People v. Johnson ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL RAYMOND JOHNSON,
Defendant and Appellant.
S070250
Ventura County Superior Court
CR 39376
January 3, 2022
(reposted with corrected editorial information)
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger,
and Jenkins concurred.
Justice Liu filed a dissenting opinion, in which Justice Lavin*
concurred.
__________________________
* Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. JOHNSON
S070250
Opinion of the Court by Groban, J.
A jury convicted defendant Michael Raymond Johnson of
first degree murder (Pen. Code, § 187), attempted murder (Pen.
Code, §§ 187, 664), one count each of kidnapping and spousal
rape (Pen. Code, §§ 207, subd. (a), 262, subd. (a)(1)), and of being
a felon in possession of a firearm (Pen. Code, former § 12021,
subd. (a)(1)). It found true the special circumstances of
intentionally killing a peace officer engaged in the performance
of his duties, and murder during the commission of a kidnapping
(Pen. Code, § 190.2, subd. (a)(7), (17)(B)), as well as various
sentencing enhancements. The jury returned a verdict of death
at the penalty phase. The court denied the automatic motion to
modify the verdict (Pen. Code, § 190.4, subd. (e)), imposed the
death sentence, and imposed stayed sentences for the remaining
counts. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
We affirm the judgment.
I. THE FACTS
According to the evidence presented at his trial, in July
1996, defendant armed himself and kidnapped his wife, G.A.,
from her workplace. She eventually accompanied defendant to
a remote mountain area where he forced her to engage in sexual
activity. Later that day, after defendant and G.A. had returned
to G.A.’s home, the police, responding to a 911 call, arrived and
removed G.A. from the house. Defendant then shot and killed
one officer at the scene, 26-year-old Ventura County Deputy
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Sheriff Peter Aguirre, and fired several rounds toward another
officer, Deputy Sheriff James Fryhoff, who was able to disable
defendant with return gunfire.
A. Guilt Phase
1. Prosecution Evidence
Defendant and G.A. married in 1985 but they had little
contact over the following years. They reestablished contact and
began a romantic relationship in early 1996. G.A., her 15-year-
old daughter from a different relationship, D.G., and D.G.’s
boyfriend, Francisco, lived together in a one-bedroom house in
Ojai. Defendant began living at the house with G.A., D.G., and
Francisco in June 1996.
On July 14, defendant and G.A. went to a secluded
mountain area to “make love” at a spot they had visited for this
purpose a few times before. They removed their clothes, but
then defendant became angry and jealous when G.A. told him
she had come there before with D.G.’s father. G.A. explained to
defendant that it was a long time ago, and G.A. and defendant
then had sex.
On an unspecified date around that same time, G.A. was
at home in the shower laughing about something. Defendant,
who was also home, accused her of being in the shower with
Francisco. G.A. told defendant he was “crazy” because she had
been alone in the bathroom and Francisco had been in the living
room with D.G..
On July 15, when G.A. returned home from work, she
learned that defendant had moved out. On the phone, defendant
told G.A. that she was not good enough for him and he wanted
a divorce. He said he moved out because he thought G.A. had
been talking to Francisco in the shower and he was jealous.
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On the afternoon of July 17, defendant came to the
residence where G.A. worked as a housekeeper, followed her
into the house, and threw a gun on a bed. He had another gun
in his pocket. He told G.A., “I love you, I can’t leave, I have to
stay close to you.” G.A. told defendant that he could not stay
with her because she needed to work. Defendant repeatedly told
G.A. that he had to stay with her, “every minute of every day.”
He told her he would take her to Wisconsin but that they first
needed to rob a bank because they did not have money. G.A.,
who was doing laundry while they spoke, explained that she
needed to work to support her daughter and could not leave.
Defendant said he would take G.A. by force.
G.A. had not seen defendant like this before. He was
acting strangely, “crazy,” and speaking rapidly and loudly. He
had a pistol and became angry when G.A. tried to convince him
to give her the pistol. He mentioned a movie he was going to
write that they had previously joked about, called “Crazy Love,”
which was a story in which defendant thought he and G.A. were
both crazy. He told G.A. they were in the movie at that moment.
While defendant and G.A. were still at her employer’s
house, defendant told G.A. he wanted her to remove Francisco
from her home. G.A. called her daughter at G.A.’s house and
told her that she and Francisco needed to leave, mentioning that
defendant had two “pistolas.”
Shortly after, G.A.’s employer called to tell G.A. she was
free to leave. To convince defendant to leave, G.A. suggested
they go for a ride. She suggested they each leave in their own
car, but defendant insisted they travel in one car. They left for
G.A.’s house.
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When they arrived at G.A.’s home, D.G. and Francisco
were still there, along with other children. Defendant said
everyone could stay except Francisco. G.A. insisted that
everyone leave because she was afraid defendant might shoot
the children. G.A. did not feel that she could get away from
defendant. She told defendant, “Let’s go cruising.” Because he
believed he was being followed, defendant took D.G.’s dog with
them because it would bark when it saw people it did not
recognize.
They returned to the mountain spot they had visited on
July 14. Defendant wanted to move further up the mountains,
but G.A. did not want to, so defendant stopped where they were.
G.A. testified that defendant kept looking around, “scared,” and
said that someone was following him. They brought pillows and
a blanket from the car, secured the dog to a tree, undressed, and
lay down. G.A. explained that she removed her clothes because
defendant was removing his clothes like they had done at this
location a few times before to have sex, but they had never before
had sex while defendant possessed guns.
G.A. testified at trial that defendant then got on top of her
and tried to have sex. She testified that defendant was unable
to get an erection or ejaculate and did not penetrate her vagina.
But she remembered telling Sergeant Garcia that they had sex.
The jury heard G.A.’s grand jury testimony in which she said
that defendant was able to insert his penis inside her vagina “a
little bit.”
After about 20 minutes, G.A. told defendant, “Let’s go,”
because the mosquitos were biting her. Defendant packed
everything up and they left for G.A.’s home. After they arrived
at the house, D.G., who had left the house earlier, called G.A.
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and asked if she should call the police. G.A. said yes. D.G. called
and informed an emergency operator that G.A. was in danger,
that defendant had two guns, and that he had made G.A. remove
D.G. from the house. D.G. reported that defendant had a
criminal record and was planning to rob a bank. Police were
dispatched to G.A.’s house.
At the house, defendant wanted to have sex but G.A. told
defendant to take a shower. G.A wanted to distract defendant
and for him to surrender to the police. Defendant told G.A. to
take a shower with him, so they got in the shower together.
While showering, defendant kept the guns on a window ledge
near his hands. At no point that day did G.A. feel she could get
away from defendant.
Meanwhile, Deputies Aguirre and Steven Sagely
responded to the domestic disturbance call, with Deputies
Fryhoff and David Sparks responding as backup. Fryhoff and
Sparks took positions at the rear of the house while Aguirre and
Sagely approached the front and knocked on the front door.
Knowing it was the police, G.A. went to the front door in
her towel. Sagely saw G.A. appearing upset, like she had been
crying and she was trying to speak. As G.A. was stepping
outside and Aguirre was stepping inside, G.A. told the officers
that defendant had guns.
The officers remaining outside then heard rapid gunfire
from inside the house. While looking in a window, Fryhoff
observed defendant running for the front door, so Fryhoff ran
toward the front of the house. As he rounded the front corner,
he saw defendant on the front lawn, face Fryhoff and fire several
rounds toward him. While taking cover, Fryhoff was able to
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shoot defendant in the chest, and then saw him lying naked on
his back with two guns nearby.
The officers found Aguirre inside the house, lying on his
back, between a wall and a large potted plant in a corner,
“[b]leeding profusely from the face,” and struggling to breathe.
Deputy Aguirre died from his injuries that were caused by
gunshot wounds. His gun was fully loaded and holstered.
After the shootout, defendant was taken into custody and
transported to a hospital for treatment of his chest gunshot
wound. Psychiatrist Donald Patterson, retained by the district
attorney’s office, interviewed defendant that night while he was
receiving treatment in a hospital emergency room.
The prosecution played portions of the interview during
the trial. Defendant described his intense feelings of jealousy
for G.A. and belief that she was unfaithful. He confessed to
kidnapping her at gunpoint. He also described jumping out from
behind a wall and shooting Aguirre after he saw the police
pulling G.A. out of the house. He described feeling as if he had
been in a movie that afternoon but explained that he was
conscious of what he had done and that his acts had been a
passive suicide attempt.
The prosecution presented expert testimony on three
subjects — Deputy Aguirre’s gunshot wounds, bullet forensics,
and blood spatter patterns — to support its theory that
defendant shot and killed Aguirre in an execution style. As to
the first subject, Deputy Aguirre’s gunshot wounds, he suffered
three — one in his left arm and two entering the left and right
side of his forehead — all with exit wounds. The medical
examiner, who autopsied Aguirre’s body, opined: Each of the
head gunshot wounds likely caused instantaneous loss of
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consciousness and motor skills. Aguirre would have been
incapable of shielding himself once he received the first of the
head wounds. Based on stippling wounds on Aguirre’s right
forehead, the gun’s muzzle was approximately 12 to 18 inches
from Aguirre’s head when the bullet entered the right side of his
forehead. Stippling wounds are caused when the muzzle of a
gun is sufficiently close to the target so that gunpowder released
with the bullet’s discharge impacts the skin and causes injuries.
Second, the prosecution’s ballistics expert opined: The
trajectory of a bullet that passed into the floor in the part of the
house where Aguirre was shot was consistent with being the
final shot into Aguirre. Two magazines of ammunition found in
a fanny pack in the home and two boxes of ammunition found in
a suitcase in defendant’s car were consistent with those fired
from the Colt .45-caliber and Beretta .32-caliber semiautomatic
handguns found outside near defendant when he was arrested.
Third, a blood spatter analyst testified about the three
areas of blood spatter events on the walls and objects in the area
where Deputy Aguirre was shot. The expert opined: One of the
blood spatter deposits, indicating a high velocity event
(gunshot), occurred while Aguirre’s head was about 13 inches
from the floor, facing up, between a wall and a potted plant in
the corner. The bullet trajectory that went into the floor was
consistent with the bullet wound in Deputy Aguirre’s right
forehead that had the stippling pattern. A spatter pattern on
Aguirre’s hand suggested that it had been in a defensive
position.
The prosecution also presented evidence about
defendant’s criminal record to show he faced a potential life
sentence when he armed himself on the day of the shooting. A
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Ventura County deputy district attorney testified as an expert
on sentencing, that defendant had served a prison term and had
convictions for five felonies including two serious felonies. He
explained that a person with two prior serious felonies faced a
sentence of 25 years to life upon conviction of a new felony.
Defendant’s parole officer from 1991 testified about his practice
of reviewing with parolees the conditions of their parole prior to
their release date, including the requirement that parolees must
refrain from possessing firearms. He would advise parolees that
it is a felony for a felon to possess a firearm. He recalled
defendant signing a parole form that informed defendant that
he was prohibited from possessing firearms.
2. Defense Evidence
To contest the prosecution’s case on premeditation, the
defense presented wound ballistics, crime reconstruction, and
optometry evidence, as well as evidence of defendant’s behavior
immediately after the shooting. To contest the special
circumstance allegations of intentionally killing a peace officer
engaged in the performance of his duties, and murder during the
commission of a kidnapping, it also presented an expert on
police practices and evidence that defendant did not kidnap G.A.
A defense expert on wound ballistics, Dr. Martin Fackler,
opined that based on the forensic evidence, which included
Deputy Aguirre’s stippling wound and the angles of bullet
trajectories within G.A.’s house, it was impossible to determine
the sequence of the shots fired and whether Aguirre or
defendant or both were in motion when the shots were fired. It
was possible that defendant shot Aguirre deliberately after
Aguirre was on the ground, but it was also possible, and a “little”
more likely based on the rapidity of the shots, that defendant
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shot Aguirre while defendant was running by, and Aguirre was
falling to the ground.
The crime scene reconstructionist similarly opined that
the physical evidence did not support conclusions as to the
sequence of shots fired and whether the shooting was execution
style, but rather that the evidence was consistent with
defendant firing the gun while either or both he and Deputy
Aguirre were in motion and that the final shot to Aguirre’s head
occurred while he was incapacitated and falling but not yet on
the ground. He viewed the “scene as a dynamic, fast-moving
sequence of events” with continuing changes in the position and
distance between defendant and Deputy Aguirre. Defendant
could have been running by as he fired the gun.
An optometrist who examined defendant in 1994 testified
that defendant had 20/400 vision, which meant that he could
only see at 20 feet what a person with normal vision could see
at 400 feet. Movement and backlighting also affect a person’s
vision. A person with 20/400 vision, however, could discern
whether a person was lying on the ground, the location of the
person’s head, whether he was wearing a badge and gun belt,
and whether he was bleeding.
To show that defendant’s behavior was rash and
delusional rather than premeditated, the defense additionally
presented testimony of a sheriff’s deputy, that he heard
defendant repeatedly mumbling “Hare Krishna” while he lay
naked on the ground after the shootout with Fryhoff.
As part of its challenge to the special circumstance of
shooting a police officer while engaged in the performance of his
duties, the defense presented the testimony of Roger Clark, an
expert on police practices. Clark opined that under the
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circumstances, a reasonable and well-trained officer would not
have concluded that exigent circumstances warranted police
entry because the purported victim was already outside and
nothing “was emanating from inside the house to indicate that
there [was] a crime being committed or someone in danger
which would create the emergency for the officer, necessitate the
officer to go in.” A reasonable officer would have coordinated
with his partners instead of entering the house.
Regarding the kidnapping offenses including the
kidnapping special circumstance, the defense read into the
evidence the following portions of Sergeant Garcia’s interview of
G.A.: Garcia asked G.A. if defendant made any threat like he
would kill or shoot her if she would not come with him. G.A.
responded that defendant showed her the gun but did not point
it at her and that he told G.A. that if she did not come with him,
he would stay with her because he did not want to be without
her for one minute. She told Sergeant Garcia that she felt afraid
and hurt because defendant had forced G.A. to remove her
daughter from the house that day. Because defendant had guns,
G.A. explained that she was forced to leave with him so that
there was “no danger to my children.” Defendant did not at any
time that day say anything to G.A. about shooting or killing
anyone.
3. Rebuttal Evidence
The prosecution presented a police practices expert, who
opined that under the circumstances, a reasonable police officer
would determine that immediate entry into G.A.’s home was
necessary to protect the officers and the purported victim, G.A.,
because the lighting conditions did not allow the officers to see
inside, and because the police needed to investigate an ongoing
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domestic disturbance situation. Without entering the house,
Aguirre would have been unable to fulfill his role as the officer
protecting the contacting officer because he was not in a position
to determine where “the threat” was coming from. A reasonable
police officer would not believe that retreat or doing nothing was
a safe alternative because of the limited opportunity for the
officers to conceal themselves and the limited exit available from
the gated property. Officers are trained to respond quickly in
this scenario.
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented evidence of the impact of 26-
year-old Aguirre’s death on his family, friends, and fellow
officers (Pen. Code, § 190.3, factor (a)), defendant’s criminal
activity involving the use or threatened use of force or violence
(id., factor (b)), and his prior felony convictions (id., factor (c)).
Deputy Aguirre and his wife met in high school and had a
three-year-old daughter for whom Aguirre was the primary
caretaker while both he and his wife worked. Aguirre’s wife
described the pain and loss she felt. Their daughter also felt the
loss and had continued to ask when her father was returning.
Aguirre’s daughter had been unable to continue kindergarten.
Aguirre’s mother described Aguirre’s generosity, close
relationship with his daughter, and educational aspirations,
and described seeing Aguirre’s injured body at the hospital and
the effect of his death. Aguirre’s sister-in-law described the
positive influence and support Aguirre had provided when she
was struggling with substance abuse and teenage motherhood.
Aguirre’s childhood best friend described his struggle with
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Aguirre’s death and recalled Aguirre’s positive qualities
including his sense of humor.
Fryhoff, Sparks, and other officers also described Aguirre
as a kind, religious family man, and described their deep
feelings of loss and guilt and the long-lasting impacts that
Aguirre’s death had on the sheriff’s department. They described
the experience of discovering Aguirre bleeding and dying in the
house and the trauma experienced by the sheriff’s department
that day.
A local teenager remembered Aguirre’s approachability
and that he stood out as an officer who showed an active interest
and support toward him and other teenagers in the community.
The prosecution presented three incidents of criminal
activity in which defendant used force or violence. In December
1986, defendant carjacked a woman at gunpoint, throwing her
purse out the window when she exited her car. Defendant had
also robbed a McDonald’s restaurant at gunpoint. In November
1993, someone in a white truck hit pedestrian Johnny Reeves,
collided with a parked vehicle, and drove away. In 1995,
defendant reported to the sheriff’s department that in
November 1994, after his brother told him that gang members
had assaulted him, defendant had gotten in his truck and
started driving because he had decided to hit the first person
who he saw that looked like a gang member. He saw a
pedestrian that he thought fit the description, hit him, and
drove off, possibly hitting another car. Defendant reported the
incident to take responsibility as part of his Alcoholics
Anonymous (AA) efforts and explained he had also reported it to
the sheriff’s department a year earlier.
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The prosecution reminded the jury of the guilt phase
evidence concerning defendant’s prior felony convictions.
2. Defense Evidence
Pursuant to Penal Code section 190.3, factors (d), (h), and
(k), the defense presented evidence that defendant struggled
with schizophrenia and his crimes derived from his mental
disease, he served in the army during the Vietnam War under
difficult conditions, he would make a positive adjustment to
prison, he had worked as a rehabilitation counselor, and he had
sought help for his mental health difficulties.
Defendant served in the military starting in 1965 at age
18 and was stationed in Vietnam under dangerous conditions.
His battery unit second commander remembered defendant as
a “hard worker” and a “smart kid.” Another soldier serving in
the same unit testified that defendant served as a radio
telephone operator (RTO), which was a “very hazardous”
assignment that usually required volunteers because most
RTOs would be “cracking up or burning out.” Defendant served
as an RTO on more than one occasion. Defendant was once
found absent without leave while in Vietnam and was “issued
an undesirable discharge certificate.”
Defendant’s mother observed he was “quiet and
withdrawn” after returning from the Vietnam War. After he
returned, he would often be gone for long periods of time and
show up unexpectedly, homeless. During the early 1990s,
defendant exhibited odd behavior around food, such as having
bad dreams when he ate pork and asking his parents to remove
bacon fat from the refrigerator because he believed it was
contaminating his food.
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In 1981, defendant worked in exchange for room and board
for Jane Siemon, a Wisconsin dairy farmer. One day, Siemon
sent some soup to her husband and defendant while they were
working on the farm. Defendant, believing Siemon was trying
to poison him, refused to eat her cooking for the remaining
several months on the farm.
A Ventura County social worker performed a psychiatric
assessment of defendant in 1994 and concluded he had organic
delusional disorder related to brain damage from the “heavy
use” of marijuana, LSD, and amphetamines. She based her
conclusion on defendant’s description of several delusions, e.g.,
that he was in an “underground” war against those who sought
to brainwash “organic eaters” by poisoning the food, water, and
air. Defendant believed that “people who inhabit the real
world,” including his parents, sought to control and read his
mind. Defendant’s self-reported story of hitting a pedestrian
believing he was a gang member was evidence of delusional
disorder. Defendant did not appear to be seeking “benefits,” but
instead wanted treatment because he believed himself to be a
danger to others and wanted to rehabilitate himself so that he
could return to work.
A county drug and alcohol counselor saw defendant for six
months in 1994. Defendant had sought help because he believed
he was a danger to himself or others. He explained in a letter
to the counselor that he had stolen his employer’s car, but that
the employer had agreed “to drop all charges” if defendant would
seek mental health treatment. Defendant did not miss
appointments, which he would attend by bicycling from Ventura
to Ojai and appeared “[v]ery much” committed to his
rehabilitation. But defendant was also facing homelessness and
feared returning to prison.
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County psychologist Lisa Kus diagnosed defendant in
1994 with organic delusional disorder based on his history of
substance abuse. Several months later, when defendant
returned because his delusions were persisting, she referred
him to a psychiatrist who prescribed an antipsychotic
medication. Another psychiatrist on the staff, however,
evaluated defendant and concluded that he did not need
medication. Dr. Kus did not diagnose defendant with
schizophrenia because she could not rule out that his delusions
were unrelated to his substance abuse history, but she was “very
confident” he suffered from a delusional disorder and described
at length the delusions he had self-reported. She noted that
defendant had stated that he believed he needed to maintain his
sobriety because he did not want to go back to jail, but that he
appeared sincere in seeking help.
A county psychiatrist saw defendant in 1995 and
prescribed him with Haldol, an antipsychotic medication. The
psychiatrist observed defendant to exhibit symptoms of delusion
including the belief that his son wanted to harm him and had
staged an event to intimidate him.
Defendant earned a certificate of completion for a two-year
alcohol and drug studies program at Oxnard College around
1996. Defendant’s professor in the program said defendant was
an “excellent student.”
Defendant volunteered as a counselor during 1995 and/or
1996 in a Salvation Army substance abuse rehabilitation
program. Defendant’s supervisor, who was the director of the
program, said defendant was a “superior” worker and “very
committed,” “extremely caring,” and an “extremely good
listener.” He had one of the “highest graduation rate[s]” for his
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caseload of participants and “the actual rehabilitation of the
men that worked for [defendant] was better than most.”
Defendant’s supervisor at Primary Purpose, a recovery home for
addicts where defendant worked as a paid detoxification
specialist in 1995, rated defendant’s work as “excellent” and
“dependable.” Defendant listened well to the clients and
assisted them with placement in long-term programs “very
well.”
Defendant’s supervisor at Tiber House, a sober living
residence for mentally ill men, said defendant was the “best
house manager” the facility had. During his yearlong
employment starting in 1995, defendant demonstrated that he
cared “very much” about the residents, providing counseling and
support “[e]very chance he got,” often at his own expense and
time. Defendant was a “very good listener,” and was viewed as
compassionate and trustworthy. Defendant also appeared to “be
struggling with something,” and was committed to his own
recovery and “constantly attending” AA meetings. Defendant’s
role was to counsel the residents and oversee the house, and he
received free board in exchange.
Psychologist Charles Hinkin, assistant professor at the
University of California at Los Angeles School of Medicine and
director of the neuropsychology assessment lab at the West Los
Angeles VA Medical Center, has treated veterans for brain
diseases including schizophrenia. He reviewed defendant’s
records and the police investigation files and interviewed and
tested defendant for approximately eight hours. Hinkin
concluded defendant suffered from paranoid schizophrenia that
manifested at approximately age 32.
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Hinkin noted that defendant had suffered several
paranoid delusions over the previous 20 years, some of which
defendant had noted in his interview with Dr. Patterson upon
his arrest, such as his belief that he was part of a world of
organic eaters forced underground to wage war against others
and that his parents were Nazis who wanted to poison him
through food. He had also believed that he was a “warrior for
Krishna” and robbed a McDonald’s to show that “killing sacred
cows” was evil. He also had delusions that his father had
molested defendant’s son, that G.A. was having an affair with
Francisco, that he was in a movie on the day of the shooting, and
that his son intentionally made him ill and staged a gang fight
in order to intimidate him. Hinkin noted that defendant also
reported to Patterson that he had experienced a “lot of
hallucinations” while taking Haldol.
Hinkin explained that an example of the “flat affect”
typical of schizophrenia was defendant’s lack of emotional
response during the interview with Patterson and his
explanation to Patterson that he was not feeling any emotion,
where a normal person would have had a “huge emotional
response” to the events on the day of the shooting.
Hinkin testified that defendant’s various test results and
overall history, including accounts of others such as the
Wisconsin farmer, suggested that defendant was schizophrenic
and not feigning mental illness. Defendant had a significant
score on the paranoid schizophrenia scale on a standardized test
he took in 1974.
Hinkin opined defendant suffered from a psychotic episode
of schizophrenia during the shooting and the days preceding it.
Defendant was “under the influence of extreme mental or
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emotional disturbance” that day, his capacity to conform his
conduct to the law was impaired, and he committed the offense
because of the disease. Hinkin noted that defendant had
erroneously believed that Francisco had been in the shower with
G.A., stated he believed he was in a movie, was hysterically
laughing according to an account by G.A. that Hinkin had
reviewed, seemed agitated and scared, kept looking around and
took G.A.’s dog because he thought he was being followed, and
reported to Patterson “kind of having [a] delusion” that day.
James Park, a psychologist and institutional adjustment
expert, reviewed defendant’s correctional records and opined
that defendant would be a “reasonably good prisoner” and good
worker. Defendant had previously received “recognition of
outstanding performance” working on a prison building retrofit
project. Based on research and his experience working in the
Department of Corrections, Park opined that older prisoners
like defendant (age 50 at the time of trial) are more likely to
“conform” and have a positive effect on other inmates.
Defendant had no history of violence in his earlier
incarcerations and was unlikely to be dangerous. The
prosecution questioned Park at length about Park’s background
and work history at the Department of Corrections, and about
prisoners’ access to exercise facilities, cable television, medical
care, education, and visitors.
3. Rebuttal Evidence
The jury heard additional portions of defendant’s
interview with Patterson. In it, defendant described his
evaluations by the various Ventura County mental health staff,
the “real frightening” hallucinations he experienced while
taking Haldol, his attendance in recovery programs, and his
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self-diagnosis of schizophrenia. He described experiencing
delusional thinking when in close emotional relationships such
as with G.A. and with his son. He explained that he did not form
close bonds with friends or family and avoided his son because
he would become “pretty emotional,” and his delusional thinking
would become “amplified.” Defendant experienced “intense
paranoia” and a desire to kill his father when he believed he had
molested defendant’s son. He also described his criminal
history, including robbing a McDonald’s as part of a “religious
battle” and that he “sorta had that delusion today too.” He
explained that he had reported his delusions to prison staff
while he was incarcerated for the McDonald’s robbery.
Patterson had been a court-retained psychiatric expert in
criminal and other matters for over 40 years. He interviewed
defendant on the night of the shooting so he could evaluate his
mental status in that timeframe. Defendant appeared in
contact with reality, unparanoid, nondelusional,
nonhallucinatory, unconfused, responsive, and coherent, and
had well-organized speech.
Patterson also reviewed defendant’s mental health and
other records. He agreed with the Ventura County mental
health professionals’ diagnosis of organic delusional disorder
given defendant’s 20-year history of abusing alcohol, marijuana,
and methamphetamine, but there was not information available
as to how often and what quantity of substances defendant had
consumed. The difference between delusional disorder and
schizophrenia, Patterson opined, was that the former was
characterized by “non-bizarre” as opposed to bizarre delusions,
e.g., believing one’s internal organs have been replaced. The
belief that one was being poisoned or followed, or that a partner
was unfaithful, were examples of non-bizarre delusions because
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such events could actually happen. Paranoid schizophrenics are
characterized by delusions of persecution and are suspicious of
others. The schizophrenic is not in contact with reality, whereas
a person with a delusional disorder can function except in the
areas of his or her delusion. Patterson agreed periods of
remission can occur when the schizophrenic individual is better
functioning, but the paranoia is nonetheless present. The
schizophrenic individual tries to control exposure to upsetting
events to avoid paranoid episodes.
Patterson opined defendant’s delusions were substance-
induced delusions. He acknowledged that the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-
IV) ruled out substance-based delusional disorder as a diagnosis
if the subject had been substance free for four weeks. Even
though defendant had denied ingesting drugs for over two years,
Patterson hypothesized that defendant’s belief that his father
had molested his son was the result of drug use. Patterson
acknowledged that defendant had provided a lot of truthful
information in his interview, but believed defendant was trying
to manipulate him.
Patterson concluded defendant was not suffering from
delusional disorder on the day of the shooting and was able to
wholly control his behavior. Defendant was apparently capable
of enjoying sexual relationships with G.A., did not lack
motivation as evidenced by his work at Tiber House and
Primary Purpose, maintained good eye contact during the
interview, and was not scattered in his discussion of topics,
which all indicated the absence of schizophrenia.
Defendant’s classmate at Oxnard College testified that
defendant told her he began using LSD in high school.
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II. DISCUSSION
A. Denial of Defendant’s Motion to Suppress His
Statements Made to Patterson
Defendant contends his rights under the Fifth and
Fourteenth Amendments to the federal Constitution were
violated when, after he had been arrested, law enforcement
representatives repeatedly disregarded his multiple invocations
of both his rights to silence and to have counsel present and
ultimately coerced his confession. The trial court found that
defendant had invoked his rights to silence and to have counsel
and accordingly suppressed some of his statements made during
one of the earlier encounters with law enforcement. The court
found, however, that defendant initiated the later discussion
with Patterson and knowingly and voluntarily waived his
earlier invocation of his rights.
