People v. Redick CA5 ( 2021 )

Filed 4/27/21 P. v. Redick CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078711
Plaintiff and Respondent,
(Super. Ct. No. CRF54510)
v.
ELTON QUINTIN REDICK, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Defendant Elton Quintin Redick was convicted by jury of murder in the first
degree (Pen. Code, §§ 187, subd. (a), 189, subd. (a); count 1)1 and kidnapping (§ 207,
subd. (a); count 2). The jury also found true two separate enhancement allegations that
defendant personally and intentionally used a firearm within the meaning of
section 12022.53, subdivisions (b) and (d). Defendant was sentenced to a determinate
term of eight years for kidnapping (§ 208, subd. (a)), plus an additional and consecutive
10-year term for the personal and intentional use of a firearm in the commission of the
kidnapping (§ 12022.53, subd. (b)). A consecutive indeterminate term of 25 years to life
for murder (§ 190, subd. (a)) was also imposed, plus an additional and consecutive term
of 25 years to life for the personal and intentional use of a firearm during the commission
of the murder (§ 12022.53, subd. (d)).
Defendant contends police obtained his confessions during a videotaped
interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), which
the trial court erroneously deemed admissible. Specifically, defendant argues he invoked
his right to silence immediately during a police interview, but he was subjected to
ongoing and unwarned interrogation that resulted in a confession. Moreover, when an
untimely Miranda warning was finally given, defendant claims he invoked his right to
counsel, which was also not honored. As a result of these errors, defendant maintains
admission of the interrogation video at trial was prejudicial and requires reversal of his
convictions.
The People concede defendant was subjected to interrogation without first being
advised of his Miranda rights—no Miranda warning was given until mid-interrogation
and postconfession; as such, the People agree defendant’s prewarning statements and
confession were inadmissible. Nevertheless, the People maintain the mid-interrogation
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
Miranda warning was followed by a valid waiver of rights, there was no unequivocal
invocation of the right to counsel, and defendant’s subsequent statements were
admissible. As for defendant’s claim he invoked his right to silence at the outset, the
People maintain defendant waived that right when he “reinitiated” discussion of what
happened before he was asked an interrogative question.
In response, defendant agrees the unwarned interview statements should have been
suppressed because they were obtained during interrogation. Defendant refutes,
however, that the mid-interrogation warning was effective. He argues the untimely,
postconfession Miranda warning did not provide a curative instruction that his unwarned
statements were inadmissible. Without such a curative measure, defendant contends the
untimely warning amounted to coercive conduct and rendered the postwarning statements
unintelligent and involuntary. Finally, defendant reiterates that his concerns and
questions about the need for counsel were an invocation of his right and did not constitute
a waiver.
We accept the People’s concession the prewarning statements were inadmissible
because they were obtained during unwarned interrogation: it is true the detective asked
interrogative questions after defendant said he wanted to talk about what happened and
before a Miranda warning was given. Yet, the People’s concession involves a tandem
assertion that no interrogative question was posed until after defendant announced he
wanted to talk about what happened. Thus, according to the People, even assuming
defendant invoked his right to silence at the outset, there was no failure by the detective
to honor defendant’s invocation. Specifically, because no interrogative question was
asked until defendant announced he wanted to talk about what happened, the People
maintain it was defendant who initiated further conversation relevant to the investigation
that constituted a waiver of any right invoked. That argument, however, does not obviate
the issue of whether a “reinitiat[ion]” by defendant could constitute a valid waiver of the
right to silence in the absence of any prior Miranda warning. Moreover, we disagree
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with the premise no interrogative question was asked until after defendant said he wanted
to talk. The record does not reasonably support the People’s assertion in this regard, and
it has the effect of sidestepping the invocation issue.
Defendant invoked his right to silence and to cut off questioning five times at the
beginning of the interview, but the detective continued questioning, which constituted
interrogation, before defendant said he wanted to talk about what happened. In other
words, defendant decided to talk about what happened during impermissible
postinvocation interrogation. All of defendant’s postinvocation statements and the
attempt to extract a waiver from defendant mid-interrogation were the direct product of
the detective’s failure to honor defendant’s invocation of his Miranda rights, and
suppression of the entire interrogation, not just the unwarned portion, was required.
Even beyond the invocation issue, though, additional violations plagued the mid-
interrogation Miranda warning and the purported waiver, dooming the admissibility of
defendant’s postwarning statements. Upon being advised of his Miranda rights,
defendant expressed concern and uncertainty about his need for counsel in light of his
prior confession. Nonetheless, the interrogation persisted without any pause,
clarification, or curative explanation about the admissibility of the prior unwarned
confession. Defendant’s unclarified statement “I don’t know” in response to a
postconfession, mid-interrogation Miranda advisement permits no reasonable
construction as a knowing and intelligent waiver.
Finally, pursuant to Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), the mid-
interrogation Miranda warning was deliberately delayed in a calculated manner that
fundamentally and fatally undermined its effectiveness. By itself, the legally ineffective
warning precludes admission of the postwarning statements, but it also cements the
invalidity of any purported waiver—one cannot knowingly and intelligently waive rights
that were not effectively explained.
4.
Considered individually and in conjunction, these Miranda violations compelled
suppression of defendant’s interrogation statements and we are constrained to reverse the
trial court’s judgment. Defendant made extensive statements confessing to both crimes,
and considering those confessions in light of the other trial evidence, we cannot conclude
the admission of the interrogation video was harmless. Given this determination,
defendant’s remaining claims of error are moot and we do not address them.
FACTUAL SUMMARY
I. Emergency Call and Investigation
Around 10:30 a.m. on September 25, 2017, a call was placed for an ambulance to
respond to an address in Big Oak Flat in Tuolumne County. Tuolumne County Sheriff’s
Deputy Michael O’Brien was dispatched and was informed en-route that someone had
been shot and was possibly deceased in a shed or trailer on the property. The property
was roughly an acre of land with no houses, but included several trailers, sheds, vehicles
and dirt bikes.
At the property, O’Brien encountered Bonnie P. who told him she had been held
“hostage” that morning and saw her friend, Mark DeJong, get shot by someone she
identified as Elton, whom she was able to physically describe. She said DeJong had been
shot in a trailer or a shed on the property.
O’Brien placed Bonnie in the back of his squad car and a few moments later other
deputies began to arrive. Deputies coordinated a search of the property, which turned up
a woman named D.N., who was living in a trailer.
Deputy Robert Speers entered a shed where they thought the victim might be
located and a search revealed the body of a man who was lying down with a blanket over
his head and shoulders. Speers saw that blood had pooled underneath the body, and he
ascertained the victim, later identified as DeJong, was dead.
Detective Newman arrived at the scene around noon to inspect the victim’s body
and the trailer where the victim had been living. He was notified Bonnie was a witness,
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and he interviewed her at approximately 2:00 p.m. that afternoon, which was audio and
videotaped. The sheriff’s department put out an alert to every agency in the state that
they were looking for defendant, and deputies canvassed the area and a neighbor’s house.
II. Defendant Arrested and Interviewed
By 7:00 a.m. the next morning, a search crew located a handgun in the bushes
along a trail where Bonnie indicated it had been dumped after the shooting. That
afternoon around 2:00 p.m., Deputy Gregory Rogers was parked at a convenience store
across from the victim’s property and talking to Detective Newman by phone when
Rogers saw a man walk by his car who matched the suspect’s description, later identified
as defendant. Rogers told Newman, “‘I think I got your guy,’” and hung up. He found
defendant at the back of the building crawling out of a cubbyhole. Defendant told Rogers
he knew this was going to happen, but he had gotten thirsty. He added that whatever
Bonnie had told the store clerk was not true. Defendant was arrested and taken to the
sheriff’s department investigations office.
Around 4:00 p.m. that afternoon, Newman interviewed defendant, who confessed
he had shot DeJong twice in the head. He explained he had come from Florida and ended
up living in a recreational vehicle that DeJong allowed him to park on DeJong’s property.
In exchange, defendant agreed with DeJong that he would watch the property so that no
one would trespass and steal anything. Defendant also started working for a man named
Dennis N. doing home remodeling.
According to defendant, DeJong was constantly making demands on him to help
with a number of menial projects such as looking for various objects or fetching tools.
Defendant indicated both he and DeJong smoked crystal methamphetamine, sometimes
together. At first, the methamphetamine kept defendant awake for three days, but he
thought it would interfere with his ability to work for Dennis N., so he stopped smoking
as much. There was also another woman named D.N. living on the property who heard
“spirits talking to her” and who would scream out to tell the spirits to leave her alone.
