Filed 1/27/16 P. v. Bolden CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAVIER BOLDEN,

Defendant and Appellant.

 B260188

 (Los Angeles County

 Super. Ct. No. BA397880)

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen 

A. Marcus, Judge. Affirmed.

Joshua L. Siegel for Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen, 

Supervising Deputy Attorney General, and Steven E. Mercer, Deputy Attorney General 

for Respondent.
2

INTRODUCTION

Defendant and appellant Javier Bolden confessed twice to the double 

murder and robbery of two University of Southern California (USC) graduate students. 

He also confessed to an unrelated earlier attempted murder of a male outside a nightclub 

near USC. We conclude that under the totality of the circumstances, the defendant’s 

recorded confessions were not motivated by express or implied promises of leniency, 

threats, or other coercive police activity, and these confessions are voluntary. We find 

the omission of instruction on second degree murder and involuntary manslaughter is 

harmless, and the trial court did not abuse its discretion in denying defendant’s mistrial 

motion.

The jury convicted defendant of the murders of Ying Wu (Wu) and Ming Qu (Qu)

in counts 1 & 2 (Pen. Code,1§ 187, subd. (a)); the attempted murder of Deionce Davance 

(§§ 664/187, subd. (a); count 4),2and assault on Zanae Flowers with a semi-automatic 

firearm (§ 245, subd. (b); count 5). The jury found true two special circumstances—

multiple-murder and robbery-murder—as to the murder counts. (§ 190.2, subds. (a)(3) & 

(a)(17).) The jury also found true the following allegations: that a principal was armed 

with a handgun in all counts (§ 12022, subd. (a)(1)); that defendant personally and 

intentionally used and discharged a handgun that caused great bodily injury in count 4 

(§ 12022.53, subds. (b)-(d)); that defendant personally used and discharged a semiautomatic firearm in count 4 (§ 12022.5); and that defendant personally inflicted great 

bodily injury in count 5 (§ 12022.7, subd. (a)).3 

 

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

2 Count 3 originally charged defendant with a separate attempted murder but was 

deleted in the final amended information.

3 Bryan Barnes was appellant’s accomplice in the murders. He was originally 

charged jointly with appellant, but later plead guilty to two counts of murder. He was 

sentenced to consecutive terms of life without parole.
3

The trial court sentenced defendant for the murders on counts 1 and 2, to two 

consecutive terms of life without parole, plus one additional year on each count for the 

principal-armed allegations. For the attempted murder conviction on count 4 defendant 

was sentenced to life, plus 25 years to life for the firearm enhancement. For the assault 

with a deadly weapon conviction on count 5, defendant was sentenced to 22 years, 

consisting of the upper term of 9 years, plus 13 years, consisting of 10 years for the 

firearm use enhancement, and 3 years for the great bodily injury enhancement.4

Defendant raises six issues in his appeal from judgment. First, he argues his 

confession to the police was involuntary. Second, he contends his jail cell confession to a 

confidential informant, posing as a fellow gang member was the tainted product of the 

earlier involuntary confession. Third, he argues the booking exemption does not apply to 

the Detective’s pre-Miranda question illiciting his phone number. Fourth, he argues he 

was entitled to a lesser included jury instruction on second degree murder and 

involuntary manslaughter. Fifth, he contends the trial court’s erroneous ruling on the 

intent-to-kill requirement, which was corrected in the jury instructions required a mistrial, 

and sixth, the errors were cumulatively prejudicial.

We find no reversible error and affirm the judgment.

 

4 The trial court struck the principal-armed allegation in count 5, in accordance with 

its previous ruling granting the People’s motion to dismiss that allegation. 
4

BACKGROUND

1. The February 12, 2012 shootings of Deionce Devance and Zanae Flowers

On the evening of February 12, 2012, a party was held at the Garr Banquet Hall, 

near Western and 51st Street, south of the USC campus. At least 100 people were inside. 

Devance attended the party with Tamara McKeever, his sister, Charles Darden, and 

Zanae Flowers. Sometime before midnight, the lights came on, and the music was turned 

down.

As Devance and McKeever headed toward the exit, Bolden entered with a large 

group of other African-American males and females. Bolden was “loud and irate and he 

was gang banging.” Making hand gestures, he announced loudly “8 Tray Gangsters” and 

also said “8 Tre Gangsters movin.” Flowers characterized Bolden as “riled up” and 

“coming to start trouble.” Darden considered Bolden and his friends as being “ready to 

start problems.” After Devance told Bolden he almost hit McKeever, Bolden punched 

him, and the two fought. At least twenty others joined in the fight. A security guard 

ejected Devance and Darden, who then stood on the sidewalk. Outside, McKeever and 

Flowers began to fight a group of females. 

On the sidewalk Bolden approached Devance and asked “Who are you?”; and then 

shot him. Grabbing his stomach, Devance said “I got hit” and fell. Devance had been 

shot twice. One bullet went through the back of his head and exited his left eye. The 

second entered his left abdomen and existed his back. He sustained permanent, 

debilitating brain injuries resulting in paralysis, inability to speak, and the need for roundthe-clock nursing care.

Upon hearing the gunshots, McKeever and Flowers began running south. Flowers 

was shot in the leg and fell, screaming. 

McKeever and Darden were each “a hundred percent” that Bolden was the 

shooter.
5

2. The April 12, 2012 Murder of Qu and Wu

On April 12, 2012, about 1:00 a.m., Jovanny Ordonez was at home on Raymond 

Avenue near USC when he heard what sounded like a loud firecracker and glass 

breaking. Looking out the window, he saw a BMW with its hazard lights blinking parked 

across the street. Qu exited the car; crawled to the porch of a house, and knocked on the 

door, breaking the glass. When Ordonez approached Qu, the latter was on his back and 

choking on blood. Ordonez called 911 and returned to Qu who indicated someone else 

was in the car. At the BMW, Ordonez noted Wu, Qu’s girlfriend, slumped forward in the 

front passenger seat. She was not responsive.

While at home, Eury Maldonado, a neighbor, heard two rapid gunshots and the 

sound of glass breaking. From his second floor balcony, Maldonado observed two 

African-American males, one on each side of Qu’s BMW. They argued loudly and then 

ran off together southbound. Maldonado could not see their faces, because they wore 

head coverings, i.e., “hoodies.” When the bleeding Qu exited the car, Maldonado called 

police.

Wu had been shot twice and died from gunshot wounds to her chest. Qu died 

from blood loss due to a single gunshot wound behind his left ear.

3. The Police Investigation

 a. Scene Investigation

At the Devance and Flowers shooting scene, the police found an expended 9-mm 

casing on the sidewalk in front of the nightclub and another about eight feet from where 

Devance was lying. A live 9-mm round was retrieved on the ground about 30 feet away.

