NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

WISEMAN, Acting P.J.

During an overnight crime spree with a group of friends, defendant Thomas Martin Vasquez murdered and robbed one man and attempted to rob another man and a boy. He was sentenced to life without possibility of parole plus 25 years to life. On appeal, he claims police twice interrogated him without proper Miranda warnings. He also says the court gave the jury erroneous instructions on criminal conspiracy and erroneously allowed testimony to be read back to the jury when he was not present. We affirm.

FACTUAL AND PROCEDURAL HISTORIES

As the questions raised by Vasquez's appeal are all questions of law, the analysis of which does not require examination of the underlying facts, our recitation of the facts will be brief.

Vasquez and five friends were drinking beer and setting off Fourth-of-July fireworks in front of their apartments on Eye Street between Second and Third Streets in Bakersfield on the night of July 4, 2007. The men in the group were Vasquez, Gregory Aguilar, and Mike Aguirre. Also present were Vasquez's girlfriend Yesenia Hernandez, her friend Venessa Alexander, and Ivan Gomez, who was the 14-year-old brother of Aguilar and Hernandez. The siblings, Aguilar and Hernandez, were known as "Menace" and "Nasty."

Aguirre said, "[L]et's go beat someone up." He also wanted to commit robberies. The others did not want to do so at first, but Aguirre persisted, repeating the suggestion several times. Vasquez finally agreed. Vasquez was especially interested in injuring someone, while Aguirre focused particularly on stealing. "[L]et's go fuck somebody up, I'm gonna show you how to fight," said Vasquez; while Aguirre said, "[A]ll right, I'm gonna get the money." Aguilar also agreed.

The six of them assembled to carry out this plan and proceeded together down Eye Street on foot at about midnight. At the corner of Third and Eye Streets, the group encountered Everett Curtis and his 14-year-old son, Anthony Lopez. Curtis and Lopez had just walked from their apartment to the A-1 Market nearby. The market was closed and Curtis and Lopez were walking back home. Vasquez approached Curtis and said, "[W]here's my 40 at?" This apparently meant Vasquez wanted to be given a 40-ounce bottle of beer. Aguirre said, "[W]hat do you got for me," and Vasquez said, "[G]ive me your money." Curtis said, "I don't know you and I don't owe you anything," and said he had no money. Vasquez and the other men attacked Curtis. Aguirre knocked him down. Vasquez kicked Curtis and stomped on his back and head several times. Curtis lost consciousness. Nothing was taken from him.

Lopez told the men to stop attacking Curtis, so Aguilar and Aguirre attacked Lopez. Aguirre hit him in the face and knocked him down, and then the two of them kicked him in the ribs. The attackers ran away when a resident of a house at the corner of Third and Eye Streets, who witnessed the beatings, yelled to her friends to call the police.

The group reassembled in front of their apartments down the block and drank some more. A police car soon passed by and Aguirre yelled something at it. While an officer got out and searched Aguirre, Vasquez and Hernandez ran off and Aguilar went inside. Hernandez called Aguilar on the phone. She told him to climb out the bathroom window and find a gun, a chrome snub-nose pistol, in the bushes outside a neighboring apartment. Aguilar did as his sister told him, and then met her and Vasquez a block away. They walked back to the apartments and Aguilar gave Hernandez the gun.

They stayed on the porch of Aguilar's apartment for a while, drinking some more. After a while, Hernandez started throwing beer cans at cars and Aguirre advocated going out to attack another person. "[L]et's go fuck somebody else up," he said. Vasquez eventually agreed, saying, "[F]uck it, let's go." At some point during the interlude between attacks, Hernandez cut the hood off her sweater and cut two holes in it to make a mask, which she gave to Vasquez. Vasquez was wearing a rosary.

Vasquez, Aguirre, and Aguilar walked off at about 2:00 a.m. to buy more beer. All agreed that if they encountered anyone on the way, they would "fuck `em up."