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Bonnie had come to live on the property recently, and she and defendant had started a
sexual relationship the first night she was there. During their first sexual interlude,
DeJong interrupted them by banging on the door of the trailer they were in, looking for
defendant. Defendant was unsure whether DeJong interrupted on purpose or it was just
bad timing. He also noted the rats and mice at the property were driving him crazy and
he thought he had become paranoid because of the methamphetamine; along with D.N.’s
screaming, he felt this combination of variables was a recipe for disaster.
Defendant described being irritated because DeJong was always running him
around like his “lackey,” and the “final straw” was when DeJong yelled in his face that
Bonnie did not want a relationship with defendant. Defendant was unsure whether that
had come from Bonnie herself or whether DeJong was trying to come in between
defendant and Bonnie.
Defendant explained he acquired a handgun from Dennis N. to protect the
property and himself from trespassers. He felt animosity building up against DeJong for
the way DeJong was treating him, particularly around Bonnie. The night before and the
morning of the shooting, DeJong and Bonnie were together inside a shed. It was
Bonnie’s last night before she was required to appear for sentencing for a criminal
offense for which she was going to prison, and defendant had wanted her to spend the
night with him. Defendant had asked Bonnie if she would spend it with him, but DeJong
had yelled in defendant’s face to “‘leave her the fuck alone,’” which defendant thought
was terrible in light of how he had helped DeJong. Defendant was awake all night
listening to the rats; early in the morning, he went outside to get some coffee with the
handgun in the pocket of his coat.
When defendant stepped outside, he heard D.N. start screaming and yelling things
out such as “‘You slut, ah, you whore, you’re not even pretty,’” to which defendant
thought he heard DeJong shout back to D.N., “‘I’m in here eating her pussy.’” Defendant
thought DeJong was referring to Bonnie. This upset defendant because DeJong knew
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defendant had feelings for Bonnie, and DeJong had a wife or girlfriend already. DeJong
also knew defendant had wanted to spend that last night with Bonnie, and it was “too
much to take with everything.” Defendant did not do anything immediately, but he was
not going to let DeJong get away with it. He told Detective Newman, “It just, ah, and
then hearing that, I just gave up. I gave up on life, I’m standing here with a—a handgun.
He does this to me. And it was just strong emotions of, ah, her and—and him and not
sleeping. I just didn’t care. I didn’t care at all. And I just did it. I didn’t care what—
what happened. I didn’t care. And I took it, yep. For once I took what I wanted.”
Defendant described waiting for a while for DeJong to exit the shed, but it was taking too
long, so defendant went into the shed and shot DeJong twice in the head. Defendant then
put a blanket over him; defendant did not want to see the body nor did he want Bonnie to
see it as she was standing behind DeJong when defendant shot him.
Defendant told Bonnie he would never hurt her, and took her back to his
room/trailer. He did not plan to proposition her for sex because it “would have been just
rape” as “she was uncomfortable the whole time ‘cause I was holding her hostage.”
During their time in the trailer, defendant looked out the window and thought he heard
heavy machinery and that the shed where DeJong was shot had been torn down. He
mentioned this to Bonnie, but she said the shed was still there—which defendant thought
probably added to Bonnie thinking he was crazy. Defendant thought this resulted from
having no sleep and being on methamphetamine.
After a while, he and Bonnie walked on a trail from the property to a convenience
store that was close by to get something to drink. Defendant threw the handgun in the
bushes, telling Bonnie if she went into the store and told the person at the register what
happened he would completely understand, but if not to get him something to drink and
come back. Bonnie went into the convenience store, and when defendant realized she
was not coming back, he went back to DeJong’s trailer and drank a beer. Defendant
changed into different clothes so that he would not fit any description Bonnie might give
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of him. He ended up leaving his cell phone in DeJong’s trailer. He stayed around the
outskirts of the property all night, slept for a few hours in a cubbyhole near an RV, and
then went back to the convenience store the next day looking for water, where he was
arrested.
Based on an autopsy, a coroner confirmed DeJong had died from gunshot wounds
to the head, and the gun was likely two feet or less away from DeJong when it was fired.
Defendant was charged with first degree murder and kidnapping. Prior to trial, defendant
filed a motion to suppress his interview with Newman, but the motion was denied and a
video of the complete interview was played for the jury.
III. Bonnie’s Trial Testimony
Bonnie testified at trial that she had been DeJong’s friend for about a year and a
half before the shooting, and she had been staying on the property since the end of
August 2017 to help DeJong get his towing business started. Defendant, whom Bonnie
met when she moved in, was living there to keep people out when DeJong was gone or
during the night. She started a sexual relationship with defendant within a week of her
arrival, and defendant then started following her around and acting possessive when she
talked to anyone. He wanted a relationship with her, and she thought it was upsetting
him that she did not share a desire for any type of long-term relationship.
Defendant showed signs of jealousy about Bonnie’s friendship with DeJong and
Justin, another friend of Bonnie’s and DeJong’s. Defendant would accuse Bonnie that
something was going on between her and Justin, which Bonnie denied. Defendant also
implicitly hinted that Bonnie was having a romantic relationship with DeJong. DeJong
could see defendant was becoming more possessive about Bonnie, and began telling
defendant to leave Bonnie alone and gave defendant additional things to do. Bonnie
acknowledged DeJong had sometimes talked to defendant in a rude manner, but that was
not a daily occurrence and she only saw it happen a couple of times.
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Defendant had been staying in a trailer behind the shed where DeJong was shot.
The day before the shooting, Bonnie and defendant had hung out in that shed or in
defendant’s trailer; they had both smoked methamphetamine and marijuana throughout
the day while in defendant’s trailer, which had been an everyday occurrence—DeJong
was not with them, he was either in the shed or in the driveway painting his car.
That day, defendant showed Bonnie a small gun he had obtained from Dennis,
which Bonnie insisted defendant show to DeJong. At a time later when Bonnie was
helping DeJong in the shed, defendant presented the gun to DeJong, who was happy
defendant would be able to defend the property better.
Later that evening, Bonnie and DeJong were still in the shed together—Bonnie
was untangling cords and wires, and DeJong was chatting with Bonnie while shopping on
his phone for the security system he planned to install on the property. Throughout the
night, DeJong was coming and going from the shed, working on his car. Defendant kept
stopping by to ask Bonnie to spend the night with him in his trailer because he knew it
was her last night on the property, and DeJong kept telling him to leave. Bonnie was
scheduled to be sentenced in a pending criminal case the next morning and would not be
coming back.
By the early morning hours, DeJong had stopped going in and out and had been in
the shed with Bonnie for several hours. D.N. was staying in a trailer behind the shed and
next to defendant’s trailer—she had mental problems and was always yelling things out.
Bonnie and DeJong began hearing D.N. yelling, and DeJong yelled back for her to shut
up or he would “‘punch [her] in [her] p-u-s-s-y.’” Bonnie thought defendant was in his
trailer at that time, and a few minutes after DeJong yelled at D.N., the shed door opened.
From the corner of her eye, Bonnie saw DeJong stand up and say something to the effect
of, “‘What, you’re just going to walk in, you’re not even going to knock?’” Right at that
second, Bonnie looked over to where DeJong was standing and she saw defendant shoot
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DeJong in the face, pulling the trigger twice. Defendant then picked up a blanket on the
floor, wiped the blood off his feet and legs, and told Bonnie to come with him.
Not knowing his plans, Bonnie asked defendant not to hurt her. Defendant opened
the shed door, beckoning Bonnie to walk out in front of him. She started to walk out,
stepping over DeJong’s body, and surreptitiously grabbed DeJong’s cell phone because
she did not have one that worked and hid it in her pants.
Defendant told Bonnie not to run because he did not want to hurt her. He directed
her to the back room of his trailer, locking the door to the trailer from the inside. He
began telling her that he was angry Bonnie had refused to spend the night with him, he
thought Bonnie and DeJong were doing something in the shed, and when DeJong had
yelled at D.N., defendant thought DeJong had shouted that he was “eating” Bonnie’s
“‘p-u-s-s-y.’”
Defendant held Bonnie in the trailer for three hours, constantly talking about why
he shot DeJong. He also talked about showing D.N. the gun so her prints would be on it.
He said he knew he was going to prison for a long time, and he gave Bonnie all the
money in his wallet, telling her the police were going to take it from him anyway. He
also talked about suicide and noted there were four bullets in the gun and he thought he
could kill Bonnie and then himself. Defendant had a moment when he thought the police
had already arrived, had started a forklift and were demolishing the shed, but that was not
true. Bonnie told him to look at the shed and see that it was still standing, which he did.
