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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). The opinion has not been certified for publication or ord ered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

JESSE TAYLOR SHOCKEY
,
Defendant and Appellant

. G049364
(Super. Ct. No. 11CF 3468 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James

E dward Rogan , Judge. Affirmed

.

Robert V. Vallandigham, Jr.
, under appointment by the Court of Appeal,

for Defendant and Appellant

.

Kamala D. Harris, Attorney General, Gerald A. Engler
, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General
, Peter Quon, Jr.
, and

Randall D. Einhorn , Deputy Attorney s General, for Plaintiff and Respondent.

* * *2 A jury found defendant Jesse Taylor Shockey gu ilty of voluntary manslaughter (Pen. Code, § 192, subd. (a) ; all statutory r eferences are to the Penal Code ) and found he personally used a k nife (§ 12022, subd. (b)(1) ). Shockey contends the trial

court prejudicially erred by admitt ing statements obtained during a custodial interrogation

because police officers did not expressly advise him of his right to have counsel present during the inter rogation. ( Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).) For the

re asons expressed below, we affirm the judgment

. I

F ACTUAL AND P ROCEDURAL B ACKGROUND On December 21, 2011, Shockey and three friends, Matthew Bosco, Mel
Serrano, and Kendra Fuller, gathered at a Huntington Beach park

. A round 9:00 p.m., a

car drove past Shockey ’ s group, and someone in the car shouted they would be back in

five minutes. When t he car returned
, Ernest Taylor, Dylan Austin, Jef f Quinn, and Corrine Armstrong got out

. Sh ockey and Taylor knew each other from juvenile hall and engaged in a fistfight at the same park a few weeks earlier

.

Austin and Taylor aggressively approached and told Shockey ’ s group to leave the park

. Bosco aimed a rifle at Austin
, who grabbed it and said “ blast me. ” Shockey positioned himself behind Austin and poked him in the back with a kitchen

knife. Austin then turned toward Shockey and punched him in the face several times. Shockey walked away from Austin stating
, “ You ’ re not worth it. ” Austin pursued , and Shockey plunged the knife into Austin ’ s chest. Austin later died from his injuries

.

Officers recorded a phone call between Fuller and Shockey during which Shockey admitted stabbing Austin and made other incriminating statements. S hockey also incriminated himself during police interviews conducted on December 22 and

December 27.3 Following a trial in September 2013 , a jury con victed Shockey as noted

above. In November 2013 , the trial court imposed an 11

- year upper term prison sente nce for manslaughter and struck the weapon enhancement (§ 1385)

. II

D ISCUSSION

No Miranda Violation

Officers arrested Shockey around 10:30 a.m. the morning after the stabbing. Detective Ellis questioned him at the police station around 3:00 p.m

. Ellis told Shockey he was under arrest and advised him of his Miranda rights as follows:

“ Detective Ellis: I ’ m going to advise you of your Miranda r ights. Okay? You know

what Miranda is? [¶] [] Shockey : Yes. [¶] [Q] : The right to remain silent. [¶] [A] Ye s. [¶] [Q] : Anything you say may be used against you in a court of law. You understand

that? [¶] [A] Yes. [¶] [Q] : If you can ’ t afford an attorney, one will be appointed to you free of charge before questioning if you want. [¶] [A] : Yes. [¶] [Q] : Got a card. I ’ m
tired. With these rights in mind, would you mind telling me what happened last night? ” Shockey answered questions and made incriminating statements.

Before trial, Shockey moved to suppress his statements under Miranda

. The trial court found “ although there was a less than perfect recitation of the Miranda rights, that appeared to be a sufficient admonition under Miranda and its progeny. ”

Shockey complains Ellis did not advise him of the right to have an attorney
present during questio ning

. T he officer ’ s Miranda advisement, al though not exemplary,

met the requirements of Miranda

.

When reviewing Miranda issues on appeal, we accept the trial court ’ s resolution of disputed facts and inferences and its credibility determinations if supported by substantial evidence , but apply the independent, de novo standard of review to

determin e from undisputed facts and trial court findings whether police legally obtained4

the challenged statement. ( People v. Smith (2007) 40 Cal.4th 483, 502; People v. Waidla (2000) 22 Cal.4th 690, 730.)

Miranda warnings serve a prophylactic purpose and prov id e procedural safeguards to protect an individual ’ s Fifth and Fourteenth Amendment right against self

incrimination. (See Florida v. Powell (2010) 559 U.S. 50, 59 ( Powell ) .) N o “ talismanic

incantation ” is necessary to satisfy Miranda ’ s requirements. ( California v. Prysock (1981) 453 U.S. 355, 359 ( Prysock ) .) But the advisement must “ reasonably convey [] ” to
a suspect the following four warnings : “ ‘ [A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to t he presence of an attorney, and
[4] that if he cannot afford an attorney one will be appointed for him prior to an y questioning if he so desires. ’ ” ( Powell
, supra , 559 U.S. at pp. 59

- 60 ; Miranda
, supra , 384 U.S. at p. 479.) Miranda ’ s third warning must clearly inform the suspect of his

“ right to consult with a lawyer and to have the lawyer with him during interrogation. ” ( Miranda
, supra , 384 U.S. at p. 471.)