At the Wu and Qu shooting scene, the police observed a hole in the BMW driver’s 

side window, which had been broken partially inward. No third party fingerprint or DNA 

evidence was found. A 9-mm bullet was on the front passenger seat, and a second bullet 

was between that seat and the right front door jamb. Two expended 9-mm casings were 
6

in the street not far from the car. This firearm evidence and examination of the BMW 

itself indicated someone had fired into the car through the driver’s window. All the 9-

mm casings found at both shooting scenes were fired from the same semiautomatic 9-mm 

handgun. Qu’s and Wu’s cell phones had been stolen.

 b. Cell Phone Investigation

With respect to the February 12, 2012 shootings, Bolden’s cell phone was used in 

the vicinity of the banquet hall at 11:23 p.m. and at 12:06 a.m.

As to the April 12, 2012 shootings, Bolden’s and Barnes’ cell phones were used in 

the shooting vicinity at 12:14 a.m. and 1:02 a.m. At 12:55 a.m., a call was made from 

Bolden’s phone to Barnes’ phone that lasted six and a half minutes. At 1:09 a.m., shortly 

after Wu was shot, her cell phone received an incoming call in the area of Barnes’ house 

that was not answered. Between 1:32 and 2:07 a.m., Barnes’ phone was used in the 

vicinity of his house. At 1:36 a.m., Bolden’s phone was used not far from Barnes’ home. 

Between 6:00 a.m. and 11:00 a.m., Wu’s phone was used in the vicinity of Barnes’ 

house.

 c. Wiretap Phone Conversations and Arrests of Barnes and Bolden

Pursuant to a wiretap warrant, the police recorded two phone conversations, one 

between Bolden and Barnes and the other between Bolden and an unknown female. The 

recorded conversations were played for the jury. In the first conversation recorded on 

May 17, 2012, Bolden and Barnes discussed their robbery of the “little Asia people”; the 

shooting through the window; and “snatch[ing]” of cell phones. In a phone conversation 

later the same day, Bolden told an unidentified woman he no longer partied on Western. 

When asked why, Bolden responded, “Last time I partied on Western, I had to kill 

somebody.” 
7

Barnes was arrested just after he left a cell phone store in Compton where police 

recovered an iPhone stolen during the Qu and Wu shooting incident.

On May 18, 2012, at 6:03 p.m., the police arrested Bolden and seized his cell 

phone.

 d. Bolden’s Statements During Police Interview

At the police station following his arrest, Detectives Carreon and Hansen 

conducted a videotaped interview of Bolden, which was played for the jury. Prior to his 

Miranda advisement, Carreon asked Bolden for his name, date of birth, address, and 

telephone number. Bolden responded his name was Javier Bolden; his date of birth was 

“8/29/92”; he lived on Atmore Street in Palmdale; and his phone number was “323 599-

3681.” Bolden was then advised of his Miranda rights, which he understood and waived. 

During the interview, Bolden admitted he and Barnes were involved in the 

shooting of Qu and Wu and identified “Tyrell,” Bolden’s cousin, as their driver. Bolden 

indicated their plan was to rob Qu and Wu. Barnes shot both of them and snatched their 

phones. Bolden stated because Barnes was his “boy,” “I just go with it.” Bolden denied 

involvement in the 2012 February shooting of Devance and Flowers.

 e. Bolden’s Statements to Confidential Informant

After the interview, Bolden was placed in a jail cell with a confidential informant 

posing as a fellow Blood gang member. The recording of their conversion was played for 

the jury. During this conversation, Bolden discussed both shooting incidents. Bolden 

explained he “popped” Devance during a gang confrontation and gave this description of 

the shooting: “Boom, [I] popped him. Hit him . . . he tried to run . . . Then he tried to 

walk away.” 

Bolden characterized the shooting of Qu and Wu as the product of an unsuccessful 

carjacking near USC while “we was out there robbin’ people.” He explained the people 
8

would not “get out of the car; so my brother bust through the window Boom Boom.” He 

described the driver as being hit in the head and the passenger as “just slumped” and 

identified the car as a BMW. Bolden admitted he also fired a shot but added the bullet 

did not break the passenger’s window. He explained although they planned to steal the 

car, they only “snatched the phones” because they “heard people come out [of] the 

house.” “I got out of there and the two people in the car died.” He stated they later sold 

the guns and complained “[w]e got caught because of the fucking phones.” 

4. Defense

Bolden relied on a mistaken identification defense and on the theory the 

prosecution failed to prove he had any involvement in the shootings.

DISCUSSION

Bolden’s Police Interview Statements Were Voluntary

Bolden contends the trial court erred in refusing to suppress his incriminating 

statements made during the police interview because his confession had been coerced 

through threats, promises of leniency, and other unlawful police tactics. Admission of 

Bolden’s statements was not error. The totality of the circumstances establishes his 

statements during the recorded interview were voluntary.

Circumstances Regarding Bolden’s Police Interview

On May 18, 2012, Bolden’s police interview began at 9:00 p.m., and lasted two 

hours and thirty-seven minutes, including a five-minute break. Less than three minutes 

before any substantive questioning, Bolden was advised of and waived his Miranda

rights. About halfway into the interview, Bolden made statements incriminating himself

as an aider and abettor to the Qu and Wu murders. He denied any involvement in the 

February 12, 2012 shooting incident.
9

During the initial hour, and prior to the incriminating statements, the detectives 

exhorted Bolden to provide information about the shootings, tell the truth, and not lie.

[“You wouldn’t lie to me about that, would you?”], [“You need to – you need to come 

clean with us. Okay?”], [“[W]e want to talk to you about it. And we want you to be very 

honest.”], [“It’s . . . very important to you that you start telling the truth and start thinking 

about yourself.”], [“I want you to be truthful to me. And I want you to tell me about the 

shooting that you were involved in.”], [“I’m letting you know it’s over with now. Okay. 

You need to be honest with me. You better start saving your ownself [sic].”], [“If you 

want to go to jail for the rest of your life, if not until something else happens to you, you 

know what, you better start talking.”], [“And some of the things that [Barnes] is saying 

don’t really add up to me. But, I’m trying to get the truth out of you. All right?”], [“The 

decision to not tell the truth will affect you for the rest of your life.”], [“The truth is the 

only thing that’s gonna help you right now. And, let me tell you, you’re in a world of 

hurt right now. And the only one that’s gonna . . . get you out of it, is you.”], [“[Y]ou 

have an opportunity, right now, to tell the truth, to make sure that, hey, the truth came 

out, at least.”]

The detectives also exaggerated the state of the evidence connecting Bolden to the 

shootings and accused him of lying when he denied any involvement, adding “we have 

physical evidence to prove that.” They told Bolden he was implicated in the shootings 

through the evidence they possessed, including DNA evidence, witness identification, 

camera footage, Barnes’ statements,5and one of the stolen phones. [“We have a lot of 

data on you”], [“you guys were identified”], [physical evidence], [“Y]our buddy 

[Barnes], your partner in crime there . . . he gave us his side of what happened”], [“We –

got everything. We have the phone. You know, we have people identifying you guys. I 

mean . . . it couldn’t be a better case”], [“They got a lot of cameras [around USC]”], 

 

5 Detective Hansen told Bolden that Barnes said Bolden pulled the trigger. 

Detective Carreon admitted attributing statements to Barnes was a ruse. 
10

[“We have overwhelming evidence that shows that you were there,” including video], 

[“This DNA stuff, incredible. Incredible stuff”].) 