Later, he told her he was thirsty and wanted to go to the nearby convenience store,
but he did not want to tie her up and leave her there alone. Bonnie was able to convince
defendant to go to the store together. He indicated he was going to have the gun the
whole time, and if she did not try something stupid, he would get rid of it on the way
back.
The convenience store was about a half-block away via a trail from the property.
As they were walking the trail, defendant was telling Bonnie not to run in front of him.
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Bonnie claimed to need a bathroom, so he gave her money to get something to drink.
When she started walking toward the store, he called out to get her attention—Bonnie
turned around and saw defendant throw the gun in the blackberry bushes.
When Bonnie saw defendant throw the gun, she went into the store—she had no
idea if he was trying to recover the gun. Once inside the store, she went into a bathroom
and called a friend. She told him DeJong had been shot and killed by defendant, and
asked the friend to pick her up. She then bought two sodas, and walked to a neighbor’s
house. She returned to DeJong’s property, and located officers on the scene to tell them
what had occurred. She gave the officer she spoke with DeJong’s phone and keys, and
told the officer she knew where defendant had thrown the gun.
IV. Other Testimony
Dennis N. testified defendant had been doing some work for him at his
construction business, and defendant had told Dennis he was living on DeJong’s
property. About 10 days before the shooting, defendant had asked Dennis for a gun
because there were people roaming around the property, and defendant felt his life was
threatened. Dennis loaned him a .25-caliber handgun that he had purchased for his wife
years before. When he gave defendant the gun, he believed it had a six-round clip in it.
Upon viewing a photo of the gun recovered from the bushes, he thought it looked like the
gun he had loaned defendant.
V. Defendant Convicted and Sentenced
Defendant did not testify or present any other evidence at trial. The jury convicted
defendant of first degree murder and kidnapping, and found true the enhancement
allegation defendant had personally and intentionally used a firearm within the meaning
of section 12022.53, subdivisions (b) and (d), as to the murder and kidnapping counts.
Defendant was sentenced to a determinate upper term of eight years for
kidnapping, plus an additional consecutive term of 10 years for the firearm enhancement
under section 12022.53, subdivision (b); the court also imposed a consecutive
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indeterminate term of 25 years to life for the first degree murder conviction, plus an
additional and consecutive term of 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d). This appeal followed.
DISCUSSION
I. Multiple Miranda Violations Required Suppression of Defendant’s
Interrogation Statements
Defendant maintains there were multiple Miranda violations that required
suppression of his interrogation statements. He argues he invoked his right to silence
immediately, which was not honored by Newman, Miranda warnings were not given
timely, and, when the Miranda warning was given, defendant invoked his right to
counsel.
The People concede interrogation occurred before a Miranda warning was given,
and the unwarned portion of the interrogation should have been suppressed. Once the
Miranda warning was given, however, the People maintain defendant provided a valid
waiver of rights and his postwarning statements were all admissible. The People frame
defendant’s argument about invoking counsel when the Miranda warning was given as
one related to waiver: that defendant did not waive his rights because he invoked his
right to counsel. The People argue defendant is wrong in both regards because defendant
knowingly, intelligently and voluntarily waived his right to counsel and his question and
uncertainty about the need for counsel was not an unequivocal invocation.
We conclude the failure to honor defendant’s invocation of the right to silence
rendered the entire interrogation inadmissible. Beyond that, when a Miranda warning
was finally given, we agree with the People that defendant’s expressed uncertainty about
counsel presents an issue of whether defendant knowingly and intelligently waived his
right to counsel. The timing and circumstances of the postconfession, mid-interrogation
Miranda warning leaves no reasonable path to construe the words “I don’t know,”
defendant’s uncertain and unclarified response to the advisement of the right to counsel,
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as a knowing and intelligent waiver of the right. Because the waiver was invalid, we
need not reach the separate issue of whether defendant’s question and concern about
counsel constituted an invocation of that right. Finally, the mid-interrogation Miranda
warning was legally ineffective under Seibert, which inescapably doomed the
admissibility of defendant’s postwarning statements and further eviscerated the validity
of any purported waiver.
A. Background
1. Interrogation of Defendant
After arresting defendant, he was taken to the county sheriff’s investigations unit
and placed in an interview room. Newman introduced himself to defendant and asked if
defendant wanted the handcuffs removed. As they discussed the handcuff removal,
defendant stated at the very outset of the interview he did not want to talk about anything
with Newman—five times.
“[Newman]: You’re not gonna try anything crazy on me?
“[Defendant]: Mm-mm
“[Newman]: Cool. All right.
“[Defendant]: But I’d rather not talk about anything today.
“[Newman]: Well, I just wanna ask you a few questions. I’ve gotta
know a little bit more about who you are. So can you stand up for me? I’d
like to get those handcuffs off for you, make you a little more comfortable.
Okay, when I get this off put that hand on top of your head. Okay. Go
ahead and relax, sit down. Drink some water. Long day?
“[Defendant]: It’s like a Barbara Walters TV show.
“[Newman]: It’s like a Barbara Walters TV show?
“[Defendant]: Yeah, when people get in here they start crying and
they got the tissues right there.
“[Newman]: Well.
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“[Defendant]: Yeah. Ah, shit. I don’t wanna talk about it.
“[Newman]: Okay. Can I at least get your information? We have
an idea of who you are but I’d like to make sure that we’re correct. So
what’s your first name?
“[Defendant]: I don’t really wanna talk about it.
“[Newman]: Well, I just need to get your name and stuff.
“[Defendant]: Yeah.
“[Newman]: We can, let’s just start with that.
“[Defendant]: No, all I wanna do is commit suicide as soon as I
can.
“[Newman]: Okay, well, I’m not gonna let you do that here ‘cause
that’s not gonna help anybody. All right, how about if I ask you if what
information we have is correct? Is your name Elton?
“[Defendant]: Yeah.
“[Newman]: Is that a yes?
“[Defendant]: Yes, it is. I don’t even care.
“[Newman]: And your—your last name is…
“[Defendant]: (Unintelligible).
“[Newman]: What’s that?
“[Defendant]: I’d rather not talk about anything…
“[Newman]: Well, I, like I said, I just need to get your information.
I need at least your name, okay?
“[Defendant]: You already have it.
“[Newman]: Elton Redick, is that correct?
“[Defendant]: Yeah, Elton Redick.” (Italics and boldface added.)
Newman then asked for the spelling of defendant’s last name, where he was
originally from, his current address, his phone number, whether he had a cell phone, what
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had happened to it, and the color and make of the cell phone. This was significant to the
investigation, as discussed post, because cell phones were located during a search of the
property and officers were trying to determine which phone might belong to defendant.
Newman asked how long defendant had been living at DeJong’s property, how
much education defendant had received, and why defendant’s mother had not required
defendant to go to school after fifth grade. Upon indicating he never earned a high
school diploma or GED, defendant said he would “rather just talk about what happened
and then, ah, that’s it. I gotta blow my nose.” Newman told him to “[g]o for it.”
Defendant described how he ended up working for Dennis, how he met DeJong
and started living on DeJong’s property, and his relationship with Bonnie. In explaining
that DeJong was treating him poorly and coming between defendant and Bonnie, he
indicated the following:
“And, ah, [DeJong] was just being a complete asshole. And I did shoot
him, it was me. I got the, um, the handgun for protecting the property.
And, ah, I was staying up, that night I did do some crystal meth, I shouldn’t
have been doing it at all, you know? I should have been working with
(Dennis) remodeling homes. Shit. It all went to shit. Oh God, I should
have got out of there. []Dennis[, h]e was a cool boss. He said, ah, he was
gonna give me, ah, one of the homes that, ah, he’s remodeling…”
Newman commented he thought Dennis really seemed to like defendant and that
he was “pretty surprised by all this.” Defendant continued to talk about how DeJong
seemed to be influencing Bonnie to think less of defendant and that DeJong treated
defendant poorly.
About 25 minutes into the interview, defendant noted that his mouth was getting
dry and that he just wanted to hang himself on a tree; Newman interrupted and explained
to defendant that he had the right to remain silent and the right to an attorney:
“[Newman]: Well, Elton, I’d like to ask you a little bit more about
this, is that all right? But before I do, you know, I wanna make sure that
you understand all the things that you need to understand, okay? So you
know, obviously, you’ve been arrested. You’re here, you got put in
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handcuffs and we need to discuss this a little bit more. But you do, you
need to understand that you have a right to remain silent. And anything
you can—you say may be used in court against you. You also…
“[Defendant]: I’m…
“[Newman]: …have the—huh?