Defendant argues Patterson unlawfully interrogated him
in violation of Miranda v. Arizona (1966) 384 U.S. 436(Miranda) and Edwards v. Arizona (1981) 451 U.S. 477(Edwards), ultimately obtaining his admissions and confessions
that were subsequently admitted against him during the
prosecution’s case-in-chief. The Attorney General does not
dispute that defendant initially invoked both his rights to
silence and to have counsel present but contends defendant
himself eventually initiated the communication with Patterson
that led to his statements, and therefore the trial court properly
denied the motion to suppress.
While the issue is close, we agree with the trial court that
the record, particularly the recorded interview, demonstrates
that defendant initiated the conversation freely and that he
knowingly and voluntarily waived his Miranda rights.
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Nonetheless, we are troubled by the earlier law
enforcement conduct. In a three-hour period, while defendant
was at the hospital receiving treatment for a fresh gunshot
wound, law enforcement officials repeatedly approached
defendant to obtain a statement, impermissibly interviewed
him, angrily confronted him about Aguirre’s murder, and sent a
psychiatrist to defendant’s hospital room to interview him.
Within this timeframe, defendant invoked his right to silence
each time he was asked, on four occasions, and on at least two
of those occasions also requested an attorney. The trial court
acknowledged that statements were taken from defendant after
he had invoked these rights and appropriately suppressed
statements related to them. But we agree with the trial court
that defendant initiated the subsequent conversation with
Patterson and did so with a knowing and voluntary waiver and
therefore the statements to Patterson were admissible.
1. Factual Background
a. Earlier Law Enforcement Contacts with
Defendant
After he was arrested, paramedics transported defendant
to Ojai Valley Community Hospital at about 6:15 p.m. for
treatment of his injuries that included the chest gunshot wound.
At approximately 7:00 p.m., Ventura County Sheriff’s Detective
Robert Young contacted defendant in the emergency room to
obtain a statement about shooting Deputy Aguirre. Defendant
was lying in a hospital gurney, naked with a cloth over his lower
body, handcuffed by both hands to the gurney, and connected to
monitors, intravenous fluids, and a urinary catheter.
Young informed defendant he was under arrest for the
suspected murder of a police officer, advised him of his Miranda
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rights, and asked if he was willing to talk. Defendant responded
“no.”
Young then informed Michael Bradbury, the District
Attorney of Ventura County, that defendant had “refused to
waive his Miranda rights and discuss the shooting” but had not
requested legal counsel. At 7:20 p.m., Bradbury approached and
spoke with defendant at his hospital gurney in the emergency
room to verify that defendant was “advised of [his] rights to
remain silent,” did not want to talk to the police, and understood
he would need to initiate further discussion if he decided to talk.
According to Bradbury, defendant opened his eyes, and affirmed
he did not want to talk, stating, “Yes, I feel a little bit in shock
right now. I may want to talk to you later.”
A few minutes later, at approximately 7:30 p.m., Detective
Young and district attorney investigators Richard Haas and
Dennis Fitzgerald contacted defendant at his hospital gurney in
the emergency room to obtain his consent to search G.A.’s
house.1 After defendant gave consent, Haas asked defendant
about his living situation and his occupation. Following
defendant’s response that he was a resident manager at a
facility for patients with a dual diagnosis of mental illness and
chemical dependency, Young asked defendant whether he was
“a patient there or just the, uh, manager?” Defendant responded
he was the manager but that he had “been a mental health
patient,” explaining, “two years ago I went into the mental
health system.” Haas asked for the name of the facility where
1
“Miranda [is] not violated when an officer ask[s] for and
obtain[s] consent to search after the defendant had exercised his
privilege against self-incrimination.” (People v. James (1977)
19 Cal.3d 99, 115 .)
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defendant was the residential manager. Defendant responded,
“Tyber House for men with dual diagnosis.” Haas asked if there
was “chemical dependency as well as mental problems”;
defendant responded, “I have both, I have what they call a dual
diagnosis.” Haas asked, “what was your chemical dependency?”
Defendant responded, “marijuana.” Haas asked, “If we had
someone come out and talk to you like a psychiatrist, would you
be willing to talk to him?” Defendant responded, “Yes, the last
time I talked to one was probably a year and a half ago.” Haas
asked, “[D]o you have a regular one or anything or?” Defendant
responded, “No. A year and a half ago it took me nine months
to see a psychiatrist (unintelligible) I saw a counselor and [then]
a psychologist (unintelligible) psychiatrist.” The investigators
did not readvise defendant of his Miranda rights before asking
these questions. Haas testified at the suppression hearing that
he would have asked defendant if he would speak to a
psychiatrist even if defendant had invoked his right to counsel.
As noted below, the trial court found that Haas and Young
violated defendant’s right to silence by continuing to interview
him after he had given consent to search the house.
At 8:25 p.m., Detective Young returned to defendant’s
hospital room to ask for a statement, reminding defendant he
had purportedly told District Attorney Bradbury that he might
be willing to speak after he felt more comfortable. Defendant
responded “no,” explaining, “I think I told [Bradbury] that, uh, I
think I’m in a state of shock right now and I’m kinda confused
so I’d rather wait to talk to a lawyer, I think that’d be a good
idea.” Young asked defendant if he wanted to talk to a lawyer
and defendant responded, “I think so . . . I think that’d be a good
idea.”
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At about 8:50 p.m., just before leaving the hospital, Young
returned to defendant’s room to address him. Upset, Young told
defendant that he had not just shot a “uniform” but rather had
killed a “living, productive human being, unlike” defendant. He
told defendant that he wanted him to know the name of the
deputy he had murdered, that he was 26 years old and had a
wife and a child, and that he wanted him to remember Deputy
Aguirre and his family “every minute of every day for the rest of
his life.” According to Young and a nurse who overheard the
encounter, defendant responded that he sensed that Young was
angry.
b. Patterson Contacts Defendant
Defendant was then transferred to another hospital.
There, psychiatrist Donald Patterson began observing
defendant in the hospital’s trauma observation room starting at
approximately 9:15 p.m. The district attorney’s office had called
Patterson on the evening of the homicide and retained him to
interview defendant close in time to the events that day to
evaluate his mental state as a homicide suspect. Patterson had
conducted 17 such evaluations of homicide suspects on behalf of
the district attorney’s office in the previous six years. He
explained that his purpose was to determine defendant’s mental
status close in time to the earlier events that day but that
“eliciting incriminating information” . . . “was not the purpose of
my interview.”
Deputy District Attorney Richard Holmes, along with a
district attorney investigator, met Patterson at the hospital,
gave him a tape recorder and a Miranda advisement card, and
instructed him to contact defendant. Patterson was aware that
the district attorney’s office would be paying his fee. Holmes
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informed Patterson that defendant had been advised of his
Miranda rights and had been unwilling to talk but had stated
he might be willing to talk later. Holmes confirmed Patterson
was there to engage defendant in conversation, explaining at the
suppression hearing that he told Patterson: “I’d like you to go
in and do your usual thing, advise him of his rights, tell him who
you are, who you work for, and see if he wants to talk now.”
Holmes was unaware that defendant had invoked his
right to counsel to Detective Young. Had Holmes known
defendant had invoked his right to counsel earlier in the
evening, he would not have permitted Patterson to speak with
defendant. Holmes explained, “[b]ecause it’s improper. If — if
someone has unequivocally invoked counsel, it’s improper for
law enforcement to contact him. And I would — I would stay
absolutely away from there.” He testified further, “[I]t’s not at
all proper if they’ve invoked their right to counsel, and I just
simply stay away from — if somebody invokes the right to
counsel, I would let Dr. Patterson watch and observe and that
would be it.”
Patterson observed defendant for about an hour during
which a surgery resident evaluated defendant’s injuries. In
Patterson’s presence, defendant reported to the surgery resident
that he was experiencing chest and neck pain, and discomfort
and numbness, and noted to the surgery resident his
understanding that it was “against the rules to give prisoners
anything for pain.” The surgery resident explained, “it’s not
against the rules, however, the doctor needs to evaluate you
when you’re not under the influence of any medication because
if we give you something that altered your sensorium. Then
we’re not gonna be able to treat[]you appropriately so when the
doctor says that they’ve gotten all the information that they
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need, then that will be —” The surgery resident testified at the
hearing that she told defendant this — that she needed to delay
the administration of pain medication — so that the surgery
resident could assess defendant. Defendant was still
handcuffed to his gurney and connected to monitors,
intravenous fluids, and a urinary catheter.
At approximately 10:04 p.m., Patterson introduced
himself to defendant as “a psychiatrist from Santa Barbara.”
Defendant responded, “I heard you were going to come here.”
Patterson told defendant “the DA’s office [had] asked me to come
and talk with ya.” Defendant responded, “Great.”
Regarding defendant’s Miranda rights, Patterson told
defendant: “And I have to advise you of your rights the same as
you’ve probably been advised already, namely that you don’t
have to cooperate with us, you have the right to remain silent,
don’t have to talk with me or ask — tell me anything about
yourself or answer any of my questions.” He said further, “And
anything you say could be used against you in a court of law. I
will make a report of it, and you subsequently will see it, a copy
of my report, and if you can’t afford to provide yourself an
attorney at this point, it’s the responsibility of the County of
Ventura to obtain such legal aid for you, get you an attorney.”
Patterson did not tell defendant that he had the right to have an
attorney present before and during the questioning.
Patterson asked, “So, the next thing then in knowing these
things, are you willing to talk with me about yourself?”
Defendant declined to talk, explaining, “I don’t think so. I’m
facing very serious charges and I think I’d rather talk to a
lawyer first.” He stated further, “That be okay? I think right
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now I’m in a state of shock and kind of confused and I don’t know
that the information I’d give you would be that accurate.”
Patterson responded, “I see. Well, that’s your decision,
you have to make that — ” Defendant repeated, “that’s the
decision I’ve made.” Patterson responded, “I’m gonna just stay
around here with you and let you get back from X-ray and see
how you’re getting along and see if you still feel, feel that way
or — [¶] . . . [¶] — cause at some point you did say that you
would be willing to talk to me and so —.” He stated further,
“And it’s up to you, you can still refuse it, but you did say that
at one time.”
Defendant responded, “I did say that, yeah.” Patterson
stated, “So I, I’ll wait a little bit and they’re gonna take you over
to X-ray and get going and get these other things, your medical
condition taken care of. But I’ll be around for a little while.”
Defendant responded, “Alright.”
After this exchange, Patterson stepped out of the room
momentarily to inform Deputy District Attorney Holmes, who
had been waiting in the hallway, that defendant had refused to
waive his Miranda rights. Holmes testified Patterson did not
tell him that defendant had invoked counsel but instead told
him that defendant had declined to talk and had said he might
be willing to talk later. Holmes directed Patterson “to follow the
defendant wherever he went and just observe him.” Ventura
County District Attorney Bradbury testified at the suppression
hearing that in homicide investigations, the district attorney’s
office would dispatch a psychiatrist to observe the suspect even
if he were unwilling to talk. Patterson followed defendant’s
gurney when he was transported to the X-ray room at 10:05
p.m., remained with him for about 15 minutes while his X-rays
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were taken, and then followed him at 10:21 p.m. back to the
observation room, where they waited for the surgery resident for
about five minutes. Patterson stood near the foot of defendant’s
gurney about two feet to the side.
When the surgery resident returned, she explained to
defendant in Patterson’s presence that doctors would operate on
defendant to remove lead fragments from beneath his
diaphragm but that the resident would first insert a tube into
defendant’s chest to drain blood that had accumulated there. A
few seconds after this conversation, which was approximately
20 minutes after defendant had invoked his right to counsel to
Patterson, defendant turned to Patterson, who was then the
only other person in the room, and said, “[s]till here, huh?”
Patterson responded, “Yeah, just, just in case you’re — I can, I
can, whatever.” Defendant said Patterson had a “kind face.”
Patterson thanked him. Defendant stated, “The last
psychiatrist I talked to, made me very angry, you know.”2
Patterson asked defendant for the psychiatrist’s name.
Defendant gave the names of two psychiatrists he had seen;
Patterson said he did not know them. Defendant volunteered
2
The parties’ transcripts interpret the audio of this
comment differently. The prosecution transcript instead
interprets this comment as: “The last psychiatrist I talked to,
maybe you know him?” The trial court did not specifically rule
on this statement. We adopt the defense version because
Patterson agreed at the suppression hearing that this is what
defendant said. Regardless of which version we adopt, the two
statements are not substantively different for purposes of our
analysis, especially since the record is undisputed that
defendant began the conversation by telling Patterson, “Still
here, huh?”
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information about his previous efforts to seek treatment
through the county mental health department.
Following a brief pause during which apparently the
surgery resident had reentered the room and could be heard
talking, defendant asked Patterson, “You wanna talk about it?”
Patterson responded, “Sure.” Defendant stated, “I’ll talk, and
you can listen.” Patterson agreed, and stated, “Cause you, you
don’t mind, and we could just talk about what has happened or
something.”
Defendant then volunteered further information about his
mental health history, including earlier diagnosis of organic
delusional disorder. Defendant explained he had attempted to
see a psychiatrist at the county mental health department and
become “very angry” because the psychiatrist did not think
defendant would become a mental health patient and did not
schedule him for another appointment. Defendant explained
that being in an “intense emotional relationship” had
“amplified” his delusional thinking. Patterson asked defendant
questions about his delusions and whether medication had
helped. Defendant subsequently reiterated that being in an
“emotional relationship” (referring to G.A.) had “[s]tirred things
up” and that he felt like he was “in a movie” that afternoon.
Defendant volunteered that he was “aware of everything
that happened that day” and after responding to Patterson’s
question about why defendant did what he did (defendant said
he did not know why), defendant sought to limit the topics of
conversation:
“DEFENDANT: I think I’d be better off talking to you
about emotional states than about actual specific facts.
“PATTERSON: Okay.
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“DEFENDANT: I’m sure my lawyer wouldn’t appreciate
it, you know?
“PATTERSON: Well, he can, he can get a copy of what
you’re talking about, you know, if that’s —
“DEFENDANT: Well, I think you, you probably deal with
emotional states rather than facts anyway, but
(unintelligible) if you’re giving some type of a diagnosis.”
They continued to discuss defendant’s role as a resident
manager at the dual diagnosis facility and his involvement with
AA meetings. Defendant eventually introduced a new topic,
that he had had “another violent episode” about ten years earlier
in which he robbed a McDonald’s restaurant. Defendant mostly
talked and Patterson would ask questions including whether
defendant tried to seek help for his delusions in prison and
whether his delusions were part of his legal defense for the
robbery.
Defendant explained that he diagnosed himself with
schizophrenia after his own study and that he avoided being
close to his family because the emotions would exacerbate his
delusions. Defendant explained that he married G.A. so she
could get a green card, that they had not been in contact for
many years, and that he recontacted her recently so he could get
a divorce. Patterson asked if G.A. was “involved in this thing
tonight . . . .” Defendant responded that he had kidnapped G.A.
and continued to explain that he had shot Aguirre. Regarding
G.A., he explained, “I kidnapped her, you know” and “pulled a
gun on her and I said we’re gonna be together forever.”
Regarding Aguirre, defendant explained that he saw Aguirre
enter the home and tell defendant to put his hands up.
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Defendant “just jumped out and shot” Aguirre. He explained, “I
was getting what I wanted . . . .”
When medical staff had arrived to move defendant,
Patterson offered to return, stating, “I’ll see if I can come back,
but, uh, maybe if it doesn’t bother you to talk to me anyway.”
Defendant responded Patterson, “Yeah, you’re a very good
listener, that’s (unintelligible).” Defendant later explained, “I’m
kinda, you know, uh, self-diagnosing, nobody else will diagnose
me.” Patterson responded, “Trying, trying to figure yourself out,
huh?” Defendant agreed, “Yeah, I mean I’m just confused, you
know?” He discussed at length his own efforts, through classes,
reading articles, and study of the DSM-IV, to diagnose himself
and understand his condition.
After defendant explained “what happened” that day,
defendant and Patterson discussed defendant’s reasons for
speaking with Patterson:
“DEFENDANT: I started out by just not wanting to tell
you exactly what happened —
“PATTERSON: Yeah.
“DEFENDANT: — but it ended up that way.
“PATTERSON: Well, we went sort of round and round —
“DEFENDANT: At this point I don’t have anything to
lose by being honest and saying what happened.
“PATTERSON: Yeah.
“DEFENDANT: And I understand my lawyer’s really
going to be pissed and so forth.
“PATTERSON: Um-hum.
“DEFENDANT: So then (unintelligible)
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“PATTERSON: You can certainly talk, and he’ll get what
we’re talking about.
“DEFENDANT: I’m sure he will, yeah.
“PATTERSON: And uh —
“DEFENDANT: And I don’t know why they, why they say
don’t say nothing, because if you did something and people
know you did it, there’s people (unintelligible) —
“PATTERSON: They saw you.
“DEFENDANT: . . . you know, they saw me, right. How
are you gonna say you didn’t? I mean that, what are you
accomplishing, you know, I think the situ — I think it’s
best to be honest, that way you get to the root of it.
“PATTERSON: Um-hum.
“DEFENDANT: You know, I mean it’s not normal
behavior.
“PATTERSON: Um-hum.
“DEFENDANT: It’s not, you know the average person
wouldn’t (unintelligible) something like that.
“PATTERSON: Yeah.
“DEFENDANT: So you know.
“PATTERSON: But you have given me some insight into
the way you were feeling and as you say a part of a —
“DEFENDANT: Yeah, after I’d talked to you a little bit I
thought well, it’s probably more beneficial to me to give
him as much information as I can while I’m uh —
“PATTERSON: While you’re fresh, fresh from it.
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“DEFENDANT: Yeah, I, I’m not under the influence of
any chemicals or drugs yet, they’re gonna sedate me pretty
soon. And it’s fairly close to the time of the incident.
“PATTERSON: Yeah.
“DEFENDANT: And the closer the better I would think.
“PATTERSON: Yeah.
“DEFENDANT: You know. Time can alter the way you
see things.”
When Patterson prepared to depart, defendant stated:
“Yeah, it’s probably better if you write your report as quickly as
possible so you can (unintelligible)” and remarked, “You had a
kind face. . . . I think that’s [an] asset in your business.”
During various points in the conversation, the surgery
resident or other medical staff entered the room to perform
medical procedures on defendant including prepping him for the
chest tube insertion, drawing blood, and administering local
anesthesia and intravenous sedation. At one point the
conversation paused, apparently while the chest tube was
inserted.
c. Trial Court Findings and Rulings
The defense moved to suppress the statements defendant
made to Patterson, contending that the police and prosecution
had failed to cease efforts to interrogate defendant despite his
invocations of his rights to silence and counsel, and that
defendant had not waived his Miranda rights nor initiated the
discussion with Patterson.
After a multiday hearing, the trial court found that
defendant invoked his right to silence when Detective Young
Mirandized him in their first encounter, Young and Investigator
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Haas violated defendant’s Miranda rights by continuing to
question him after he had given consent to search G.A.’s house,
and defendant later invoked his right to counsel to Young. It
excluded portions of the interview conducted by Young and
Haas.
The court found, however, that defendant initiated the
discussion with Patterson when he said to him, “Still here, huh,”
and that he invited Patterson to talk more, told him that he
(defendant) would talk and that Patterson could listen, and
picked the topic of conversation. The court concluded that the
subsequent contact by Patterson was attenuated from
defendant’s earlier invocations. The court found “as a fact the
defendant, for whatever reason — and I believe the reason was
he wanted to talk to the psychiatrist — initiated the
conversation, controlled the conversation, directed the
conversation and took it to the places he wished to go.”
The court concluded that Patterson’s request to interview
defendant after he had invoked counsel to Detective Young of
the sheriff’s department did not violate Edwards because the
district attorney’s office had “come down a separate path” from
the sheriff’s department and retained Patterson for its own
purpose of evaluating defendant’s mental state. The court found
that Patterson went to the hospital “for the avowed purpose of
evaluating defendant for purposes of a determination
concerning the defendant’s mental state post-incident and I
think the District Attorney’s Office has no alternative but to
pursue a line of that nature, certainly in a case such as this.”
The trial court concluded that the audio recording of the
interview was “[t]he most powerful and compelling evidence of
the defendant’s understanding, knowledge, appreciation and
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willingness to participate in the conversation . . . .” The court
“wish[ed]” Patterson had taken an explicit Miranda waiver from
defendant when defendant started talking to Patterson but
concluded that defendant knowingly waived his rights because
he twice stated that his lawyer was going to be upset that
defendant had talked to Patterson and because defendant
controlled the conversation and directed the topics for
discussion. The trial court found that defendant “knew what
was going on. He knew what use it would be put to. He knew
with whom he was speaking. He knew what he was speaking
of. He discusses that he is or is not in pain, he discusses in fact
his motivations to speak at that time before he becomes
anesthetized or sedated, and that was important to him, that
the facts be known at the best possible time and he tells us that
in his statement which would be the time in closest proximity to
the time at which these events occurred.” Acknowledging
defendant’s medical condition, the court concluded that the
audio of the interview nonetheless demonstrated that defendant
had knowingly and voluntarily participated in the interview.
The court accordingly denied the motion to suppress.
2. Analysis
We address below three questions: (1) whether law
enforcement’s earlier contacts with defendant violated his
Miranda rights; (2) whether defendant initiated the
conversation that resulted in his confession; and (3) whether he
did so with a knowing and voluntary waiver of his previously
invoked Miranda rights. “The Fifth Amendment provides that
no ‘person . . . shall be compelled in any criminal case to be a
witness against himself.’ In Miranda[, supra,]
384 U.S. 436 . . ., the [United States Supreme] Court concluded
that ‘without proper safeguards the process of in-custody
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interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.’ Id., at 467. Accordingly, the
Court formulated the now-familiar “procedural safeguards
effective to secure the privilege against self-incrimination.” ’
Colorado v. Spring, 479 U.S. 564, 572 (1987) (quoting Miranda,
supra, 384 U.S. at 444). Among these is the rule that when an
accused has ‘expressed his desire to deal with the police only
through counsel, [he] is not subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police.’ Edwards[, supra],
451 U.S. 477, 484–485 . . . . .” (Arizona v. Mauro (1987) 481 U.S.
520, 525–526, fn. omitted.) “ ‘[I]nterrogation’ under Miranda
refers not only to express questioning, but also to any words or
actions on the part of the police . . . that the police should know
are reasonably likely to elicit an incriminating response from
the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the
intent of the police.” (Rhode Island v. Innis (1980) 446 U.S.
291, 301, fns. omitted (Innis).) “ ‘[N]ot all conversation between
an officer and a suspect constitutes interrogation. The police
may speak to a suspect in custody as long as the speech would
not reasonably be construed as calling for an incriminating
response.’ ” (People v. Hensley (2014) 59 Cal.4th 788, 810–811
(Hensley).) The ban on further interrogation is intended to
prevent police “ ‘ “from badgering a defendant into waiving his
previously asserted Miranda rights.” ’ ” (People v. Thomas
(2012) 54 Cal.4th 908, 926.) “If further conversations are
initiated by the police when there has not been a break in
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custody, the defendant’s statements are presumed involuntary
and inadmissible as substantive evidence at trial.” (Ibid.)
In reviewing Miranda claims, we “accept the trial court’s
resolution of disputed facts and inferences, and its evaluations
of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the
undisputed facts, and those properly found by the trial court,
whether the challenged statement was illegally obtained.”
(People v. Boyer (1989) 48 Cal.3d 247, 263 (Boyer); accord, People
v. Hoyt (2020) 8 Cal.5th 892, 931.) We review Miranda claims
under federal constitutional standards. (People v. Sims (1993)
5 Cal.4th 405, 440 (Sims).)
a. Earlier Law Enforcement Contacts Violated
Mosley and Edwards
We agree with defendant that his Miranda rights were
violated at various points during the evening of July 17, 1996.
As detailed in the factual background: (1) Haas and Young
approached defendant to question him a mere 10 minutes after
defendant had confirmed to District Attorney Bradbury that he
did not want to speak, and within a half hour of his original
invocation to Young. In that encounter, Haas and Young did not
readvise defendant about his rights to remain silent and have
the assistance of counsel. Their questioning concerned the same
ongoing investigation and was by one of the same officers,
Young, who had just recently attempted to interview defendant.
(2) Less than an hour after this questioning by Haas and Young,
Young again returned to defendant’s gurney to ask for a
statement concerning the same investigation. Young did not
readvise defendant of his rights, instead informing him that
according to Bradbury, defendant had stated he might be willing
to talk later. Defendant responded by telling Young that he
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thought he had told Bradbury that he was feeling shocked and
confused “right now” and wanted to wait to talk to a lawyer, and
then reasserted his Miranda rights to Young. (3) Nonetheless,
Young again returned to defendant’s gurney about 25 minutes
after that encounter, to berate him for murdering Aguirre. (4)
Seventy-five minutes after that, Patterson attempted to
interview defendant about the same ongoing investigation.
Within this three-hour timeframe, defendant invoked his right
to silence each time he was asked, on four occasions, and on at
least two of those occasions also requested an attorney. In sum,
prior to Patterson’s arrival, law enforcement officials had,
within the previous three hours, twice contacted defendant
about his willingness to provide a statement, impermissibly
interviewed him, and angrily confronted him about Aguirre’s
murder (after defendant had invoked counsel to the same
officer). The trial court found that defendant invoked his right
to silence when Detective Young Mirandized him in their first
encounter, and that Young and Investigator Haas violated
defendant’s Miranda rights by continuing to question him after
he had given consent to search G.A.’s house. Thus, it correctly
excluded portions of the interview conducted by Haas and
Young.
We also agree with defendant that the district attorney’s
office violated Edwards by the manner in which Patterson
requested to interview defendant after he had invoked his right
to counsel. As the trial court found and the Attorney General
agrees, defendant invoked his right to counsel when Detective
Young returned to defendant’s gurney at 8:25 p.m. to request a
statement. Resuming contact with a suspect at a later time for
purposes of interview, where the suspect had earlier requested
the assistance of counsel and remains in custody without
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counsel, is a clear violation of the rule that all efforts at
interrogation must cease once the right to counsel is invoked.
(Edwards, supra, 451 U.S. at p. 485.) In Edwards, the
defendant invoked his right to counsel and questioning ended,
but the police returned the next morning for an interview. (Id.
at pp. 478–479.) Edwards then waived his rights and made
statements. (Id. at p. 479.) The high court ruled the statements
inadmissible, holding that “when an accused has invoked his
right to have counsel present during custodial interrogation, a
valid waiver of that right cannot be established by showing only
that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” (Id. at
p. 484.) Edwards explicitly stated that once a suspect invokes
the right to counsel, law enforcement personnel may not resume
interrogation until counsel is provided or the suspect reinitiates
contact. This is a bright-line rule: It requires all questioning
cease after a suspect requests counsel. “ ‘In the absence of such
a bright-line prohibition, the authorities through “badger[ing]”
or “overreaching” — explicit or subtle, deliberate or
unintentional — might otherwise wear down the accused and
persuade him to incriminate himself notwithstanding his earlier
request for counsel’s assistance.’ ” (People v. Henderson (2020)
9 Cal.5th 1013, 1022 (Henderson), quoting Smith v. Illinois
(1984) 469 U.S. 91, 98.)
The Attorney General contends — as the trial court
concluded below — that the district attorney’s office had a
“legitimate ‘purpose’ ” in “enlist[ing] Dr. Patterson’s aid in
observing appellant and gathering information relevant to his
mental state, whether or not appellant wished to speak to him.”
By this, the Attorney General can be understood to argue that
because the district attorney’s office had another purpose
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(besides interrogation) in sending Patterson to visit defendant,
which was to observe him, the office committed no constitutional
violation. The Attorney General is correct, to an extent: Police
officers routinely remain in the presence of suspects for
custodial matters such as booking and transportation, even
after the suspect has invoked his or her Miranda rights. (E.g.,
Oregon v. Bradshaw (1983) 462 U.S. 1039, 1042 (Bradshaw)
[transporting suspect to police station]; People v. Enraca (2012)
53 Cal.4th 735, 750 (Enraca) [booking interview].) But the
Edwards rule “renders a [suspect’s] statement invalid if the
authorities initiate any ‘communication, exchanges, or
conversations’ relating to the case, other than those routinely
necessary for custodial purposes.” (Boyer, supra, 48 Cal.3d 247,
274, italics omitted.)