Additionally, the detectives told Bolden about the serious consequences of the 

murders. Detective Hansen stated, “I guarantee you, you’re not getting out.” Detective 

Carreon advised,“[Y]ou’re really making a huge mistake covering up for something

. . . that’s gonna affect you the rest of your life.” [“Some bad decisions can really affect 

your life forever”].) Hansen asked Bolden if he was prepared to be in prison “for 25, 30 

years plus, at a minimum[.]” He clarified, “I’m not threatening you, in any way. I’m just 

saying you just don’t seem to be grasping how serious the situation is.” He added, 

“You’re gonna be within four walls for a very, very long time.” 

At 55 minutes into the interview, Carreon advised Bolden he might be eligible for 

life in prison or the death penalty: “And you’re gonna do the rest of your life in prison, if 

not, the death penalty. It is – I mean, a death penalty eligible case. Okay. I’m not saying 

that you’re gonna get the death penalty. But, this is something that’s possible. Okay. 

Uhm, we don’t want to play games with you. We wanted to give you the opportunity to

. . . tell us what happened out there.” He then urged Bolden again to tell the truth. He 

advised: “The only thing that’s gonna save you, right now, is if you tell the truth. 

Besides that, you don’t have hope. There is no hope for you at all.” He denied “trying to 

bullshit” Bolden or “trying to make [him] say something that isn’t true or anything like 

that.” He added, “I wanted you to tell us the truth. And we gave you the opportunity. 

And we – we went around with you for a little bit. We’re not gonna do that anymore. 

Either you’re gonna tell us or you’re not.” 

Bolden asked if he could “step out of here.” Carreon responded no and 

admonished “you don’t have control here” and “the only thing you’re in control of is 

your own destiny – what’s gonna happen to you for the rest of your life.” He cautioned, a 

jury would consider his failure to discuss truthfully what happened as proof he “don’t 

even care” and it “wasn’t no big deal to you.” Through this portion of the interview, 

Bolden had laughed and smiled repeatedly. Carreon advised him to “show some 
11

remorse” and asked if he wanted the jury to see him “laughing about it, chuckling it up” 

as if “[y]eah, it’s- it’s funny.” 

Bolden asked “[W]hat is the truth gonna do for me?” Carreon responded the truth 

would “show a jury that, hey, he shows a little bit of remorse. Right now, you’re a coldblooded killer to the jury.” Momentarily, Bolden stated “I didn’t have no gun.” Several 

minutes later, he made additional incriminating statements regarding the Qu and Wu 

murders, including the claims that it was his cousin’s idea to go out robbing people; 

Barnes was the shooter; Bolden told him to get “whatever you can get”; and Barnes 

snatched the victims’ phones.

Admission of Bolden’s Police Interview Statements

Prior to trial, the prosecution filed a motion for admission of Bolden’s statements 

to the police. In opposition, the defense argued the statements should be suppressed as

involuntary, because the detectives used coercive tactics, namely, implying Bolden would 

be better off if he told what happened and threatening him with the death penalty for the 

murders.

Following a hearing, the trial court, which had viewed the police interview video, 

granted the motion, because the statements were voluntary under the totality of the 

circumstances. The court found the brief reference to the death penalty was 

inconsequential, explaining although “[t]hey do mention the death penalty, . . . in the 

overall context of this fairly long interview, it’s mentioned a single time. And in my 

view, it’s not either used as a threat or an inducement for some kind of leniency. And it’s 

basically a truthful statement of what the law is and what the situation is.” The court 

noted that for the most part, the detectives “emphasize[d] the prison aspect, not the death 

penalty aspect” of the potential consequences of the murders. The court “found no 

indication . . . that it’s some kind of trade-off, that [the detectives are] going to do 

something about the death penalty, [that] they are going to help [Bolden] in some way 

regarding the death penalty in exchange for his testimony.” The court also pointed out 
12

Bolden did not break down immediately in the face of the death penalty comment and his 

incriminating statements “come many minutes later.” 

The court also found no “psychological coercion” was employed and there was 

“[s]imply no indication” that Bolden’s “will was overborne or that he was 

psychologically coerced.” The court characterized the interview as “a conversation 

between [Bolden] and the [detectives]” and noted although Bolden “is soft spoken[, he] is 

certainly dealing with the [detectives] in a conversational manner.” The court considered 

Bolden as “almost interviewing” the detectives, because he “plays like a cat-and-mouse 

game” and continually asked questions like “What do you guys know”; “What have you 

got”; and “[S]how me what you got.”

The trial court “couldn’t find any implied promise of leniency” or that the 

detectives had “misexplain[ed] something in such a way that [Bolden] thought that he 

would be dramatically helped by telling them” what happened. The court did find 

Bolden was both familiar with the criminal justice system and “knows his way around 

this kind of situation” and that in the interview, “he is holding his own.” 

In addition to the above reasons, the trial court’s finding of “no evidence of 

coercion” also was based on these factual findings: The fact Bolden was smiling 

demonstrated he was not overwhelmed by the death penalty; the detectives were “not 

overly aggressive or overbearing”; rather, they were “[v]ery conversational, soft spoken”; 

Bolden was “bantering with the police”; and their conversation had a “free-flowing 

style[.]”

Standard of Review

“An involuntary confession may not be introduced into evidence at trial. 

[Citation.] The prosecution has the burden of establishing by a preponderance of the 

evidence that a defendant's confession was voluntarily made. [Citations.] In determining 

whether a confession was voluntary, ‘“[t]he question is whether defendant's choice to 

confess was not ‘essentially free’ because his [or her] will was overborne.”’ [Citation.]
13

Whether the confession was voluntary depends upon the totality of the circumstances. 

[Citations.] ‘“On appeal, the trial court's findings as to the circumstances surrounding the 

confession are upheld if supported by substantial evidence, but the trial court's finding as 

to the voluntariness of the confession is subject to independent review.”’ [Citation.]” 

(People v. Carrington (2009) 47 Cal.4th 145, 169.

“‘A finding of coercive police activity is a prerequisite to a finding that a 

confession was involuntary under the federal and state Constitutions. [Citations.] A 

confession may be found involuntary if extracted by threats or violence, obtained by 

direct or implied promises, or secured by the exertion of improper influence. [Citation.]

Although coercive police activity is a necessary predicate to establish an involuntary 

confession, it “does not itself compel a finding that a resulting confession is involuntary.”

[Citation.] The statement and the inducement must be causally linked. [Citation.]’

[Citation.]” (People v. McWhorter (2009) 47 Cal.4th 318, 347.)

“It is well settled that a confession is involuntary and therefore inadmissible if it 

was elicited by any promise of benefit or leniency whether express or implied. 