“[Defendant]: I’m just I know this is being recorded, I’m just telling
you exactly what happened.
“[Newman]: And that’s—that’s what I need to hear. Okay, you also
have the right to the presence—presence of an attorney during these
questions and if you can’t afford one, one will be given to you free of
charge. Do you understand all that? Okay, so I, once again…
“[Defendant]: And—and all of this really, I—I guess, I don’t
know, all—all of it coming out, it should have been with, ah, my attorney
here because the attorney is, ah, gonna be presenting the case, right?
“[Newman]: No, not necessarily, I mean, the, you know, you don’t
necessarily have to have an attorney during, it’s—it’s your option. You
know, but…
“[Defendant]: I don’t even, honestly, but…
“[Newman]: What’s that?
“[Defendant]: I don’t … even know if I should, I don’t know.
“[Newman]: Okay, well I just had a few questions because I’ve
already talked to (Bonnie) and I’ve talked to (Dennis), okay? (Dennis)
seemed really surprised about all this. He—he thought there was, um, other
guy named, ah, (Justin).
“[Defendant]: Yeah.” (Italics and boldface added.)
Defendant then continued answering Newman’s questions, and the interrogation
continued for approximately another 90 minutes, reviewing all the details before, during
and after the shooting.
17.
2. Suppression Hearing
Prior to trial, defendant filed a motion to suppress his confession on the ground it
was taken in violation of Miranda. In the written motion, trial counsel argued defendant
was unmistakably in custody when he was interviewed, and he was interrogated without
ever having been given a Miranda warning. Only after defendant made inculpatory
statements was a Miranda warning given, and it was not clear defendant understood that
warning or agreed to waive his rights.
The prosecution filed a brief in response and argued that advising defendant of his
Miranda rights was unnecessary during the initial portion of the interview because
Newman was asking defendant about simple biographical and booking information.
Newman was not trying to elicit an incriminating response and, thus, there was no
interrogation prior to a Miranda warning being given. Moreover, defendant’s statements
were all voluntary—there was no coercion.2
The parties presented argument at a suppression hearing. Defense counsel
asserted defendant had invoked his right to silence at the outset of the interview, which
was not honored. The questioning went on, and finally a Miranda warning was given,
but defendant expressed confusion about whether he should have an attorney, which was
an invocation of that right. The prosecutor argued defendant never clearly invoked his
right to silence and, even if he had, he could not do so before the interrogation began.
Further, questioning whether he needed an attorney was not a clear invocation of his right
to counsel. Defendant understood his rights, waived them, and then made a voluntary
confession.
The trial court determined the nature of Newman’s prewarning questions was to
elicit biographical information, not to obtain incriminating responses. With respect to
2 On appeal, the People concede interrogation occurred before a Miranda warning was
given and that the prosecutor’s argument was incorrect in this regard.
18.
defendant’s invocation of the right to silence, the court reasoned that Newman’s
questions had not been designed to elicit incriminating statements; thus, any invocation
did not occur during a custodial interrogation.
The court explained further:
“And I don’t think it was necessary to give the Miranda warnings
under the circumstances because he was not conducting an investigation to
elicit incriminating responses from [defendant]. His statements, even
though he said, ‘I don’t want to talk about it,’ perhaps if they were being—
if he were asking questions designed to elicit incriminating statements, that
might be a sufficient invocation of Miranda, but I don’t see it under the
circumstances presented in this—in the video that I saw.
“The next question is, of course, [defendant] gives his statement, and
at that point it’s clear that Detective Newman needs to ask further questions
and to get some details about the statements that [defendant] has made.
And then the question about his attorney comes up. And I wrote down the
quote, it’s in—I think you quoted it already, [defense counsel], but
[defendant] says, ‘And all of this really, I—I guess, I don’t know, all—all
of it is coming out, it should have been with my attorney here because the
attorney is gonna be presenting the case, right?’
“And Detective Newman says, ‘Not necessarily, you know, you
don’t necessarily have to have an attorney during, it’s your option. You
know, but’—and [defendant] says, ‘I don’t even, honestly, but,’ not
finishing that statement, and … Detective Newman says, ‘What’s that?’
And [defendant] says, ‘I don’t even know if I should, I don’t know.’
“So the question then is, is that an invocation of his Miranda rights
at that point? And it’s clear the law requires an unambiguous invocation of
the Miranda rights. There are cases that—where the defendant has made
statements like, ‘Maybe I should talk to a lawyer,’ or, ‘Should I have
somebody here talking with me, is this the way it’s supposed to be done?’
Those kinds of statements were found to be ambiguous and not sufficient to
be an unambiguous invocation to a right to a lawyer or right to remain
silent.
“So I don’t think that it was an invocation of Miranda based on the
statement that [defendant] made after he was advised of his Miranda rights.
“So given the totality of the circumstances, I’m going to find there
was no Miranda violations, either at the time of the initial statement or after
19.
he mentioned the possibility of a lawyer; so my ruling is that the motion to
suppress the confession is denied.” Italics added.)
B. Standard of Review
“In reviewing the trial court’s ruling on a claimed Miranda violation, ‘“we accept
the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence. We independently determine from
[those facts] whether the challenged statement was illegally obtained.”’” (People v.
Elizalde (2015) 61 Cal.4th 523, 530.) Further, “[we] apply federal standards in reviewing
defendant’s claim that the challenged statements were elicited from him in violation of
Miranda.” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
C. Governing Law
“The due process clause of the Fourteenth Amendment to the United States
Constitution bars the admission of ‘any involuntary statement obtained by a law
enforcement officer from a criminal suspect by coercion.’ (People v. Neal (2003) 31
Cal.4th 63, 79 .…).) So when the police obtain a suspect’s statements ‘by “techniques
and methods offensive to due process …” … or under circumstances in which the suspect
clearly had no opportunity to exercise “a free and unconstrained will,”’ the statements are
inadmissible. (Oregon v. Elstad (1985) 470 U.S. 298, 304 (Elstad), citation omitted,
quoting Haynes v. Washington (1963) 373 U.S. 503, 515, 514.)” (People v. Mendez
(2019) 7 Cal.5th 680, 698.)
In Miranda, the United States Supreme Court established procedural admonitions
as a prophylactic measure to protect a suspect’s right against self-incrimination under the
Fifth Amendment. (Miranda, supra, 384 U.S. at p. 444.) The court held “the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” (Ibid.)
20.
The rule of Miranda requires that before police may question a suspect during a
custodial interrogation, the suspect must be advised of the right to remain silent and to an
attorney and that any statements may be used against him or her in court. (Miranda,
supra, 384 U.S. at p. 479.) “If the individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent, the interrogation must cease.” (Id.
at pp. 473–474; accord, People v. Davis (2009) 46 Cal.4th 539, 585; see Dickerson v.
United States (2000) 530 U.S. 428, 435–443.)
A suspect “need not ‘speak with the discrimination of an Oxford don’” to invoke
his Fifth Amendment rights (Davis v. United States (1994) 512 U.S. 452, 459), and “no
ritualistic formula or talismanic phrase is essential in order to invoke” those rights
(Emspak v. United States (1955) 349 U.S. 190, 194). When a suspect has exercised his or
her option to terminate questioning, officers may not persist “in repeated efforts to wear
down [the suspect’s] resistance and make him change his mind.” (Michigan v. Mosley
(1975) 423 U.S. 96, 105–106 (Mosley).) “[T]he admissibility of statements obtained after
the person in custody has decided to remain silent depends under Miranda on whether his
‘right to cut off questioning’ was ‘scrupulously honored.’” (Id. at p. 104.)
No formal recitation of the Miranda admonition is required before a suspect may
invoke his or her Miranda rights. Rather, a suspect may invoke Miranda’s protections if
custodial interrogation is impending or imminent. (People v. Nguyen (2005) 132
Cal.App.4th 350, 357; see United States v. LaGrone (7th Cir. 1994) 43 F.3d 332, 339;
United States v. Grimes (11th Cir. 1998) 142 F.3d 1342, 1348; United States v. Abdallah
(4th Cir. 2018) 911 F.3d 201, 212.)
A “custodial interrogation” occurs whenever law enforcement officers initiate
questioning after a person has been taken into custody or otherwise deprived the
suspect’s freedom of action in any significant way. (Miranda, supra, 384 U.S. at p. 444.)