David Timberlake and Tiffany Guiles were in an alley near the intersection of H and Third Streets. They had been told there was no room for them at a Fourth-of-July party in an abandoned apartment and they had gone behind the building to inject methamphetamine. They were walking in the alley afterward when Vasquez, Aguirre, and Aguilar spotted them. Aguirre yelled "there it is," and the three of them ran toward Timberlake and Guiles. Timberlake fled.

Aguilar recognized Guiles, who was an acquaintance of his and Aguirre's, and called the others back. Aguirre hugged Guiles and Timberlake returned. Aguirre and Vasquez taunted Timberlake about running away, suggesting that he had exposed Guiles to danger. Aguirre told Guiles to slap Timberlake; Guiles complied. Vasquez called Timberlake "a bitch or something."

Vasquez started fighting with Timberlake. Vasquez was faring poorly, so Aguilar entered the fight on Vasquez's side. Aguirre joined in as Guiles ran away. Aguirre knocked Timberlake down and Timberlake curled up into a ball on the ground. He screamed and yelled for help as the three attackers kicked and punched him. Eventually Timberlake lost consciousness and rolled onto his back, but the three men continued kicking him. Aguilar got scared because Timberlake "was bleeding real bad in his nose and he was breathing weird." Aguirre wanted to stop, but Vasquez said, "fuck that, let's kill him," and continued kicking Timberlake's head. Aguirre joined in again, but Aguilar said it was enough. Finally they stopped and walked back toward their apartment building. Aguilar and Aguirre stopped to talk to Guiles, whom they found smoking a cigarette on a porch in the alley. Vasquez continued on to the apartments. Aguirre and Aguilar went to Aguirre's apartment to play video games.

Guiles did not call the police. She identified Vasquez, Aguilar, and Aguirre as the attackers in an interview with a detective, but claimed at trial that she was unable to identify the attackers. Guiles, who was in custody at the time of trial for a failure to appear as a witness at a hearing in the case, was transported to court from Lerdo on the same bus as Vasquez. She claimed he said that if she testified against him, she would "catch a bullet in [her] teeth."

After Aguilar and Aguirre had been playing video games for a while, Vasquez and Hernandez arrived at Aguirre's apartment. Vasquez had blood on his shoes and Hernandez had a wallet. Vasquez said he had gone back and kicked Timberlake some more and Hernandez said she robbed him. In the wallet was a picture of Timberlake with a woman and two children.

At 2:31 a.m., Gillian Moreno, who lived in an apartment on Third Street near H, called 911. She reported that she had found a man badly beaten in the alley. She said he was "beat up really bad by his head. Like almost dying...." He was unconscious and "almost gone. His feet are like twitching and he's, I mean he don't sound good at all." She told the dispatcher that at one point during the call, he stopped breathing, but then started breathing again. "[S]o hurry up and get here," she said. Later, at trial, Moreno said she was acquainted with Timberlake and had seen him earlier that day, but he was so badly beaten when she found him in the alley that she did not recognize him. The dispatcher told her to wait there. No responder was dispatched, however, until 2:57 a.m.

Meanwhile, Vasquez, Hernandez, and Aguilar sat for a while in Aguirre's yard, and then Vasquez said, "Fuck this, I'm gonna kill him." He and Hernandez left the yard. Aguilar followed them.

The three of them reached the place where Timberlake lay on the ground. Moreno, still in the alley waiting for the police, saw them approach. Vasquez said "God forgive me" and put on the mask Hernandez had made. Moreno, seeing Vasquez holding the gun while he put on the mask, ran into the apartment and watched from the window. Vasquez fired five shots. Vasquez, Hernandez, and Aguilar ran back to their apartments.

Police officers who were dispatched at 2:57 a.m. in response to Moreno's 2:31 a.m. call finally arrived in the alley at 3:06 a.m. Timberlake was dead, having been shot three times in the head, once in the chest, and once in the neck. He also had many blunt-force trauma injuries consistent with having been kicked and beaten. A broken set of rosary beads was found on the ground near the body.

