes another confession, it may be presumed the subsequent confession is
the product of the first because of the psychological or practical disadvantages of having
‘let the cat out of the bag by confessing.’ [Citations.]” (People v. McWhorter (2009) 47
Cal.4th 318, 359.) This presumption is rebuttable, “with the prosecution bearing the
burden of establishing a break in the causative chain between the first confession and the
subsequent confession.” (Ibid.) Generally, this “ requires at least an intervening
independent act by the defendant or a third party to break the casual chain in such a way
that the second confession is not in fact obtained by exploitation of the illegality.” (Id. at
p. 360.) Indications of attenuation include whether the defendant was Mirandized at the
start of the second interview, the time between the two interviews, the continuity of

4
       Appellant initially moved to suppress all four interviews, but the prosecutor
represented he would only use the January 21 interview at trial. Thus, the trial court only
ruled on the January 21 interview. The prosecutor did introduce evidence of the January
6 interview at the second trial. Appellant did not object to the introduction of that
evidence.

                                              7
personnel between the two interviews, any attempts to exploit information obtained from
the first interview in the second interview, whether the defendant was mature and
sophisticated, and the defendant’s purpose in making his statements in the second
interview. (Id. at p. 361.)
         The standard of review of a trial court’s ruling on a motion to suppress is well
established. We defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so found, the
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
         Here, the trial court ruled: “As long as we’re just talking about the final interview
and not any prior interviews, I believe from the totality of the circumstances test the
discussions are free and voluntary and there is no evidence of coercion and I will permit
this.”
         Appellant contends the trial court’s statement shows the court failed to consider
the first three interviews as part of the totality of the circumstances affecting the
voluntariness of the last interview. There is some ambiguity in the court’s statement. In
the context of the hearing as a whole, the trial court’s statement can be reasonably
understood as confining its ruling on admissibility to the last interview, but basing that
ruling on the totality of the circumstances, including the prior interviews.
         The trial court’s brief statement does not however indicate the factual findings
upon which the court based its ruling. Appellant testified at the hearing on the motion to
suppress about the circumstances of the four interviews and how he felt during those
interviews. He claimed, for example, to have still been in pain and on medication at the
time of the January 6 interview. The court might have found appellant’s testimony
credible and found the first interview(s) involuntary, but found any taint from the first
interview attenuated by intervening facts, including the fact that appellant was not in
custody between the January 6 and January 21 interviews. The court might also have




                                               8
found appellant not credible and found all four interviews voluntary.5 We need not
speculate on the court’s factual findings, however, because even if the court erred in
finding the last interview admissible, any error would be harmless beyond a reasonable
doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 296 [111 S.Ct. 1246, 113
L.Ed.2d 302] [federal harmless error standard applies to erroneous admission of
confession obtained in violation of Fifth Amendment].)
       The evidence against appellant was overwhelming even without his statements to
police. Two eyewitnesses heard gunshots and identified appellant as one of three men
running from the direction of the gunshots. Both witnesses identified appellant in a six-
pack photographic line-up and in court.
       Appellant spoke with his mother and Gardner after the January 21 police
interview, and made virtually the same statements to them as he had made to police. The
conversation was video-taped and played for the jury at the first trial. At the second trial,
appellant’s mother and Gardner testified about the contents of appellant’s statements to
them. Thus, the jury in the second trial heard from witnesses sympathetic to appellant
that appellant had admitted to going to the shooting site with Trevon and Downs, and to
firing a single shot.
       The forensic evidence against appellant contradicted the exculpatory aspects of
appellant’s statements and testimony. Appellant claimed to have fired only one shot, and
to have fired it away from the car. The two .9mm guns each fired multiple shots. Only
one bullet fired from the .380 revolver was recovered. It was found by the coroner in the
victim’s body. Thus, either appellant fired more than one shot, or he fired that single shot
toward the car and hit the victim. Further, appellant claimed to have stood at the front of
the car, closer to the passenger side. Trajectory analysis showed that all the bullets were
fired from the rear toward the front of the car and from the left (driver’s) side toward the
right (passenger’s) side. There was expert testimony that if appellant had been at the


5
         Given that portions of the January 6 interview were admitted at appellant’s second
trial, the trial court may have found that interview voluntary.