Under Miranda, “‘interrogation’” refers not only to express questioning, but also to the
“functional equivalent” of express questioning. (Rhode Island v. Innis (1980) 446 U.S.
21.
291, 300–301 (Innis).) This encompasses “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.” (Ibid., fn.
omitted.)
Thus, under what has been recognized as a booking exception, no Miranda
warnings need to be given prior to police communications that are “‘normally attendant
to arrest and custody[].’” (Pennsylvania v. Muniz (1990) 496 U.S. 582, 600 (Muniz).)
This includes communications associated with police administrative duties that are
distinct from investigatory duties and encompass inquiries concerning biographical
information. (Id. at pp. 601–602.) However, “[w]hen booking questions go beyond the
basic biographical data contemplated in Muniz, the core concerns of Miranda and Innis
are implicated. The high court has recognized that broader questioning during the
booking process may elicit incriminating responses depending on the circumstances.”
(People v. Elizalde, supra, 61 Cal.4th at p. 536.)
Accordingly, a suspect’s invocation of Miranda rights does not prohibit officers
from speaking to that person about anything at all—the prohibition extends to asking any
questions police should know are reasonably likely to elicit incriminating information in
the specific circumstances of the case. (See Innis, supra, 446 U.S. at p. 301; Mosley,
supra, 423 U.S. at pp. 102–103, fn. omitted [no passage in Miranda “can sensibly be read
to create a per se proscription of indefinite duration upon any further questioning by any
police officer on any subject, once the person in custody has indicated a desire to remain
silent”].) Booking questions, whether asked before or after Miranda rights are invoked,
are not impermissible because they do not constitute interrogation. (Muniz, supra, 496
U.S. at pp. 600–602.)
Miranda rights can be waived both initially and after invoking them, but the
prosecution has the burden of establishing the waiver was knowing and voluntary.
(North Carolina v. Butler (1979) 441 U.S. 369, 372–373.) The waiver must be
22.
“‘voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,’ and ‘made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it.’”
(Berghuis v. Thompkins (2010) 560 U.S. 370, 382–383.) A waiver can be established
even absent formal or express statements: a Miranda waiver “may be implied through
‘the defendant’s silence, coupled with an understanding of his rights and a course of
conduct indicating waiver.’” (Id. at p. 384.)
If the accused initiates further communication after invoking his rights, officers
may reopen an interrogation upon a knowing and intelligent waiver. “An accused
‘initiates’ such dialogue when he speaks words or engages in conduct that 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,’” and “the police may commence interrogation
if he validly waives his [Miranda] rights.” (People v. Mickey (1991) 54 Cal.3d 612, 648,
649; accord, Edwards v. Arizona (1981) 451 U.S. 477, 486–487; Oregon v. Bradshaw
(1983) 462 U.S. 1039, 1046 (plur. opn. of Rehnquist, J.) (Bradshaw).)
D. Defendant’s Invocation of the Right to Silence Was Not Honored
Defendant maintains he invoked his right to silence immediately, but Newman
continued the interrogation in violation of Miranda. The People concede Newman asked
questions during the unwarned portion of the interview that constituted interrogation and
assert that this portion of the interview should have been suppressed. The People
contend, however, that defendant’s invocation of the right to silence is irrelevant because,
in the People’s view, no interrogation occurred until after defendant waived his rights by
“reinitiat[ing]” conversation about the investigation with Newman. The record does not
support the People’s argument.
There is no dispute defendant was in custody when interviewed, and the facts
confirm it: at the time of the interview, defendant had been arrested, handcuffed, taken to
23.
the county sheriff’s investigation office, and placed in an interview room. (Miranda,
supra, 384 U.S. at p. 444.)
At the very outset of the interview, defendant unambiguously invoked his right to
silence and to cut off questioning. Defendant plainly told Newman he did not want to
talk about anything—five times. Other than expressly referencing Miranda or the Fifth
Amendment, it is hard to envision a clearer statement from defendant that he did not want
to be questioned.
We reject the People’s suggestion defendant’s invocation was invalid as
anticipatory of interrogation that had not yet begun. A suspect may invoke Miranda’s
protections if custodial interrogation is impending or imminent. (See, e.g., People v.
Nguyen, supra, 132 Cal.App.4th at p. 357.) Interrogation was certainly imminent when
the interview began. The timing and circumstances of defendant’s invocation is plainly
distinguishable from that in McNeil v. Wisconsin (1991) 501 U.S. 171, where the court
rejected the defendant’s claim he anticipatorily invoked his right to counsel in a court
proceeding days before police even attempted to conduct another interview. (Id. at
pp. 173–175.)
Newman was the lead detective in the case, he had already been to the property to
investigate, and had conducted an extensive interview the prior day with Bonnie—an
eyewitness to the murder who knew defendant and identified him as the shooter. Law
enforcement had been searching for defendant for over 24 hours before he was arrested,
and the investigation had already uncovered the gun Bonnie told police defendant had
thrown into the bushes along the trail to the store. Prior to the interview, Newman was
positioned to be highly confident defendant was the shooter, and custodial interrogation
was imminent the moment Newman introduced himself as a detective and told defendant
he would “like to talk to [him] today.” There was no more apt time for defendant to
invoke his right to silence than when, handcuffed in an interview room in an
24.
investigations unit of the sheriff’s department following his arrest, he was told by a
plainclothes detective that he wanted to talk.
After telling Newman he did not want to talk, interrogation should have ceased,
but that is not what happened. Newman pivoted to what are generally considered routine
booking questions regarding defendant’s name, birthdate, and current address. It was not
impermissible to ask booking questions at that point, but the questions were not limited to
booking matters. (People v. Shamblin (2015) 236 Cal.App.4th 1, 22 [“The routine
booking question exception applies ‘even when a defendant has already received
Miranda warnings and invoked his or her rights.’”].)
Quickly after obtaining some routine biographical details, Newman turned to
questions reasonably likely to elicit an incriminating response by asking about
defendant’s cell phone, including particular questions about where defendant had left it
and what it looked like. Newman returned to these questions later in the postwarning
portion of the interrogation, indicating officers had found cell phones in one of the
trailers at the front of the property and were trying to determine if they belonged to
defendant. That cell phone was part of the evidence linking defendant to the crime scene
and perhaps the shooting—the fact Newman was asking about it initially was not a matter
of booking, but an issue of interest in the investigation about which Newman was fully
aware.
After defendant invoked his right to silence and to cut off the interview, Newman
pursued a line of questioning that wove together rapport-building or booking questions
with questions directly related to the investigation and likely to elicit incriminating
responses. (Innis, supra, 446 U.S. at p. 301, fn. omitted [“A practice that the police
should know is reasonably likely to evoke an incriminating response from a suspect …
amounts to interrogation.”].) The right invoked was not scrupulously honored: the
detective was not entitled to continue interrogation after invocation to see if defendant
would answer questions or discuss issues relevant to the investigation. (Mosely, supra,
25.
423 U.S. at pp. 105–106.) Suppression of defendant’s statements after his invocation was
required. (Id. at p. 104 [admissibility of statements obtained after invoking right to
silence depends on whether right to cut off questioning was scrupulously honored]; see
People v. Peracchi (2001) 86 Cal.App.4th 353, 362 [finding confession should have been
suppressed because “[d]espite [the defendant’s] invocation of his right to remain silent,
the officer persisted in asking him questions regarding why he did not wish to speak with
the officers at that time without even a momentary cessation in questioning”].)
The People do not concede defendant invoked his right to silence when he told
Newman five separate times he did not want to talk. But, they argue, even assuming
there was an invocation, it was essentially irrelevant because nothing constituting
interrogation occurred until after defendant said he was willing to talk; thus, any
invocation of the right to silence was honored until defendant himself waived that right.
We disagree for two reasons. First, the detective had already exceeded the bounds of the
booking exception before defendant decided to “talk about what happened”; the failure to
honor defendant’s invocation came before defendant decided to discuss what had
occurred at the property. Moreover, because the interrogation never ceased or even
paused despite defendant’s invocation, it was impossible for defendant to “reinitiate[]”
discussion relevant to the investigation. He could not reinitiate what was already
occurring.
Second, a suspect cannot knowingly and intelligently waive rights of which he has
never been advised. When the accused initiates a conversation related to the
investigation after invoking his Miranda rights, “where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent events indicated a waiver
of … Fifth Amendment right[s].” (Bradshaw, supra, 462 U.S. at p. 1044; accord, People
v. Molano (2019) 7 Cal.5th 620, 661.)