The evidentiary hearing established the prosecution’s
intention to send Patterson to interview defendant about his
mental state and not merely to observe him. The district
attorney’s office called Patterson on the evening of the homicide
and retained him to interview defendant close in time to the
events that day to evaluate his mental state as a homicide
suspect. District attorney staff gave Patterson a tape recorder,
Miranda card, and instructed him to advise defendant of his
Miranda rights. Patterson testified he went to the hospital to
interview defendant to evaluate his post-event mental state. He
explained that when a district attorney’s office reaches out to
him, “as typical when I get such a call, my question is will the
suspect be willing to talk with me.” Patterson did not merely
Mirandize defendant. Instead, Patterson did more, making
clear to defendant that he was there to “talk” with him,
explaining that “the DA’s office asked me to come and talk with
ya” and after partially describing defendant’s Miranda rights,
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said, “So, the next thing then in knowing these things, are you
willing to talk with me about yourself?” Patterson’s
communications here, violated the bright-line rule of Edwards.
Deputy Holmes confirmed as much that Patterson was there to
engage defendant in conversation, explaining that he told
Patterson: “I’d like you to go in and do your usual thing, advise
him of his rights, tell him who you are, who you work for, and
see if he wants to talk now.” Holmes testified that had he known
defendant had invoked his right to counsel earlier in the
evening, he would not have permitted Patterson to speak with
defendant. Holmes explained, “Because it’s improper. If — if
someone has unequivocally invoked counsel, it’s improper for
law enforcement to contact him. And I would — I would stay
absolutely away from there.” He testified further, “[I]t’s not at
all proper if they’ve invoked their right to counsel, and I just
simply stay away from — if somebody invokes the right to
counsel, I would let Dr. Patterson watch and observe and that
would be it.”
Thus, the record clearly shows the district attorney’s
intention that Patterson was to interview defendant for
evidence about his mental state as part of its criminal
investigation. This is why Patterson arrived with a Miranda
card and a tape recorder. Patterson did not merely observe
defendant in order to evaluate his mental state: He contacted
defendant, advised him of his Miranda rights, asked him if he
was willing to talk about himself, responded to defendant’s
request for counsel by reminding him that he had supposedly
earlier agreed to talk to Patterson, and then telling defendant
he (Patterson) would remain close by in case defendant changed
his mind about asserting his Miranda rights.
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The fact that Patterson might also have intended to
observe defendant does not eliminate the fact that Patterson
sought to interview defendant as directed by the district
attorney’s office. As Innis explained, we consider the situation
primarily from the suspect’s perspective in determining whether
there was interrogation. (Innis, supra, 446 U.S. at p. 301.) Even
if Patterson might have permissibly gone to the hospital and sat
silently in defendant’s room for the purpose of observing his
behavior (a fact pattern not before us here), defendant would not
have understood mere silent observation to be Patterson’s
purpose from Patterson’s words and conduct: The explanation
Patterson gave defendant for his presence was to interview
defendant. Patterson told defendant, “the DA’s office asked me
to come and talk with ya,” and after addressing defendant’s
Miranda rights, asked defendant, “next thing then in knowing
these things, are you willing to talk with me about yourself?”
(See Innis, supra, 446 U.S. at p. 301 [“ ‘interrogation’ under
Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response
from the suspect.”].)
Under settled law, a psychiatric interview of a suspect is
interrogation if the interview contains material later to be used
in the prosecution’s case, including evidence about a suspect’s
mental state. (See People v. San Nicolas (2004) 34 Cal.4th 614,
640; Estelle v. Smith (1981) 451 U.S. 454, 466–469 [Miranda
advisements were required prior to defendant’s pretrial
examination by a court-retained psychiatrist, where the
psychiatrist later testified for the prosecution]; People v. Ghent
(1987) 43 Cal.3d 739, 750; People v. Polk (1965) 63 Cal.2d 443,
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449; People v. Walker (1972) 29 Cal.App.3d 448, 451–456; People
v. Montgomery (1965) 235 Cal.App.2d 582, 590.) In Estelle,
supra, at pages 456–457, the trial court ordered a psychiatric
examination of a defendant to determine his competency to
stand trial. (Id. at pp. 456–457.) But the examining
psychiatrist later testified for the prosecution about defendant’s
mental status. (Id. at pp. 459–460, 464.) The high court held
“the Fifth Amendment privilege, therefore, [was] directly
involved here because the State used as evidence against
respondent the substance of his disclosures during the pretrial
psychiatric examination.” (Id. at pp. 464–465.) The court
explained, “The considerations calling for the accused to be
warned prior to custodial interrogation apply with no less force
to the pretrial psychiatric examination at issue here.
Respondent was in custody at the Dallas County Jail when the
examination was ordered and when it was conducted. . . . When
Dr. Grigson went beyond simply reporting to the court on the
issue of competence and testified for the prosecution at the
penalty phase on the crucial issue of respondent’s future
dangerousness, his role changed and became essentially like
that of an agent of the State recounting unwarned statements
made in a postarrest custodial setting. During the psychiatric
evaluation, respondent assuredly was ‘faced with a phase of the
adversary system’ and was ‘not in the presence of [a] perso[n]
acting solely in his interest.’ ” (Id. at p. 467.)
In the immediate wake of the senseless murder of a
beloved colleague, the police and district attorney were
understandably zealous in their effort to question the apparent
perpetrator. But we find concerning the multiple clear
violations of Miranda that occurred in this case through the
repeated efforts of investigating officials to solicit defendant’s
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waiver of his rights to silence and counsel, after he had
expressed his unwillingness to talk. That defendant invoked his
right to remain silent does not mean police could never again
approach him and inquire whether he was still unwilling to talk.
(See Michigan v. Mosley (1975) 423 U.S. 96, 100–104.) But it is
one thing to reapproach a suspect about his willingness to talk
after a “significant period of time” (id. at p. 106); it is another
thing to reapproach the suspect to confront him or to inquire
about his willingness to talk no less than five times in a roughly
three-hour span. These violations not only infringed
defendant’s established constitutional rights, they also
jeopardized the efforts of the prosecution, court, and jurors to
have a jury weigh the charges against defendant and render a
sentence. We emphasize the substantial costs to the justice
system and the lives affected when law enforcement officials,
however well-intentioned, do not conform their own conduct to
the law.
b. Defendant Initiated the Conversation with
Patterson
Concluding that there were Miranda violations does not,
however, resolve the question whether those violations require
that defendant’s later statements to Patterson be suppressed.
Like the trial court concluded below, the Attorney General
contends defendant initiated the conversation with Patterson.
After listening to the interview tapes admitted at trial and
reviewing the transcripts, we agree that defendant initiated the
later discussion that produced the statements admitted at trial.
As noted, interrogation must cease once a suspect requests
counsel. (Edwards, supra, 451 U.S. at pp. 484–485.)
“ ‘However, if the defendant thereafter initiates a statement to
police, “nothing in the Fifth and Fourteenth
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Amendments . . . prohibit[s] the police from merely listening to
his voluntary, volunteered statements and using them against
him at the trial.” ’ ” (Hensley, supra, 59 Cal.4th at p. 810.)
“ ‘After a suspect has invoked the right to counsel, police officers
may nonetheless resume their interrogation if “the suspect ‘(a)
initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.’ ” ’ ” (Enraca,
supra, 53 Cal.4th at p. 752.) “ ‘An accused “initiates” ’ further
communication, when his words or conduct ‘can be “fairly said
to represent a desire” on his part “to open up a more generalized
discussion relating directly or indirectly to the investigation.” ’ ”
(People v. Molano (2019) 7 Cal.5th 620, 656 (Molano).) This
exception to the Edwards rule requires that the suspect initiate
“ ‘further communication, exchanges, or conversations with the
police’ ” but not necessarily “the encounter at which he does so.”
(People v. Waidla (2000) 22 Cal.4th 690, 732 (Waidla); see also
People v. Mickey (1991) 54 Cal.3d 612, 652 (Mickey).) Defendant
spoke to Patterson and, as a factual matter, began the
conversation that led to his various inculpatory statements.
Patterson remained in defendant’s presence after their initial
exchange but did not speak to him. Around 20 minutes later,
after X-rays and a brief conversation with his doctor, defendant
asked Patterson, “Still here, huh?” He engaged Patterson in a
conversation about psychiatrists who had treated him and then,
after some pauses, reconfirmed his desire to speak, asking, “You
wanna talk about it?” Suspects in custody have initiated further
questioning by asking, “ ‘Well, what is going to happen to me
now?’ ” (Bradshaw, supra, 462 U.S. at pp. 1045–1046), or
“ ‘What can I do for you[?],’ ‘What do you want from me?,’ and
‘What can I do to help you[?],’ ” (Waidla, at p. 731). Defendant’s
question to Patterson, “Still here, huh?,” followed by defendant’s
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question to Patterson if he wanted to “talk about it,” squarely
falls within the kinds of statements we have found to constitute
an initiation of further communication by the accused. As the
trial court found after an eight-day evidentiary hearing,
defendant “initiated the conversation, controlled the
conversation, directed the conversation and took it to the places
he wished to go.”
We must next resolve whether defendant’s renewed
contact with Patterson should be deemed effective or instead the
tainted product of the earlier Miranda violations, considering
all the relevant surrounding circumstances. “[W]e have never
found that an initial failure to honor a defendant’s invocation —
whether of the [right] to remain silent or the right to have
counsel present — poses a categorical bar to the admission of
any subsequent statement regardless of the circumstances.
Instead, in case after case, we have held that despite the initial
failure to honor a Miranda invocation, a voluntary confession
obtained during a subsequent interrogation is admissible.”
(People v. Krebs (2019) 8 Cal.5th 265, 314, italics omitted
(Krebs).) However, as a general rule, “where law enforcement
officers have disregarded a suspect’s previously-invoked rights
by continuing to interrogate him, a renewal of contact by the
defendant will be considered an ‘initiation’ only if the decision to
renew contact was not a ‘response to’ or ‘product of’ the prior
unlawful interrogation.” (Mack v. State (Ga. 2014) 765 S.E.2d
896, 903 (Mack).) Indeed, to be valid, a defendant’s initiation
cannot be the product of the authorities’ coercion. (E.g., Boyer,
supra, 48 Cal.3d at p. 275 [holding that defendant had not
initiated the communication by calling back the officer after he
had turned to leave in light of the officer’s comments and earlier
unlawful interrogation]; People v. Neal (2003) 31 Cal.4th 63, 78
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(Neal) [holding that defendant did not voluntarily initiate an
interview in light of earlier impermissible interrogation and
defendant’s youth, isolation, and “low intelligence”]; People v.
Bradford (1997) 14 Cal.4th 1005, 1046 (Bradford) [rejecting
claim that “statement was the tainted product of earlier illegal
interrogations”].) Likewise, “a defendant’s decision to talk with
police cannot be a product of police interrogation, ‘badgering,’ or
‘overreaching,’ whether ‘explicit or subtle, deliberate or
unintentional.’ ” (People v. Davis (2009) 46 Cal.4th 539, 596
(Davis).) While as a matter of historical fact, a suspect may have
started the contact with authorities, the totality of the
circumstances might demonstrate that doing so was the product
of earlier badgering in violation of Miranda. (Mack, at p. 905;
Blake v. State (Md. 2004) 849 A.2d 410, 413–414, 422.) In Mack,
police disregarded the suspect’s invocation of his right to stay
silent by badgering and cajoling him to come clean for more than
90 minutes, after similarly having ignored his invocation of
rights on the previous day. (Mack, at pp. 904–905 & fn. 8.)
Approximately 10 minutes later, the suspect relented and asked
to speak with police. (Ibid.) In Blake, after the suspect invoked
his right to counsel, a detective gave the suspect a charging
document for first degree murder stating the penalty was
“DEATH,” even though the suspect was not eligible for the death
penalty due to his youth. (Blake, at p. 413.) The Maryland high
court concluded that the suspect’s subsequent question about
the detective’s comment (“I bet you want to talk now, huh!”) was
a response to interrogation rather than initiation. (Id. at
pp. 413–414, 422.)
Because of the prior Miranda and Edwards violations
described above, the defendant’s contention, echoed by the
dissent, that defendant did not initiate the communication with
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Patterson is not without force. And although Patterson asked
no more questions, his action of remaining with defendant for
the stated purpose of seeing if defendant would change his mind
about asserting his Miranda rights could have added more
pressure to make a statement. Patterson remained just a few
feet from where defendant was handcuffed to a gurney, twice
reminded him he had earlier agreed to speak with a
psychiatrist, and advised him that Patterson would “just stay
around here with [defendant] and . . . see if [defendant] still
feel[s]” that he wanted to assert his Miranda rights. In addition,
defendant contends that Young’s angry speech accusing
defendant of murder could have added further pressure to
confess. Defendant also argues that his compromised physical
state and related pain, shock, and confusion, would have
compromised his ability to withstand the pressure of repeated
attempts to obtain a statement. (People v. Caro (2019) 7 Cal.5th
463, 493 (Caro) [“While a defendant’s ‘compromised physical
and psychological condition’ alone will not render her
statements involuntary [citation], that condition is relevant to
the inquiry and presents an opportunity for abuse”].)
Though these facts and circumstances make this a close
case, the record, particularly the audio recording of defendant’s
conversation with Patterson, reflects defendant’s “clear
willingness and intention to talk” to Patterson. (People v.
Gamache (2010) 48 Cal.4th 347, 386 (Gamache).) As a result,
we cannot find that defendant’s conversation with Patterson
was caused by or the product of earlier violations. (See, e.g.,
Bradford, supra, 14 Cal.4th at pp. 1045–1046.)
First, the record does not reveal the sort of berating
evident in other cases that might readily wear down a suspect
(e.g., Neal, supra, 31 Cal.4th at pp. 80–83; Boyer, supra,
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48 Cal.3d at pp. 273–274), but instead a handful of one- to two-
minute conversations over a period of a few hours. The trial
court, after an extensive hearing, including sworn testimony
from Patterson and at least 16 other witnesses, found that the
tape-recorded discussion was a “low-key, very, very calm,
rational — perhaps unnervingly so — discussion of what
transpired.” At the hearing, Patterson testified “at no point did
I attempt to insert any strong injunction for him to talk to me
about the crime” and that defendant “was completely alert and
very cognizant of what he was talking to me about and without
evidence of mental confusion or disorientation.” We agree with
the trial court that defendant revealed no “outward sign of
stress, [offering] just a straight account of what happened,” and
his statements were “un[e]xcited, unforced and voluntary . . . .”
Examining the record as a whole, we conclude the relatively
brief prior interrogations that occurred — even when considered
cumulatively — did not add up to “ ‘ ‘badger[ing]” ’ ” that
effectively wore down defendant’s will to remain silent.
(Henderson, supra, 9 Cal.5th at p. 1022.)
Second, although Patterson should not have contacted
defendant to request an interview, he did not ask further
questions after defendant invoked his right to counsel. Edwards
does not bar further contact with a suspect, only further
interrogation. (See Waidla, supra, 22 Cal.4th at pp. 728–732
[although officer went to jail and met Waidla for express purpose
of interrogating him, Waidla initiated the interrogation when he
repeatedly interrupted the officer with offers of assistance
before the officer had a chance to address and advise him of his
Miranda rights]; Mickey, supra, 54 Cal.3d at p. 652 [rejecting
argument that Edwards requires a suspect to initiate the
meeting at which he initiates the interrogation, where the
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defendant had requested an interview while officers were
transporting him].) Patterson immediately stopped asking
questions when defendant invoked his right to counsel.
Patterson soon stepped out into the hallway where Holmes
directed Patterson “to follow the defendant wherever he went
and just observe him.”
Third, the recorded interview clearly shows that
defendant was engaging Patterson — defendant initiated the
conversation and Patterson only responded. (See Mickey, supra,54 Cal.3d at p. 648 [an initiation occurs when a suspect’s “words
or . . . conduct” can be “ ‘fairly said to represent a desire . . . to
open up a more generalized discussion relating directly or
indirectly to the investigation’ ”].) As noted above, after
defendant requested counsel, Patterson asked no more
questions and there was no discussion for about 20 minutes.
Defendant then asked, “Still here, huh?” Patterson responded,
“Yeah, just, just in case you’re — I can, I can, whatever.”
Defendant then remarked, “Yeah, you seem like you have a kind
face.” Patterson responded, “Um, thank you.” Defendant then
asked, “The last psychiatrist I talked to, made me very angry,
you know.” Patterson responded, “You know who it was?” And
the two discussed briefly whether Patterson knew the
psychiatrists defendant had seen. Defendant then stated,
“Anyway, so two years ago I went through the county mental
health system.” Patterson responded, “Here in Ventura?”
Defendant responded, “Yeah, the east end, thinking that I had
some type of mental disorder.” Patterson responded, “Hum.”
Defendant volunteered, “And I saw a counselor. I saw a
psychologist and eventually I saw a psychiatrist. Took about six
months.” Patterson verified, “To get to the psychiatrist.”
Defendant responded, “Yeah.” After a brief interruption to
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perform a medical procedure, defendant asked Patterson, “You
wanna talk about it?” Patterson responded, “Sure.
(unintelligible) Cause you, you don’t mind, and we could just
talk about what has happened or something.” Defendant
continued the conversation, stating, “So anyway I was talking
about the psychiatrist that I saw.” Defendant turned the
discussion toward his relationship with G.A. and the events
under investigation with the comment: “But I think this
emotional relationship that I’ve been in for the last
year . . . [s]tirred things up.” Soon thereafter defendant
continued to direct the conversation toward the events under
investigation by saying, “[Y]ou know I, about this afternoon, I’m
aware of everything that happened . . . .” And from there, the
conversation ensued, defendant talking about his mental health
history and past diagnoses, Patterson mostly listening and
asking occasional questions. Contrary to defendant’s assertion,
it was not Patterson’s question — “you know who [your last
psychiatrist] was?” — that turned the conversation to the
instant crime and began the discussion about the criminal
investigation. Rather, as the above description makes clear, it
was defendant who turned the discussion toward his
relationship with G.A. and the events under investigation. Over
the course of the next hour, defendant continued to largely direct
the conversation and select the topics. As the trial court
properly found, defendant “picked the topic; he started the
conversation.”
Fourth, and most importantly, the record indicates that
defendant was aware he was providing information that might
be used against him, yet he viewed the tradeoff a worthwhile
one. Upon meeting defendant, Patterson Mirandized defendant
and then asked him, “So, the next thing then in knowing these
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things, are you willing to talk with me about yourself?”
Defendant declined to talk, explaining, “I don’t think so. I’m
facing very serious charges and I think I’d rather talk to a
lawyer first.” He stated further, “That be okay? I think right
now I’m in a state of shock and kind of confused and I don’t know
that the information I’d give you would be that accurate.” Early
on in his discussion with Patterson, defendant said: “I think I’d
be better off talking to you about emotional states than about
actual specific facts” and “I’m sure my lawyer wouldn’t
appreciate it, you know?” Later on in the discussion, defendant
elaborated: “I don’t know why they, why they say don’t say
nothing, because if you did something and people know you did
it, there’s people . . . . [¶] . . . [¶] . . . you know, they saw me,
right. How are you gonna say you didn’t? I mean that, what are
you accomplishing, you know, I think the situ — I think it’s best
to be honest, that way you get to the root of it. [¶] . . . [¶] . . .
after I’d talked to you a little bit I though[t] well, it’s probably
more beneficial to me to give him as much information as I can
while I’m uh — [¶] . . . [¶] . . . I, I’m not under the influence of
any chemicals or drugs yet, they’re gonna sedate me pretty soon.
And it’s fairly close to the time of the incident.” Thus, as the
trial court noted, defendant “discuss[ed] in fact his motivations
to speak at that time before he [became] anesthetized or
sedated, and that was important to him, that the facts be known
at the best possible time and he tells us that in his statement
which would be the time in closest proximity to the time at
which these events occurred.” The dissent posits that defendant
may have doubted whether he was actually free to remain silent
or to consult a lawyer before speaking with Patterson. (Dis.
opn., post, at pp. 11–12.) But we need not speculate about
defendant’s thought-process as to why he chose to speak with
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Patterson: defendant expressly detailed why he chose to speak
to Patterson in the taped recording of the discussion.
Defendant’s statements showed he was making a deliberate
decision to speak with Patterson because he determined that it
was “best to be honest.” Defendant’s statements also show a
clear and deliberate recognition that he wanted to speak before
sedatives impacted his thinking. And, his statement that “I’m
sure my lawyer wouldn’t appreciate” him talking with Patterson
about “specific facts,” coupled with his statement (detailed
below) that “I understand my lawyer’s really going to be
pissed . . . .” demonstrate that he understood he had the right to
remain silent or consult a lawyer before talking to Patterson.
The dissent also contends that the protection of Edwards
is not limited to cases where the suspect was berated or where
law enforcement employed “overt” coercion. (Dis. opn., post, at
pp. 2, 19.) We agree. As the dissent states, the question we
must answer is whether defendant’s decision to speak with
Patterson was in “ ‘ “response to” or “product of” the prior
unlawful interrogation.’ ” (Dis. opn., post, at pp. 9, 20, quoting
Mack, supra, 765 S.E.2d at p. 903; see also Boyer, supra,
48 Cal.3d at pp. 273–274.) Our case law makes clear that the
question of whether law enforcement officials repeatedly
berated or badgered the suspect will naturally be relevant in
determining whether the suspect spoke in response to the
officials’ conduct. (See Davis, supra, 46 Cal.4th at p. 596 [“a
defendant’s decision to talk with police cannot be a product of
police interrogation, ‘badgering,’ or ‘overreaching,’ whether
‘explicit or subtle, deliberate or unintentional’ ”]; see also Boyer,
supra, 48 Cal.3d at pp. 273–274.) As the dissent acknowledges:
“Of course, where a suspect is berated, it is more likely his
initiation was tainted by law enforcement misconduct.” (Dis.
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opn., post, at p. 20.) We again agree. But surely the converse is
also true: where a suspect is not berated, though that fact is not
dispositive, it makes it less likely his initiation was tainted by
law enforcement misconduct.
The dissent also argues that Patterson’s “understated
manner” “presented [defendant] with a deliberate contrast to
the impatient and even angry officers who had sought to
question him earlier.” (Dis. opn., post, at pp. 10–11.) The
dissent argues that this fact is relevant in assessing “ ‘the entire
sequence of events’ that night.” (Id. at p. 10, quoting Mack,
supra, 765 S.E.2d at p. 904.) We disagree. As the dissent
acknowledges, the question we must answer is whether
defendant’s decision to talk was the “ ‘ “product of” the prior
unlawful interrogation.’ ” (Dis. opn., post, at pp. 9, 20, quoting
Mack, supra, 765 S.E.2d at p. 903, italics added; see also Boyer,
supra, 48 Cal.3d at pp. 273–274.) Though the dissent suggests
that Patterson’s “tactics” were “unethical” (dis. opn., post, at
pp. 5–6, 11), it appears to recognize, as it must, that Patterson’s
conduct was lawful. (Illinois v. Perkins (1990) 496 U.S. 292 296–
300.) Patterson’s lawful conduct simply does not answer the
question we must resolve here, i.e., whether defendant spoke to
Patterson because the police had previously acted unlawfully.
And if defendant ultimately decided to talk because of the
efficacy of Patterson’s “understated manner” (dis. opn., post, at
pp. 10–11) and because he determined that he and Patterson
“ ‘share[d] a common interest, that their relationship is a
[mutual] rather than an adversarial one’ ” (id. at p. 5), then
surely defendant did not speak because of the prior unlawful
conduct of police interrogation.
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Finally, the dissent asserts that the majority’s holding
abrogates the “ ‘bright-line rule’ ” in Edwards “that all
questioning must cease after an accused requests counsel.”
(Smith v. Illinois, supra, 469 U.S. at p. 98.) We disagree. “[W]e
have never found that an initial failure to honor a defendant’s
invocation — whether of the [right] to remain silent or the right
to have counsel present — poses a categorical bar to the
admission of any subsequent statement regardless of the
circumstances. Instead, in case after case, we have held that
despite the initial failure to honor a Miranda invocation, a
voluntary confession obtained during a subsequent
interrogation is admissible.” (Krebs, supra, 8 Cal.5th at p. 314,
italics omitted.)
In fact, the majority and dissent do not disagree on the
applicable legal standard. We agree that Edwards establishes
a bright-line rule. We agree that the question we must
ultimately decide is whether defendant’s decision to speak with
Patterson was the “ ‘product of’ the prior unlawful
interrogation.” (Mack, supra, 765 S.E.2d at p. 903.) Where we
disagree is in the application of this standard. The dissent relies
heavily on its interpretation of a single sentence Patterson
uttered in which Patterson reminded defendant that defendant
had previously promised to speak to him and that he would wait
around to see if defendant changed his mind. From this, the
dissent surmises that defendant would have felt that he had to
speak with Patterson or he would be “going back on his word”
and that defendant would have felt that Patterson “was not
satisfied with Johnson’s refusal.” (Dis. opn., post, at pp. 7–8.)
This, coupled with Patterson’s decision to remain present for 20
minutes without a break and without a change in location or
personnel, indicates to the dissent that defendant’s decision to
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talk was the product of prior unlawful conduct.3 (Id. at pp. 9–
14.) But, once again, we need not rely on surmise. We have a
full tape of the interview itself.
Ultimately, the operative question is whether, when
defendant began talking to Patterson at 10:20 p.m., he did so
freely, or he did so because of undue coercion. As the trial court
explained, the record itself — and most notably listening to the
tape of defendant’s and Patterson’s conversation — establishes
that defendant, fully aware that his statements could later be
used against him, chose to speak with Patterson because “if you
did something and people know you did it . . . it’s best to be
honest.” Our review of the audio recording demonstrates
defendant was speaking easily and comfortably and was
3
The dissent also relies on the fact that Patterson spent
about an hour simply observing defendant before introducing
himself and yet defendant did not attempt to engage Patterson
in conversation during this time. (Dis. opn., post, at p. 14.)
However, the record further indicates that Patterson was in
plainclothes with nothing about his appearance that would show
he was associated with law enforcement or the district
attorney’s office. Defendant was on a gurney and, based upon
defendant’s condition, Patterson was waiting for “medically . . .
the proper time for me to talk with him about why I was there.”
Patterson was “not trying to establish eye contact.” Medical
professionals were in and out and Patterson did not identify
himself to them. The fact that defendant did not begin a
dialogue with a silent stranger under these circumstances does
not inform whether he wanted to initiate further communication
with Patterson once Patterson identified himself and stated that
“the DA’s office asked me to come and talk with ya.” Only after
defendant learned that the district attorney’s office sent
Patterson, did defendant eventually decide to speak with him,
explaining that “after I’d talked to you a little bit I though[t]
well, it’s probably more beneficial to me to give him as much
information . . . .”
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generally directing the conversation while Patterson mostly
listened. As the trial court concluded, that defendant “knew
what was going on. He knew what use it would be put to. He
knew with whom he was speaking. He knew what he was
speaking of. He discusses that he is or is not in pain, he
discusses in fact his motivations to speak at that time before he
becomes anesthetized or sedated, and that was important to
him, that the facts be known at the best possible time and he
tells us that in his statement which would be the time in closest
proximity to the time at which these events occurred.” We
therefore need not speculate about why defendant did not speak
to Patterson before Patterson identified himself (dis. opn., post,
at p. 14), or whether defendant felt that he was not free to
remain silent (id. at pp. 11–12), or whether Patterson’s
statements made defendant feel that he would be going back on
his word if he did not speak with Patterson (id. at p. 7), or
whether Patterson’s “understated manner” encouraged
defendant to speak to him (id. at pp. 10–11). We agree with the
trial court’s conclusion that the audio recording of the interview
was “[t]he most powerful and compelling evidence of the
defendant’s understanding, knowledge, appreciation and
willingness to participate in the conversation . . . .” On this
record, considering the entire circumstances of the interview, we
are persuaded that defendant freely initiated the conversation
with Dr. Patterson.
c. Defendant Knowingly and Voluntarily Waived
His Miranda Rights
Apart from whether there was a legally valid initiation,
there remains the question whether defendant voluntarily and
knowingly waived his Miranda rights. We conclude he did.
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As noted above, a suspect initiates “further
communication, when his words or conduct ‘can be “fairly said
to represent a desire” on his part “to open up a more generalized
discussion relating directly or indirectly to the investigation.” ’ ”
(Molano, supra, 7 Cal.5th at p. 656.) “The initiation of further
dialogue by the accused . . . does not in itself justify
reinterrogation” (Sims, supra, 5 Cal.4th at p. 440); “ ‘the burden
remains upon the prosecution to show that subsequent events
indicated a waiver of the Fifth Amendment right to have counsel
present during the interrogation’ ” (ibid.). “The state must
demonstrate that the suspect knowingly and intelligently
waived his right to counsel ‘under the totality of the
circumstances, including the necessary fact that the accused,
not the police, reopened the dialogue with the authorities.’ ”
(Hensley, supra, 59 Cal.4th at p. 810.) “ ‘The waiver must be
“voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception” [citation], and knowing in the sense that it was
“made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1086
(McCurdy).) “ ‘[A]n express waiver is not required where a
defendant’s actions make clear that a waiver is intended.’ ”
(People v. Frederickson (2020) 8 Cal.5th 963, 1010.) Although a
suspect’s responses to further interrogation may not be used to
cast doubt on the clarity of his or her initial request for counsel,
“[s]uch subsequent statements are relevant only to the distinct
question of waiver.” (Smith v. Illinois, supra, 469 U.S. at
p. 100.)