The district attorney filed an information against Vasquez and Aguilar. Count 1 charged Vasquez and Aguilar with the premeditated murder of Timberlake. (Pen. Code, § 187, subd. (a).1) Count 1 also alleged that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)(A)); that Vasquez personally discharged a firearm causing death (§ 12022.53, subd. (d)); and that Aguilar was vicariously armed with a firearm (§ 12022, subd. (a)(1)). Count 2 charged both defendants with robbery of Timberlake (§ 212.5, subd. (c)); it also alleged that Vasquez personally discharged a firearm causing death (§ 12022.53, subd. (d)); and that Aguilar was vicariously armed with a firearm (§ 12022, subd. (a)(1)). Counts 3 and 4 charged both defendants with attempted robbery of Curtis and Lopez. (§§ 212.5, subd. (c), 664.) Count 5 charged Vasquez alone with being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) Aguilar entered into a plea agreement, accepting a 12-year prison term in exchange for his testimony against Vasquez.

Vasquez went to trial. The jury found him guilty as charged and found true the robbery-murder special circumstance and the enhancement allegations.

The court sentenced Vasquez to life without the possibility of parole for count 1, premeditated murder with a robbery special circumstance, plus a consecutive term of 25 years to life for the firearm enhancement. It imposed the upper term of five years for count 2 and stayed it pursuant to section 654; and it imposed concurrent terms of three years each for counts 3, 4, and 5.

DISCUSSION

I. Miranda warnings

Vasquez claims the Miranda2 warnings he received before speaking to police about the crimes were insufficient, so his statements should have been suppressed. "`In reviewing constitutional claims of this nature, it is well established that we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.]' [Citation.]" (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023.)

Vasquez was arrested in Los Angeles. Bakersfield detectives went there to interview him on July 13, 2007. The interview began with Miranda warnings, which a detective gave piecemeal, pausing in the middle to ask whether Vasquez understood his rights and was willing to talk:

In that interview, Vasquez went on to deny that he had been in Bakersfield at all at any time in July. He also denied knowing Aguilar and Aguirre and said Hernandez was not his girlfriend. The officers told him a dozen witnesses placed him at the scene on July 4, and a security video showed him in a store in Bakersfield that night. Vasquez, however, stuck to his story.

While he was being transported back to Bakersfield the same day, Vasquez told the transportation officers he wanted to speak to the detectives again. A second interview was conducted in Bakersfield, three or four hours after the first one. No new Miranda warnings were given. Vasquez began the interview by saying he was in Bakersfield on July 4 and realized he "would look stupid in court" if he denied it, since the security video would refute him. He said he went to a store to buy beer with Aguirre and beat up Curtis that night. He admitted he knew Aguilar. He denied he left the apartment again after the incident with Curtis and said he was not involved in any fight with another victim. The detectives, however, said that Hernandez, Aguirre, and Aguilar had all pinned the murder of Timberlake on Vasquez. Vasquez then admitted he was there when Timberlake was beaten and confessed to participating in the beating. He claimed he went back to the apartment afterward and went to sleep for the night and did not kill Timberlake. He said he did not know about the shooting until he saw it on the news the next day. Finally, after further questioning, he said he heard the shots that night and believed Aguirre did it.

Just before the trial began, defense counsel moved to suppress Vasquez's statements in the second interview, arguing that the detectives should have read him his rights again before that interview. The court denied the motion, citing People v. Smith (2007) 40 Cal.4th 483, 504 (Smith) (Miranda readvisement unnecessary where second interview was less than 12 hours after first, defendant remained in custody between interviews, second interview was by same officers, officers reminded defendant of previous advisement, and defendant had prior experience with criminal justice system), among other authorities. On appeal, Vasquez renews his claim that his second statement should have been suppressed because the Miranda warnings were not repeated.