[Citations.] However, mere advice or exhortation by the police that it would be better for 

the accused to tell the truth when unaccompanied by either a threat or a promise does not 

render a subsequent confession involuntary. [Citation.] The distinction that is to be 

drawn between permissible police conduct on the one hand and conduct deemed to have 

induced an involuntary statement on the other ‘does not depend upon the bare language 

of inducement but rather upon the nature of the benefit to be derived by a defendant if he 

speaks the truth as represented by the police.’ [Citation.] Thus, ‘[when] the benefit 

pointed out by the police to a suspect is merely that which flows naturally from a truthful 

and honest course of conduct,’ the subsequent statement will not be considered 

involuntarily made. [Citation.] On the other hand, ‘if . . . the defendant is given to 

understand that he 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, such motivation is deemed to render the statement 
14

involuntary and inadmissible. . . .’ [Citations.]” (People v. Jimenez (1978) 21 Cal.3d 

595, 611-612, superseded in part by constitutional amendment as stated in People v. 

Markham (1989) 49 Cal.3d 63, 65 and overruled on another ground in People v. Cahill

(1993) 5 Cal.4th 478, 509, fn. 17.)

“[C]ourts look to the totality of circumstances to determine whether a confession 

was voluntary. Those potential circumstances include not only the crucial element of 

police coercion, [Citation]; the length of the interrogation, [Citation]; its location,

[Citation]; its continuity, [Citation]; the defendant's maturity, [Citation]; education,

[Citation]; physical condition, [Citation]; and mental health, [Citation.]” (Withrow v. 

Williams (1993) 507 U.S. 680, 693 (Withrow).) 

No Indicia of Involuntariness Infected Bolden’s Statements

We have listened to and watched defendant’s videotaped police interrogation in 

fulfilling our obligation to make an independent determination of the voluntariness of 

defendant’s confession. We find no indicia of involuntariness infected Bolden’s 

statements during the police interview. Bolden claims his statements were involuntary in 

part due to coercive police tactics. He points out the police were in force when they 

arrested him and that they transported him by helicopter from his home in Victorville to 

the Los Angele police station, which he contends “only served to scare [him] by showing 

him the amount of police resources that were being devoted to him.” He faults the police 

for not waiting until the next morning to interview him “so that [he] would be rested for 

the questioning.” Further, although he complained of being cold during the interview, the 

detectives “never gave him a blanket or jacket.” 

We are not persuaded these matters amount to coercive police tactics which would 

render his statements involuntary. First, Bolden does not assert or demonstrate that the 

show of force during his arrest and/or the helicopter ride to the police station so 

intimidated and frightened him that his free will was impaired. Granted, deprivation of 

sleep might affect the voluntariness of a suspect’s statement. (Withrow, supra, 507 U.S. 
15

at p. 693.) However, he cites no authority for his novel proposition that the police must 

wait until morning to interview a criminal suspect, because the suspect is entitled to a 

night of rest before questioning. (People v. Taylor (2004) 119 Cal.App.4th 628, 643 [“A 

legal proposition asserted without apposite authority necessarily fails”].) Further, Bolden 

points to no evidence that during the interview, which took place at 9:00 p.m., not the 

middle of the night, and ended at 11:00 p.m., he was so sleep-deprived that his will was 

overborne. That the two shooting incidents occurred about midnight and 1:00 a.m., 

respectively, leads to a contrary inference. His contention is further belied by the fact he 

was sufficiently rested to engage in a lengthy conversation with the confidential 

informant shortly after his police interview. Bolden’s several complaints of being cold 

during the interview also lack significance. In response to his first complaint, Carreon 

observed “it’s kind of warm in here” and appeared surprised Bolden felt cold despite his

pajamas. Bolden himself later acknowledged “I’m always cold.” In any event, his 

smiling, laughing, and banter with the detectives reveal his state of being cold was not so 

severe as to overcome his free will. Rather, as reflected in the video and as the trial court 

observed, Bolden was “holding his own” and playing “cat-and-mouse” with the 

detectives. Also, Bolden told the detectives it was “[n]ice talking to you.” 

Bolden contends his age and only “minor criminal record” also allowed his will to 

be overborne. The record refutes this contention. At the time of the interview, Bolden 

was almost 20 years old. He did not display any indicia of vulnerability or susceptibility 

to coercion. During the interview, he was composed and unfazed by the situation, nor 

was he intimidated by the detectives with whom he smiled, laughed, and bantered. 

Throughout the interview, Bolden is calm, relaxed, and soft spoken. He demonstrates he 

is not easily intimidated, and is able to spar evenly with his questioners, attempting to 

turn the tables on them by repeatedly asking “what have you got,” “what do you guys

know.” Although he confessed to the murders of Qu and Wu, he steadfastly denied any 

involvement in the February 12, 2012 shooting. This is a significant compelling fact 

demonstrating his will was not overborne by the police.
16

Additionally, his criminal record was not trivial. At the time of his arrest in this 

matter, Bolden was on formal felony probation for making a criminal threat against a 

school officer and a prior arrest and conviction for animal cruelty.

Bolden further contends his incriminating statements were induced through 

improper promises of leniency and threats of increased punishment. No such promises or 

threats were made. The detectives made no express or implied promises of leniency to 

induce Bolden to incriminate himself. Rather, they merely exhorted him to tell the truth, 

be honest, and show remorse. Such exhortations unaccompanied by promises of leniency 

are permissible. (People v. Williams (2010) 49 Cal.4th 405, 444 (Williams); People v. 

Holloway (2004) 33 Cal.4th. 96, 115 (Holloway).) Similarly, the detectives did not 

threaten Bolden with the death penalty unless he told them what happened. Carreon 

brought up the death penalty only on one occasion and in so doing, he merely mentioned 

the death penalty in the context of pointing out to Bolden the severity of the potential 

punishment flowing from a conviction for multiple murders. Such advisement was 

truthful and permissible. (See, e.g., Holloway, supra, 33 Cal.4th at p. 115.) The “save 

you” reference was sufficiently attenuated from the factual death penalty comment so it is 

clear Bolden did not understand it as a quid pro quo. This is not the constitutionally 

proscribed situation “‘where officers threaten a vulnerable or frightened suspect with the 

death penalty, promise leniency in exchange for the suspect’s cooperation, and extract 

incriminating information as a direct result of such express or implied threats and 

promises.’ [Citations.]” (Williams, supra, 49 Cal.4th at p. 443.) Further, later in the 

interview, after having incriminated himself, Bolden told the detectives: “You talking 

about that death penalty. Just give me that. I’ll take that. I ain’t getting out.” 

Additionally, contrary to Bolden’s claim, the detectives’ exaggeration about the 

extent of the evidence and their questioning regarding the perpetrators’ intent to kill did 

not render his statements involuntary. Generally speaking, unless likely to produce a 

false confession, deception on the part of police is allowed. (People v. Smith (2007) 40 

Cal.4th 483, 505-506 (Smith).) Often the detective’s exaggerations are in response to 
17

Bolden’s questions, “What do you guys know,” “What have you got,” “Show me what 

you got.” The police are not barred from confronting a suspect with evidence that is 

nonexistent or which they do not in fact have. (Id. at p. 506 [suspect falsely told gun 

residue test positive]; People v. Farnam (2002) 28 Cal.4th 107, 182 [misrepresentation as 

to defendant’s fingerprints]; People v. Jones (1998) 17 Cal.4th 279, 299 [implication 

permitted that detective “knew more than he did or could prove more than he could”]; 

People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [suspect falsely told his fingerprints 

on getaway car].) Further, the police are not prohibited from falsely representing the 

suspect’s accomplice gave him up. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739; 

People v. Felix (1977) 72 Cal.App.3d 879, 885.)