A prior Edwards violation is not by itself dispositive of
whether a suspect knowingly and voluntary waived his or her
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rights. As we have said before, “[W]e cannot conclude that an
Edwards violation, ‘unaccompanied by any actual coercion or
other circumstances calculated to undermine the suspect’s
ability to exercise his free will, so taints the investigatory
process that a subsequent voluntary and informed waiver is
ineffective for some indeterminate period.’ (Oregon v. Elstad
(1985) 470 U.S.[, 298,] p. 309.) Rather, if the statement made
after an Edwards violation is voluntary, ‘the admissibility of any
subsequent statement should turn in these circumstances solely
on whether it is knowingly and voluntarily made.’ ” (Bradford,
supra, 14 Cal.4th at p. 1040.) “Only if the ‘totality of the
circumstances surrounding the interrogation’ reveals both an
uncoerced choice and the requisite level of comprehension may
a court properly conclude that the Miranda rights have been
waived.” (Moran v. Burbine (1986) 475 U.S. 412, 421 (Burbine).)
Thus, our case law makes clear that earlier attempts to
interrogate a defendant after an invocation of rights can violate
Edwards, but a subsequent decision to speak with law
enforcement can still be voluntary. That is the case here.
Regarding the requirement that the waiver be voluntary,
we conclude that for the same reasons discussed in part
II.A.2.b., ante, the record shows that defendant’s initiation was
voluntary and uncoerced by law enforcement’s earlier conduct.
Notably, there is no indication that Patterson “ ‘threatened,
tricked, or cajoled’ ” defendant into a waiver. (People v.
Honeycutt (1977) 20 Cal.3d 150, 160.)
Defendant relies on Neal, supra, 31 Cal.4th 63 to argue he
did not voluntarily waive his Miranda rights when he spoke
with Patterson, asserting that law enforcement authorities
repeatedly disregarded defendant’s efforts to remain silent and
invoke his right to counsel during the three-and-a-half-hour
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time frame, despite defendant’s physical condition and
expressed shock and confusion, and that Young berated
defendant for murdering Aguirre.
In Neal, however, the defendant invoked his right to
counsel nine times, and the officer intentionally violated the
defendant’s Miranda rights, applying an aggressive method of
interrogation that he knew was improper. “[T]he officer . . . not
only continued the questioning improperly but badgered
defendant, accusing him of lying, and informing defendant that
‘this is your one chance’ to help [yourself] and that ‘if you don’t
try and cooperate . . . , the system is going to stick it to you as
hard as they can.’ Despite this badgering, defendant did not
admit his guilt at that session. After the session ended,
however, defendant was placed in custody and kept in jail
overnight without access to counsel or other noncustodial
personnel and without food or drink or toilet facilities. The
following morning, defendant asked to speak to the officer, who
thereafter met with him, resumed questioning, and ultimately
obtained two confessions from him.” (Neal, supra, 31 Cal.4th at
p. 68; see id. at pp. 73–75.) Neal was an 18-year-old high school
dropout with limited intelligence and little experience of the
criminal justice system. (Id. at p. 84.)
Here, defendant not only initiated the conversation with
Patterson, he led it. Patterson asked few questions and
frequently gave only one-word responses, encouraging
defendant to continue speaking. For example, after a brief
interruption during which the surgery resident entered the
room to conduct a medical procedure, defendant started a new
topic, stating, “you know I, about this afternoon, I’m aware of
everything that happened (unintelligible).” After they discussed
defendant’s attendance at AA meetings, defendant switched to
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a new topic, stating, “But this episode with me, just today
(unintelligible).” The overall picture is not of a browbeaten
suspect whose will was overborne by a coercive interrogator, but
of a suspect eager to tell his story to a sympathetic listener, even
though there might be consequences for doing so. Near the end
of their conversation, defendant urged Patterson to “write [his]
report as quickly as possible” and remarked, “[Y]ou had a kind
face. . . . I think that’s [an] asset in your business.” Thus, the
discussion between Patterson and defendant paints a different
picture than in Neal. Of significance here and in contrast to
Neal, the record before us (including defendant’s statement that
his lawyer was “really going to be pissed”) suggests that the
actions of law enforcement personnel did not cause defendant to
misunderstand the nature of his rights such to undermine the
validity of his waiver. (Edwards, supra, 451 U.S. at p. 485.)
Regarding the requirement that the waiver be knowing
and intelligent, the record establishes that defendant made a
conscious choice to talk to Dr. Patterson despite knowing he was
entitled to counsel and also knowing that, by talking to
Patterson, he was acting against his legal interest. First,
defendant had been read his full Miranda rights by Detective
Young at the start of the evening and had invoked those rights
by refusing to talk to the police and the district attorney and
asking for an attorney. Second, Patterson clearly informed
defendant at the start of the encounter that his statements could
be used against him. Defendant asserted his Miranda rights to
Patterson, as he had earlier in the evening, which showed his
understanding that he had the right to assert his rights to
Patterson. Defendant clearly understood that his statements
could be used against him, telling Patterson that he was “facing
very serious charges and I think I’d rather talk to a lawyer first.”
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Patterson agreed, stating, “that’s your decision” and “it’s up to
you, you can still refuse it . . . .” Third, Patterson testified at the
hearing on the Miranda motion that defendant appeared alert
and cognizant during the interview, and his participation in the
interview was unimpaired by his physical condition. Fourth,
and most critically, defendant’s own contemporaneous
statements demonstrated a knowing waiver by defendant of his
Miranda rights. Early on in his discussion with Patterson,
defendant said: “I think I’d be better off talking to you about
emotional states than about actual specific facts” and “I’m sure
my lawyer wouldn’t appreciate it, you know?” (see p. 31, ante.)
Toward, the end of the discussion with Patterson, defendant
again reiterated this understanding, stating:
“DEFENDANT: I started out by just not wanting to tell
you exactly what happened —
“PATTERSON: Yeah.
“DEFENDANT: — but it ended up that way.
“PATTERSON: Well, we went sort of round and round —
“DEFENDANT: At this point I don’t have anything to
lose by being honest and saying what happened.
“PATTERSON: Yeah.
“DEFENDANT: And I understand my lawyer’s really
going to be pissed and so forth.
“PATTERSON: Um-hum.
“DEFENDANT: So then (unintelligible).
“PATTERSON: You can certainly talk, and he’ll get what
we’re talking about.
“DEFENDANT: I’m sure he will, yeah.
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“PATTERSON: And uh —
“DEFENDANT: And I don’t know why they, why they say
don’t say nothing, because if you did something and people
know you did it, there’s people (unintelligible) —
“PATTERSON: They saw you.
“DEFENDANT: — you know, they saw me, right. How
are you gonna say you didn’t? I mean that, what are you
accomplishing, you know, I think the situ- I think it’s best
to be honest, that way you get to the root of it.”
These responses demonstrated defendant’s awareness of
his rights to silence and counsel and that his statements would
be used against him and his conscious choice to speak to
Patterson anyway. Specifically, defendant’s comment that his
attorney would be angry “demonstrated his awareness of the
consequences of talking with Dr. Patterson,” as the Attorney
General argues, and that defendant’s agreement with
Patterson’s statement that defendant’s attorney would “get
what we’re talking about” demonstrated that defendant “was
aware of his right to speak without counsel and that the
statements would be used against him, yet he voluntarily chose
to do so anyway.” Defendant’s statement that “I understand my
lawyer’s really going to be pissed and so forth” demonstrates an
understanding that he would have a lawyer in the future and is
a direct acknowledgment by defendant that what he was doing
contradicted what that future lawyer would advise him to do.
Defendant’s statement that he “started out . . . not wanting to
tell [Patterson] exactly what happened” but concluding, “[a]t
this point [he did not] have anything to lose by being honest and
saying what happened” further illustrates his awareness that
he did not have to speak and that he was waiving this right, as
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did his comment, “I don’t know why they . . . say don’t say
nothing, because if you did something and people know you did
it.”
Defendant even knew Patterson would prepare a report at
the conclusion of the interview: When Patterson said he was
going to leave defendant to rest before surgery, defendant
replied, “Yeah, it’s probably better if you write your report as
quickly as possible . . . .” Thus, he acknowledged that Patterson
would be writing a report on what had been said, but he spoke
with Patterson anyway. As the trial court observed, defendant’s
statements make it clear defendant understood he could have a
lawyer and that his statements could be used against him in
legal proceedings.
Relying upon Bradshaw, supra, 462 U.S. 1039 and
Waidla, supra, 22 Cal.4th 690, defendant argues that an
additional round of Miranda warnings were necessary here
after any initiation in order to ensure that his statement to
Patterson was voluntary. While initiation and waiver are
indeed separate inquires that should not be “meld[ed]” together
(Bradshaw, at p. 1045), these cases do not require a new
Miranda advisement after a suspect initiates dialogue. As the
trial court acknowledged, an express Miranda waiver would
certainly make this an easier case. However, it is well settled
that a suspect initiates “further communication, when his words
or conduct ‘can be “fairly said to represent a desire” on his part
“to open up a more generalized discussion relating directly or
indirectly to the investigation.” ’ ” (Molano, supra, 7 Cal.5th at
p. 656.) “ ‘In the event he does in fact “initiate” ’ such further
communication, exchanges, or conversations, ‘the police may
commence interrogation if he validly waives his [Miranda]
rights.’ ” (Waidla, at pp. 727–728; see also Bradshaw, at p. 1044
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[“if a conversation taking place after the accused has ‘expressed
his desire to deal with the police only through counsel,’ is
initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent
events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation”].) For the reasons
stated above, the waiver here was valid.
Nonetheless, we acknowledge that certain aspects of the
interaction between Patterson and defendant make this
question close. First, defendant never expressly revoked his
invocations. Instead, the waiver here was more subtle: When
defendant asked Patterson if he wanted to talk, Patterson
responded, “[I]f you don’t mind and we could just talk about
what has happened or something,” and then a conversation
ensued. Defendant later explained that he had not wanted to
discuss what had happened that day but that “it ended up that
way” and that “at this point,” which was after he had confessed,
he had nothing to lose. As the trial court explained, “The only
thing lacking — and I think [defense counsel] argued this point
and I think well argued it — was if Dr. Patterson had stopped
and stated the Miranda, we probably wouldn’t be having this
conversation.”
Second, defendant’s medical condition — he had been
shot, he was in pain, and had been given a “pretty heavy dose”
of perhaps “local anesthesia” prior to his confession — raises
concern about whether he would have been alert and cognizant
during his encounters with Patterson.
Third, there is the possibility that law enforcement’s prior
violations of defendant’s right to counsel may have put pressure
on defendant and made him feel like he had to talk to law
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enforcement or Patterson despite his prior invocations of his
right to silence and to counsel.
Last, there is the possibility that defendant was unclear
as to whether Dr. Patterson was there to interrogate defendant
or treat him. Defendant may not have fully appreciated this
distinction. Defendant spoke to Patterson only after expressing
potential willingness to Haas to speak with a psychiatrist in the
context of a discussion in which defendant had described his
earlier efforts to see mental health specialists. In talking with
Patterson, defendant seemed interested in getting answers
about his schizophrenia. He explained his efforts to get
treatment and described his delusions and what seemed to
worsen them. He told Patterson, “I think you, you probably deal
with emotional states rather than facts anyway, but
(unintelligible) if you’re giving some type of a diagnosis.”
Nonetheless, despite these countervailing concerns, the
record overall establishes that defendant made a conscious
choice to talk to Patterson despite knowing he was entitled to
counsel and also knowing that, by talking to Patterson, he was
acting against his legal interest. Defendant had been read his
full Miranda rights by Detective Young at the start of the
evening and Patterson had clearly informed defendant at the
start of the encounter that his statements could be used against
him. Defendant asserted his Miranda rights to Patterson, as he
had earlier in the evening, which showed his understanding that
he had the right to assert his rights to Patterson. Most crucially,
we have the unique benefit of being able to listen to the audio of
the interview, which corroborates Patterson’s testimony that
defendant appeared alert and unconfused, and convinces us, as
it did the trial court, of “defendant’s understanding, knowledge,
appreciation and willingness to participate in the
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conversation . . . .” (See Burbine, supra, 475 U.S. at pp. 422–
423 [“Once it is determined that a suspect’s decision not to rely
on his rights was uncoerced, that he at all times knew he could
stand mute and request a lawyer, and that he was aware of the
State’s intention to use his statements to secure a conviction,
the analysis is complete and the waiver is valid as a matter of
law”]; accord, People v. Mattson (1990) 50 Cal.3d 826, 867.) We
agree with the trial court’s conclusion, described above, that
defendant “knew what was going on. He knew what use it would
be put to. He knew with whom he was speaking. He knew what
he was speaking of.” We further agree the conversation was
“un[e]xcited, unforced and voluntary . . . .” In sum, our review
of the audio recording reveals a defendant who is speaking
freely, easily, and comfortably and not as the result of
“ ‘ “intimidation, coercion, or deception . . . .” ’ ” (McCurdy,
supra, 59 Cal.4th at p. 1086.)
Accordingly, we affirm the denial of the suppression
motion. Defendant’s ultimate decision to speak with Patterson
was not the product of the earlier efforts to question him but of
his own free will and intelligent choice, knowing he was entitled
to, and had the option to wait for, an attorney. Only because of
an unusual record affording insight into defendant’s thinking
can we conclude defendant’s willingness to talk was
uninfluenced by the earlier Miranda violations. To be clear, we
do not hold that, after invocation, law enforcement can return
shortly thereafter and request to interrogate the suspect. That
violates Edwards’s bright line rule. Similarly, we do not hold
that law enforcement has carte blanche permission to remain
present after an invocation in the hope of inducing a suspect to
talk. Depending on the facts, such conduct could make a
subsequent initiation and waiver involuntary. For example, we
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could imagine a case where the subsequent statements by law
enforcement to the suspect are more directive (e.g. “we’ll just
stay here or follow you around until you change your mind”),
where the duration of the officer’s presence is longer, where the
manner in which the officer stays is more menacing or
intimidating, or where the defendant’s ultimate decision to talk
seems coerced based upon the defendant’s responses. But that
is not this case. Every Miranda inquiry is highly fact specific,
and here we have unique facts. Here, Patterson explained after
defendant invoked that “it’s up to you” and did not ask further
questions; Patterson was present with defendant for only a
limited time period before defendant started the conversation
with Patterson; defendant, and not Patterson, started the
conversation at issue; the recorded interview clearly shows that
defendant was calm and was engaging Patterson, with
defendant largely directing the conversation and selecting the
topics; the record indicates that defendant was aware he was
providing information that might be used against him, yet he
viewed the trade-off as worthwhile; and the trial court’s
numerous factual findings are supported by an audio recording
that we can listen to and assess for ourselves. On this unique
record, we affirm.4
4
The dissent expresses concern that this holding will
encourage law enforcement to “ ‘simply disregard the suspect’s
requests for counsel’ ” and continue to interrogate the suspect
with shifting and ever subtler tactics. (Dis. opn., post, at p. 21,
quoting People v. Storm (2002) 28 Cal.4th 1007, 1046 (dis. opn.
of Chin, J.).) We disagree. First, it is worth noting that we here
hold that the trial court properly excluded portions of
defendant’s prior interviews conducted by Haas and Young.
Moreover, we acknowledge above that this is a close case and,
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B. Exclusion of Portions of Patterson’s Interview
of Defendant
After the trial court denied defendant’s suppression
motion, the parties litigated what portions of the Patterson
interview were admissible, with defendant arguing for
admission of the entire interview but the court generally ruling
with the prosecution in admitting only limited portions.
Defendant challenges the trial court’s ruling, contending that
excluding a majority of the interview violated Evidence Code
section 356 and his federal constitutional right to due process.
The Attorney General argues the excluded portions were
irrelevant to the question of defendant’s mental state and that
regardless, any error was harmless. We conclude the trial court
acted within its discretion in redacting the statements as it did.
1. Version of Interview Presented to Jury
The redacted interview submitted to the jury described in
the statement of facts ante is recounted in more detail here. In
the redacted interview, defendant explained that he would
become overwhelmed by “intense emotions” and that he had
recently been in a monthlong “very intense emotional
relationship” with G.A. that had “[s]tirred things up.” He
on different facts, suppression of defendant’s statements to
Patterson could have been required. This fact alone, involving
the possibility — litigated over several decades — of
suppressing statements used at the trial of a defendant
convicted of the senseless murder of a law enforcement officer,
serves as a stark warning. No one should take from this opinion
the lesson that violations of constitutional rights carry no
consequences. Every violation jeopardizes the ability to place
before a jury anything a suspect might say, and jeopardizes any
conviction that might be obtained if matters that should have
been excluded are erroneously admitted.
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explained he had married G.A. some years before as a favor so
she could obtain a green card and that they had had no contact
nor began dating until recently. The week before the shooting,
he had accused G.A. of cheating on him and she had denied it.
He explained to Patterson that he had become intensely jealous
of G.A. and determined to never be physically separated from
her again. He then confessed to kidnapping G.A. at gunpoint.
The portion submitted to the jury also included Patterson
and defendant’s discussion of the events surrounding the
shooting of Aguirre. Defendant recalled observing the police
pull G.A. out of the house and realizing then that her family
must have called the police. He saw Aguirre enter the residence
and heard Aguirre tell him to put his hands up. Defendant
explained that he “was kinda looking out” from behind a wall
and “just jumped out and shot [Aguirre],” explaining that that
was how he “reacted” to the situation.
The submitted portions of the interview also included
some explanation of defendant’s experience of the events that
day. He told Patterson that on the day of the shooting, he felt
as if he “was in a movie.” He recounted earlier conversations
with G.A. in which she had urged him to write a movie because
defendant had “done some writing” in school. That afternoon
when they were driving in the car after leaving G.A.’s employer’s
residence, G.A. had reminded defendant about writing a movie
and he had explained to her that he was writing the movie at
that moment and that they were in the movie “acting it out.” He
told Patterson, “[W]hen you have guns, then that’s how you
write a movie . . . ” and that he kept telling G.A., “[Y]ou’re in [the
movie] right now, isn’t it exciting?” But he explained to
Patterson that he was “aware of everything that happened” and
“know what I did . . . .” He explained that he was “getting what
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[he] wanted” and that the “movie was going the way [he] wanted
it to.” He explained that his actions against the police that day
had been a “passive suicide attempt.”
2. Portions of Interview not Presented to Jury
In the portions of the interview excluded from the jury,
defendant and Patterson discussed defendant’s experiences
with paranoid delusions, efforts to seek mental health
treatment, self-diagnosis of schizophrenia, recognition that
close emotional relationships would intensify his delusions, and
description of prior criminal activity and incarceration as it
related to his delusions. Defendant stated, “I think you, you
probably deal with emotional states rather than facts anyway,
but (unintelligible) if you’re giving some type of a diagnosis.”
Defendant told Patterson he had paranoid delusions. He
explained that about two years before Patterson’s interview of
defendant, defendant had contacted the county mental health
department because he thought he had a mental disorder. He
saw psychologist Lisa Kus (who testified in defendant’s penalty
defense) at the county’s mental health department, and she
diagnosed him with organic delusional disorder. Kus referred
defendant to a psychiatrist who prescribed Haldol. Defendant
stopped taking the medication after three days because it caused
“a lot of hallucinations” that were “real frightening.” Patterson
told defendant that sometimes Haldol worsens hallucinations.
When defendant went back to the county’s mental health
department, he was seen by another psychiatrist who did not
schedule defendant for another appointment because he did not
think defendant “was going to be a mental health patient.”
Defendant told Patterson he also attended “12-step
meetings and recovery programs” for drug addiction and
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alcoholism and enrolled in a drug and alcohol counselor’s
certificate program at Oxnard Community College. He told
Patterson about his job working as a resident manager at the
facility for residents with dual diagnosis of mental disorder and
chemical dependency. Through information gained in these
experiences, defendant determined he had schizophrenia.
Defendant provided some descriptions of his delusions. He
explained that when he saw Kus, he had been living with his
parents and had formed the belief they were “Nazi
agents . . . trying to reprogram [defendant] through chemicals”
by poisoning his food. Defendant said he had a “paranoid
episode” for three months after that. Defendant responded
affirmatively to Patterson’s question whether defendant still
believed his father was poisoning his food.
He described experiencing an “intense” paranoid delusion
about three to six months before the interview with Patterson,
in which defendant formed the belief that his father had
molested defendant’s son when his son was approximately 7
years old. Defendant felt “intense” anger and avoided his father,
thinking he would have to kill him, until he realized he was
having a delusion.
Regarding defendant’s accusation to G.A. a few days
before the shooting, that she was cheating on him, defendant
told Patterson that G.A. responded, “You’re sick, Mike, you’re
sick in the head, you need treatment, you should go [see] the
doctor.”
Defendant explained he had “another violent episode”
about 10 years earlier, in which he committed armed robbery of
a McDonald’s restaurant while he was under the influence of
drugs. Patterson asked if the armed robbery was “a fall off with
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the paranoid delusional thing.” Defendant responded, “Well you
know the armed robbery thing was, and I, this is all in my files
over at Hillmont, but I had the delusion — I sorta had that
delusion today too, but uh, I was doing a religious thing. It was
a religious battle. (unintelligible). Ever heard of Krishna? The
Indian God, Krishna?” Defendant explained he was Hindu and
robbed the McDonald’s restaurant because, “I thought they were
the demons of this world selling billions and billions of
hamburgers. I wanted to harm them, so I was gonna rob
’em. . . . I wanted to scare all the people in the restaurant.”
Patterson and defendant discussed his incarceration
following the robbery. Defendant told Patterson that when he
was pending release from incarceration, he told a staff
psychiatrist that he thought he would be harmful to himself and
society and should not be released. Defendant told prison staff
that he was continuing to have “delusions with Krishna.”
Defendant explained that he was not feeling “remorse
now” and this was “normal” for him when he was “emotionally
excited, to shut down.” He described feeling like “there’s no
emotion” but also that there was “too much emotion. You don’t
realize you have emotions, then you feel that controls your
actions.”
In addition to explaining to Patterson, in the portion
submitted to the jury, that the intense emotions defendant
experienced were overwhelming, defendant had also explained
in the excluded portions of the interview that close emotional
relationships “amplified the delusional thinking.” He explained
that the paranoid episodes were “triggered by, by uh, people
that . . . are real close . . . .” Defendant avoided seeing his son,
at the time age 22, because it would be a “pretty emotional”
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experience, and emotions would “amplif[y] the delusional
thinking, you know.” He experienced his emotions as
“disorienting and confusing and . . . uncomfortable.”
In response to Patterson’s question about whether
defendant’s delusions had “entirely disappear[ed],” defendant
explained that he still had “paranoid . . . episodes.” The
episodes would “come[] and go[].”
3. Procedural and Legal Background
The prosecution sought to admit portions of defendant’s
statements “to explain the defendant’s actions” on the day of the
shooting and argued that the remaining portions concerned
evidence of defendant’s criminal, family, educational, and
mental health history that was irrelevant “to what the
defendant was thinking or doing on the day in question and do
not shed any light on the issues in the case.” The prosecution
specifically objected on hearsay grounds to defendant’s
comments relaying statements made by his previous treating
clinicians.
The defense contended that admission of the entire
interview was necessary under his federal constitutional due
process and confrontation rights because it was defendant’s
explanation of why the shooting occurred. The defense argued
that defendant’s statements in the interview — his descriptions
of his symptoms and earlier episodes of delusions, recounting of
diagnosis by former mental health clinicians, and explanation
that his paranoid delusions were amplified by intense emotional
relationships and had resulted in earlier criminal activity —
were in response to Patterson’s questions and an explanation
that his paranoid delusions were present in the days leading to,
and had resulted in, the shooting and thus were evidence of his
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mental state. Defendant also argued that the remaining
portions of the interview were connected to the portions offered
by the prosecution to show defendant’s thoughts and actions
that day, including the admitted portion in which defendant
stated that he “just reacted” to the situation, and that the
statements added corroboration and credibility to the admitted
statements. The defense argued that exclusion of the
statements, and in particular the detailed parsing of the
statements, would create a misleading impression that
defendant confessed to shooting Aguirre absent any mental
illness and that the admitted portions were all that defendant
had told Patterson, a psychiatrist, about why he shot Aguirre.
In sum, the defense argued that excluding all references to
defendant’s mental illness would create a misleading impression
of defendant’s state of mind and deprive the jury of a complete
evaluation of defendant’s explanation of his mental state.
The prosecution objected to admission of the entire
statement as containing multiple layers of hearsay and that the
defense was not calling a mental state expert in the guilt phase
or declaring an intent to present a defense based on a mental
disease.
The trial court denied the defense motion to include the
entire interview, admitting the portions requested by the
prosecution, some additional passages the court determined to
admit, and two specific portions requested by the defense in
response to the court’s ruling. Specifically, on its own, the court
admitted portions of the discussion between Patterson and
defendant in which defendant described feeling “these intense
emotions that were kind of overwhelming,” that his relationship
with G.A. had “[s]tirred things up,” that defendant had felt like
he was “in a movie” that day but that he was “aware of
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everything that happened,” and that his conduct that day was
his “reaction to the situation” and had possibly been a “passive
suicide attempt,” and that defendant was “getting what [he]
wanted, the movie was going the way [he] wanted it to.” In
response to defense requests, the court admitted portions in
which defendant said he had accused G.A. of cheating on him
the week before, which she denied, but it declined to admit the
additional portion in which G.A. further told defendant, “You’re
sick, Mike, you’re sick in the head, you need treatment, go to the
doctor.”
The court reasoned that the portions it was admitting
were relevant to the prosecution’s offer to show defendant’s
“state of mind” and actions that day but that defendant’s
“subjective evaluation of his own psychological state as it
reflects back upon what he thought he was doing in the context
of the psychoanalysis and other treatment he had received
throughout, other therapists” (sic) was inadmissible. The court
ruled that the defense could otherwise contest the state’s case
on state of mind, malice, and premeditation such as through
expert testimony, but could not present expert opinion through
defendant’s statements. The defense could also inquire into the
circumstances of the interview, such as defendant’s condition
and the representations made by Patterson. In response to the
court’s ruling, the defense reiterated its contention that
admission of the entire interview was required and argued that
nonetheless, the inclusion of 15 additional lines from the
interview was at least admissible under the trial court’s own
theory of admissibility. As noted above, the trial court admitted
some of the requested lines.
During its opening statement, the prosecution quoted
from defendant’s statements to Patterson that he felt like he
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was in a movie on the day of the shooting. The prosecution
stated this “wasn’t a hallucination” and quoted defendant’s
further comments from the interview in which defendant stated
that he had told G.A. that he was writing a movie. The defense
renewed its motion under Evidence Code section 356 to have the
entire audiotape played during cross-examination, arguing in
response to the prosecution’s comment that defendant had not
been hallucinating, that the excised portions of the interview
supported the defense theory that defendant was experiencing
delusions that day, noting specifically that defendant had
explained that he had earlier had a delusion that he was in a
Hindu religious battle and that he had told Patterson that he
“ ‘sort of had that delusion today too.’ ” The trial court denied
the motion, explaining:
“It is one thing for a person to express subjectively, ‘This
is my state of mind at the time,’ that is, this is what I know, this
is what I said, this is what I did, which is what the present offer
is, what is before the jury. It’s a wholly different thing for them
to have him engage in psychoanalytic theory on why he did what
he did.
“And, in substance, what the defense would have the
Court do is have Mr. Johnson become his own expert. Not on
his state of mind at the time, which is — you know, one is
allowed to give one’s impressions about one’s own physical
condition under oath. But this is really ramblings of someone
about former events, former states of mind, former matters
which are wholly outside of, in my estimation, what is before the
Court.
“Now, let me be clear. I think this has all really been
rather thoroughly explored. I am comfortable with the idea and
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the reason I allowed his expression of his then existing state of
mind in because I think you have a right to argue whether a
person who sees himself in a movie is a person who has actually
formed malice. I think ultimately I’m going to hear that
argument from you.
“And inasmuch as he was recounting the events and his
then existing state of mind, that is all that is before the jury.
However, to then allow a foray into Mr. Johnson’s subjective
psychoanalytic theory concerning what moves him in times past
and how that may have some nexus with times present is not
356. It’s just — it’s not part of the same package. It’s a wholly
different issue.