In Smith, the Supreme Court explained:

Vasquez argues that his second statement should have been suppressed under these standards because (1) he was not reminded of the prior advisement, and (2) although the same detectives conducted the second interview, it was the transportation officers bringing him back to Bakersfield whom he first informed of his desire to make an additional statement. One of the transportation officers then elicited the statement that Vasquez wanted to tell the detectives he was in Bakersfield on July 4 after all. The officer also asked Vasquez why he had lied about that earlier, and Vasquez said it was because he did not want to get booked for robbery.

The fact that one or two of the factors listed in Mickle and Smith were not satisfied does not show that a second advisement was necessary. The factors are not a list of requirements that must all be satisfied before an interrogation can be resumed without readvisement. The point of the factors is to assist in the determination of whether the advisement is "`reasonably contemporaneous'" with the second interrogation and whether, at the time of the second interrogation, the defendant is still in the condition of having subjectively understood and waived his rights in light of the totality of the circumstances. (Mickle, supra, 54 Cal.3d at pp. 170-171.)

The facts here show that Vasquez did still subjectively understand his rights and was choosing to waive them in the second interview. Only a few hours had passed since the first interview; Vasquez was not out of custody between the two interviews; he initiated the second interview; the detectives who conducted the second interview also conducted the first; and Vasquez, though only 19, had experience with the criminal justice system arising from several prior juvenile and adult offenses. Further, he made a voluntary decision to continue speaking to the detectives, since he initiated the second interview in an attempt to strengthen his story and avoid "look[ing] stupid in court."

Vasquez deliberately waived his Miranda rights before the first interview because he believed he could help himself by asserting an alibi; he equally deliberately initiated the second interview because he perceived weaknesses in his original story and was seeking to remedy them. It makes little difference, under these circumstances, that he first announced his intention to change course to the transportation officers rather than the detectives, or that one of the transportation officers asked him why and got a partial answer. If anything, his discussion with the transportation officers only reinforces the conclusion that Vasquez made a deliberate decision to waive his rights and talk in the hope of improving his situation. It also makes little difference under these circumstances that Vasquez did not receive an official reminder of the previous advisement. All things considered, the court was correct to conclude that the second statement was made after a reasonably contemporaneous Miranda advisement and Vasquez's voluntary and intelligent waiver of his rights. No second advisement of those rights was necessary.

Now, for the first time, Vasquez also argues that the Miranda warnings given before the first interview were improper because the detective elicited an agreement to talk before he was finished reading the entire set of warnings. As we have indicated, the detective told Vasquez that he had the right to remain silent and that his statements would be used against him; then he asked if Vasquez understood and would talk, and Vasquez said yes. The detective then finished the advisement by telling Vasquez he had the right to be represented by appointed counsel before and during questioning; he again asked if Vasquez understood and would talk, and Vasquez again said yes. Vasquez contends that this procedure "effectively coerced the waiver by obtaining [Vasquez's] agreement to talk before he had been fully admonished, then put undue pressure on [Vasquez] to honor his initial agreement to talk after being informed that he had a right to have counsel appointed and available before and during any questioning." His theory, if we understand it, is that his first agreement to talk, obtained in the middle of the advisement, was invalid because he had not yet heard the entire advisement; and his second agreement to talk, at the end, was also invalid because his first agreement created a psychological commitment or pressure to agree again.

Vasquez also argues that if he has forfeited this argument because his trial counsel failed to raise it, then that failure violated his constitutional right to effective assistance of counsel. We will assume for the sake of argument either that the issue was preserved or that counsel failed in his duty by not preserving it, and will therefore address the merits.

To determine whether Miranda warnings are sufficient to enable a suspect to waive his right against self-incrimination voluntarily and intelligently, we must, as we have said, consider the totality of the circumstances. The United States Supreme Court has explained:

Vasquez's claim is that his decision to talk to the detectives at the first interview was a product of coercion because a detective asked him, "So you'll talk to me?" after reading the first half of the advisement but before reading the second half. The totality of the circumstances, however, support the conclusion that Vasquez's decision to make a statement was uncoerced. Before beginning the interrogation—that is, before Vasquez said anything about the crimes—the detective went on and read the second half of the advisement and again made sure that Vasquez was willing to talk. Vasquez's appellate counsel hypothesizes that Vasquez experienced psychological pressure to say yes the second time the detective asked if he would talk because he had already said yes the first time. Nothing in the record leads us to believe this experience of pressure actually occurred, and it would not be appropriate to reverse the conviction on the basis of speculation that it might have. What the record discloses is that Vasquez affirmed his willingness to talk after being informed of his right to remain silent, and affirmed it again after being informed of his right to an attorney. The most natural interpretation of these affirmations is that Vasquez was willing to waive both rights.