Bolden faults the detectives for failing to explain first degree felony murder does 

not require an intent to kill before they asked him who had come up with the robbery 

plan, whether he and his accomplices intended to shoot the victims, and whether they 

intended to kill them. He contends the sole import of this line of questioning was to 

imply, wrongly, that Bolden would be guilty of a lesser homicide if the robbery had not 

been his idea and he had not intended to kill anyone and thereby lead him to admit to 

being involved in the killings but with a less culpable role. His position is without merit. 

Although Bolden was arrested for the murders of Qu and Wu during a robbery, he had 

not been charged with any particular crime at the time of his interview. The interview 

was part of the ongoing police investigation into the circumstances leading up to and 

resulting in the shooting deaths of Qu and Wu. The challenged line of questioning was 

within the permissible scope of such investigation. It is not the function of the police to 

determine what charges are to be brought against a suspect. Rather, the prosecuting 

authority makes that determination based in part on the matters elicited in the police 

interview. The detectives did not cross the line by promising Bolden he would be 
18

charged with a lesser offense or obtain a lighter punishment if he admitted his 

involvement but denied any intent to rob and shoot the victims, much less kill them.6

Bolden’s Jail Cell Statements to Confidential Informant Were Voluntary

Bolden contends the trial court committed reversible error in denying his motion 

to suppress his jail cell statements to the confidential informant, because these statements 

were the “tainted product of his prior involuntary statements to police.” Initially, we 

point out his underlying premise is fatally flawed. As discussed above, his incriminating 

statements during the police interview were voluntary. Further, any connection or “taint” 

between that confession and his confession to the confidential informant was attenuated 

to such an extent that Bolden’s subsequent confession was not the exploited product of 

his first. Even if we assumed for argument sake the first confession was involuntary, we 

would still hold on this record that any connection or “taint” between this confession and 

this first confession is sufficiently attenuated so that this confession is voluntary and 

admissible.

“‘[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.]’” (McWhorter, supra, 47 Cal.4th 

at pp. 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.) “‘The degree of attenuation that suffices to dissipate the 

 

6

In any event, admission of this confession was harmless beyond a reasonable 

doubt in view of Bolden’s more detailed incriminating jail cell confession to the 

confidential informant, which, as we shall discuss, clearly was not tainted in any way by 

Bolden’s police interview confession. (Chapman v. California (1967) 386 U.S. 18, 24 

(Chapman); cf. Arizona v. Fulminante (1991) 499 U.S. 279, 297-300; see also, People v. 

Gonzalez (2012) 210 Cal.App.4th 875, 884 [“improper admission of a confession can be 

harmless if, for example, the defendant confessed multiple times”].)
19

taint “requires at least an intervening independent act by the defendant or a third party” to 

break the causal chain in such a way that the second confession is not in fact obtained by 

exploitation of the illegality. [Citations.]’ [Citation.]” (Id. at p. 360.)

We have listened to and watched defendant’s videotaped jail cell confession to the 

informant. The totality of the circumstances surrounding Bolden’s jail cell statements 

reveal they were not obtained by exploitation of what transpired during the earlier police 

interview, and that no coercive tactics were employed. (People v. Bradford (1997) 14 

Cal.4th 1005, 1041.) The jail cell conversation took place more than an hour after the 

police interview, in a different setting, and before a third party. The exchange between 

Bolden and the confidential informant was not conducted in an adversarial or hostile 

atmosphere. Following the police interview that ended at 11:03 p.m., Bolden was alone 

for 27 minutes. At 12:30 a.m., he was placed in the jail cell with the confidential 

informant. The detectives were not present. Bolden was alone with the informant, who 

represented himself to be a fellow Blood gang member. Moreover, the nature of the 

exchange reflected their encounter was friendly and intimate. Bolden freely and without 

hesitation bragged to the informant about what had occurred in both shooting incidents 

and details about his own participation. It is noteworthy in the police interview Bolden 

denied involvement in the February 2012 shooting with its gang overtones but readily 

bragged about it to the informant, who he thought to be a fellow older Blood gang 

member. 7

 

7 Our decision is limited to the facts, and we do not decide as a general matter that a 

recorded jail informant confession following a confession to police is always sufficiently 

attentuated to be admissible (cf. Missouri v. Seibert (2004) 542 U.S. 600 [improper two 

step interrogation technique to avoid Miranda].)
20

Is The Miranda Booking Exception Applicable to Bolden’s Phone Number 

Statement?

Following the close of evidence, defense counsel moved to suppress Bolden’s 

telephone number statement to police prior to his Miranda advisements. He argued the 

police already had this information and the question was “investigative in nature” and 

designed to “elicit incriminating evidence.” The trial court acknowledged Bolden’s cell 

phone number had “more significant relevance in this case than it would in an ordinary 

case.” The court, however, denied the suppression motion, concluding the phone number 

“falls into the category of prebooking-type questions, prebooking information that does 

not require Miranda” admonishments. The court found the detectives were not asking for 

the number to obtain incriminating evidence and the police eventually would have 

obtained his number through other investigatory means. Defendant’s cell phone number 

and subscriber information were in the hands of the police well before he was booked.

At trial, a Tracfone subpoena compliance analyst testified Bolden’s cell phone 

number was (323) 599-3681. Detective Lait testified (323) 599-3681 was one of the 

target numbers in his wiretap application and during his investigation, he learned this 

number was a cell phone primarily used by Bolden. Two incriminating recorded calls 

from this phone number involving Bolden were played for the jury. 

Bolden contends the trial court erred in refusing to suppress his statement 

regarding his phone number, because it was elicited in violation of Miranda.

Without deciding whether the telephone number question is exempt from Miranda 

under the booking exception, any error introducing this admission is harmless, in that 

there was ample, independent, uncontradicted evidence that it was Bolden’s telephone 

number.

An error in admitting a statement obtained in violation of Miranda is reviewed 

under the “harmless beyond a reasonable doubt” standard of Chapman. (People of 

Johnson (1993) 6 Cal.4th 1, 32-33.) Such an error is generally deemed harmless if there 

was other, properly admitted evidence establishing the fact sought to be proven by means 
21

of the statement. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.) Here, other

overwhelming independent evidence established it was Bolden’s phone number.

As Bolden concedes, the police had already obtained admissible phone records 

showing he was the cell phone subscriber for (323) 599-3681. The jury heard evidence 

that the police had obtained Bolden’s cell phone records through a court order, and that 

those records established that “Javier Bolden” was the subscriber for number “(323) 599-

3681.” Detective Lait testified he learned through his investigation, which preceded 

Bolden’s interview, that (323) 599-3681 was the number for a cell phone being used 

primarily by him. And the jury heard Bolden’s voice on two incriminating cell phone 

calls for number (323) 599-3681 that had been recorded before his arrest and police 

interview. There is nothing to support Bolden’s speculation that without his statement, 

the jury might have concluded that the cell phone was not actually his. Thus, any error in 

failing to suppress the phone number portion of the statement was harmless beyond a 

reasonable doubt.