                                              9
front of the car on the passenger side as he claimed, he would have been in the line of
fire.
        Expert gang evidence showed that appellant and Downs were members of the
same gang. Appellant’s Thanksgiving encounter with Ferguson provided a motive for
the shooting. The gang evidence strengthened that motive.
        Appellant points out the United States Supreme Court has stated that “[a]
confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably
the most probative evidence that can be admitted against him . . . .’” (Arizona v.
Fulminante, supra, 499 U.S. at p. 296.) Here, however, appellant’s statement to police is
more properly viewed as an admission rather than a confession, as he claimed that he was
coerced into going with Downs and Trevon, and did not shoot at the car. Further, under
the somewhat unusual circumstances of this case, appellant’s confession is like other
evidence – it is like his statements to his mother and his mentor, which were captured on
videotape. Thus, we do not view appellant’s last interview as the most probative
evidence in this case.


        2. Section 667, subdivision (a)(1) enhancement
        The trial court sentenced appellant to a term of 15 years to life in prison for the
murder conviction, doubled pursuant to the three strikes law and the high term of 9 years
in prison for the attempted murder conviction, also doubled pursuant to the three strikes
law. The court added a five-year enhancement pursuant to section 667, subdivision (a)(1)
to both of those sentences. The enhancement was based on a single prior conviction, and
appellant contends that it could only be imposed on one count.
        Appellant acknowledges the Fourth District Court of Appeal has held to the
contrary in People v. Misa (2006) 140 Cal.App.4th 837 (rev. denied 10-11-06) (“Misa”).
In that case, the Fourth District held that a section 667, subdivision (a) enhancement
should be applied individually to each count of a sentence under the three strikes law,
even though that enhancement is based on a single prior conviction. (Id. at p. 847.) The
defendant in Misa was a second strike offender and received an indeterminate term,

                                              10
doubled pursuant to the three strikes law and a determinate term, also doubled. Appellant
contends that Misa is wrongly decided and improperly extends the Supreme Court’s
holding in People v. Williams (2004) 34 Cal.4th 397 (“Williams”). The sentence in
Williams was a third strike sentence and thus an indeterminate term. Appellant contends
the reasoning of Williams is only applicable to defendants who receive an indeterminate
sentence under the three strikes law and not to second strike defendants who receive a
determinate term.
        We agree that the holding of Misa is an extension of the holding in Williams, but
we see no error in that extension. We decline appellant’s invitation to disagree with
Misa.


        3. Presentence custody credits
        The trial court awarded appellant 1440 days of custody credit. Appellant
contends, and respondent agrees, that appellant is entitled to credit for 1451 days in
custody prior to sentencing. We agree as well.
        Appellant was arrested on January 21, 2009 and sentenced on January 10, 2013.
He is entitled to credit for the day of arrest, the day of sentencing and all days in between.
(People v. Browning (1991) 233 Cal.App.3d 1410, 1412.) Accordingly, we order the
abstract of judgment amended to reflect the correct number of days. (See People v. Jones
(2012) 54 Cal.4th 1, 89; People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)


        4. Criminal conviction assessments
        Respondent contends that the abstract of judgment should be corrected to reflect
four $30 assessments pursuant to Government Code section 70373, subdivision (a)(1).
Appellant does not dispute that he was convicted of four counts to which the assessment
may apply. Accordingly, we will order the abstract of judgment corrected.




                                             11
                                         Disposition
       The abstract of judgment is ordered corrected to show that appellant has 1,451
days of custody credit and to reflect four $30 assessments pursuant to Government Code
section 70373, subdivision (a)(1). The clerk of the superior court is instructed to prepare
an amended copy of the abstract of judgment reflecting these changes and to deliver a
copy to the Department of Corrections and Rehabilitation. The judgment of conviction is
affirmed in all other respects.


                             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                             MINK, J.*


We concur:




TURNER, P.J.




MOSK, J.




*
      Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                             12