“As to his cognitive functions at the time, you know, the
evidence will be whatever the evidence is. And Dr. Patterson’s
examination at this point has been markedly circumspect. It’s
been: I was there, there was the person, this is what he said.
And it was redacted to confine itself to the very narrow issues
before the Court.
“I could go on and give you some self-serving comments
about how I’m comfortable with this ruling, but I’m more
comfortable than I was before with it. I think it’s a very clear,
almost bright line distinction between his evaluative thinking
reflectively and his declarative thinking about what in fact
occurred.
“So, the objection — the motion to offer the greater portion
of evidence is denied, and the Court stands on its earlier ruling.”
Evidence Code section 356 provides that “[w]here part of
an act, declaration, conversation, or writing is given in evidence
by one party, the whole on the same subject may be inquired
into by an adverse party; when a letter is read, the answer may
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be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it
understood may also be given in evidence .” “ ‘ “The purpose of
this section is to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a
misleading impression on the subjects addressed.” ’ ” (People v.
Hardy (2018) 5 Cal.5th 56, 104.) “ ‘ “ ‘[T]he courts do not draw
narrow lines around the exact subject of inquiry. “In the event
a statement admitted in evidence constitutes part of a
conversation or correspondence, the opponent is entitled to have
placed in evidence all that was said or written by or to the
declarant in the course of such conversation or correspondence,
provided the other statements have some bearing upon, or
connection with, the admission or declaration in
evidence. . . .” ’ ” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 600
(Clark).) This includes admission of portions “of the same
interview or conversation, even if they are self-serving” so long
as they “ ‘have some bearing upon, or connection with, the
admission . . . in evidence.’ ” (People v. Arias (1996) 13 Cal.4th
92, 156.) “Evidence Code section 356 ‘ “is founded on the
equitable notion that a party who elects to introduce a part of a
conversation is precluded from objecting on confrontation clause
grounds to introduction by the opposing party of other parts of
the conversation which are necessary to make the entirety of the
conversation understood.” ’ ” (People v. Melendez (2016)
2 Cal.5th 1, 26.) “The section permits introduction only of
statements ‘on the same subject’ or which are necessary for
understanding of the statements already introduced. The ‘other
conversation’ referred to in Evidence Code section 356 must
have some bearing upon, or connection with, the admission or
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declaration in evidence.” (People v. Breaux (1991) 1 Cal.4th 281,
302.) Evidence Code section 356 “applies only to statements
that have some bearing upon, or connection with, the portion of
the conversation originally introduced. [Citation.] Statements
pertaining to other matters may be excluded.” (People v.
Samuels (2005) 36 Cal.4th 96, 130; accord, People v. Chism
(2014) 58 Cal.4th 1266, 1324.) “Section 356 is indisputably
‘ “subject to the qualification that the court may exclude those
portions of the conversation not relevant to the items thereof
which have been introduced.” ’ [Citations.] ‘The rule is not
applied mechanically to permit the whole of a transaction to
come in without regard to its competency or relevancy . . . .’
(Witkin, Cal. Evidence (2d ed. 1966) § 320, p. 283.)” (People v.
Williams (1975) 13 Cal.3d 559, 565.)
Further, under section 352, “a trial court has broad
discretion to exclude evidence it deems irrelevant, cumulative,
or unduly prejudicial or time-consuming.” (People v. Pride
(1992) 3 Cal.4th 195, 235; see People v. Zapien (1993) 4 Cal.4th
929, 960 [affirming trial court’s ruling to admit portions of
earlier testimony sought by the prosecution for context under
Evid. Code § 356 where the court also considered and rejected
the defense’s challenge to admission of the statement under §
352].)
A trial court’s ruling under Evidence Code section 356 is
reviewed for abuse of discretion. (People v. Farley (2009)
46 Cal.4th 1053, 1103.) “ ‘ “[T]he scope of discretion always
resides in the particular law being applied, i.e., in the ‘legal
principles governing the subject of [the] action . . . .’ Action that
transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an ‘abuse’
of discretion.” ’ ” (Williams v. Superior Court (2017) 3 Cal.5th
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531, 540.) “To establish an abuse of discretion, defendants must
demonstrate that the trial court’s decision was so erroneous that
it ‘falls outside the bounds of reason.’ [Citations.] A merely
debatable ruling cannot be deemed an abuse of discretion.
[Citations.] An abuse of discretion will be ‘established by “a
showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 390 .)
4. Analysis
Defendant contends on appeal that the trial court erred in
excluding a majority of his statement to Patterson because the
redacted statement gave the jury an incomplete, prejudicial
view of his mental state on the day of the crime as well as during
the interview with Patterson.
In the interview, defendant had explained his belief that
he had been plagued by paranoid delusions throughout his life
and that they had resulted in criminal activity similar to the
events that day. He explained that his perceptions of reality
would be incorrect due to his mental illness. Defendant
observed that his delusions were worsened by close
relationships, such as his parents and his son, and had
previously resulted in homicidal thoughts. He explained that
as the delusions were happening, he would believe they were
real, such as that his parents were Nazi agents trying to poison
his food or that his father had molested defendant’s son.
Defendant argues these explanations were part of his
explanation in the admitted portions about becoming
overwhelmed with feelings for G.A.; he highlights that he had
told Patterson that his intense feelings for G.A. had amplified
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his delusional thinking. Defendant had told Patterson that he
had considered going to see a psychiatrist a week before the
shooting because when he accused G.A. of cheating on him, she
had said he was mentally ill and needed to see a doctor. Thus,
defendant argues, his complete statement gave meaning to his
behavior and mental state at the time of the kidnapping, sexual
assault, and murder. He argues exclusion of the statements
was prejudicial because it created a misleading impression that
he shot Deputy Aguirre absent any mental illness and because
it allowed the prosecution to argue defendant committed cold-
blooded first degree special-circumstances murder by urging the
jury to “listen to that tape to hear the cold and to hear the ice”
in defendant’ statements without the benefit of hearing the rest
of the interview, which he argues would have given the jury
context to evaluate the prosecution’s characterization of
defendant’s demeanor and intent.
We conclude the trial court acted within its discretion to
redact the statements as it did. First, the court admitted
defendant’s statements that described his mental state on the
day of the shooting. Defendant described that he “felt these
intense emotions that were kinda overwhelming.” He described
that “what happened this afternoon was like I was in a movie.”
He described, “it was going on and I was living life and that was
a movie.” The court reasonably decided that defendant’s self-
diagnosis regarding prior events was unrelated to the current
events and his description of what he was experiencing that day.
The trial court chose to distinguish between statements
reflecting past unrelated events versus the events on the day of
the shooting and defendant’s analytic statements as to his mind
versus declarative statements of what he was experiencing.
Thus, it excluded the portions of the interview that covered
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defendant’s criminal, educational, psychiatric, and family
history. As the Attorney General argues, these portions were
irrelevant to what defendant was thinking on the day of the
shooting. Second, the trial court informed the defense that the
whole interview was not admissible and that the defense needed
to be more specific about which parts it sought to admit, and
then it considered further the specific portions the defense
identified as admissible. The court explained that because the
defense had sought to admit the entire interview, “I had to do it
essentially on my own, I felt. I felt somewhat at sea on that. [¶]
I’ve made the ruling. Are there things specifically you feel
should come in that I’m not allowing in? Having said, ‘I want it
all,’ can you be more precise?” The record shows the trial court
acted carefully in seeking to narrowly admit the portions related
to the portions sought by the prosecution. Third, the trial court
informed the defense that it could present an expert to testify
about defendant’s mental condition on the day of the shooting.
Counsel apparently chose not to do so. The record shows that
the trial court carefully reviewed the interview transcript and
discussed its reasoning with the parties and provided the
defense an additional opportunity to argue for the inclusion of
specific statements, before it reasonably concluded it had
included all statements that related to defendant’s statement of
mind on the day of the shooting. The trial court’s decision to
include statements that related to the defendant’s mental state
on the day of the shooting but to exclude statements regarding
his mental state prior to the shooting (in some cases ten years
or more prior to the shooting) was not an abuse of discretion.
Because the court acted within its discretion under
Evidence Code section 356 in excluding portions of the
statements, defendant’s related claim that the trial court
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violated his due process rights by excluding relevant evidence
also fails. “ ‘As a general matter, the ordinary rules of evidence
do not impermissibly infringe on the accused’s right to present
a defense. Courts retain, moreover, a traditional and intrinsic
power to exercise discretion to control the admission of evidence
in the interests of orderly procedure and the avoidance of
prejudice.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 683; accord,
People v. Frye (1998) 18 Cal.4th 894, 948.) While the court
excluded the portions of the interview it found unrelated to
defendant’s statements about the events on the day of the
shooting, it informed the defense it could otherwise contest the
state’s case on state of mind, malice, and premeditation such as
through presentation of expert testimony. Thus, the defense
was not precluded from presenting a defense about his state of
mind.
C. Admission of Defendant’s Prior Serious Felony
Convictions as Evidence of Motive
Defendant contends the trial court’s admission in the guilt
phase of evidence of his prior crimes to demonstrate his “Three
Strikes” status as proof of motive violated Evidence Code
sections 1101 and 352, depriving him of his rights to a fair trial
and due process of law, and rendering the penalty determination
unreliable in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. He
also raises related prosecutorial misconduct and abuse of
discretion claims. Without resolving the substantive claims, we
conclude any error was harmless. 5
5
As he argued below, defendant also argues that the other
crimes evidence was inadmissible to show intent, as distinct
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1. Factual and Legal Background
To support its theory of premeditated murder, the
prosecution moved to admit evidence that defendant had
suffered two prior convictions in 1987 that qualified as serious
felonies, and that he had signed a parole form in 1991 stating
that possession of a firearm would constitute a felony. (Evid.
Code, § 1101, subd. (b).) The prosecutor reasoned that if
defendant knew he faced a 25-year-to-life sentence for
possessing firearms, then his awareness of his status supported
an inference that he quickly shot Deputy Aguirre and attempted
to kill Deputy Fryhoff to avoid arrest and a potential life
sentence.
The defense argued that such inference was speculative
because there was no evidence defendant understood and was
motivated by the possibility that he faced a Three Strikes
sentence. Defense counsel further argued that defendant may
not have understood that his concurrent convictions in 1987
were separate strikes since he had committed the offenses “on
the same occasion.”
Acknowledging that defendant’s knowledge of his status
was “to some degree speculative,” the trial court nonetheless
from motive, because his prior offenses were insufficiently
similar to his current charges to support an inference that he
was acting with the same intent in the current charges as he
was in the previous offenses. However, the prosecution did not
argue that defendant killed Deputy Aguirre because he was
motivated by the same intent he harbored when he committed
the past offenses. The prosecution only used the prior offenses
to argue motive, i.e., defendant killed Aguirre to escape a life
sentence because the existence of his prior convictions exposed
him to a potential life sentence, and the jury was accordingly
instructed only on this theory.
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granted the prosecution’s motion to admit the evidence of
defendant’s prior offenses and the parole advisement,
concluding defendant’s criminal history was “significant
circumstantial evidence” of motive, the absence of which would
“misrepresent the picture of the facts” and render the killing of
Deputy Aguirre apparently senseless. The court explained, “the
point is that in the space of but moments, the defendant, it is
alleged, shot and killed a police officer with premeditation and
deliberation. [¶] Operating in a vacuum, it is arguable that
makes little, if any, sense. The district attorney’s correct. The
Court is also mindful that if it admits evidence concerning the
defendant’s criminal history, it’s terribly prejudicial. [¶] The
role — the status of the defendant as a person who just happens
to be taking a shower when police arrive and sees them, arms
himself and shoots and kills a police officer — on its face makes
little, if any, sense in and of itself. [¶] There is a total package
here that the jury is entitled to consider. The Court has to weigh
how you put that together, understanding that the People’s
theory is this is a motive-driven killing, if I understand [the
prosecutor’s] position. [¶] The Court therefore is of the opinion
that to deny the People the opportunity to show something about
the defendant’s history would be to disable the People from
arguing significant circumstantial evidence that runs to motive,
which would otherwise be completely absent, and that would be
a mis[re]presentation of the picture of the facts as they existed
at the time. [¶] The Court therefore is of the opinion that the
People will be permitted to show that the defendant had suffered
unspecified convictions.”
The court concluded defendant’s experience with the
criminal justice system supported a reasonable inference that
he understood the consequences of possessing a firearm. Due to
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the prejudicial nature of the criminal history, the court decided
to sanitize the convictions as “unspecified priors” and give the
jury a limiting instruction.
In response to the ruling, the defense asked the court not
to sanitize the two convictions, which were for assault with a
firearm and robbery with a firearm, withdrew its request to
bifurcate the trial of the prior conviction sentencing allegations
and request to stipulate to defendant’s status as a convicted
felon (which was an element of the charge of felon in possession
of a firearm), and requested that the parties avoid the phrase
“Three Strikes.” Granting the requests, the court instructed the
jury that defendant had been convicted of the offenses and
would be subject to a 25-year-to-life sentence if he were
convicted of possessing a firearm or committing any felony.
The court also instructed the jury three times during the
trial to consider the priors not as propensity or character
evidence, but only as evidence of motive for murder and for proof
of the charge of felon in possession of a firearm. This first
occurred after the prosecution presented evidence about
defendant’s criminal record to show that defendant faced a
potential life sentence when he armed himself on the day of the
shooting and that his former parole officer would have advised
defendant that possessing a firearm was a felony. The trial
court instructed the jury not to use the evidence to conclude
defendant had a disposition to commit the crimes, and gave a
similar caution before deliberations. Second and third, the court
also instructed the jury in the guilt and penalty phases that
statements made by the attorneys during the trial were not
evidence.
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“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that
this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some
fact other than the person’s character or disposition.’ (People v.
Ewoldt (1994) 7 Cal.4th 380, 393.) ‘Evidence that a defendant
committed crimes other than those for which he is on trial is
admissible when it is logically, naturally, and by reasonable
inference relevant to prove some fact at issue, such as motive,
intent, preparation or identity. [Citations.] The trial court
judge has the discretion to admit such evidence after weighing
the probative value against the prejudicial effect.’ ” (People v.
Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) When reviewing
the admission of other crimes evidence to show motive, “ ‘a court
must consider: (1) the materiality of the fact to be proved or
disproved, (2) the probative value of the other crime evidence to
prove or disprove the fact, and (3) the existence of any rule or
policy requiring exclusion even if the evidence is relevant.’ ”
(Ibid.)
“The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352.) “ ‘ “[E]vidence should be excluded as unduly prejudicial
when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate
the point upon which it is relevant, but to reward or punish one
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side because of the jurors’ emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the
substantial likelihood the jury will use it for an illegitimate
purpose.” ’ ” (People v. Powell (2018) 6 Cal.5th 136, 162–163
(Powell).)
“ ‘ “We review for abuse of discretion a trial court’s rulings
on relevance and admission or exclusion of evidence under
Evidence Code sections 1101 and 352.” ’ ” (Fuiava, supra,53 Cal.4th at pp. 667–668.) As noted above, “[t]he court’s ruling
will not be disturbed unless made ‘in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.’ ” (Powell, supra, 6 Cal.5th at p. 162.)
2. Analysis
Assuming without deciding that the admission of the prior
crimes evidence under Evidence Code section 1101, subdivision
(b) in the guilt and penalty phases was error, any error was
harmless. Considering the evidence’s impact in the guilt phase
first, we review state law errors for prejudice under People v.
Watson (1956) 46 Cal.2d 818 (Watson). (People v. Harris (2013)
57 Cal.4th 804, 842; People v. Malone (1988) 47 Cal.3d 1, 22.)
This requires us to examine whether it was “reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Watson,
at p. 836.)
Our review of the record shows it was not “reasonably
probable” defendant would have received a more favorable
result had his prior convictions been excluded. To prove
defendant premeditated Deputy Aguirre’s murder, the
prosecution sought to introduce evidence of defendant’s prior
Three Strikes offenses to show defendant was motivated to shoot
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at the officers in order to escape and avoid a life sentence. But
the evidence was strong that defendant killed Deputy Aguirre
under all three theories of first degree murder. Defendant had
confessed to the details of shooting Deputy Aguirre and
kidnapping G.A., and acknowledged his awareness that Aguirre
was a police officer. He had explained seeing the police officers
pulling G.A. out of the house and understanding then that her
daughter had called the police. Defendant’s confession was
corroborated by G.A.’s testimony about the kidnapping and by
defendant’s further actions as witnessed by Deputy Fryhoff that
defendant fired several rounds at Fryhoff as defendant ran out
of the house. Further, expert testimony on gunshot wounds and
blood splatter established that Deputy Aguirre was shot in the
head at very close range, likely while he was on or near the
ground. Given all of this evidence, the jury likely would have
concluded defendant fired at the officers while he was running
out of the house in order to escape and avoid arrest, and
regardless, that he premeditated the ambush murder of Deputy
Aguirre while kidnapping G.A. Thus, the evidence was strong
that he premeditated the killing of Deputy Aguirre, as well as
killed him in the course of kidnaping G.A. (felony murder
theory), as well as jumped out from behind a wall and ambushed
the deputy (lying-in-wait theory).
The prior crimes evidence was not a significant part of the
prosecution’s case; rather, the prosecutor largely focused on
defendant’s confession as proof of his mental state and conduct.
Defendant’s confession was a focal point of the prosecutor’s case
on premeditation (as well as the other theories of murder). The
prosecutor discussed defendant’s admissions in his opening
statements at the start of trial, played the statements for the
jury during the trial, used them in cross-examining defense
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witnesses, and emphasized how the statements supported the
prosecution’s case during closing and rebuttal arguments. In
the opening statement, for example, the prosecutor highlighted
that the jury was “going to hear in [defendant’s] own words the
cold, matter-of-fact way in which he describes this murder of
Peter Aguirre.” The prosecutor then quoted defendant’s
statements extensively, about kidnapping G.A. from work at
gunpoint, going to her house and ordering her 15-year-old
daughter to leave, observing the arrival of the police when he
and G.A. were in the shower, observing the police pull G.A. out
the front door, and hearing Aguirre telling him to put his hands
up. During the trial itself, the prosecutor played the entire
audiotape of the redacted interview for the jury to hear. In the
portions played by the prosecutor, the jury heard defendant
confess that he kidnapped G.A. from her workplace, stating, “I
would say actually I, I kidnapped her, you know?” The jury also
heard defendant describe looking out from behind a wall, seeing
the police pull G.A. out of the front door of the home, and hearing
Deputy Aguirre tell him to put his hands up in response to which
defendant “just jumped out and shot” him. In the portion the
prosecutor played for the jury, it also heard defendant explain
that he shot Deputy Aguirre because he “just reacted” to the
situation and that he believed he had attempted a “passive
suicide” by his actions that day. These direct admissions by
defendant regarding his culpable state of mind were far more
consequential than reference to the fact that defendant might
have faced a life sentence for committing the crimes.
Defendant argues admission of the evidence at the guilt
phase was prejudicial because it permitted the jury to use
defendant’s prior convictions as propensity evidence, increasing
the likelihood defendant was convicted for his status as a prior
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offender. However, the jury was twice instructed at the guilt
phase not to treat the evidence as propensity evidence. “We
must assume, contrary to defendant’s theory of prejudice, that
the jury obeyed the express language of the instruction not to
use the other-crimes evidence to establish defendant’s character
or his disposition to commit crimes.” (People v. Hayes (1990)
52 Cal.3d 577, 625.)
Defendant also contends the prosecutor committed
misconduct by repeatedly arguing falsely in the guilt and
penalty phases that defendant signed a parole form that advised
him that he faced a 25-year-to-life sentence on possession of a
firearm. It is misconduct for a prosecutor to argue facts that
are not in the evidence. (People v. Linton (2013) 56 Cal.4th
1146, 1207 (Linton); People v. Mendoza (2016) 62 Cal.4th 856,
906.) Regardless, without deciding whether the comments were
misconduct, for the reasons described above, these comments
would have been harmless because the prosecution largely
focused on defendant’s confessions and generally argued
defendant would have shot at the police officers to facilitate his
escape. Moreover, even assuming the prosecutor improperly
conveyed to the jury that the parole form stated that defendant
faced a 25-year-to-life sentence for possessing a firearm, it was
undisputed that defendant was advised that possessing a
firearm was a felony, which would have potentially subjected
defendant to further sentencing. In this way, even without the
assumed error, the jury still would have heard uncontradicted
evidence that defendant had been advised that possessing a
firearm was a felony. Thus, defendant would have been aware
that he could be convicted of a felony if he, a convicted felon,
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were ever apprehended with a firearm. Thus, any error was
harmless.6
Defendant also argues admission of the Three Strikes
evidence was prejudicial at the penalty phase. Specifically, he
argues that his “defense in the penalty phase was that [he] was
suffering from the debilitation of paranoid schizophrenia. The
improper admission and use of the evidence — in light of the
prosecution's concealment that appellant was in fact suffering
from paranoid schizophrenia, while also denigrating the defense
expert on this subject and arguing to the jury that appellant was
not suffering from paranoid schizophrenia — utterly destroyed
the defense.” Defendant appears to be arguing that the claimed
error in admitting the Three Strikes evidence into the trial, and
the claimed error in denigrating his expert psychologist during
the penalty phase, had the cumulative prejudicial effect of
persuading the jury to conclude at the penalty phase that
defendant killed Deputy Aguirre because he wanted to avoid
arrest and prison and to reject the defense’s expert testimony
that defendant killed Deputy Aguirre because he was
experiencing schizophrenia.
For state law errors, we review whether there was a
“reasonable possibility” the error affected the penalty verdict.
(People v. Brown (1988) 46 Cal.3d 432, 447; People v. Ashmus
(1991) 54 Cal.3d 932, 965.) As discussed in part II.G.4., we
conclude the prosecutor’s efforts to denigrate the defense expert
would have been harmless. The jury, moreover, learned about
defendant’s prior violent offenses (that were the basis for the
6
For the same reasons, defendant’s related claim that he
was prevented from responding to the prosecutor’s argument,
even if it has merit, was also harmless error.
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Three Strikes convictions) as part of the prosecution’s
presentation of Penal Code section 190.3, factor (b) and factor (c)
evidence on defendant’s prior criminal activity. Thus, the jury
would have heard about the prior convictions that were the basis
for the Three Strikes allegations as routine penalty phase
evidence regardless of whether they were admissible under the
guilt phase theory that defendant shot Deputy Aguirre because
he knew he faced a life sentence and thus sought to avoid
arrest.7 We therefore conclude there was no reasonable
possibility that any error in admitting defendant’s Three Strikes
convictions prejudicially affected the penalty phase verdict.
D. Deputy District Attorney’s Testimony About
Defendant’s Criminal Record
Defendant contends his state and federal rights to due
process and a fair trial were violated by Deputy District
Attorney Terence Kilbride’s testimony about defendant’s
criminal record. Specifically, he contends the testimony
usurped the jury’s role in determining defendant’s prior
convictions. He also contends the testimony usurped the court’s
role in instructing the jury. We conclude there was no
prejudicial error.
As part of the prosecution’s evidence that defendant faced
a potential life sentence when he armed himself on the day of
the shooting, Kilbride testified, as an expert on sentencing, that
defendant had served a prison term and had convictions for five
7
In determining the penalty, factor (b) of Penal Code,
section 190.3 permits the jury to consider evidence of “criminal
activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use
force or violence.” Factor (c) permits the jury to consider
evidence of defendant’s prior felony convictions. (Id., subd. (c).)
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felonies. Kilbride had worked as a deputy prosecutor for 23
years and was trained and experienced in California sentencing
law. He explained that Penal Code sections 667 and 1170.12
were sentencing schemes under which “a serious felony
conviction [has] substantial effects on the amount of sentence a
person would serve.” He explained that “serious felonies” were
“certain statutory felonies” identified in the Penal Code.
Kilbride testified that in reviewing defendant’s conviction
records, he “determine[d]” that defendant was convicted of
several felonies. He reviewed several of defendant’s conviction
records in the jury’s presence, explaining what information each
document showed and explaining that two of defendant’s
convictions, for robbery with a firearm and for assault with a
firearm, qualified as serious felonies under the “statutory
definition.” He then explained that under Penal Code sections
667 and 1170.12, a person with two prior serious felonies faced
a sentence of 25 years to life upon conviction of a new felony. In
addition to admitting defendant’s conviction records and
Kilbride’s testimony to show that defendant was motivated to
kill Deputy Aguirre to avoid a life sentence, the prosecution
offered the evidence to show defendant’s status as a convicted
felon to support the charge of felon in possession of a firearm,
and as proof of prior convictions for the sentencing
enhancements. 8
8
As explained above, after the trial court ruled against
defendant on whether to admit defendant’s prior convictions to
show motive, defendant withdrew his motion to bifurcate the
trial of his prior convictions allegations, which were the basis of
the sentencing enhancement allegations, and withdrew his
similar request for a stipulation that defendant was a convicted
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At the conclusion of Kilbride’s testimony, the trial court
instructed the jury that it was to determine (1) “whether in fact
the defendant did suffer the felony convictions,” (2) whether the
convictions established a motive for Deputy Aguire’s murder,
and (3) “whether such felony convictions, if true, establish[ed]”
that defendant was a convicted felon for purpose of the charge
of felon in possession of a firearm. During closing argument, the
prosecutor informed the jury about its role in completing the
verdict forms. The prosecutor explained “there is a step-by-step
process intellectually that you will need to go through to reach
the various verdicts that the law instructs you [that] you should
in this case.” The prosecutor stated the jury would have to make
several findings on the verdict form with respect to the several
charges including a “number of findings” regarding the prior
conviction allegations and that “all the appropriate findings are
laid out very, very well” in Kilbride’s uncontested testimony.
The prosecutor also told the jury, “You must find he was
convicted, served a prison term, that they were serious felonies.
And again, I submit to you that an examination of Mr. Kilbride's
uncontested testimony in this will serve you well.”
First, defendant argues Kilbride’s opinion — that
defendant had five felony convictions including for two serious
felonies, and that he faced a 25-year-to-life sentence upon
conviction of another felony — violated his federal
constitutional right to have a jury find beyond a reasonable
doubt every element of the charged offenses.
“All criminal defendants have the right to ‘a jury
determination that the defendant is guilty of every element of
felon, which was an element of the charge of felon in possession
of a firearm.
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the crime with which he is charged, beyond a reasonable doubt.’
(United States v. Gaudin (1995) 515 U.S. 506, 510 (Gaudin);
accord, Apprendi v. New Jersey (2000) 530 U.S. 466, 477.)”
(People v. Merritt (2017) 2 Cal.5th 819, 824.) Though “a witness
may not express an opinion on a defendant’s guilt,” the Evidence
Code makes clear that “[t]estimony in the form of an opinion
that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.”
(Evid. Code, § 805.)
While Kilbride’s testimony aided the jury in
understanding defendant’s criminal records, it was the records
themselves that established the facts of defendant’s convictions
for several felonies. Kilbride reviewed the records in the jury’s
presence to aid the jury in its understanding of the records. His
testimony did not take away the jury’s function of itself
determining from the evidence whether defendant was in fact a
convicted felon of the several prior offenses. The fact that
Kilbride’s testimony — that he had determined that defendant’s
criminal records showed that defendant had committed the
prior convictions and that some qualified as Three Strike
offenses — might have “embrace[d] the ultimate issue,”
Evidence Code section 805, of whether defendant was guilty of
those convictions, did not make the testimony inadmissible. As
the jury was instructed by the trial court and informed by the
prosecutor to do so, it determined whether defendant had
suffered the prior convictions. “Testimony in the form of an
opinion that is otherwise admissible is not objectionable because
it embraces the ultimate issue to be decided by the trier of fact.”
(Ibid.)
Defendant’s cited authorities fail to support his claim that
he was denied his right to a jury determination of every element
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of the charges. The cited authorities generally address
questions regarding a defendant’s right to a jury trial, which
defendant was provided. (Gaudin, supra, 515 U.S. at p. 507
[whether defendant’s constitutional rights were violated by
omission from the jury’s consideration of an element of an
offense]; Duncan v. Louisiana (1968) 391 U.S. 145, 146 [whether
the defendant had a right to a jury trial on an offense subjecting
him to punishment of up to two years]; Sandstrom v. Montana
(1979) 442 U.S. 510, 512 [whether a jury instruction took away
an element of an offense from the jury’s consideration by
creating a conclusive presumption on the element].) In keeping
with the cited authorities, defendant was given a jury trial on
all of the charges; the court instructed the jury on all of the
elements of the charges and that it was to determine “what facts
have been proved from the evidence received in the trial” and
whether the offenses had been proved beyond a reasonable
doubt; and the jury entered verdicts on each count. As such,
defendant’s convictions as to these offenses “rest[ed] upon a jury
determination that the defendant is guilty of every element of
the crime with which he is charged, beyond a reasonable doubt.”