Omission of Lesser Offense Instruction Harmless

Bolden contends the trial court committed reversible error by failing to instruct sua 

sponte on second degree murder and involuntary manslaughter as lesser included 

offenses of the premeditated murder charged in counts 1 (Wu) and 2 (Qu). Omission of 

such instruction was harmless, because there is no reasonable probability of a better result 

if the instructions had been given. 

Counts 1 and 2 each charged Bolden with first degree murder on the theory of 

premeditated murder, i.e., he “did unlawfully, and with malice aforethought” kill the 

victim. In his opening statement, however, the prosecutor proceeded on a felony murder 

theory instead. During the case in chief, the trial court confirmed the People were “only 

proceeding on the theory of felony murder” and were “not proceeding on malice murder.” 

When the court asked if the prosecutor wanted the words “malice aforethought” removed 

from these counts, he asked for time to consider such removal. The court indicated 
22

removal was not critical, “[be]cause I don’t think there’s any issue derived from it.” 

During a discussion on jury instructions, the court reaffirmed the prosecutor’s earlier 

indication of proceeding under a felony murder theory only. Defense counsel did not 

request instruction on any other theory and declined to request instructions on lesser 

offenses. During argument, the prosecutor relied only on the felony murder theory. 

“A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily 

included in the charged offense if there is substantial evidence the defendant is guilty 

only of the lesser.’ [Citation.]” (People v. Shockley (2013) 58 Cal.4th 400, 403

(Shockley).) In other words, the state of the evidence must be such that a reasonable jury 

could conclude that the defendant committed the lesser, but not the greater, offense. (Id. 

at p. 404.) This duty exists even where the lesser included offense is inconsistent with 

the defendant's own theory of the case and the defendant objects to the instruction. 

(People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks).)

“To determine if an offense is lesser and necessarily included in another 

offense . . . , we apply either the elements test or the accusatory pleading test. ‘Under the 

elements test, if the statutory elements of the greater offense include all of the statutory 

elements of the lesser offense, the latter is necessarily included in the former. Under the 

accusatory pleading test, if the facts actually alleged in the accusatory pleading include 

all of the elements of the lesser offense, the latter is necessarily included in the former.’ 

[Citation.]” (Shockley, supra, 58 Cal.4th at p. 404.) “When applying the accusatory 

pleading test, ‘[t]he trial court need only examine the accusatory pleading.’ [Citation.] 

‘[S]o long as the prosecution has chosen to allege a way of committing the greater 

offense that necessarily subsumes a lesser offense, and so long as there is substantial 

evidence that the defendant committed the lesser offense without also committing the 

greater, the trial court must instruct on the lesser included offense.’ [Citation.]” (Banks, 

supra, 59 Cal.4th at p. 1160, italics added.) 

The evidence is substantial if a reasonable jury could find such evidence 

persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.) Any doubts regarding the 
23

sufficiency of the evidence to support the lesser offense are resolved in favor of the 

defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Whether the trial court 

improperly failed to instruct on a lesser included offense is reviewed de novo. (Banks, 

supra, 59 Cal.4th at pp. 1113, 1160.)

“Even if second degree murder and manslaughter are not lesser included offenses 

of first degree felony murder, they are lesser included offenses of a premeditated and 

deliberate murder with malice. [Citations.]”

8

 (People v. Campbell (2015) 233 

Cal.App.4th 148, 161-162) “Second degree murder is the unlawful killing of a human 

being with malice, but without the additional elements (i.e., willfulness, premeditation, 

and deliberation) that would support a conviction of first degree murder. [Citations.]” 

(People v. Hansen (1994) 9 Cal.4th 300, 307; overruled on other grounds in People v. 

Chun, supra, 45 Cal.4th at p. 1119.) “Involuntary manslaughter” involves an unintended 

killing “in the commission of an unlawful act, not amounting to a felony; or in the 

commission of a lawful act which might produce death, in an unlawful manner, or 

without due caution and circumspection.” (§ 192, subd. (b).) 

The issue presented by Bolden can be phrased: Does substantial evidence exist 

from which a reasonable jury could find Bolden committed second degree murder or 

involuntary manslaughter but not premeditated murder. (People v. Breverman (1998) 19 

Cal.4th 142, 162.) We need not, and therefore do not, reach this issue. The absence of 

instruction on second degree murder and involuntary manslaughter was harmless beyond 

a reasonable doubt. (Banks, supra, 59 Cal.4th at pp. 1113, 1116 [harmless error test 

under People v. Watson (1956) 46 Cal.2d 818, 837].) Under this test, “evidence 

sufficient to warrant an instruction on a lesser included offense does not necessarily 

 

8

“First degree felony murder is a killing during the course of a felony specified in 

section 189, such as rape, burglary, or robbery. Second degree felony murder is ‘an 

unlawful killing in the course of the commission of a felony that is inherently dangerous 

to human life but is not included among the felonies enumerated in section 189 . . . .’ 

[Citation.]” (People v.Chun (2009) 45 Cal.4th 1172, 1182.) 
24

amount to evidence sufficient to create a reasonable probability of a different outcome 

had the instruction been given. [Citations.]” (Banks, supra, 59 Cal.4th at p. 1161.) 

In this matter, overwhelming evidence supports the jury’s guilty first degree 

murder verdicts on counts 1 and 2 based on a felony murder theory, and the evidence in 

support of a lesser offense is minimal and not reasonably persuasive to the jury. (Banks, 

supra, 59 Cal.4th at p. 1161; People v. Lipscomb (1993) 17 Cal.App.4th 564, 570 [“‘no 

evidence that the offense is less than or other than that charged.’”]) 

In returning a verdict of guilty on counts 1 and 2, the jury found true the felony 

special circumstance allegation as to each count, namely, the murders of Wu and Qu were 

committed while Bolden “was engaged in the commission of the crime of robbery . . .

within the meaning of . . . Section 190.2(a)(17).” The jury thus found Bolden 

participated in the robbery of Wu and Qu. Bolden was convicted as an accomplice to the 

actual murderer. As an aider and abettor, the jury necessarily found Bolden acted with 

the intent to kill in finding true the felony murder special circumstance allegation.9 These 

findings are supported by overwhelming evidence, mainly from Bolden’s own 

statements. When asked what the plan was, Bolden told police to “get some cash” from 

USC “kids,” because “it’s easy to take their stuff” and he joined in the plan because 

Barnes did; and he told Barnes he was with him. After Barnes shot Qu and Wu, Bolden 

directed him to “get what you can get” to complete the robbery. Barnes responded by 

 

9

“[I]ntent to kill” must be established where, as here, the defendant is an aider and 

abettor rather than “the actual killer.” (§ 190.2, subd. (c); People v. Anderson (1987) 43 

Cal.3d 1104, 1147 [“intent to kill is not an element of the felony-murder special 

circumstance; but when the defendant is an aider and abetter rather than the actual killer, 

intent must be proved”]; see also, People v. Jones (2003) 30 Cal.4th 1084, 1117.) The 

trial court did not instruct the jury on intent to kill as to this special circumstance. At best 

this omission is harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.) 

