Police did not conduct a deliberate two-step interrogation technique calculated to undermine the protections of Miranda. Appellant, a member of the Hard Times gang, and his nephew, a member of the Lil Hood gang, met up with Palacios, also a member of the Hard Times gang. Palacios was armed with a .40-caliber handgun. While driving around, the trio came across rival BST gang members and pursued them into an alley. Palacios got out of the car and started shooting. At the sound of return fire, appellant and his nephew fled, leaving Palacios alone in the alley where he wasfound dead of gunshot wounds. Following his arrest, appellant was interrogated without an initial Miranda advisement and gave a complete account of his actions. He was then Mirandized and provided the same information with a few additional details. Appellant was tried on a provocative act murder doctrine and found guilty of the second degree murder of Palacios and a firearm use enhancement under section 12022.53, subdivisions (c) and (e)(1). On appeal he contended that the court erred in admitting his statements. The appellate court found the statements were properly admitted. In Missouri v. Seibert (2004) 542 U.S. 600, the Supreme Court ruled that failure to administer Miranda warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will does not so taint the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. The admissibility of any subsequent statement is evaluated on whether it is knowingly and voluntarily made. In the instant case, unlike Seibert, there was no indication of use of a deliberate two-step process to undermine Miranda. The evidence indicated that the police did not initially considered appellant a suspect and did not use coercive methods in the interrogation and that, when appellant implicated himself, the warnings were given. Under these circumstances, the statements were viewed as voluntary.
Penal Code section 12022.53, subdivision (e)(1) (personal and intentional discharge of firearm in commission of specified felony) does not apply in a vicarious liability scenario. Appellant also challenged the fire-arm use enhancement. The Court of Appeal held appellant was not liable for the section 12022.53 enhancement. It requires that “any principal in the offense committed” the discharge of the firearm. Because of the provocative act doctrine, appellant was a principal but, under the enhancement, he is vicariously liable only for the personal discharge of a gun by another principal. The only shooter was Palacios, but he is not a principal as he cannot be liable for his own death. Thus, the evidence was insufficient to sustain the gun use enhancement and it was reversed.