(Gaudin, supra, at p. 510.)
Second, defendant contends Kilbride’s expert opinion
testimony — that defendant had two felonies that qualified as
serious felonies and so he faced a 25-year-to-life sentence upon
conviction of another felony — was an impermissible opinion on
the law and thus usurped the trial court’s role to instruct the
jury on the law. Defendant did not preserve this claim. He
contends he preserved it through his Evidence Code section
1101 challenge to the other crimes evidence addressed in part
II.C., ante. However, when defendant argued below at the
hearings and in his briefing, that the evidence of his prior
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convictions was inadmissible as motive evidence under Evidence
Code section 1101, defendant did not specifically raise this
distinct and unrelated legal challenge — that Kilbride’s opinion
testimony usurped the trial court’s role in instructing the jury.
(People v. Lindberg (2008) 45 Cal.4th 1, 48 [defendant forfeited
his claim on appeal when, even though he “objected to the
admission of the expert’s testimony as a whole, he failed to
object specifically on the ground he now advances and thereby
deprived the trial court of an opportunity to make a fully
informed ruling on the issue”].)
Regardless, defendant’s claim that Kilbride’s expert
testimony usurped the trial court’s role to instruct the jury
about the law, even were we to conclude the claim has merit, is
harmless for the reasons we discussed in part II.C, ante. (People
v. Prieto (2003) 30 Cal.4th 226, 247, quoting Watson, supra,
46 Cal.2d at p. 836 [inadmissible expert testimony warrants
reversal only if “ ‘it is reasonably probable that a result more
favorable to the appealing party would have been reached’ ”
absent the error].) As we said in part II.C., ante, it was not
reasonably probable defendant would have received a more
favorable result had his prior convictions evidence been
excluded because even without the evidence, the prosecution
was able to present strong evidence of defendant’s guilt.
E. Jury Selection Issues
1. Denial of For Cause Challenges
Defendant contends the trial court committed prejudicial
error in denying 10 for-cause challenges to prospective jurors.
We disagree.
Defendant used peremptory challenges to remove nine of
the ten jurors at issue, asked for and was denied an additional
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peremptory challenge to use against seated juror (Juror No.
3121, and expressed dissatisfaction with the jury, explaining
that he would have used his peremptory challenges to remove
her and other jurors on the panel had he not been forced to use
the peremptory challenges to remove the other jurors he had
challenged for cause. Defendant has thus preserved his
challenge for review. (People v. Rices (2017) 4 Cal.5th 49, 75
(Rices) [to preserve a claim of wrongful denial of a challenge for
cause, “the defendant must (1) exercise a peremptory challenge
to remove that prospective juror, (2) exhaust all peremptory
challenges or somehow justify the failure to do so, and (3)
express dissatisfaction with the jury that is ultimately
selected”].)
On appeal, defendant contends he was prejudiced by the
trial court’s rulings on his for-cause motions that resulted in the
seating of Juror No. 3121. “A criminal defendant is entitled to
an impartial jury.” (People v. Mickel (2016) 2 Cal.5th 181, 215
(Mickel).) As discussed below, the trial court’s ruling was
supported by substantial evidence.
“A prospective juror’s opinions on the death penalty may
support an excusal for cause if those opinions would ‘ “prevent
or substantially impair the performance” ’ of the prospective
juror’s duties. ([Wainwright v.] Witt [(1985)] 469 U.S. [412,]
424.) A prospective juror who is incapable of ‘ “ ‘conscientiously
consider[ing]’ ” ’ the full range of sentencing options, including
the death penalty, should be excluded from service. [Citation.]
An inability to carefully and sincerely consider all sentencing
options is distinct, however, from merely holding views about
the death penalty, including personal opposition to capital
punishment. [Citation.] Rather, so long as a prospective juror
is willing to ‘ “temporarily set aside [his or her] own beliefs” ’ and
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fairly consider the sentencing alternatives presented under the
law, the prospective juror may properly serve on a capital jury.”
(Mickel, supra, 2 Cal.5th at p. 215.)
“On appeal, we review the trial court’s ‘for cause’ juror
excusals deferentially. If the juror’s voir dire responses conflict
or are equivocal, we accept the trial court’s findings if supported
by substantial evidence.” (Caro, supra, 7 Cal.5th at p. 481.)
“Where a trial court conducts in-person voir dire, we generally
defer to the trial court’s determination as to a prospective juror’s
true state of mind. [Citations.] Unlike the reviewing court, the
trial court that has conducted voir dire has the unique benefit of
observing a prospective juror’s credibility, tone, attitude, and
demeanor — factors we have described as of ‘ “ ‘critical
importance’ ” ’ in determining whether a prospective juror is
capable of performing his or her duties as a juror.” (Mickel,
supra, 2 Cal.5th at p. 215.)
Juror No. 3121 stated in her questionnaire that the death
penalty was used too seldomly and that she would be unwilling
to consider defendant’s background in determining the
appropriate penalty. She circled 10 on the scale of being
strongly in favor of capital punishment. However, during voir
dire she explained that while her “philosophical opinion” would
be that the death penalty was automatically appropriate in the
case of a police officer killing, that she would not automatically
vote for that sentence because “Judge Perren says that we need
to listen to the mitigating circumstances.” Juror No. 3121
explained that that she could honestly consider the mitigating
evidence: She explained that she earlier would have
automatically thought the death penalty was appropriate for the
murder of a police officer based on the publicity she had read
about the case, but she would not automatically apply the death
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penalty now after hearing the trial court’s explanation to the
potential jurors that “we need to listen to the mitigating
circumstances.” When asked if she could “honestly tell us as you
sit here now today” that she “could disregard what [she] heard
before,” Juror No. 3121 responded she could if she “heard and
saw everything presented, yes.” When pressed further, she
explained that prior to entering the courtroom, she had had a
“preconceived notion that the death penalty was appropriate,”
but upon seeing defendant, she recognized the “human
element,” and realized she was not the “hanging judge” that she
thought she was. Juror No. 3121 said she could weigh the
aggravating and mitigating factors before reaching a decision.
Juror No. 3121 reiterated this response, that she could set aside
her philosophical view and consider the evidence and give
defendant a fair trial, the two more times she was asked about
this.
During voir dire, defendant challenged Juror No. 3121’s
qualification to serve as a juror “based upon her comment that
in a case of a first degree murder with special circumstances the
death penalty is automatically appropriate.” The trial court
denied the motion. It explained, “I think there are actually two
moments of lucidity. One was when she finally understood what
the process was. And she made one of the more profound
statements I think we’re ever going to hear. I had a real strong
opinion until I actually had to look at a human being. Then I
had to question actually how strong I felt. Right on the money.”
We conclude the claim fails because substantial evidence
supports the trial court’s ruling. While Juror No. 3121 stated in
her questionnaire that the death penalty was not applied
enough, that she would be unwilling to consider defendant’s
background in determining the appropriate penalty, and that
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she was strongly in favor of capital punishment, her voir dire
responses amply demonstrated her ability to set aside her views
on capital punishment and consider both sentencing options.
She explained that while her philosophical view was that the
death penalty was automatically appropriate in the case of a
police officer killing, she would not automatically vote for that
sentence and would consider the mitigating evidence. When
pressed further, she explained that she reconsidered her views
upon seeing defendant in the courtroom, and that she would
weigh the aggravating and mitigating evidence before reaching
a decision. As described above, Juror No. 3121 gave similar
responses when asked again about this. Juror No. 3121’s
comments at voir dire showed that she understood that she
needed to consider the evidence presented at trial and not
automatically vote for a death sentence based on her views
about the death penalty. Juror No. 3121’s comments thus
demonstrated that she was willing to “ ‘ “temporarily set
aside” ’ ” her beliefs and “fairly consider the sentencing
alternatives presented under the law . . . .” (Mickel, supra,
2 Cal.5th at p. 215.) Thus, substantial evidence supports the
trial court’s ruling and defendant’s claim fails. (Caro, supra,
7 Cal.5th at p. 481.)
2. Denial of Additional Peremptory Challenges
In a variation of the preceding claim, defendant contends
the trial court erred in denying his request for additional
peremptory challenges in violation of his constitutional right to
a fair trial before an impartial jury.
“[T]o establish the constitutional entitlement to additional
peremptory challenges argued for here, a criminal defendant
must show at the very least that in the absence of such
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additional challenges he is reasonably likely to receive an unfair
trial before a partial jury.” (People v. Bonin (1988) 46 Cal.3d
659, 679; accord, People v. DePriest (2007) 42 Cal.4th 1, 23.)
Defendant bases this claim on the contention that Juror No.
3121 was a partial juror, which is belied by the record as shown
above. Defendant’s claim thus fails for the same reason, that he
fails to show that a partial juror sat on his jury.
3. Asserted Witt Error
Defendant contends the trial court erred in granting the
prosecution’s for-cause challenge to Prospective Juror Ann I.
because the record fails to support the court’s conclusion that
Ann I.’s capital punishment views impaired her ability to serve
as a juror. Defendant also argues that reversal of the guilt
phase is required because exclusion of Ann I. in conjunction with
the inclusion of Juror No. 3121 resulted in an unfair jury. We
need not reach that issue because, as shown above, the court’s
ruling on the challenge to Juror No. 3121 is supported by the
record.
As for Prospective Juror Ann I., the test for Witt error is
the same whether it involves “ ‘erroneous juror exclusion or
inclusion.’ ” (Clark, supra, 63 Cal.4th at p. 564.) As outlined
above, a prospective juror must be excused for holding views on
capital punishment that would “ ‘ “substantially impair” ’ ” the
juror’s ability to serve. (Mickel, supra, 2 Cal.5th at p. 215.) “A
ruling on a cause challenge will be upheld if it is fairly supported
by the record.” (People v. Leon (2015) 61 Cal.4th 569, 590
(Leon).) “[W]here the trial court has had an opportunity to
observe the juror’s demeanor, we uphold the court’s decision to
excuse the juror so long as it is supported by substantial
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evidence.” (People v. Spencer (2018) 5 Cal.5th 642, 659
(Spencer).)
The prosecution challenged Prospective Juror Ann I.
based on her religious view that the death penalty should be
limited to extreme cases such as multiple murders, which, as
she explained, was “about the only time I think I could vote for
it.” The trial court granted the challenge, concluding that while
Ann I. had stated her willingness to “make every effort” to
perform her duties as a juror, each such statement was followed
by expressions of doubt about whether she could do so.
The record fairly supports the trial court’s determination
that Prospective Juror Ann I.’s views on the death penalty would
substantially impair her ability to consider both sentencing
options. In her questionnaire, Ann I. wrote that the death
penalty should be a “last resort,” expressed doubt about whether
she could “personally recommend the death sentence for another
human being,” and felt that a life sentence was her “punishment
of choice for all but the most extreme cases.” During voir dire,
she explained that she did not believe the murder of a police
officer was the type of “extreme case” that warranted the death
penalty. While Ann I. stated that she would “listen to the
evidence first,” and “hear everything” before voting, she felt that
her belief system would make it difficult to keep an open mind
toward the death penalty in a case involving only one murder.
For example, she stated, “I feel that the death penalty should be
reserved for somebody who is a habitual criminal in a serious
way, such as someone who has murdered many times, who is a
danger not only to one person but to many people. And that's
about the only time I think I could vote for it.” She also said she
“could not guarantee” that her “conscience [would] allow [her] to
have an open mind, to weigh the circumstances of this one
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particular murder and make a decision fairly to both sides here.”
When asked by the court whether she could place the “principles
of law” above her “religious scruples,” Ann I. responded that she
felt her religious beliefs would be “foremost.” When asked if she
could follow the rules of law and apply them to the facts and give
both sides an equal hearing in the penalty phase, Ann I.
responded, “I think so. It’s very, very difficult because I don’t
really believe in the death penalty as — as a good penalty.” She
said further, “I really don’t know whether I could do it or not. I
have a feeling it would be something that would weigh on me
terrible.” “[A]nd if I made that decision, having to live with that
decision for the rest of my life. I think it would be very difficult.”
She could not see herself in a case involving one murder voting
for death.
Prospective Juror Ann I.’s comments support the trial
court’s conclusion that her religious views would make it
difficult for her to fairly consider the death penalty as a
sentencing option in a case such as this one that involved only
one murder. While Ann I. said she would try to follow the rules
and consider both options, she expressed serious doubt about
her ability to do so. “Time and again, [Ann I.] expressed
uncertainty as to whether [she] could set aside [her] personal
antipathy to the death penalty and follow the law as instructed.”
(Spencer, supra, 5 Cal.5th at p. 659.) Ann I.’s views on the death
penalty appeared sufficiently fixed that she could not set them
aside and fairly consider both sentencing options as they
pertained to the particular facts of this case. Critically, she
stated that her “religious scruples,” rather than “principles of
law,” would be “foremost,” and when asked if she could follow
the law, she responded: “I really don’t know whether I could do
it or not. I have a feeling it would be something that would
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weigh on me terrible.” Therefore, the trial court’s ruling is
“fairly supported” by the record. (Leon, supra, 61 Cal.4th at
p. 590.)
F. Prosecution’s Use of Defense Expert in a
Demonstration
Defendant contends the trial court abused its discretion
and violated his state and federal due process and fair trial
rights by allowing the prosecutor, over a defense objection, to
ask the defense wound ballistics expert to demonstrate with a
mannequin representing Aguirre, the possible position and
location of the gun during the firing of the two shots to Aguirre’s
forehead. The claim lacks merit.
Dr. Martin Fackler had testified for the defense that based
on his review of the evidence — the autopsy report, crime scene
diagram, photographs, police reports, and witness
statements — it was impossible to determine the sequence of the
two shots fired to Aguirre’s forehead, the position of his head
and whether he was in motion on impact of the bullets, and
whether the bullet found in the floor had caused the entry into
Aguirre’s left forehead. He opined that the evidence supported
two or more scenarios — that the shots were fired in a deliberate
manner while Aguirre’s head was near the floor or fired when
Aguirre was in motion and defendant was running past him.
The distance and angles from which the shots were fired did not
permit Fackler to form an opinion as to whether the parties were
still or in motion. In examining Fackler, the defense asked him
to make various assumptions based on the evidence, about
which bullet to the forehead was fired last and about the
rapidity of the gunfire.
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In turn, the prosecution had Fackler participate in a
hypothetical demonstration using the murder weapon and a
mannequin representing Aguirre lying on the ground. The
prosecutor asked Fackler to make assumptions, based on bullet
ejection and trajectory patterns evidence that was provided in
prosecution expert testimony.
During the testimony, the defendant objected several
times for lack of foundation and Fackler’s lack of expertise on
the prosecutor’s area of inquiry. The prosecutor explained that
it was asking Fackler to assume facts based on the earlier
testimony of the prosecution ballistics expert and then to answer
the questions posed based on the assumed facts. The trial court
ultimately allowed Fackler to answer the questions. It
instructed the jury that the prosecution was presenting Fackler
with a hypothetical based on the earlier prosecution ballistics
expert’s testimony and to respond to the questions about the
hypothetical based on his own expertise.
On redirect examination, Fackler reiterated that it was
difficult to conclude from the facts whether defendant fired the
gun while standing over Aguirre or whether when he was
running by Aguirre. He explained that he was not an expert in
ejection patterns.
“ ‘ “Experimental evidence has long been permitted in
California trial courts . . . .” ’ (People v. Bonin[, supra,]
47 Cal.3d 808, 847.) ‘ “Admissibility of experimental evidence
depends upon proof of the following foundational items: (1) The
experiment must be relevant [citations]; (2) the experiment
must have been conducted under substantially similar
conditions as those of the actual occurrence [citation]; and (3)
the evidence of the experiment will not consume undue time,
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confuse the issues or mislead the jury [citation].” ’ (Ibid.) The
proponent of the experimental evidence has the burden to
show that the conditions were substantially similar but need not
show that they were absolutely identical.” (People v. Jackson
(2016) 1 Cal.5th 269, 342.) “Admissibility also depends on proof,
‘with some particularity,’ of ‘the qualifications of [the]
individual[] testifying concerning [the] experimentation . . . .’ ”
(People v. Bonin, supra, 47 Cal.3d at p. 847 (Bonin).) “We review
the trial court’s decision to admit experimental evidence for
abuse of discretion.” (Jackson, supra, at p. 342.)
The trial court acted within its discretion in admitting the
testimony because the record supports a conclusion that the
experimental evidence was relevant, substantially similar to the
actual conditions, and was not confusing or unduly time
consuming. First, the prosecution’s cross-examination of
Fackler to demonstrate the position and location of the gun in
relation to the mannequin, the ejection pattern, and the bullet
trajectory into the floor, related to and rebutted Fackler’s
testimony on direct examination, that it was impossible to
determine the sequence of the forehead shots and whether the
parties were in motion. The evidence was thus relevant and met
the first criterion for experimental evidence. Second, Fackler
had maintained this opinion on the basis of various assumptions
the defense posed to him about the rapidity and sequence of the
shots. Seemingly in an effort to support its theory that
defendant fired the final shot execution-style while Aguirre lay
incapacitated on the ground, the prosecution likewise asked
Fackler to make certain assumptions about the ejection pattern
and trajectory of the bullets based on the testimony of the
prosecution ballistics expert and asked him to demonstrate the
position and location of the gun consistent with these
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assumptions. As such, the trial court would have acted within
its broad discretion to conclude that the testimony met the
second criterion for experimental evidence because it was based
on the evidence of what took place during the shooting as
provided by the testimony of the prosecution ballistics expert.
The testimony was brief and Fackler clarified that he was not
an expert in ejection patterns or firearms and that the position
he was demonstrating was just one position but that there could
be several that were consistent with the evidence about the
trajectory and ejection patterns. Therefore, the evidence met
the third criterion for experimental evidence because it did not
unduly consume time and would not have misled or confused the
jury, given Fackler’s qualifications. Fackler limited his
testimony to his own knowledge and the assumptions he was
given, clarifying where he lacked expertise. His testimony as to
the position of the gun did not contradict the Bonin requirement
that the testifying individual have sufficient qualification
concerning the experimental evidence.
G. Asserted Prosecutorial Misconduct Throughout
the Trial
Defendant contends the prosecutor committed multiple
acts of prejudicial misconduct throughout the trial in violation
of his state and federal constitutional rights. Defendant’s
claims fall into three general categories: Attacking the integrity
of defense counsel, intimidating the trial court as well as county
staff, and attacking the integrity of defense witnesses. At the
hearing on defendant’s new trial motion, the trial court found
that several of the prosecutor’s actions were improper but
concluded that because almost all of the conduct took place
outside the jury’s presence, there was no prejudice. We agree.
The allegations solely concern the lead prosecutor. While we
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agree with the trial court that the prosecutor’s conduct was at
times “out of bounds,” most of the conduct took place outside the
jury’s presence or otherwise was not prejudicial or not
misconduct.
Defendant also presents additional misconduct claims
that we discuss in parts II.C., II.H.1., and II.H.2.
1. Attacking the Integrity of Defense Counsel
Defendant identifies several instances in which the
prosecutor attacked the integrity of defense counsel, which
attacks he contends were cumulatively prejudicial because they
created “a toxic trial atmosphere.” The prosecutor, for example,
accused trial counsel of having no basis in “any honest
argument,” taking “some pretty cheap shots” at prosecution
witnesses, and making “pretty nasty attacks” on an earlier
judge. As defendant acknowledges, all of the comments at issue
took place outside the jury’s presence.
“ ‘ “A prosecutor commits misconduct if he or she attacks
the integrity of defense counsel, or casts aspersions on defense
counsel.” [Citations.] “In evaluating a claim of such misconduct,
we determine whether the prosecutor’s comments were a fair
response to defense counsel’s remarks” [citation], and whether
there is a reasonable likelihood the jury construed the remarks
in an objectionable fashion [citation]. ’ ” (People v. Seumanu
(2015) 61 Cal.4th 1293, 1336–1337.)
At the new trial hearing, the trial court concluded that
while the prosecutor’s conduct during the trial, “was out of
bounds in a variety of areas in this case,” it was not prejudicial
because almost all instances took place outside the jury’s
presence. (The prosecutor’s conduct that took place in front of
the jury concerned his cross-examination of defense experts,
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discussed in pt. II.G.4., post.) This case is thus different than
People v. Hill (1998) 17 Cal.4th 800, 845 (Hill), on which
defendant relies and in which the prosecutor committed several
acts of misconduct by disparaging defense counsel in front of the
jury. “ ‘An attack on the defendant’s attorney can be seriously
prejudicial as an attack on the defendant himself . . . .’ ” (Id. at
p. 832.) Although the court here heard the prosecutor’s
disparaging remarks toward defense counsel, the record
demonstrates that the court was unaffected by the prosecutor’s
comments: In responding to defense counsel’s argument below
that the lead prosecutor’s conduct toward trial counsel would
have caused the trial court to “view counsel whose reputation
[was] being slandered with a jaundiced eye,” the trial court
responded that he observed that both defense counsel conducted
themselves with “high ethics” throughout the trial and “I never
sensed for a moment any of them shrunk or balked at their task
because of [the prosecutor] who did not, retrospectively, conduct
himself as he ought to have done. [¶] . . . [I]f you think I will
gild the [lily] about [the prosecutor], it ain’t gonna happen. [The
prosecutor’s] conduct was not acceptable. Ultimately, I told him
to sit down at one point when he exploded. Ultimately, in your
presence . . . I told him to knock it off, his conduct was
unprofessional.” Thus, no prejudice is apparent because the
record makes clear that the trial court was uninfluenced by the
prosecutor’s comments towards defense counsel, and the jury
did not hear the comments because they were made outside its
presence.
2. Intimidating the Trial Court
Defendant contends the lead prosecutor attempted to
intimidate the trial court on two occasions. “ ‘ “A prosecutor’s
misconduct . . . violates California law if it involves ‘the use of
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deceptive or reprehensible methods to attempt to
persuade . . . the court . . . .’ ” ’ ” (Powell, supra, 6 Cal.5th at
p. 172.) First, defendant asserts the prosecutor tried to
persuade the court to deny defendant’s Miranda motion by
arguing that suppressing defendant’s statements would
“operate a — fraud upon the jury.” Second, he asserts the
prosecutor sought to intimidate the court into denying a motion
to limit the number of uniformed officers as well as visible signs
of mourning in the courtroom. The prosecutor urged the court
to find the officers’ presence necessary “to make sure that the
atmosphere in this courtroom is . . . conducive to the
ascertainment of justice,” arguing, “we have to make sure that
the law enforcement community trusts that what happens here
isn’t going to exist in an atmosphere of prejudice . . . and that
the 12 people chosen from this community to decide what
happens to the killer of Peter Aguirre really got a fair shake at
what they had a right to hear . . . . I don’t know what authority
you’d have to enforce it anyway.”
Defendant’s claim lacks merit. Though the prosecutor’s
statements were perhaps hyperbolic, there is nothing directly
threatening in the prosecutor’s remarks. The trial court
considered the prosecutor’s comment that suppressing
defendant’s statements to Patterson would “operate a — fraud
upon the jury” as an attack on the defense rather than the court.
The trial court explained that “defense counsel’s motion is fully
within the ambit of the law and is properly brought before the
Court. [¶] And I perceive no improper motive by either the
government or the defense at this point litigating what are
customarily motions brought before the Court routinely. And so
I don’t perceive this to be a fraud.” With respect to the motion
to limit officer presence, the court responded pointedly to the
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prosecutor that it would not allow anything in the courtroom
that “might influence the jury in its decision.” At a later hearing
on the defense motion for a new trial in which the defense raised
these events as a basis for its claim that the prosecutor had
attempted to intimidate the trial court into ruling in the
prosecutor’s favor, the trial court responded that it had
“attributed nothing” to the prosecutor’s comments. Although
defendant refers to several purportedly erroneous trial court
rulings addressed elsewhere in his brief, which he claims are
evidence of the prosecutor’s success in intimidating the court,
these assertions are generally without merit and none of the
trial court’s rulings appear to be the product of intimidation.
(See pts. II.C., II.G.4., II.H.1.)
3. Intimidating County Counsel and a Witness
Defendant next asserts the prosecutor attempted to
intimidate county counsel and, indirectly, defense witness Lisa
Kus, a county psychologist represented by county counsel, by his
comments to counsel and the court in the midst of a protracted
legal battle regarding whether the prosecution had a right to
access defendant’s mental health records. According to
Assistant County Counsel Patricia McCourt, who represented
the Ventura County Mental Health Department, the prosecutor
approached McCourt while seated in the courtroom prior to a
hearing and “leaned over me in a very angry way, sort of leering
down at me, and said, ‘Well, is it your intention to bring in
perjured testimony like you always do?’ ” For the next several
minutes, McCourt testified, the prosecutor repeatedly
approached her and accused her of being “sleazy” and
“unethical” and conspiring with Kus to “make up lies about the
case” and hide information. According to McCourt, while the
prosecutor’s behavior did not influence her, his “physical
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presence was at all times angry, intimidating, imposing . . . .”
The courtroom bailiff interceded on McCourt’s behalf until the
judge arrived for the hearing on defendant’s mental health
records. At the hearing, the prosecutor then accused the county
of obstruction of justice, asserting that Kus, who had previously
interviewed defendant and would testify as a defense penalty
phase witness, had purportedly removed some “raw data” from
defendant’s file and wrote a report “covering her butt” in
response to prosecution efforts to obtain defendant’s files. The
trial court, upon learning of the prehearing encounter between
the prosecutor and McCourt, advised counsel for both parties
that intimidation would not be permitted in his courtroom. The
prosecutor responded that “this case may get very ugly before
it’s over.”
Defendant contends that the prosecutor intimidated Kus,
citing as proof her testimony that she did not diagnose
defendant with schizophrenia. “ ‘Governmental interference
violative of a defendant’s compulsory-process right includes, of
course, the intimidation of defense witnesses by the prosecution.
[Citations.] [¶] The forms that such prosecutorial misconduct
may take are many and varied. They include, for example,
statements to defense witnesses to the effect that they would be
prosecuted for any crimes they reveal or commit in the course of
their testimony. [Citations.]’ [Citation.] Threatening a defense
witness with a perjury prosecution also constitutes
prosecutorial misconduct that violates a defendant’s
constitutional rights.” (Hill, supra, 17 Cal.4th at p. 835.)
Nonetheless, defendant’s claim fails for lack of prejudice.
As defendant acknowledges, McCourt testified that the
prosecutor’s behavior did not influence her, and, as defendant
concedes, “no evidence has yet been adduced that the
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prosecution’s threat of an investigation affected” Kus’s
testimony. There is no evidence that Kus omitted a
schizophrenia diagnosis because she was intimidated by the
lead prosecutor’s comments. To the contrary, Kus testified she
had not diagnosed defendant with schizophrenia because she
did not have enough information to make such a diagnosis. In
addition, she testified to defendant’s benefit that defendant did
suffer from a delusional disorder. It does not appear that the
prosecutor’s behavior, while reprehensible, prevented Kus from
evaluating defendant and testifying about her findings.
Because Kus testified for defendant and her testimony was
unaltered, no prejudice flowed from the individual act of
misconduct. (See, e.g., Hill, supra, 17 Cal.4th at p. 835.)
4. Attacking the Integrity of Three Defense Experts
Defendant also contends the prosecutor committed
misconduct by impermissibly impugning the integrity of three
defense experts. First, the prosecutor allegedly committed
misconduct by asserting facts not in evidence when he cross-
examined Roger Clark, the defense expert on police practices,
about purported findings of nepotism and other irregularities in
his department, and then again in arguing to the jury that the
expert had falsified records.
Clark’s testimony had addressed whether Aguirre acted
within the course and scope of his duties as an officer of the law
when he entered G.A.’s home prior to being shot. During his
cross-examination of Clark, the prosecutor asked him whether
an “audit” of a unit he had formerly supervised had revealed “a
number of irregularities” about the unit including
“improprieties in keeping time cards.” He asked Clark if the
audit report had specifically found Clark “guilty of nepotism.”
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He asked Clark whether each of the allegations in the audit
report were false and whether he believed himself to be a victim
of false allegations. He asked Clark if he did not feel bitter
toward the Sheriff’s office. The trial court responded to defense
counsel’s several objections to the prosecutor’s cross-
examination by instructing the prosecutor to frame questions in
terms of whether Clark had heard or read about the audit claims
rather than whether the audit contained those claims. During
the defense’s redirect examination, Clark testified that the audit
of his department that took place after he had left the
department did not cause him to feel “disgruntled” toward the
Los Angeles Police Department and that he kept in touch with
his colleagues and peers, and that his fellow administrators had
also provided several “very favorable reviews” of his
performance.