Bolden does not challenge the sufficiency of the evidence on intent to kill. Importantly, 

the court did instruct on the necessity of intent to kill as to the multiple murder special 

circumstance allegation, i.e., “[t]he defendant, in this proceeding, has been convicted of 

more than one offense of murder in the first or second degree” (§190.2, subd.(a)(3)), 

which the jury also found true. The jury therefore also found intent to kill in finding true 

the felony murder special circumstance. 
25

taking the victim’s phones. Additionally, Bolden told the confidential informant the 

shooting resulted from an unsuccessful carjacking while “[w]e was out robbin’ people.” 

He explained, “We was about to take the car but then we heard people come out the 

house, and [Barnes] just snatched the phones. We got caught because of the fucking 

phones.” As for the shootings, he told the informant that he also shot, but the bullet he 

fired did not break the passenger’s window. Measured against such damning evidence, 

Bolden’s statements to police that “I just – I didn’t want to,” shoot anyone and “as along 

[as Bolden] ain’t got to shoot nobody,” Barnes should take “whatever [he] can get” are 

simply self-serving and inconsequential 

Denial of Mistrial Not Abuse of Discretion

Bolden contends the trial court abused its discretion in denying his mistrial 

motion. We disagree. The court’s initial erroneous ruling that intent to kill was not an 

element of the multiple-murder special circumstance was nonprejudicial, because the jury 

was instructed correctly on the law and defense counsel was afforded the opportunity to 

re-open his argument to address the issue of intent to kill before the jury, which 

opportunity the defense declined. 

During a discussion about jury instructions, the trial court indicated CALJIC Nos. 

8.80.1 and 8.81.3 regarding the multiple murder special circumstance would be given. No 

objection was made. Pursuant to CALJIC No. 8.80.1, the jury would be instructed that a 

defendant who was an aider and abetter must have acted with the intent to kill.10 

 

10 The applicable CALJIC No. 8.80.1 reads: “ [If you find that a defendant was not 

the actual killer of a human being, [or if you are unable to decide whether the defendant 

was the actual killer or [an aider and abettor] [or] [co-conspirator],] you cannot find the 

special circumstance to be true [as to that defendant] unless you are satisfied beyond a 

reasonable doubt that such defendant with the intent to kill [aided,] [abetted,] 

[counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in 

the commission of the murder in the first degree] [.] [, or with reckless indifference to 

human life and as a major participant, [aided,] [abetted,] [counseled,] [commanded,] 
26

Following the prosecution’s closing argument, defense counsel raised the issue of intent 

to kill. After reviewing the use note for this instruction, the court initially ruled “[t]here 

is no requirement to show an intent to kill for multiple murder.” In his closing argument, 

defense counsel argued the prosecution failed to prove Bolden was involved at all in the 

shootings. He did not address Bolden’s mental state. The prosecutor then made his 

rebuttal argument. 

On the next day, the court reconsidered its prior ruling on the intent to kill issue. 

After indicating the court had reviewed section 190.2, subdivision (c)11 and People v. 

Nunez and Satele (2013) 57 Cal.4th 1 (Nunez),12 the trial court stated a trial court “must 

instruct the jury that to find true a multiple murder special circumstance allegation as to 

the defendant, [the jury] must find that the defendant intended to kill the murder victims.” 

Defense counsel responded, “I should have been able to argue the intent to kill and I was 

precluded by the court from doing so. It’s not a big part of my argument, but obviously 

because - -.” In interrupting counsel, the court stated, “Well, I got an easy answer. I’m 

going to allow you to reopen and argue.” Counsel declined the court’s invitation, 

explaining: “I don’t want to re-open and argue because I feel that... I’m prejudiced in the 

 

[induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime . . . 

which resulted in the death of a human being, namely .]” 

11 Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who, 

with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or 

assists any actor in the commission of murder in the first degree shall be punished by 

death or imprisonment in the state prison for life without the possibility of parole if one 

or more of the special circumstances enumerated in subdivision (a) has been found to be 

true under Section 190.4.”

12 In Nunez, the Court held: “When there is evidence from which a jury could base 

its convictions for multiple counts of murder on the theory that the defendant was guilty 

as an aider and abettor, and not as the actual perpetrator, the trial court must instruct the 

jury that to find true [this] allegation as to that defendant, it must find that the defendant 

intended to kill the murder victims. [Citations.]” (Nunez, supra, 57 Cal.4th at p. 45.)
27

sense that... the whole basis of my closing argument . . . was that Mr. Bolden was not 

involved.” 

Defense counsel moved for dismissal of the multiple-murder special circumstance 

allegation for lack of intent to kill evidence. The court denied the motion, finding “the 

intent to kill can be shown by going up to a car to rob it and being armed with a gun” and 

Bolden asserted he himself shot at the car with a “deuce 5.” Bolden does not contend on 

appeal that the finding of intent to kill is not supported by substantial evidence.

After stating he did not want to present additional argument because in so doing, 

such argument would “draw[] attention to that and it takes away from . . . the crux of my 

argument,” counsel moved for a mistrial. The trial court denied the motion. The court 

pointed out his objection was he did not “get a chance to argue” and “I’m offering you a 

complete and total opportunity to re-argue. I will give you whatever time you need to 

argue regarding the issue of whether there needs to be an intent to kill on the multiple 

murder, which I believe that there does.” Later, the court noted this was a situation of

“clearly invited error because I’m giving [the defense] a chance to re-open”; the problem 

is “easily curative”; and it “only relates to one of the special circumstances.” 

The jury was expressly instructed that the multiple murder special circumstance 

allegation “requires the specific intent to kill.” Mindful of this instruction, the jury found 

the multiple murder special circumstance to be true. 

“‘A trial court should grant a mistrial only when a party's chances of receiving a 

fair trial have been irreparably damaged, and we use the deferential abuse of discretion 

standard to review a trial court ruling denying a mistrial.’ [Citations.]” (People v. Clark

(2011) 52 Cal.4th 856, 990 (Clark).)

The trial court did not abuse its discretion in denying Bolden’s mistrial motion. 

Contrary to his claim, the trial court’s initial mistaken ruling that the multiple murder 

special circumstance does not require intent to kill where the defendant is an aider and 

abettor, rather than actual killer, was inconsequential. The court had not instructed the 

jury, and when the court did instruct the jury on the multiple murder special 
28

circumstance, the court specifically directed the jury that it had to find Bolden acted with 

the intent to kill. 

Further, no prejudice flowed from the court’s misapprehension of the law with 

respect to Bolden’s ability to present a defense. The trial court did not foreclose or 

preclude defense counsel from reopening to argue lack of intent to kill. Rather, the 

decision not to argue against intent to kill was that of defense counsel alone. As a 

general matter, trial tactics are a matter within the sole province of defense counsel. (See, 

e.g., People v. Williams (1997) 16 Cal.4th 153, 219 [“Counsel's decision to so argue ‘is a 

matter of trial tactics and strategy that a reviewing court generally may not secondguess.’”]; cf. People v. Najera (1972) 8 Cal.3d 504, 516 [“withdrawing a crucial defense 

from the case, reducing the trial to a farce or sham” amounts to ineffective assistance of 

counsel under the Sixth Amendment of the United States Constitution].)