When defendant said he would talk about what happened, no prior Miranda
warnings had been given nor was there any acknowledgment by defendant that he
26.
understood those rights. Given the interview’s progression, had defendant thought he had
a right to silence in the beginning when he invoked, Newman’s repeated refusal to stop
the questioning sent a message that defendant had no such right. Standing by itself,
defendant’s statement he would talk about what happened during questioning that
amounted to unwarned interrogation does not establish a knowing and intelligent waiver
of the right he had invoked. (Bradshaw, supra, 462 U.S. at pp. 1044–1045.)
In sum, defendant invoked his right to silence and to cut off questioning five
separate times, but interrogation did not cease. Defendant could not “reinitiate[]” an
already ongoing and continuing conversation relevant to the investigation. Moreover,
any “reinitiat[ion]” could not constitute a valid waiver of the right to silence when no
Miranda warning had yet been given. All defendant’s statements after his invocation
were the product of the failure to scrupulously honor his invocation and should have been
suppressed.
E. Defendant’s Waiver of Rights Was Not Knowing and Voluntary
For purposes of the prosecution’s case-in-chief, the failure to provide any Miranda
warnings prior to interrogation precluded admission of defendant’s unwarned statements,
but the failure to honor defendant’s invocation of the right to silence was fatal to the
admissibility of the entire subsequent interview.3 Yet, even setting aside the invocation
issue, there is no path to salvage the warned portion of the interview either: the purported
waiver of rights obtained mid-interrogation was no waiver at all. There is little to no
evidence—and certainly not a preponderance—establishing any waiver was knowingly
and intelligently given.
“‘In order to combat [the] pressure [of custodial interrogation] and to permit a full
opportunity to exercise the privilege against self-incrimination, the accused must be
3 Voluntary statements obtained in violation of Miranda may still be used for impeachment
purposes on cross-examination. (Elstad, supra, 470 U.S. at p. 307, citing Harris v. New York
(1971) 401 U.S. 222.)
27.
adequately and effectively apprised of his rights’ to remain silent and to have the
assistance of counsel. (Miranda [, supra, 384 U.S.] at p. 467.) ‘[I]f the accused indicates
in any manner that he wishes to remain silent or to consult an attorney, interrogation must
cease, and any statement obtained from him during interrogation thereafter may not be
admitted against him at his trial’ [citations], at least during the prosecution’s case-in-chief
[citations].” (People v. Lessie (2010) 47 Cal.4th 1152, 1162.) The validity of a Miranda
rights waiver requires “an evaluation of the defendant’s state of mind” (People v.
Williams (2010) 49 Cal.4th 405, 428) and “‘inquiry into all the circumstances
surrounding the interrogation’” (People v. Nelson (2012) 53 Cal.4th 367, 375). To
establish a valid waiver of Miranda rights, the prosecution must show by a
preponderance of the evidence that the waiver was knowing, intelligent, and voluntary
(People v. Williams, supra, at p. 425).
“‘[A] suspect who desires to waive his Miranda rights and submit to interrogation
by law enforcement authorities need not do so with any particular words or phrases. A
valid waiver need not be of predetermined form, but instead must reflect that the suspect
in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.
(See North Carolina v. Butler[, supra,] 441 U.S. [at p.] 373.) [The high court has]
recognized that a valid waiver of Miranda rights may be express or implied. [Citations.]
A suspect’s expressed willingness to answer questions after acknowledging an
understanding of his or her Miranda rights has itself been held sufficient to constitute an
implied waiver of such rights. [Citations.] In contrast, an unambiguous request for
counsel or refusal to talk bars further questioning.’ [Citation.]” (People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 218–219.)
With the threshold presumption against waiver in view (People v. Williams, supra,49 Cal.4th at p. 425), it is difficult to overstate the negative impact of the late Miranda
warning on defendant’s ability to knowingly and intelligently waive his rights.
Defendant did not receive a Miranda warning before he was interrogated, and he had
28.
already confessed by the time a warning was provided. When he was advised of his right
to counsel, defendant did not expressly indicate he understood, but instead asked whether
he needed an attorney in light of his earlier confession.4 This was a genuine question
about the perplexing posture of the interrogation in relation to his right to an attorney.
Without any clarification about the admissibility of his initial unwarned confession,
advising defendant he had a right to counsel at what Newman implied was the tail end of
the interrogation would have been confusing to any reasonable person and defendant was
obviously uncertain.
In the face of defendant’s confusion, Newman downplayed the need for an
attorney, saying it was not necessary although it was defendant’s option, and defendant
responded again he did not “know if I should, I don’t know.” Without any pause or
clarification whether defendant understood his rights or wanted counsel, Newman
persisted with the interrogation, indicating only a “few questions” remained because he
had already talked to Bonnie and Dennis. There is no basis on which to reasonably
conclude the words “I don’t know” constituted a knowing and intelligent waiver of the
right to counsel.
The situation here contrasts sharply with Duff, where the court concluded a waiver
was knowing, intelligent and voluntary even though the suspect had questioned the need
for an attorney. (People v. Duff (2014) 58 Cal.4th 527 (Duff).) In that case, police
advised a suspect of his rights and then the suspect responded, “‘I don’t know.
Sometimes they say it’s—it’s better if I have a—a lawyer.’” (Id. at p. 552.) The
interrogating officer then reiterated to the suspect it was entirely up to him whether he
wanted to talk and he could stop the interview at any time to which the suspect
responded, “‘Okay. Okay. I understand’” (ibid.); the officer then asked directly whether
4 While the prosecutor argued at the suppression hearing that defendant nodded in response
that he understood his right to counsel, the video is difficult to discern in this regard and the trial
court made no express finding whether defendant actually made that acknowledgment.
29.
the suspect was willing to talk about issues relevant to the investigation and the suspect
responded affirmatively; and finally, the officer asked whether the suspect felt
“‘confident with that,’” advised him to “‘keep [his] rights in mind’” and if he did not feel
like answering another question he should just say so, and the suspect assented a third
time to speak with the officer (id. at pp. 552–553).
In concluding the suspect validly waived his rights, the court reasoned that even if
this was an equivocal invocation and even assuming the officer was required to clarify,
the interviewing officer confirmed three times whether the suspect was willing to talk and
reminded the suspect that if he did not feel like answering another question, the suspect
could just say no. (Duff, supra, 58 Cal.4th at pp. 552–554.) Here, there is nothing
comparable to Duff that demonstrates defendant understood his right to counsel or
knowingly and intelligently waived.
The People argue Newman was under no obligation to clarify an ambiguous
request for counsel, but they rely on People v. Gonzalez (2005) 34 Cal.4th 1111, which
presented a postwaiver invocation issue. (Id. at p. 1119 [the defendant waived his rights
and then later said if police were going to charge him, he wanted to talk to a public
defender, which he claimed on appeal was a postwaiver invocation].) The postwaiver
rule rejecting any duty to clarify ambiguous invocations and permitting an officer to
continue substantive question “‘“until and unless the suspect clearly requests an
attorney”’” is inapposite in the context of pre-Miranda waiver invocations of the right to
counsel. (Duff, supra, 58 Cal.4th at p. 553.)
Newman hurried through defendant’s inquiry about counsel and, unlike the officer
in Duff, never clarified that defendant understood his rights or whether he actually wanted
an attorney. While the California Supreme Court has not unequivocally required
clarification in these circumstances, the fact none was sought cuts heavily against finding
the waiver was knowing and intelligent, especially when defendant was advised of his
right to counsel only after interrogation and a confession. Newman gave defendant no
30.
time to think over his decision about counsel, and implied there was little left to talk
about, adding to defendant’s apparent misperception the initial confession could be used
against him. Other than the fact defendant responded to Newman’s next question, there
is little to support a finding defendant understood his rights or that the waiver was
knowingly and intelligently given.
Under the circumstances presented here, procuring a valid waiver required some
type of clarification of whether defendant understood his rights, including the right to
counsel. (Cf. People v. Clark (1993) 5 Cal.4th 950, 991 [no Miranda violation where the
“interrogators did not ask [the] defendant substantive questions until [the] defendant’s
position was clarified and a valid waiver was obtained” and “no coercive tactics were
employed in order to obtain [the] defendant’s Miranda waiver”].)
Defendant’s arguments blend the waiver issue with an invocation of the right to
counsel, but we need not reach the invocation issue. The facts demonstrate defendant did
not knowingly and intelligently waive his rights regardless whether his question about
counsel was an invocation.