The Attorney General argue s Powell is dispositive. In Powell , the officers

advised the suspect he had the right “ ‘ to talk to a lawyer before answering any of [the

officers ’ ] questions ’ ” and of the “ ‘ right to use any of [his] rights at any time [he] want[ed] during th[e] interview. ’ ” ( Powell
, supra , 559 U.S. at p. 62 .) The Supreme

C ourt reaso ned the two statements in combination reasonably conveyed the right t o have an attorney present, not only at the outset of interrogation, but at all times. ( I bid .)

Unlike the Miranda advisement upheld in Powell , wh ere a “ combination ”

of statements inform ed the suspect of his right to talk to a lawyer before the interrogation
, and of his right to invoke any of his rights at any time during the int errogation, the

advisement here informed Shockey only that he could have an attorney appointed before questioning

. ( cf. Powell
, supra , 559 U.S. at p. 62

. ) N o additional statement informed5

Shockey he could invoke his right s during the interrogation

. Powell does not control the

outcome here.

But Powell also does not support Shockey ’ s assertion officers must

“ unam biguously inform the person being interviewed that he or she has the right to

counse l during police interrogation. ” Powell rejected the contention Miranda requires expressly advising a suspect of his right to have counsel present before and during questioning. ( Powell
, supra , 559 U.S. at pp. 63

- 64.) The Court reasoned th e issue is

whether the “ words

. . . used

. . . communicated the same essential message [ Miranda requires]. ” ( Id

. at p. 64.)

In People v. Wash (1993) 6 Cal.4th 215, 236
, the California Supreme Court

held a Miranda warning “ reasonably conveyed ” to a suspect his right to have an attorney present during questioning when police expressly informed the su spect of his right to have an attorney present before questioning

. ( Id

. at p. 237 ; s ee People v. Lujan (2001)

92 Cal.App.4th 1389, 1402 [ “ Wash stands for the proposition that there is sufficient compliance with Miranda if the accused is advised of the right to have an attorney present before questioning. ” ].) Wash reasoned that “ [ a ] lthough the warning given to defendant here deviated from the standard form . . . we are not persuaded . . . that the language was so ambigu ous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began. ” ( Wash
, supra , 6 Cal.4th at 236 ; see also People v. Valdivia (1 986) 180 Cal.App.3d 657, 66 3

- 664 [unreaso nable for a suspect to believe attorney must leave the interrogation room during questioning when police advise a suspect he has a right to have an attorney before questioning].)

Shockey argues Wash is distinguishable because Ellis did not inform him of his right to “ speak ” to an attorney or have an attorney “ present ” before qu estioning
, but

rather advised him he had the right to have an attorney “ appointed ” before questioning.

A Miranda advisement is valid so long as “ nothing in the warnings suggest[s] any6

limitation on the right to the presence of an appointed counsel different from the clearly conveyed rights to a lawyer in general. ” ( Prysock
, supra , 453 U.S. at pp. 3 60

- 3 61.)

Becau se police informed Shockey counsel could be “ appointed to you free of charge before questioning ” and was not told his right to an attorney would be limited in any way during questioning , his right to appointed counsel was not impermissibly “ linked to a future point in time after police interrogation. ” ( Id

. at p. 360 .)

Sh ockey contends we should follow the Ninth Circuit ’ s decision in United

States v. Noti (9th Cir. 1984) 731 F.2d 610, 614

- 615.) Noti foun d a Miranda warning inadequate because officers informed the suspect of his right to have the services of an attorney before , but not during questioning

. ( Id

. at p. 615 ; accord Windsor v. United

States (5th Cir. 1968) 389 F.2d 530, 533 ; but see United States v. Lamia (2d Cir. 1970)
429 F.2d 373, 37 6 [suspect a dvise d “ he had the ‘ right to an attorney, ’ [and that] if he was

n o t able to afford an attorney one would be appointed by the court ” ; advisement reasonably implied attorney would be available during questioning ].) W e decline the

invitation because we are b ound by Wash

. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ; Valdivia
, supra , 180 Cal.App.3d at p. 664 ; see Forsyth v.

Jones (1997) 57 Cal.App.4th 776, 783 [ state appellate courts are not bound by federal circuit court precedent].)

T he advisement here met Miranda ’s requirements even though it deviated from the standard form because it reasonably conveyed to Shockey his right to have an
attorney present before and during questioning. Because the advisement was adequate,

we need not address whether the introduction of Shockey’s statements resulted in prejudice

.7 II I

D IS POSITION The judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.