Defense counsel here acknowledged that the issue of intent to kill was “not a big 

part of [his] argument” and that “the whole basis of [his] closing argument . . . was that 

Mr. Bolden was not involved.” Counsel decided, and later reaffirmed his decision, not to 

reopen and argue lack of intent to kill because, in so doing, he would emphasize the issue 

of intent to kill while distracting the jury from “the crux of [his] argument,” which was 

Bolden was not involved. This was a tactical choice on counsel’s part, and reasonable. 

Intent to kill on the part of Bolden was not an equivocal issue. As the trial court pointed 

out, not only did he entertain the intent to rob when he positioned himself on the 

passenger side of the car, he necessarily shared the actual shooter’s intent to kill when he 

stood there armed with his own gun and by firing his gun after the shooter had fatally 

shot the victims seated in their car. Additionally, not only would argument about the lack 

of intent to kill focus the jury’s attention on the issue of intent to kill, such argument 

would no doubt allow the prosecutor during rebuttal to draw the jury’s attention to the 

overwhelming evidence of Bolden’s intent to kill .

Accordingly, the withdrawal of a crucial defense did not result from the absence of 

defense argument on Bolden’s lack of intent to kill in the context of the multiple murder 
29

special circumstances allegation. The trial court’s initial misapprehension of the law that 

the multiple murder special circumstances does not require intent to kill did not lead to 

Bolden’s opportunity “of receiving a fair trial” being “irreparably damaged” and thereby 

necessitating the grant of the mistrial motion. (Clark, supra, 52 Cal.4th at p. 990). The 

denial of the mistrial motion was not an abuse of discretion.

Cumulative Effect of Claimed Errors Harmless

Bolden contends the cumulative effect of the errors committed is prejudicial and 

necessitates reversal of the judgment. We disagree. The cumulative effect of the claimed 

errors is harmless. (People v. Homick (2012) 55 Cal.4th 816, 884. )

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
30

DISPOSITION

The judgment is affirmed. 

KIRSCHNER, J.

I concur:

TURNER, P.J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.
The People v. Javier Bolden

B260188

BAKER, J., Concurring

I concur in the judgment. I write separately to explain the reasons why I conclude 

the trial court’s decision not to give lesser included offense instructions on second degree 

murder and involuntary manslaughter was harmless.

A reviewing court assesses a claim that a trial court erred in declining to give a 

lesser included offense instruction under the People v. Watson (1956) 46 Cal.2d 818 test 

for prejudice, namely, whether “it is reasonably probable that a result more favorable to 

the appealing party would have been reached in the absence of the error.” (Id. at p. 836; 

People v. Banks (2014) 59 Cal.4th 1113, 1161 (Banks), overruled on other grounds by 

People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Breverman (1998) 19 Cal.4th 

142, 176-177 [appellate review focuses on what “a jury is likely to have done in the 

absence of the error under consideration” and may consider whether the evidence 

supporting the verdict “is so relatively strong, and the evidence supporting a different 

outcome is so comparatively weak,” that there is no reasonable probability the claimed 

error affected the result] (Breverman).)1 As I read the majority opinion, it concludes the 

absence of instructions on second degree murder and involuntary manslaughter was not 

prejudicial error because (1) overwhelming evidence proved defendant guilty of felony 

murder and because (2) overwhelming evidence proved defendant had the intent to kill 

victims Wu and Qu. (Ante, at p. 24.) The first conclusion is sound and it is dispositive; 

the second conclusion—that there is overwhelming evidence of defendant’s intent to 

kill—is both unnecessary and questionable on this record.

 

1 Although the majority cites Banks for the proposition that the People v. Watson

standard applies, the majority appears to go further and hold the “absence of an 

instruction on second degree murder and involuntary manslaughter was harmless beyond 

a reasonable doubt.” (Ante, at p. 23.) My analysis and conclusion rest solely on the 

People v. Watson standard.
2

Supreme Court cases establish the failure to give instructions on second degree 

murder and involuntary manslaughter in this case was not prejudicial error. The jury in 

Banks convicted the defendant of first degree felony murder for shooting a victim who 

was using an ATM. (Banks, supra, 59 Cal.4th at p. 1155.) Our Supreme Court held the 

omission of a second degree murder instruction was harmless because the “far more 

plausible inference” was that the defendant killed the victim to obtain money, rather than 

“out of malice unrelated to any robbery.” (Id. at p. 1161.) Here, there is overwhelming 

evidence—including defendant’s own admissions—that he and Bryan Barnes (Barnes) 

were jointly engaged in robbing Wu and Qu when Barnes shot and killed them. (See 

generally People v. Cavitt (2004) 33 Cal.4th 187 [discussing the elements of felony 

murder].) Because the evidence overwhelmingly supports the jury’s verdict that Wu and 

Qu were killed during the commission of a robbery, it is not reasonably probable the jury 

would have convicted defendant of second degree murder or involuntary manslaughter 

rather than first degree felony murder. The absence of lesser included offense 

instructions was harmless for precisely that reason. (Banks, supra, at p. 1161; People v. 

Castaneda (2011) 51 Cal.4th 1292, 1328.)

The majority goes further and relies on the jury’s two special circumstance murder 

findings to hold any error in failing to give lesser included offense instructions was not 

prejudicial. This, however, complicates an otherwise straightforward resolution of the 

issue.

As the majority recognizes, the trial court’s instruction on the robbery-murder 

special circumstance omitted an essential element: it did not require the jury to find that 

defendant, who was an aider and abettor, had the intent to kill. The jury was instructed, 

however, that it must find defendant intended to kill in order to conclude the prosecution 

had proven the multiple murder special circumstance. The majority relies on the multiple 

murder finding of an intent to kill to conclude the omission of the intent element from the 

trial court’s robbery-murder special circumstance instruction was harmless. (See ante, at 

p. 24, fn. 9.) I believe sufficient evidence supports the jury’s finding, implicit in its 
3

determination the multiple murder special circumstance had been proven, that defendant 

had the intent to kill. I therefore agree that the omission of the intent to kill element from 

the robbery-murder special circumstance was harmless beyond a reasonable doubt.

Where the majority and I part company, however, is on the question of the 

strength of the evidence that defendant intended to kill Wu and Qu. I believe the 

evidence of such an intent, while sufficient, was not overwhelming. I therefore do not 

rely, as the majority does, on the jury’s resolution of the robbery-murder special 

circumstance finding to conclude the absence of lesser included offense instructions was 

harmless. The rationale on which I rely also avoids placing heavy emphasis on an intent 

finding made by the jury in the absence of any argument to the contrary by defense 

counsel. 

There was overwhelming evidence that defendant was guilty of first degree felony 

murder. In light of that evidence, there is a de minimis chance, if any, that the jury would 

have returned not guilty verdicts on first degree murder and convicted defendant only of 

second degree murder or involuntary manslaughter. When addressing defendant’s 

argument in favor of lesser included offense instructions, I would leave it at that. 

BAKER, J.