F. Mid-interrogation Miranda Warning Was Ineffective
In addition to all of the foregoing, the timing and circumstances of the Miranda
warning given without any curative measures did not convey to defendant that he had any
real choice with respect to his right to silence and to counsel. Even assuming arguendo a
waiver could somehow be implied from the facts, under the governing United States
Supreme Court case authority, the Miranda warning itself was legally ineffective and
rendered any waiver meaningless.
1. Governing Law
Because the Miranda warning was not given until mid-interrogation, this case falls
squarely within the United States Supreme Court’s decisions related to midstream
warnings. The efficacy of a midstream warning, and its effect on a waiver of rights and
31.
subsequent inculpatory statements, is measured by the approaches outlined in Elstad,
supra, 470 U.S. 298 and Seibert, supra, 542 U.S. 600.5
a. Elstad and Seibert
In Elstad, an 18-year-old burglary suspect (Elstad) was arrested in his parents’
home. When an officer questioned him in the living room, Elstad made an incriminating
statement. He was thereafter transported to the sheriff’s headquarters where he was
advised of his Miranda rights for the first time. Elstad indicated he understood his rights
and gave a full written statement regarding his involvement in the burglary. (Elstad,
supra, 470 U.S. at pp. 300–301.)
The high court held Elstad’s unwarned statement in the living room was
inadmissible because no Miranda warnings had been given, but the written statement at
the police station was fully admissible because it was obtained after Elstad was warned
and voluntarily waived his rights. The court explained the failure to administer Miranda
warnings during a custodial interrogation, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to exercise free will, does not
mandate the exclusion of a subsequent statement voluntarily made by the defendant after
he was advised of and waived his Miranda rights. (Elstad, supra, 470 U.S. at p. 309.)
The high court acknowledged, however, that if the prewarning statement is the product of
actual coercion, “the time that passes between confessions, the change in place of
interrogations, and the change in identity of the interrogators all bear on whether that
coercion has carried over into the second confession.” (Id. at p. 310.) Thus, whether an
initial failure to warn taints any subsequent warned statement, the touchstone inquiry is
whether both prewarning and postwarning statements were voluntary under the
traditional due process test. (Id. pp. 317–318.)
5 While neither party cites or analyzes Seibert, and defendant only cites but does not
analyze Elstad, these are the precedents that govern the outcome of their respective arguments.
32.
In Seibert, the high court confronted a situation where officers engaged in a
custodial interrogation of a suspect, intentionally withheld Miranda warnings until after
the suspect confessed, then gave Miranda warnings and used the initial confession to
procure a second, warned confession. There were express admissions the officers had
been trained and intended to engage in a question-first, warn-later interrogation technique
designed to undermine the Miranda requirements. (Seibert, supra, 542 U.S. at pp. 609–
610 (plur. opn. of Souter, J.).)
In a plurality opinion, the Seibert court held Elstad did not authorize admission of
a confession repeated under the question-first, warn later strategy, and the Miranda
warnings given mid-interrogation were ineffective and the subsequent warned confession
was inadmissible at trial. (Seibert, supra, 542 U.S. at pp. 614–615.) The court explained
that in Elstad, “it was not unreasonable to see the occasion for questioning at the station
house as presenting a markedly different experience from the short conversation at home;
since a reasonable person in the suspect’s shoes could have seen the station house
questioning as a new and distinct experience, the Miranda warnings could have made
sense as presenting a genuine choice whether to follow up on the earlier admission.”
(Seibert, supra, at pp. 615–616 (plur. opn. of Souter, J.).)
By contrast, the facts presented in Seibert revealed an intentional police strategy
where the unwarned interrogation was “systematic, exhaustive, and managed with
psychological skill,” which left “little, if anything, of incriminating potential left unsaid.”
(Seibert, supra, 542 U.S. at p. 616 (plur. opn. of Souter, J.).) The subsequent warned
portion of questioning proceeded with a pause of only 15 or 20 minutes in the same place
as the unwarned segment and was conducted by the same officers. The court explained
the warned portion of the interview left the impression that further questioning was a
mere continuation of the earlier questions, which was “fostered by references back to the
confession already given.” (Ibid.) As a result, “[i]t would have been reasonable to regard
the two sessions as parts of a continuum, in which it would have been unnatural to refuse
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to repeat at the second stage what had been said before” and these circumstances “must
be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the
point that a reasonable person in the suspect’s shoes would not have understood them to
convey a message that she retained a choice about continuing to talk.” (Id. at pp. 616–
617, fn. omitted.)
The factual contrasts between Elstad and Seibert, the court reasoned, revealed a
“series of relevant facts that bear on whether Miranda warnings delivered midstream
could be effective enough to accomplish their object: the completeness and detail of the
questions and answers in the first round of interrogation, the overlapping content of the
two statements, the timing and setting of the first and the second, the continuity of police
personnel, and the degree to which the interrogator’s questions treated the second round
as continuous with the first.” (Seibert, supra, 542 U.S. at p. 615 (plur. opn. of Souter,
J.).) Whatever the subjective intent of law enforcement, the plurality indicated its multi-
factor test would apply whenever facts show the question-first tactic at work. (Id. at
p. 616, fn. 6 [“[T]he intent of the officer will rarely be as candidly admitted as it was [in
Seibert] (even as it is likely to determine the conduct of the interrogation)[; thus,] the
focus is on facts apart from intent that show the question-first tactic at work.”].)
Justice Kennedy issued a separate opinion, concurring in the judgment but
rejecting the plurality’s conclusion a “multifactor” test should apply whenever a two-
stage interrogation occurs. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy,
J.).) Justice Kennedy fashioned an inquiry focused on whether the officers deliberately
employed a two-step interrogation designed to undermine the effectiveness of Miranda
warnings. If the two-phase interrogation was deliberate, then any postwarning statement
related to the substance of prewarning statements must be suppressed “absent specific,
curative steps.” (Seibert, supra, at p. 621 (conc. opn. of Kennedy, J.).) On the other
hand, if the two-step interrogation was not deliberate, then Justice Kennedy believed
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Elstad should continue to govern the admissibility of a postwarning statement: whether
the prewarning and postwarning statements were voluntary. (Id. at p. 622.)
“The fractured nature of Seibert has given rise to a debate over whether it is the
plurality’s opinion or Justice Kennedy’s concurrence that provides the controlling
standard.” (People v. Krebs (2019) 8 Cal.5th 265, 309 [noting the 6th Cir. Ct. of Appeals
has adopted the plurality’s multi-factor test, but the 2d, 3d, 5th, 8th, 9th, and 11th Circuits
have all adopted Justice Kennedy’s approach as the holding of the Seibert court]
(Krebs).) The California Supreme Court has not yet determined which approach controls,
concluding in Krebs it was unnecessary to address the question because the defendant’s
argument failed under either. (Ibid.)
b. Analysis
Seibert and Elstad create the governing framework for the admissibility of warned
statements in a two-part custodial interrogation—the first part unwarned, the second part
warned. Factually, this case falls squarely within the Seibert category of midstream
warnings and not that of Elstad. Defendant’s interview was different from Elstad in
every meaningful respect. Defendant was subjected to a single, unbroken interview
conducted by the same detective during which he was unquestionably in custody.
Under Seibert, the initial question is which approach should be applied—the
plurality opinion or Justice Kennedy’s concurrence, which supplied the fifth vote to
affirm the judgment below. The plurality approach would arguably subject every two-
part interview with a midstream warning to a multi-factor test to ascertain the efficacy of
the untimely warning, while Justice Kennedy’s approach would analyze such
circumstances under Elstad’s voluntariness test absent evidence that a deliberate
question-first, warn-later strategy was implemented.
Like Krebs, however, this case does not require us to address that issue. Under
neither the plurality opinion nor Justice Kennedy’s concurrence would the Elstad
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voluntariness test apply. The inquiry under Justice Kennedy’s concurrence is whether a
deliberate two-step strategy has been used; if it has, then “postwarning statements that are
related to the substance of the prewarning statements must be excluded unless curative
measures are taken before the postwarning statement is made.” (Seibert, supra, 542 U.S.
at p. 622 (conc. opn. of Kennedy, J.).) Here, because there is evidence a deliberate
question-first, warn-later strategy was implemented, even applying Justice Kennedy’s
approach, defendant’s second warned confession must be excluded because no curative
measures were taken.