Vasquez has cited no authority in support of his contrary view. He says the Miranda opinion itself supports his view by stating that the circumstances of an in-custody interrogation can "quickly ... overbear the will" even of a person who has been informed of his right to remain silent by the police. (Miranda, supra, 384 U.S. at p. 469.) This citation is misleading. The Supreme Court's point was simply that a suspect's rights under the self-incrimination clause of the Fifth Amendment include the right to counsel and that this right must be included in the advisement, since police pressure can nullify the right to remain silent in an unrepresented suspect, even if the suspect is informed of that right. (Miranda, supra, at pp. 469-470.) Vasquez's treatment did not contravene this principle because he was not denied the right to counsel. To the contrary, he was informed of it and he waived it before he began telling the detectives his story. The passage in Miranda he relies on has nothing to do with tactics that might cause a suspect to waive his right to counsel involuntarily after being advised of it.

Having considered the totality of the circumstances, we conclude that Vasquez voluntarily and intelligently waived both his right to remain silent and his right to be represented by counsel before and during the interrogations.

II. Conspiracy instructions

The court instructed the jury in accordance with CALCRIM Nos. 416 through 420 that it could find Vasquez guilty of the charged offenses if it found he was a member of a conspiracy to commit them. Among other things, the instructions stated that "[a] member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit no matter which member of the conspiracy commits the crime." He argues now that the instructions were erroneous because an "uncharged conspiracy is not a valid theory of criminal liability in California as a matter of law ...." He points out that, although section 182 provides that conspiring to commit a felony is punishable to the same extent as committing the felony, Vasquez was not charged under section 182. He says that only the aiding-and-abetting statutes, sections 31 and 32, can be a basis of uncharged vicarious liability.

Vasquez's argument is contrary to California Supreme Court decisions going back over one hundred years. (People v. Kauffman (1907) 152 Cal. 331, 334; People v. Lapierre (1928) 205 Cal. 470, 471-472; People v. Pike (1962) 58 Cal.2d 70, 88.) All these cases recognize conspiracy as a valid basis for vicarious criminal liability. One of them, People v. Pike, supra, at page 89 and footnote 10, held that conspiracy instructions were proper even though the defendant was not charged with conspiracy. In In re Hardy (2007) 41 Cal.4th 977, 1025-1029, the Supreme Court upheld a murder verdict based on a conspiracy instruction, citing section 31 as authority. None of these cases expressly addresses Vasquez's argument that vicarious uncharged criminal liability based on conspiracy has no legitimate statutory basis, but we have little doubt that the cases are based on a view inconsistent with Vasquez's argument.

In his reply brief, he says:

We will not belabor it either. Vasquez acknowledges that his argument has no merit under existing law.

III. Defendant's absence during read-back of testimony

The jury asked for a read-back of portions of two witnesses' testimony. Counsel for both sides agreed to have the testimony read in the jury room, so Vasquez was not present during the reading. Vasquez now argues that the reading of the testimony in his absence without his personal waiver violated his state and federal constitutional rights to be present at all critical stages of the proceedings.

The California Supreme Court has rejected the same argument. (People v. Ayala (2000) 23 Cal.4th 225, 288 [rereading of testimony not critical stage of proceedings].) The United States Supreme Court has not ruled on the point, but we are, of course, still bound by the California Supreme Court's holding. Once again, Vasquez acknowledges that we are bound.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

Detjen, J.

Franson, J.