During closing argument, the prosecutor argued that
there was “an audit of [Clark’s] department [that] found things
like nepotism and irregularities in overtime cards” and
discredited Clark’s testimony regarding whether Aguirre was
acting in the course of his duties by commenting that Clark was
“too busy falsifying records.” The defense objection to the
argument for misstating the evidence was overruled. The trial
court later acknowledged this was an erroneous ruling because
the prosecutor had in fact argued facts outside the evidence. In
its own closing argument, the defense argued there was no
evidence that the expert was guilty of the audit claims and
reminded the jury of the court’s earlier instruction not to
consider the allegations for the truth but only whether they
affected the expert’s state of mind.
“ ‘ “[S]tatements of facts not in evidence [that are asserted]
by the prosecuting attorney in his argument to the jury
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constitute misconduct.” ’ ” (People v. Rivera (2019) 7 Cal.5th
306, 335 (Rivera).) As to the prosecutor’s argument, “They did
an audit of [Clark’s] department and found things like nepotism
and irregularities in overtime cards,” Clark acknowledged that
he read or heard the audit made these findings, but testified
they were false allegations. Even though it appears the
prosecutor improperly referred to facts not in the record by
asserting that the defense expert had falsified records, this error
was harmless. The expert’s testimony concerned a weak part of
the defense case — the contention that Aguirre was not acting
within the course of his duties as a police officer when he entered
the house in response to a highly volatile and dangerous 911
domestic disturbance call. Further, the expert was still able to
testify at length for defendant on this topic and the defense
questioned him on redirect about his lack of ill feelings towards
the police department as a result of the audit. Moreover,
defense counsel was allowed to address the impeachment in
closing argument where he argued there was no evidence of the
audit claims and reminded the jury of the court’s instructions to
only consider the audit allegations for how they would have
affected the expert and not for their truth.
Defendant second contends the prosecutor “made
unsubstantiated accusations against” the defense’s prison
expert, James Park, to the trial court during a hearing out of the
jury’s presence, and during cross-examination, and that the
prosecutor’s behavior infected the trial with unfairness. Prior
to the start of Park’s testimony, the prosecutor alleged out of the
jury’s presence that Park, when previously employed at San
Quentin State Prison, had allowed an attorney to smuggle a gun
to an inmate, who then murdered several security guards. The
trial court denied the prosecutor’s request to inquire into that
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specific area of alleged misconduct, directing him to limit his
inquiry generally to the expert’s career, promotions, and
demotions. In the cross-examination that defendant points us
to, the prosecutor questioned Park about whether he had taken
a stress retirement and whether he was transferred and had
stopped working in prisons. Defendant also points us to cross-
examination in which the prosecutor addressed prison
photographs Park had brought to court and asked him about
prison rules prohibiting photographs of prison facilities because
such photographs would render the facilities less secure. This
questioning was in response to Park’s testimony during direct
examination, during which he had displayed photographs he
brought with him of various prison structures, to demonstrate
the security features at facilities where prisoners sentenced to
life without the possibility of parole are housed. Park explained
in response to the prosecutor’s cross-examination that he took
the photographs with the warden’s consent. The trial court later
commented that the prosecutor’s behavior toward the expert
was “vitriolic, unnecessary and pointless.”
“ ‘A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.’ ” (People v. Silveria and Travis (2020) 10 Cal.5th
195, 306.) However, “ ‘harsh and colorful attacks on the
credibility of opposing witnesses are permissible. [Citations.]
Thus, counsel is free to remind the jurors that a paid witness
may accordingly be biased and is also allowed to argue, from the
evidence, that a witness’s testimony is unbelievable, unsound,
or even a patent “lie.” ’ ” (Rivera, supra, 7 Cal.5th at pp. 334–
335.) Defendant fails to explain how the prosecutor’s effort to
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discredit Park by questioning his employment history and by
attempting to discredit Park’s testimony regarding the security
features of prisons by asking whether he had permission to take
the prison photos qualifies as misconduct. While, as the trial
court’s comments suggest, the prosecutor’s questioning may well
have been “vitriolic, unnecessary and pointless,” he did not
question Park about topics prohibited by the trial court. Thus,
his cross-examination did not result in “ ‘such unfairness as to
render the . . . denial of due process, or involve[] deceptive or
reprehensible methods . . . .’ ” (Silveria, supra, at p. 306.)
Defendant’s last contention is that the prosecutor
gestured disparagingly at defense psychology expert Charles
Hinkin, who testified during the penalty phase that defendant
was a paranoid schizophrenic. As part of its motion for a new
trial, the defense included declarations from two jurors, who
stated that the prosecutor made “eye contact with some of the
jurors in the jury box and he was smirking and rolling his eyes
at the testimony of Dr. Hinkin.” In his opposition to the motion
for new trial, the prosecutor wrote that the expert’s “effeminate
mannerisms and weak testimony, limited as it was by his failure
to ask basic questions of the defendant during his interview of
him, caused understandable reaction from the prosecution.”
The trial court concluded the prosecutor’s conduct was “wrong-
headed and unacceptable.”
The prosecutor’s attack of Hinkin based on, as he sees it,
the expert’s “effeminate mannerisms,” was wholly improper and
clearly falls outside the boundaries of permissible attack
“ ‘focused on the evidentiary reasons why [an expert’s opinions]
could not be trusted.’ ” (Rivera, supra, 7 Cal.5th at p. 335.) This
statement is, by any measure, offensive and inappropriate.
Such language has no place in pleadings, in courtrooms, or
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anywhere else. Nonetheless, for purposes of our analysis here,
i.e., potential prejudice, the statement was not made in front of
the jury and therefore could not prejudice defendant.
As for the prosecutor’s smirking and eye-rolling in the
presence of the jury, the Attorney General acknowledges that
this is “unsuitable” conduct by counsel. We agree. This conduct
is unacceptable. (People v. Williams (2006) 40 Cal.4th 287, 322–
323 [prosecutor’s action of slamming a writing pad and rolling
eyes was misconduct]; Hill, supra, 17 Cal.4th at p. 834 [audibly
laughing during defense examination of several witnesses was
misconduct].) Such tactics distract the jury and risk prejudice
to the defense. (Hill, supra, at p. 834.)
“If we do find misconduct occurred during the penalty
phase, ‘we will affirm the judgment unless we conclude there is
a reasonable (i.e., realistic) possibility that the jury would have
rendered a different verdict had the error or errors not
occurred.’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 289
(Ghobrial).) We conclude there is no reasonable possibility that
the prosecutor’s attempt to discredit this witness by smirking
and rolling his eyes at the jurors would have influenced the jury
in deciding its penalty verdict. The prosecutor’s conduct in
smirking and rolling his eyes, while inappropriate, does not rise
to the level of a case like Hill, in which the prosecutor subjected
the jury to an “onslaught of . . . misconduct,” embarking on a
campaign of misleading the jury and denigrating defense
counsel. (Hill, supra, 17 Cal.4th at pp. 845.) This momentary
facial gesture by the prosecutor, though inappropriate, simply is
not significant enough to compel us to conclude that, because of
it, there was a “reasonable (i.e., realistic) possibility that the
jury would have rendered a different verdict.” (Ghobrial, supra,
at p. 289.)
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H. Additional Penalty Phase Claims
1. Deputy Fryhoff’s Testimony About Failing to Kill
Defendant
Defendant contends the following penalty phase
testimony by Deputy Fryhoff was irrelevant, inflammatory, and
an impermissible opinion as to the appropriate sentence, and
thus violated his Fifth, Eighth, and Fourteenth Amendment
rights and corresponding state constitutional rights:
“Q. [Prosecutor]: Describe your emotions for us regarding
that part of the incident, the fact that you shot Michael
Johnson.
“A. Um, I’m very upset with myself that I didn’t kill him.
“Q. Is that something that you think about often?
“A. That’s something I have to live with every day.
“Q. Does it make you feel that somehow you were a failure
as an officer?
“A. Yeah. It makes me very hostile that I wasn’t able to
do it.”
Prior to this testimony, defendant had objected and asked
for a sidebar after the prosecution asked Fryhoff how he felt
about not having killed defendant. The trial court clarified the
permitted area of inquiry, that Fryhoff could testify about the
event’s impact on him, and that the court would instruct the jury
on how it was to consider the evidence.
At the penalty phase, “evidence may be presented by both
the people and the defendant as to any matter relevant to
aggravation, mitigation, and sentence including, but not limited
to, the nature and circumstances of the present offense . . . .”
(Pen. Code, § 190.3.) “A State may legitimately conclude that
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evidence about the victim and about the impact of the murder
on the victim’s family is relevant to the jury’s decision as to
whether or not the death penalty should be imposed.” (Payne v.
Tennessee (1991) 501 U.S. 808, 827.) “Although victim impact
testimony is admissible, the victim’s view as to the proper
punishment is not.” (People v. Smith (2003) 30 Cal.4th 581, 622
(Smith).) “ ‘The views of a crime victim . . . regarding the proper
punishment has no bearing on the defendant’s character or
record or any circumstance of the offense.’ ” (People
v. Sattiewhite (2014) 59 Cal.4th 446, 487.) “We review a trial
court's decision to admit victim impact evidence for abuse of
discretion.” (Spencer, supra, 5 Cal.5th at p. 677.)
Fryhoff’s testimony was not about the appropriate penalty
verdict but rather about his own remorse and perceived failure
concerning the shootout with defendant. The testimony
constituted relevant victim impact evidence because it
demonstrated how Fryhoff felt helpless and guilty following the
loss of his friend. The testimony showed Fryhoff’s reasonable
response to feeling grief and regret and the jury would have
reasonably understood his testimony to be nothing more than
an expression of that. Fryhoff was not making an “impassioned
entreaty to the jury to end his suffering and kill appellant,
because he had passed up the chance to do so himself,” as
defendant argues.
The trial court further instructed the jury at the close of
Fryhoff’s testimony that it was not to consider the testimony as
opinion evidence on the verdict but rather as victim impact
testimony and that the jury alone was charged with the decision
of verdict that it was to determine after considering the factors
in aggravation and mitigation. The court similarly instructed
during the penalty phase instructions. We presume jurors
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Opinion of the Court by Groban, J.
follow a court’s instructions. (People v. Dalton (2019) 7 Cal.5th
166, 238.) We therefore conclude the trial court acted within its
discretion in admitting Fryhoff’s testimony.
Defendant’s related claim of prosecutorial misconduct is
also without merit. Defendant contends the prosecutor
committed misconduct by (1) asking Fryhoff how he felt about
not having killed defendant, and (2) according to defendant,
bullying the trial court into allowing Fryhoff to testify he felt
upset and guilty for not killing defendant, and (3) arguing to the
jury that Fryhoff would feel guilty for the rest of his life for not
having killed the person that killed his fellow officer.
With respect to the first misconduct contention, as
discussed above, the prosecutor permissibly asked Fryhoff how
he felt about not killing defendant within the parameters set by
the trial court.
On the second contention — that the prosecutor bullied
the court — the prosecutor commented, at a sidebar preceding
Fryhoff’s testimony, about the experience of officers involved in
shootings that result in the death of fellow officers, stating,
“Every cop that ever gets involved in a shooting carries with him
a guilt, and this deputy carries with him a guilt, over the fact
that he didn’t kill Michael Johnson and that is a guilt that
haunts him every day of the rest of his life.” He acknowledged
that Fryhoff could not offer an opinion as to the appropriate
sentence. The defense then objected that the prosecutor had
committed misconduct by inquiring into Fryhoff’s feelings about
not killing defendant. The prosecutor took the defense’s
misconduct allegation as a “personal attack” and said he would
not be “threatened.” The prosecutor’s comments at the sidebar
do not qualify as “bullying,” and the court did not take them as
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such, as evidenced by its neutral explanation of the type of
testimony that would be permitted: “The impact upon [Fryhoff]
will be permitted and in that context you may say to him, ‘What
are your emotions that have resulted from the events of that
day?’ not leading him to it and what responses he gives.” After
further discussion, the trial court explained that Fryhoff could
testify that he wished he had killed defendant: “This witness is
going to be allowed to say that in the context of what his
emotions are, and this is a very dramatic piece of business if
that’s in fact his feeling, but the statement to him, ‘Do you wish
you’d killed him?’ I won’t let that in. [¶] On the other hand,
what emotions he has, why he’s feeling what he’s feeling, he’ll
be allowed to say that . . . .”
Regarding defendant’s last contention, he alleges without
explanation that the prosecutor’s comment during closing
argument that Fryhoff would “go to his grave feeling guilty
because he didn’t kill the man who killed his brother officer,” to
which defense counsel objected, was misconduct. However, the
comment merely reiterated Fryhoff’s own permissible
testimony. The prosecutor was making an appropriate comment
on the evidence — in this case victim impact evidence
concerning the trauma felt by Fryhoff following Aguirre’s death.
(People v. Leonard (2007) 40 Cal.4th 1370, 1419 [“evidence that
close friends and relatives of the victims suffered emotional
trauma as a result of their deaths was permissible victim impact
testimony, and the prosecutor appropriately commented on it in
his closing argument”].) Accordingly, we conclude there was no
prosecutorial misconduct concerning Fryhoff’s testimony.
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2. Exclusion of Defendant’s Mother’s Testimony
Defendant contends the trial court erred in excluding his
mother’s testimony that she did not want him sentenced to
death, and further erred in its manner of admonishing the jury
regarding the testimony, and that the prosecutor erred in his
manner of objecting to the testimony. We find no prejudicial
error.
After testifying that she loved her son “very much,”
defendant’s mother responded negatively to the question
whether she wanted him to receive the death penalty. The
prosecution objected in an explosive manner. The trial court
cleared the courtroom and sustained the prosecutor’s objection,
finding the testimony impermissible opinion testimony by a
family member on the question of penalty. It then strongly
admonished the jury to disregard the question and response,
stating, “You are specifically and in the strongest possible terms
admonished to disregard the question last asked by defense
counsel of this witness and the reply she made to it. [¶] The
law of this state is clear: The expressed feelings of family of the
defendant are not to be considered by you on the issue of penalty
or punishment. The family of Deputy Aguirre did not and could
not express its desires and respected that rule of law. You can
do no less.”
Defendant argues in reliance on Smith, supra, 30 Cal.4th
581, that the testimony was admissible mitigating evidence in
the form of character testimony by a close family member.
“Citing [Penal Code] section 190.3 and the United States
Constitution, we have held that testimony from somebody ‘with
whom defendant assertedly had a significant relationship, that
defendant deserves to live, is proper mitigating evidence as
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“indirect evidence of the defendant’s character.” ’ [Citations.]
This evidence is admitted, not because the person’s opinion is
itself significant, but because it provides insights into the
defendant’s character.” (Smith, at pp. 622–623.)
Defense counsel, however, made no offer of proof as to the
admissibility of the excluded testimony on this ground, instead
submitting that it was admissible as “reverse victim impact”
evidence (but that that was “unclear”). (By “reverse victim
impact” evidence, counsel appeared to be referring to the impact
defendant’s death would have on his family.) The specific claim
raised on appeal is thus forfeited. (Evid. Code, § 354, subd. (a);
People v. Lightsey (2012) 54 Cal.4th 668, 727 [concluding that
trial court acted within its discretion in sustaining a prosecution
objection “when defendant made no offer of proof at trial
explaining why the witness should have been permitted to
answer the question”].)
Defense counsel was incorrect, moreover, about the
admissibility of the testimony as “reverse victim impact”
evidence. “ ‘[W]hat is ultimately relevant is a defendant’s
background and character — not the distress of his or her
family. A defendant may offer evidence that he or she is loved
by family members or others, and that these individuals want
him or her to live. But this evidence is relevant because it
constitutes indirect evidence of the defendant’s character. The
jury must decide whether the defendant deserves to die, not
whether the defendant’s family deserves to suffer the pain of
having a family member executed.’ [Citation.] ‘In summary, we
[reiterate] that sympathy for a defendant’s family is not a
matter that a capital jury can consider in mitigation, but that
family members may offer testimony of the impact of an
execution on them if by so doing they illuminate some positive
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Opinion of the Court by Groban, J.
quality of the defendant’s background or character.’ ” (Rices,
supra, 4 Cal.5th at p. 88.) With the exception of the struck
testimony about whether defendant’s mother wanted defendant
to receive the death penalty, she was largely permitted to testify
about her positive regard and love for her son, consistent with
Smith and Rices.
Defendant also contends the prosecutor committed
prejudicial misconduct in his explosive manner of objecting, and
that defendant was further prejudiced by the trial court’s
clearing of the courtroom following the objection, and its
strongly worded admonishment to the jury and comment that
Aguirre’s family had respected the rule.
As defendant notes, the trial court concluded the
prosecutor’s manner of objecting was “intemperate.” Putting
aside the questions whether the prosecutor’s actions constituted
misconduct and the trial court’s initial jury admonishment was
error, we conclude any error was harmless because there was no
“ ‘reasonable . . . possibility’ ” the jury would have rendered a
life verdict (Ghobrial, supra, 5 Cal.5th at p. 289) in the absence
of the prosecutor’s reaction and had the trial court omitted its
initial comment that the Aguirre family had respected the rule
prohibiting opinions on the penalty verdict. There was no
reasonable possibility the jury would have sentenced defendant
to death simply because the prosecutor objected in an
intemperate manner or because the trial court admonished
defendant’s mother for saying she did not want her son to be
sentenced to death.
The court, moreover, did repeat the instruction, this time
more generally, explaining that the jury was not to consider the
opinion testimony of any witness including the families of either
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Opinion of the Court by Groban, J.
party: “At the time Mrs. Johnson testified, you were instructed
to disregard her opinion on the question of penalty or
punishment. I wish to clarify that point. The question of
penalty or punishment is yours to decide based upon the factors
in aggravation and mitigation upon which you are now being
instructed. Not included is any perception you may have of the
feelings or desires of any witness on that question, including the
family of Deputy Aguirre and the family of Mr. Johnson or of
any other witness. [¶] To the extent that you heard evidence of
the impact of defendant’s conduct upon others it was not offered
and cannot be considered by you as indicating the desires of the
witnesses as to the proper punishment. Such evidence was
received as a component of the ‘circumstances of the crime’
relative to the harm caused by the crime and the
blameworthiness of defendant. You are expressly instructed
that you are not to in any way consider what you may believe or
suspect to be a witness’ desire for punishment.” The jury was
also instructed that it could consider “[a]ny other circumstance
which extenuates the gravity of the crime even though it is not
a legal excuse for the crime and any sympathetic or other aspect
of the defendant’s character or record that the defendant offers
as a basis for a sentence less than death, whether or not related
to the offense for which he is on trial.” We generally presume
the jury would have understood, as the court instructed, that it
was simply not to consider any witness’s opinion regarding
punishment, and it was reasonably likely the jury would have
understood that it was otherwise permitted to consider in its
decision defendant’s mother’s unobjected-to testimony
describing her love and positive regard for her son. (People v.
Johnson (2015) 61 Cal.4th 734, 770 [“We presume the jurors
understood and followed the instructions”].)
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3. Challenges to California’s Death Penalty Law
Defendant raises numerous challenges to California’s
death penalty law that we have repeatedly rejected and his
proffered reasons for reconsideration of our holdings are
unpersuasive:
“ ‘Neither the federal nor the state Constitution requires
that the penalty phase jury make unanimous findings
concerning the particular aggravating circumstances, find all
aggravating factors beyond a reasonable doubt, or find beyond a
reasonable doubt that the aggravating factors outweigh the
mitigating factors.’ ” (Linton, supra, 56 Cal.4th at p. 1215; see
also People v. Rangel (2016) 62 Cal.4th 1192, 1235 [Nor is the
death penalty statute unconstitutional for not requiring
“findings beyond a reasonable doubt that an aggravating
circumstance (other than Pen. Code, § 190.3, factor (b) or (c)
evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence”].) “ ‘The United States Supreme Court’s
recent decisions interpreting the Sixth Amendment’s jury-trial
guarantee [citations] do not alter these conclusions.’ ” (Linton,
supra, at p. 1215; see also People v. McDaniel (2021) 12 Cal.5th
97, 141–155.) We have rejected constitutional challenge to the
absence of a requirement that the jury make “explicit findings
as to any aggravating factors.” (People v. Famalaro (2011)
52 Cal.4th 1, 43.) “ ‘ “Intercase proportionality review is not
required.” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 257.)
“ ‘The death penalty law adequately narrows the class of death-
eligible defendants.’ ” (Id. at p. 255.) “ ‘ “The sentencing factor
of ‘circumstances of the crime’ ([Pen. Code, ]§ 190.3, factor (a)) is
not unconstitutionally vague and does not result in the arbitrary
and capricious imposition of the death penalty.” ’ ” (Ibid.)
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“ ‘ “The California death penalty scheme does not violate equal
protection by treating capital and noncapital defendants
differently.” ’ ” (Id. at p. 257.)
I. Cumulative Error
Defendant contends that any guilt and penalty phase
error, if not individually prejudicial, is cumulatively so. We
have found or assumed several errors: (1) the admission of the
prior crimes evidence; (2) the related prosecutorial misconduct
claim concerning argument to the jury that defendant signed a
parole form advising him that he faced a 25-year-to-life sentence
on possession of a firearm; (3) the related claim that the defense
was prevented from responding to this argument; (4) the related
claim that a deputy district attorney’s expert testimony usurped
the trial court’s role to instruct the jury about the law; (5) the
prosecutorial misconduct claim concerning efforts to denigrate
defense counsel; (6) the prosecutorial misconduct claim
concerning efforts to intimidate county counsel and a witness;
(7) the prosecutorial misconduct claims concerning efforts to
denigrate defense experts; and (8) the prosecutorial misconduct
claim concerning objecting in an explosive manner and the trial
court’s initial jury admonishment. We found any assumed or
actual error in each of these claims individually harmless.
Many of the misconduct claims occurred outside the presence of
the jury or would have minimal prejudicial effect. Reversal is
not warranted in light of any of these errors individually, nor is
there any cumulation of error that merits reversal.
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III. CONCLUSION
We affirm the judgment.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
JENKINS, J.
133
PEOPLE v. JOHNSON
S070250
Dissenting Opinion by Justice Liu
Defendant Michael Raymond Johnson was convicted of
kidnapping and raping his wife, then shooting and killing one of
the officers who responded to the scene, 26-year-old Ventura
County Deputy Sheriff Peter Aguirre. The evidence established
that Johnson killed Aguirre, but the degree of his culpability —
in particular, his state of mind when he shot Aguirre — was a
contested issue at trial.
In the immediate aftermath of this tragedy, law
enforcement officials mishandled the investigation. After the
shooting, Johnson was arrested and transported to the hospital
to receive treatment for a gunshot wound to the chest. He was
hooked up to an IV, with a urinary catheter inserted. Both his
hands were handcuffed to a hospital gurney, and he was naked
except for a cloth on his lower body. With Johnson in this
condition, the police and prosecution repeatedly sought to
question him in violation of his constitutional rights. (Maj. opn.,
ante, at pp. 38–45.) At various points, Johnson clearly invoked
his right to remain silent and his right to an attorney. (Edwards
v. Arizona (1981) 451 U.S. 477 (Edwards); Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda).) Yet, for three hours, the
interrogating officers refused to honor these invocations and
continued their attempts to obtain a statement from Johnson.
Ultimately, they succeeded: Johnson made a series of
incriminating statements to Dr. Donald S. Patterson, a
psychiatrist sent by the district attorney’s office to interview
PEOPLE v. JOHNSON
Liu, J., dissenting
Johnson. All members of this court agree that Patterson’s
attempt to question Johnson clearly violated “his right to have
counsel present during custodial interrogation.” (Edwards, at
p. 484; see maj. opn., ante, at p. 40.)
Despite the raft of constitutional violations that occurred,
today’s decision finds no error in the admission of Johnson’s
statements because Johnson, after first declining to speak with
Patterson, then “initiated” the conversation that led to his
confession. (Maj. opn., ante, at p. 45.) But when a suspect
initiates conversation as a result of prior Edwards violations,
his statements are no more admissible than if they were
obtained through direct questioning in violation of Edwards.
Here, Johnson’s initiation was the product of the multiple
constitutional violations earlier that night, including two
violations by Patterson himself. Indeed, Patterson’s presence
and conduct at the hospital were the culmination of a continuous
series of unconstitutional law enforcement tactics intended to
get Johnson to talk.
The court says Johnson’s initiation was not tainted by any
prior violation of his rights because he was not badgered or
berated and made the decision to speak with Patterson “freely.”
(Maj. opn., ante, at pp. 57–58.) Yet neither this court’s nor the
United States Supreme Court’s case law has ever suggested that
the protection of Edwards — which “set forth a ‘bright-line rule’
that all questioning must cease after an accused requests
counsel” (Smith v. Illinois (1984) 469 U.S. 91, 98 (per curiam)
(Smith)) — is limited to cases of overt coercion by law
enforcement. Indeed, once a suspect has invoked the right to
counsel, the authorities may not make any attempt to coax him
into speaking, be it “explicit or subtle, deliberate or
unintentional.” (Ibid.) Were it otherwise, law enforcement
2
PEOPLE v. JOHNSON
Liu, J., dissenting
could use psychological manipulation, repeated rounds of
questioning, or other tactics to “persuade [a suspect] to
incriminate himself notwithstanding his earlier request for
counsel’s assistance.” (Ibid.) As I explain, that is exactly what
happened here.
It is understandable that law enforcement officials, after
the shooting of a fellow officer, were frustrated and impatient
with Johnson’s refusal to talk. But the law accords every person
the right to remain silent and the right to consult a lawyer
before speaking to the police. I fear that the takeaway from
today’s decision is that even multiple violations of these basic
rights will not result in the exclusion of an incriminating
statement if sufficiently clever or subtle tactics are ultimately
used to elicit it. Because I cannot agree that Johnson’s
statement was properly admitted, I respectfully dissent.
I.
“[I]f a person in custody is to be subjected to interrogation,
he must first be informed in clear and unequivocal terms that
he has the right to remain silent” and the “right to consult with
counsel prior to questioning.” (Miranda, supra, 384 U.S. at
pp. 467–468, 470.) This safeguard is necessary because “the
process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures
which work to undermine the individual’s will to resist and to
compel him to speak where he would not otherwise do so freely.”
(Id. at p. 467.)
When an accused has “expressed his desire to deal with
the police only through counsel, [he] is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless [he] himself initiates further
3
PEOPLE v. JOHNSON
Liu, J., dissenting
communication, exchanges, or conversations with the police.”
(Edwards, supra, 451 U.S. at pp. 484–485.) As noted, “Edwards
set forth a ‘bright-line rule’ that all questioning must cease after
an accused requests counsel.” (Smith, supra, 469 U.S. at p. 98.)
Allowing “the continuation of custodial interrogation after a
momentary cessation would clearly frustrate the purposes of
Miranda,” since “repeated rounds of questioning [would]
undermine the will of the person being questioned.” (Michigan
v. Mosley (1975) 423 U.S. 96, 102.) By barring law enforcement
from continuing to question someone who has invoked the right
to counsel, “Edwards is ‘designed to prevent police from
badgering a defendant into waiving his previously asserted
Miranda rights.’ ” (Minnick v. Mississippi (1990) 498 U.S. 146,
150.)
On the day of the shooting in this case, Johnson was first
approached by Detective Robert Young at 7:00 p.m. He declined
to talk, invoking his right to remain silent. Twenty minutes
later, District Attorney Michael Bradbury approached Johnson
to make sure he did not wish to talk. Johnson declined to give a
statement, saying he was “in shock.” From there, as the court
acknowledges (maj. opn., ante, at pp. 38–45), several Miranda
and Edwards violations occurred: First, 10 minutes after the
encounter with Bradbury, Young and investigator Richard Haas
approached Johnson and began questioning him again. Second,
less than an hour later, around 8:25 p.m., Young again
approached Johnson to ask if he was willing to give a statement
regarding what happened. Johnson remained firm in his refusal
to speak, saying that he was “in a state of shock and . . . kinda
confused,” and that he wanted to speak to an attorney. No
counsel was provided. Instead, Young returned half an hour
4
PEOPLE v. JOHNSON
Liu, J., dissenting
later to berate Johnson for killing Aguirre — the third violation
that night. Johnson still did not give a statement.
Undaunted, the prosecution switched gears. Johnson had
told Haas and Young that he had a history of mental health and
substance abuse issues, so the investigators sent a psychiatrist,
Patterson, to see if he could get Johnson to talk. Sending in
Patterson violated Johnson’s rights a fourth time. Once
Johnson had invoked his right to counsel to Young, he could not
be “subject to further interrogation by the authorities until
counsel [was] made available to him.” (Edwards, supra, 451
U.S. at pp. 484–485; see maj. opn., ante, at pp. 39–40.) Yet
Patterson, an agent of the district attorney’s office, went to the
hospital and attempted to interview Johnson in direct violation
of Edwards. (See People v. Ghent (1987) 43 Cal.3d 739, 750–751
[finding unconstitutional a psychiatrist’s attempt to interview
defendant after invocation of right to counsel].)
This tactic — sending in a medical professional as an
agent for the prosecution — is one of the oldest in the book. (See
Leyra v. Denno (1954) 347 U.S. 556, 559 [after days of failing to
obtain a confession, interrogators sent in a psychiatrist under
the guise of providing medical treatment; the suspect
confessed].) And it is one that Patterson was familiar with. (See
People v. Walker (1972) 29 Cal.App.3d 448, 451 [finding
defendant’s self-incriminating statement invalid and reversing
conviction where “Dr. Donald S. Patterson of Santa Barbara, a
psychiatrist,” violated Edwards by continuing to question him
after he asked for an attorney]; id. at pp. 452, 455.) To obtain a
confession, police may attempt to convince a suspect “that he
and the interrogator share a common interest, that their
relationship is a [mutual] rather than an adversarial one.” (Leo,
Miranda’s Revenge: Police Interrogation as a Confidence Game
5
PEOPLE v. JOHNSON
Liu, J., dissenting
(1996) 30 L. & Soc’y Rev. 259, 266.) A psychiatrist can assume
this position more easily than a detective or uniformed officer —
particularly where, as here, the suspect has a prior history of
psychiatric treatment. But the practice has been condemned as
unethical by professional psychiatric organizations. (Janofsky,
Lies and Coercion: Why Psychiatrists Should Not Participate in
Police and Intelligence Interrogations (2006) J. Am. Acad.
Psychiatry & L. 472, 475–476 [ethical principles adopted by the
American Psychiatric Association and American Academy of
Psychiatry and the Law bar psychiatrists from evaluating
suspects who have not consulted with legal counsel].)
Today’s opinion acknowledges and denounces these four
violations but stops short of finding a fifth. As noted, Patterson
should not have questioned Johnson at all because Johnson had
told Young that he wanted an attorney. But separate and apart
from that violation, Patterson’s conduct after Johnson again
invoked his right to counsel in response to Patterson’s unlawful
attempt to question him constituted a fifth violation.
After arriving at the hospital, Patterson observed Johnson
for an hour before introducing himself as “a psychiatrist from
Santa Barbara.” By this time in the night, Johnson had resisted
multiple efforts to get him to talk. But Patterson took a
different, more understated approach. Without disclosing that
he was a forensic psychiatrist affiliated with the district
attorney’s office, Patterson proceeded to give Miranda warnings
to Johnson and asked if he wanted to talk. Johnson told
Patterson he did not wish to give a statement and wanted to
speak to an attorney. He said he was “in a state of shock and
kind of confused” and was not sure he would be providing
“accurate” information.
6
PEOPLE v. JOHNSON
Liu, J., dissenting
At this point, Patterson was required to stop interrogating
Johnson, but he did not. Instead, Patterson again tried to
convince Johnson to speak to him, saying, “I’m gonna just stay
around here with you and let you get back from X-ray and see
how you’re getting along and see if you still feel, feel that way
or — [¶] . . . [¶] — cause at some point you did say that you
would be willing to talk to me and so — [¶] . . . [¶] — And it’s up
to you, you can still refuse it, but you did say that at one time.”
After saying this, Patterson stuck close to Johnson’s side; he
followed Johnson when his gurney was wheeled into X-ray,
stayed with Johnson while his X-rays were taken, then followed
him back to his room. Eventually, Patterson’s strategy worked:
Johnson turned to him and said, “Still here, huh?” The two
began speaking; Johnson started telling Patterson about
psychiatrists that had previously treated him, inquiring
whether Patterson knew them. From there, the conversation
expanded to include Johnson’s mental health history, his past
experiences of delusions, and, eventually, his actions related to
the shooting.
Patterson’s tactics were a form of interrogation. For
Edwards purposes, interrogation includes “not only . . . express
questioning, but also . . . any words or actions on the part of the
police . . . that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” (Rhode
Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted; cf. maj.
opn., ante, at p. 37.) Patterson’s conduct was reasonably likely
to elicit an incriminating response in two ways. First, Patterson
reminded Johnson that he had previously promised to speak to
Patterson. The comment suggested that by not speaking to
Patterson, Johnson was going back on his word. This type of
statement has been found to constitute further questioning.
7
PEOPLE v. JOHNSON
Liu, J., dissenting
(See People v. Harris (1989) 211 Cal.App.3d 640, 648 [after
suspect invoked right to silence, sergeant’s statement, “ ‘I
thought you were going to come back and straighten it out,’ ”
constituted impermissible further questioning].)
Second, by saying he would wait around to see if Johnson
would change his mind and then following Johnson around the
hospital, Patterson conveyed that he was not satisfied with
Johnson’s refusal. Patterson explicitly told Johnson that he was
waiting until Johnson was willing to speak. In light of his
statement that he was waiting for Johnson to talk, Patterson’s
persistence in following Johnson around the hospital for 20
minutes was reasonably likely to elicit a response from Johnson.
“ ‘ “No authority, and no logic, permits the interrogator to
proceed . . . on his own terms and as if the defendant had
requested nothing, in the hope that the defendant might be
induced to say something casting retrospective doubt on his
initial statement that he wished to speak through an attorney
or not at all.” ’ ” (People v. Henderson (2020) 9 Cal.5th 1013,
1025, quoting Smith, supra, 469 U.S. at p. 99.) Yet even after
Johnson invoked his right to counsel to Patterson — Johnson’s
second such invocation that evening — Patterson’s behavior
indicated that he was there to interview Johnson and wanted
him to talk. Patterson’s conduct, which ultimately led to
Johnson’s incriminating statements, amounted to further
interrogation in violation of Edwards.
II.
The court concludes that Johnson’s confession is
admissible because after invoking his right to counsel, Johnson
initiated a conversation with Patterson. It is true that after
Patterson had been standing at Johnson’s side for 20 minutes,
8
PEOPLE v. JOHNSON
Liu, J., dissenting
Johnson turned to him and said, “Still here, huh?” But this
statement was not a valid initiation for Edwards purposes.
Under Edwards, an initiation occurs when a suspect’s
“words or . . . conduct” can be “ ‘fairly said to represent a desire’
. . . ‘to open up a more generalized discussion relating directly or
indirectly to the investigation.’ ” (People v. Mickey (1991)
54 Cal.3d 612, 648; see Edwards, supra, 451 U.S. at pp. 484–
485.) Where, as here, there has been a prior Edwards violation,
“a renewal of contact by the defendant” constitutes an initiation
“only if the decision to renew contact was not a ‘response to’ or
‘product of’ the prior unlawful interrogation.” (Mack v. State
(Ga. 2014) 765 S.E.2d 896, 903 (Mack).) Prior infringements of
a defendant’s rights, “even though unavailing at the time,”
might have “fatally tainted the spontaneity of [a defendant’s]
subsequent statement, making it instead the product of
inducement, provocation or subtle coercion.” (People v. Kinnard
(N.Y.App.Div. 1983) 470 N.Y.S.2d 828, 846; see Collazo v. Estelle
(9th Cir. 1991) 940 F.2d 411, 423 (Collazo) [a defendant’s
subsequent statement is “ ‘initiated’ ” by the police, not by the
defendant, if it is the “delayed product” of unlawful police
conduct].)
To determine whether there is a causal connection
between a prior unlawful interrogation and a defendant’s later
renewal of contact, “the entire sequence of events leading up to
the suspect’s renewal of contact must be considered.” (Mack,
supra, 765 S.E.2d at p. 904.) Other state high courts and federal
courts making this assessment have asked “whether (1) there
was a break in the stream of events sufficient to insulate the
statement from the effect of the prior coercion, (2) it can be
inferred that the coercive practices had a continuing effect that
touched the subsequent statement, (3) the passage of time, a
9
PEOPLE v. JOHNSON
Liu, J., dissenting
change in the location of the interrogation, or a change in the
identity of the interrogators interrupted the effect of the
coercion, and (4) the conditions that would have precluded the
use of a first statement had been removed.” (Collazo, supra, 940
F.2d at p. 421; see State v. Yoh (Vt. 2006) 910 A.2d 853, 862–863
(Yoh) [applying these factors]; Blake v. State (Md. 2004) 849
A.2d 410, 422 (Blake) [same]; Mack, supra, 765 S.E.2d at p. 904
[similar factors].)
Here, the Attorney General has not carried his burden to
demonstrate that Johnson’s conduct was not a product of prior
violations. (People v. Hensley (2014) 59 Cal.4th 788, 810 [“The
state must demonstrate that . . . ‘ . . . the accused, not the police,
reopened the dialogue with the authorities.’ ”].) Several
circumstances support the conclusion that Johnson’s statement
to Patterson — “Still here, huh?” — was the product of
Patterson’s Edwards violations.
First, Patterson’s interrogation tactics “had a continuing
effect that touched [Johnson’s] subsequent statement.”
(Collazo, supra, 940 F.2d at p. 421.) Patterson explicitly told
Johnson that he would stay and wait to see if Johnson would
change his mind and provide a statement. By remaining in
Johnson’s presence, and especially by following Johnson as he
was moved around the hospital, Patterson continued to convey
that he wanted Johnson to speak to him. This behavior was
ongoing when Johnson purportedly initiated the conversation
with Patterson.
Moreover, Patterson’s conduct must be considered against
the backdrop of “the entire sequence of events” that night.
(Mack, supra, 765 S.E.2d at p. 904.) Patterson’s understated
manner and “ ‘kind face’ ” (maj. opn., ante, at p. 62) presented
10
PEOPLE v. JOHNSON
Liu, J., dissenting
Johnson with a deliberate contrast to the impatient and even
angry officers who had sought to question him earlier. The court
says this contrast is not “relevant.” (Maj. opn., ante, at p. 55.)
But this shifting approach by law enforcement — “alternat[ing]”
between “a show of some hostility” and “ ‘kindhearted[ness]’ ” —
is a familiar psychological “ploy.” (Miranda, supra, 384 U.S. at
p. 452; see ibid. [describing “the ‘friendly-unfriendly’ or the
‘Mutt and Jeff’ [good cop-bad cop] act”].) As Miranda observed,
it is one of the “effective tactics” discussed in “various police
manuals and texts” that “have had rather extensive use among
law enforcement agencies.” (Id. at pp. 448, 449, fn. 9.) In other
words, Patterson’s tactic was made more effective by the police
and prosecution’s earlier unlawful attempts to question
Johnson. Thus, Johnson’s purported initiation to Patterson was
the “ ‘product of’ ” a series of law enforcement tactics that
included “the prior unlawful interrogation[s].” (Mack, at p. 903.)
Additionally, when a suspect’s rights are violated on
multiple occasions, this gives the impression that law
enforcement “w[ill] not honor [the] right to silence or . . . right to
counsel until [the suspect] g[ives] . . . a confession.” (People v.
Neal (2003) 31 Cal.4th 63, 82 (Neal); see id. at p. 89 (conc. opn.
of Kennard, J.) [repeatedly ignoring a suspect’s invocations
“unmistakably implie[s] that [he] . . . ha[s] no right to counsel
that [law enforcement] was bound to respect”].) Patterson was
not the first person to refuse to accept Johnson’s invocation of
the right to silence or right to counsel. Time and again, Johnson
said he did not wish to give a statement or to speak without
consulting a lawyer, but law enforcement ignored his
invocations. In light of this official behavior, a reasonable
person in Johnson’s position may well have doubted whether he
was actually free to remain silent or to consult a lawyer before
11
PEOPLE v. JOHNSON
Liu, J., dissenting
speaking, despite the warnings he had been given. None of the
events that happened in the hospital would have dispelled that
impression; Patterson’s conduct after Johnson again invoked
the right to counsel only further conveyed that the authorities
would not take no for an answer.
Second, there was no “break in the stream of events
sufficient to insulate the statement from the effect of the prior”
violations. (Collazo, supra, 940 F.2d at p. 421.) In some cases,
questioning ends and the suspect is allowed to leave, with the
interrogation resuming some days later. (Cf. Mack, supra, 765
S.E.2d at pp. 901–902 [no break in the stream of events even
though initial interview ended and suspect left, because the
interrogation resumed the following day].) Or there may be a
pause in the questioning during which the suspect is permitted
to leave or make a phone call. (See, e.g., Perrine v. State (Fla.
Ct.App. 2005) 919 So.2d 520, 523 [suspect left the police station,
then returned 30 minutes later and gave a statement]; cf.
Collazo, supra, 940 F.2d at pp. 421–422 [no break in the stream
of events even though suspect called his wife during a three-
hour pause in questioning].) Here, by contrast, the violation was
ongoing when Johnson initiated. Patterson explicitly told
Johnson that he would stay and wait to see if Johnson would
change his mind and speak to him. This behavior continued
until the moment Johnson purportedly initiated. Aside from
briefly stepping out of the room to speak to the district attorney,
Patterson remained with Johnson until he made his statement.
All the while, Johnson was handcuffed to a gurney with no
choice but to remain in Patterson’s presence. No break in the
stream of events insulated Johnson’s statement from
Patterson’s improper interrogation.
12
PEOPLE v. JOHNSON
Liu, J., dissenting
Third, neither “the passage of time, a change in the
location of the interrogation, [nor] a change in the identity of the
interrogators interrupted the effect” of Patterson’s prior
Edwards violations. (Collazo, supra, 940 F.2d at p. 421.) The
location remained the same. Only 20 minutes passed between
the improper interrogation and the supposed initiation. (See
Blake, supra, 849 A.2d at p. 422 [delay of 28 minutes was too
short to dispel taint from first improper interrogation].)
Moreover, Johnson’s initial statement — “Still here, huh?” — is
naturally understood as a response to Patterson’s statements
and conduct indicating that he would wait to see if Johnson
would change his mind. (See ibid. [suspect’s initiation was a
response to statement made by interrogating officer in the prior
improper interrogation].) Patterson’s response to Johnson —
“Yeah, just, just in case you’re . . .” — further suggests he stayed
nearby in order to get Johnson to talk.
Fourth, there was no significant change in “the conditions
that would have precluded the use of a first
statement.” (Collazo, supra, 940 F.2d at p. 421.) Johnson was
in a vulnerable state from the time Patterson began
interrogating him until the time he supposedly initiated. Only
a few hours had passed since Johnson was involved in a violent
shootout with police. He was nearly naked, handcuffed to a
gurney, with a gunshot wound to the chest. The record shows
he was in pain; in Patterson’s presence, he twice asked medical
personnel when he could obtain pain medication. In declining
to give a statement, Johnson consistently told authorities that
he was “in shock” and “confused.” His weakened physical state,
coupled with his disorientation, made him more susceptible to
Patterson’s interrogation tactics, and those conditions remained
unchanged at the time Johnson supposedly initiated a
13
PEOPLE v. JOHNSON
Liu, J., dissenting
conversation. (See Blake, supra, 849 A.2d at p. 422 [suspect was
“in a cold holding cell with little clothing”]; see also Mincey v.
Arizona (1978) 437 U.S. 385, 396–402 [statements were
involuntary in part because suspect was in the hospital,
wounded and in pain, and expressed confusion during
interrogation].)
Finally, the record contains an additional feature
indicating that Johnson in all likelihood would not have started
a conversation if Patterson had not improperly asked to
interview him. Immediately after arriving at the hospital,
Patterson spent an hour silently observing Johnson. It was only
after that hour elapsed that Patterson introduced himself and
began to interrogate Johnson in violation of Edwards. The
record does not reveal any attempt by Johnson to engage
Patterson in conversation during that hour, much less speak to
him about the events of that day. We need not wonder whether
Johnson would have chosen to speak if his rights had not first
been violated. The answer is in the record: For the entire hour
before Patterson sought to interrogate Johnson, Johnson
showed no inclination to speak with Patterson. Only after
Patterson unlawfully asked to question Johnson and unlawfully
refused to honor Johnson’s invocation of the right to counsel did
Johnson initiate a conversation. On these facts, it is hard to see
how Johnson’s purported initiation was anything but derivative
of Patterson’s attempt to interrogate him in violation of
Edwards. In sum, the trial court erred in admitting Johnson’s
statement to Patterson.
This error was prejudicial to Johnson’s conviction for first
degree murder. Unsurprisingly, Johnson’s confession was a
focal point of the prosecutor’s case: The prosecutor discussed
various parts of the confession in his opening statement, played
14
PEOPLE v. JOHNSON
Liu, J., dissenting
the entire audiotape of the redacted interview for the jury, used
Johnson’s statements in cross-examining defense witnesses,
and underscored how the statements supported the
prosecution’s case during closing and rebuttal arguments.
Moreover, the prosecution used Johnson’s confession to support
each of its three theories of first degree murder: premeditation,
lying in wait, and felony murder. To support premeditation, the
prosecutor described the shooting of Aguirre as “a cold-blooded
execution,” emphasizing “the cold and . . . the ice” in Johnson’s
voice when he spoke to Patterson. The prosecutor also used
Johnson’s statement to cross-examine defense experts regarding
the ballistics evidence, arguing that Johnson killed Aguirre
“execution-style” while Aguirre lay disabled on the ground.
Second, regarding lying in wait, the prosecutor used Johnson’s
statement to argue that he knew the police were at the door and
deliberately ambushed Aguirre. Third, regarding the felony-
murder theory, the prosecutor relied heavily on the fact that
Johnson had confessed to kidnapping his wife to establish that
the murder occurred during the course of a felony.
Because Johnson’s own statements were highly probative
of his conduct and state of mind, I cannot conclude “beyond a
reasonable doubt that the error . . . did not contribute to the
verdict obtained.” (Chapman v. California (1967) 386 U.S. 18,
24; see Neal, supra, 31 Cal.4th at p. 86 [“ ‘[T]he improper
admission of a confession is much more likely to affect the
outcome of a trial than are other categories of evidence, and thus
is much more likely to be prejudicial . . . .’ ”]; Arizona v.
Fulminante (1991) 499 U.S. 279, 296 [“A confession is like no
other evidence. Indeed, ‘the defendant’s own confession is
probably the most probative and damaging evidence that can be
admitted against him . . . . [T]he admissions of a defendant
15
PEOPLE v. JOHNSON
Liu, J., dissenting
come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past
conduct.’ ”].) Accordingly, the murder conviction and death
sentence cannot stand.
III.
Today’s opinion declines to consider these factors, instead
focusing on the audio recording of the interview and concluding
that “the record . . . reflects defendant’s ‘clear willingness and
intention to talk’ to Patterson.” (Maj. opn., ante, at p. 49.)
Citing Johnson’s conduct, demeanor, and various statements,
the court says his decision to initiate a conversation with
Patterson was made calmly and rationally, with full
understanding of his rights. (Id. at pp. 52–54.)
As an initial matter, I note that the standard the court
applies today — i.e., there is an initiation “only if the decision to
renew contact was not a ‘response to’ or ‘product of’ the prior
unlawful interrogation” (Mack, supra, 765 S.E.2d at p. 903; maj.
opn., ante, at pp. 47–48) — was set forth by the Georgia
Supreme Court in a decision that itself evaluated causation by
looking to the four factors articulated by the Ninth Circuit in
Collazo and applied by other state high courts. (See Mack, at
p. 904 [“In determining the causal connection between the prior
unlawful interrogation and the suspect’s renewal of contact, the
entire sequence of events leading up to the suspect’s renewal of
contact must be considered, including but not limited to the
lapse of time between the unlawful interrogation and the
renewed contact, any change in location or in the identity of the
officers involved from one interview to the next, and any break
in custody between interviews. See, e.g., Collazo, 940 F.2d at
421; Yoh, 910 A.2d at 862; Blake, 849 A.2d at 422 . . . .”].) It is
16
PEOPLE v. JOHNSON
Liu, J., dissenting
no wonder today’s opinion ignores these factors: They uniformly
suggest that Johnson’s decision to speak with Patterson was a
product of prior Edwards violations. (Ante, at pp. 10–14.)
By focusing on the interview itself and parsing Johnson’s
and Patterson’s statements, the court misses the overall context
in which those statements were made. If Johnson had made the
statements after treatment for his injury, an appreciable
passage of time, or a significant change in location or setting, I
might agree that he made a free and rational decision to initiate
a conversation with Patterson. Even if Johnson had initiated a
conversation during the initial hour when Patterson silently
observed Johnson, this might be a different case. But those are
not the facts here. At the time he purportedly initiated a
conversation with Patterson, Johnson was half-naked and
handcuffed to a gurney, late at night in an emergency room, with
a gunshot wound to the chest. His Miranda/Edwards rights had
been violated five (or, we can agree, at least four) times over a
three-hour period that evening, and Patterson had been a
lingering presence, following Johnson around the hospital after
he had again invoked his right to counsel. There was no break
in the stream of events or change in conditions that might have
separated Johnson’s purported initiation from law
enforcement’s prior unlawful attempts to question him.
The court further observes that “the record does not reveal
the sort of berating evident in other cases that might readily
wear down a suspect [citations], but instead a handful of one- to
two-minute conversations over a period of a few hours.” (Maj.
opn., ante, at pp. 49–50.) And although Patterson did violate
Edwards by approaching Johnson in the first place, the court
says that “after [Johnson] requested counsel, Patterson asked
no more questions and there was no discussion for about 20
17
PEOPLE v. JOHNSON
Liu, J., dissenting
minutes.” (Maj. opn., ante, at p. 51.) In the court’s telling, “[t]he
overall picture is not of a browbeaten suspect whose will was
overborne by a coercive interrogator, but of a suspect eager to
tell his story to a sympathetic listener, even though there might
be consequences for doing so.” (Maj. opn., ante, at p. 62.)
But it is inaccurate to say there was no berating in this
case; it is undisputed that Young berated Johnson earlier that
night. Nor is it accurate to suggest that Patterson honored
Johnson’s refusal to speak. Patterson responded to Johnson’s
invocation of counsel by urging him to speak, reminding him
that he had previously said he would speak to Patterson, and
then following him around the hospital. And Patterson — who
unlawfully approached Johnson to get him to talk and
eventually provided crucial testimony to convict him of first
degree murder — was anything but “a sympathetic listener.”
The court seems to reason that Johnson’s decision to speak
to Patterson was untainted by the prior Edwards violations
because the violations were, essentially, not that bad. But this
reasoning cannot be squared with high court precedent. Again,
“Edwards set forth a ‘bright-line rule’ that all questioning must
cease after an accused requests counsel.” (Smith, supra, 469
U.S. at p. 98.) This bright-line rule is necessary because any
attempt to coax a defendant into speaking, regardless of how it
is undertaken, can sway a defendant to confess when he
otherwise would not have done so. (Ibid.) Coercion in
interrogation settings “can be mental as well as physical, and
. . . the blood of the accused is not the only hallmark of an
unconstitutional inquisition.” (Blackburn v. Alabama (1960)
361 U.S. 199, 206 (Blackburn).) The high court has repeatedly
stressed that neither physical violence nor overt threats are
required to create a coercive atmosphere. (See, e.g., Miranda,
18
PEOPLE v. JOHNSON
Liu, J., dissenting
supra, 384 U.S. at p. 467 [discussing the “inherently compelling
pressures” of in-custody interrogation]; Arizona v. Mauro (1987)
481 U.S. 520, 529–530 [same]; see also Culombe v. Connecticut
(1961) 367 U.S. 568, 602 [a confession is involuntary when
“compulsion, of whatever nature or however infused, propels or
helps to propel the confession”].) Even “unintentional” behavior
can cause a defendant to confess. (Smith, at p. 98).
By adopting a bright-line rule, the high court sought to
prevent increasingly “sophisticated modes of ‘persuasion’ ” from
being used to manipulate suspects into confessing. (Blackburn,
supra, 361 U.S. at p. 206.) Accordingly, this court has never
suggested that the protection of Edwards is limited to cases of
overt coercion by law enforcement. (See, e.g., People v. Davis
(2009) 46 Cal.4th 539, 596 [recognizing principle of Smith].)
Lower courts, too, have recognized this principle. (See People v.
Walker, supra, 29 Cal.App.3d at p. 455 [finding Edwards
violation where Patterson continued to question the defendant
after he asked for an attorney, with no indication the defendant
had been badgered or berated].)
The fact that Johnson was not berated, to the extent it is
true, has limited relevance. The question is whether the conduct
of law enforcement — including conduct that may have exerted
subtle pressure — would have made a reasonable person more
likely to initiate further communication. As noted, other courts
have not hinged this analysis on whether a defendant was
badgered or berated; they have instead considered whether
various factors, such as the passage of time or a break in the
stream of events, “insulate[d] the [defendant’s] statement from
the effect of the prior coercion.” (Collazo, supra, 940 F.2d at
p. 421; see Yoh, supra, 910 A.2d at p. 862 [conducting initiation
analysis without discussion of berating or lack thereof]; see also
19
PEOPLE v. JOHNSON
Liu, J., dissenting
People v. Boyer (1989) 48 Cal.3d 247, 274 [defendant’s initiation
was tainted by prior violations solely because it was a result of
the police’s improper resumption of contact, even setting aside
earlier badgering], disapproved on another ground in People v.
Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Of course, where a
suspect is berated, it is more likely his initiation was tainted by
law enforcement misconduct. (Maj. opn., ante, at pp. 54–55.)
But the fact that a suspect was not berated simply eliminates
one potential source of taint; subtle pressure can take many
forms. As the high court recognized in Miranda, even
“ ‘kindness’ ” and “patience” can be deployed to induce a
confession. (Miranda, supra, 384 U.S. at pp. 450–451.)
In sum, I find it hard to believe that Johnson — in a
clearly vulnerable state, after three hours of unlawful efforts to
question him in the face of his repeated invocations of the right
to silence and right to counsel — somehow made a clean break
and initiated a new conversation that “was not a ‘response to’ or
‘product of’ the prior unlawful interrogation.” (Mack, supra, 765
S.E.2d at p. 903.) After today’s decision, what is to prevent law
enforcement from ignoring a suspect’s clear invocations and
engaging in repeated rounds of questioning, calling in a
psychiatrist, or applying other subtle tactics to coax the suspect
into “initiating” a conversation? That is precisely the type of
conduct that Edwards’s bright-line rule seeks to prevent, and it
is precisely the type of conduct that happened here.
IV.
This case involves not one, not two, not three, but five
Miranda/Edwards violations, all of which took place while
Johnson was handcuffed to a hospital bed, almost naked, with a
gunshot wound to the chest. The court calls the law enforcement
20
PEOPLE v. JOHNSON
Liu, J., dissenting
misconduct in this case “concerning.” (Maj. opn., ante, at p. 44.)
But despite its concern, the court affirms Johnson’s murder
conviction and death sentence.
Today’s decision tells law enforcement officials that there
is “nothing to lose, and a useable confession to gain, if they
simply disregard the suspect’s requests for counsel” and
continue to interrogate the suspect with shifting and ever
subtler tactics. (People v. Storm (2002) 28 Cal.4th 1007, 1046
(dis. opn. of Chin, J.).) “We would be naive to assume that law
enforcement agencies will not take advantage of the new
evidentiary door the majority’s holding would helpfully open for
them.” (Ibid.; see Weisselberg, Mourning Miranda (2008) 96
Cal. L.Rev. 1519, 1522 [police “training materials demonstrate
how the warning and waiver regime coheres with a
sophisticated psychological approach to police interrogation”].)
“Unfortunately, the court’s opinion today will encourage
precisely the sort of subterfuge by some law enforcement
investigators, with the ensuing violation of constitutional rights,
that Miranda sought to end.” (Storm, at p. 1040 (dis. opn. of
George, C. J.).)
The right to remain silent and the right to consult a lawyer
when questioned by the police are among the most basic
constitutional rights we have. Because today’s decision makes
these essential protections for our citizenry less secure, I
respectfully dissent.
21
PEOPLE v. JOHNSON
Liu, J., dissenting
LIU, J.
I Concur:
LAVIN, J.*
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
22
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Johnson
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S070250
Date Filed: January 3, 2022
__________________________________________________________
Court: Superior
County: Ventura
Judge: Steven Z. Perren
__________________________________________________________
Counsel:
Anthony J. Dain, under appointment by the Supreme Court, and
Tiffany L. Salayer for Defendant and Appellant.
Edmund G. Brown, Jr., and Rob Bonta, Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka,
Assistant Attorney General, Keith H. Borjon, Lawrence M. Daniels and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Anthony J. Dain
Procopio, Cory, Hargreaves & Savitch LLP
525 B Street, Suite 2200
San Diego, CA 92101
(619) 515-3241
Wyatt E. Bloomfield
Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6145