Although different from Seibert in that there was no express admission by
Newman that he intended to employ a question-first tactic, the circumstances abundantly
demonstrate a deliberate strategy. In his concurrence, Justice Kennedy sought to limit
application of the plurality’s multi-factor test to those “infrequent” cases “in which the
two-step interrogation technique was used in a calculated way to undermine the Miranda
warning.” (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) Establishing
the use of a deliberate two-step interrogation calculated to frustrate the Miranda rule does
not demand an admission by law enforcement, and Justice Kennedy’s concurrence did
not say otherwise. When the circumstances show a deliberate two-step strategy was
employed, the intent of the interviewing officer can be inferred. (See generally People v.
Matson (1974) 13 Cal.3d 35, 41 [because intent is rarely susceptible of direct proof, it
may be inferred from all the facts and circumstances disclosed by the evidence].)
The circumstances here establish the use of a deliberate and calculated strategy to
question first and warn later. When Newman began the interview with defendant, he
already knew most of the details about the shooting and had connected them to
defendant, including where defendant had obtained the weapon. There is no doubt
Newman went into the interview to question defendant about the shooting—it was
intended to be an interrogation, plain and simple.
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When Newman first introduced himself to defendant as a detective, he indicated
he wanted to talk to defendant and asked if he could make defendant more comfortable.
The message Newman implicitly sent was that the “talk” was not going to be for mere
booking purposes or short in duration. Defendant immediately told Newman he would
“rather not talk about anything today.” Rather than advising defendant of his Miranda
rights, including the one he invoked, Newman sidestepped defendant’s statement by
saying he only wanted to ask “a few questions” to “know a little bit more about”
defendant. Of course, this was untrue—defendant was the primary suspect in a fatal
shooting Newman was investigating.
Newman ignored four more of defendant’s statements he did not want to talk
about anything and moved into questions of interest in the investigation, asking defendant
about his cell phone and how long he had been living at DeJong’s property. Given the
obvious purpose of the interview and defendant’s immediate and multiple statements he
did not want to talk, Newman’s questioning showed careful calibration to keep defendant
talking while weaving in questions relevant to the investigation. When defendant
abruptly said he just wanted to talk about what happened, Newman knew exactly what
defendant was referring to and that “what happened” would almost certainly lead to the
elicitation of incriminating statements—whether or not defendant denied or admitted
being the shooter. Yet, even at this point, Newman still declined to give any Miranda
warning.
After defendant initially admitted to shooting DeJong, Newman continued to
prompt him to say more, asking about the location of the house defendant was working
on remodeling for Dennis and telling defendant he had already talked to Dennis, who
“was pretty surprised about all this.” In response, defendant then gave more detail about
why he shot DeJong. Without a doubt, Newman was attempting to elicit incriminating
statements about the shooting and was carefully priming defendant to reveal as much
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information as possible—this was unambiguously interrogation at a time Newman knew
no warnings had been given.
When defendant wound down his explanation and said he “wanted to hang
[himself] on a tree or something,” Newman finally provided warnings, but he hurried
through defendant’s uncertainty about the need for a lawyer; the video and transcript of
the interview do not show clearly that defendant acknowledged he understood his rights
when asked, Newman never confirmed with defendant he was actually waiving his rights
in the face of defendant’s questions about a lawyer, and Newman underplayed the scope
of what was left to talk about by saying he only had a few more questions, which was
categorically untrue.
The two-stage interview tactic was deliberate. There was no ambiguity about the
circumstances, interrogation was clearly and concededly engaged in before warnings
were given. Newman’s persistent avoidance of providing a warning was deliberate and
calculated to ensure further questioning would be unimpeded. He knew he had a duty to
warn, but kept defendant talking until a confession was obtained. Only then was a
warning given. Defendant’s uncertainty about counsel at the time of waiver was brushed
aside as essentially unimportant because Newman “just had a few questions” left.
Newman then proceeded to go through every detail of the shooting and the kidnapping
with defendant for another 90 minutes, which strongly suggests Newman knew the initial,
unwarned confession was likely inadmissible. There is no reasonable way to conclude
this was anything but deliberate.
As there is convincing and ample evidence of a deliberate, calculated strategy to
undermine the efficacy of the Miranda warning by delaying it, postwarning statements
related to the prewarning statements must be suppressed if no curative measures were
taken. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Curative steps
suggested by Justice Kennedy to ensure a reasonable person in the suspect’s situation
would understand the import and effect of the Miranda warning include a break in time
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and circumstance between the prewarning and postwarning statements. (Seibert, supra,
at p. 622 (conc. opn. of Kennedy, J.).) Or, alternatively, a warning that explains the
likely inadmissibility of the prewarning custodial statement. (Ibid.) There were no
curative measures taken here. The interview was conducted in one continuous two-hour
session without so much as a break between the unwarned and warned portions—there
was no attenuation in time or location between the two confessions to the shooting. And,
as defendant points out in his reply brief, there was no advisement by Newman of the
likely inadmissibility of defendant’s prewarning confession.
Turning to Seibert’s multi-factor plurality approach, the postwarned statements are
also inadmissible. Factors that bear on the efficacy of a midstream Miranda warning
include the completeness and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the timing and setting of the
first and second round, the continuity of police personnel, and the degree to which the
interrogator’s questions treated the second round as continuous with the first. (Seibert,
supra, 542 U.S. at p. 615 (plur. opn. of Souter, J.).)
On balance, these factors tilt strongly toward a conclusion the efficacy and
comprehensibility of the Miranda warning were fatally compromised. (Seibert, supra,542 U.S. at p. 617 (plur. opn. of Souter, J.).) There was strong overlapping content of
defendant’s prewarned and postwarned statements regarding the shooting and
defendant’s motive, although more details were gleaned in the warned portion of the
interview. And while Newman’s questions during the prewarned interrogation were not
detailed as they tended to be prompting-type questions meant to continue moving
defendant through his confession, defendant’s narrative was detailed. He explained how
he came to live on the property and how his frustration with DeJong had been building
because he treated defendant like a lackey and seemed to be coming between defendant
and Bonnie. He also explained he had stayed awake the whole night before the shooting
smoking methamphetamine, DeJong had been treating him terribly and defendant was
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angry about Bonnie, and then defendant shot DeJong with the handgun he had gotten to
protect the property. The prewarned interrogation was not exhaustive to the degree in
Seibert, nor did Newman treat the warned portion like a cross-examination of the
statements made in the unwarned portion, but the most damning details that defendant
had shot DeJong and why he had done so were confessed in the unwarned portion of the
interrogation and then discussed at length again in the warned portion.
The warned phase of the interrogation proceeded with no pause at all, in the same
place as the unwarned portion, and Newman conducted the entire interview. When
Newman recited the Miranda warning, he said nothing to counteract any misperception
what defendant had already said could be used against him. When defendant questioned
the need for an attorney, noting he had already confessed, Newman implied it was not
necessary and there was not much left to talk about anyway. Defendant’s question about
his right to counsel under the circumstances was more evidence the warnings were
incomprehensible to defendant. And understandably so—his requests not to talk in the
beginning were not honored, which implied he did not have the right to silence then, yet
postconfession he was instructed he suddenly had a right to remain silent and the right to
counsel at a time when the benefit of exercising those rights seemed dubious at best. A
reasonable person in defendant’s shoes would not have understood the Miranda warning
to convey a message he had any real choice about continuing to talk. Not only are
defendant’s prewarning statements inadmissible as the People concede, the postwarning
statements are likewise inadmissible under Seibert. (Seibert, supra, 542 U.S. at pp. 616–
617, (plur. opn. of Souter, J.).)6
6 To the extent defendant’s postwarning statements about holding Bonnie “hostage” were
not related to his prewarning statements about the shooting, those statements must nonetheless be
suppressed for all the reasons already discussed.
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II. The Admission of Defendant’s Confessions Was Prejudicial
We turn now to the question of prejudice. The erroneous admission of statements
obtained in violation of Miranda is reviewed for prejudice pursuant to Chapman v.
California (1967) 386 U.S. 18. (Arizona v. Fulminante (1991) 499 U.S. 279, 296, 310;
People v. Cunningham (2001) 25 Cal.4th 926, 994.) This test requires the People “to
prove beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” (Chapman, supra, at p. 24.)
“The standard is satisfied only if ‘[t]here is no reasonable possibility that the
verdict would have been more favorable to [the] defendant had [the] statements not been
admitted.’ [Citation.] Because confessions ‘“[a]lmost invariably” will provide
persuasive evidence of a defendant’s guilt …, the 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 under the traditional harmless-error
standard.’” (People v. Henderson (2020) 9 Cal.5th 1013, 1029.)
“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 come from the actor himself, the most
knowledgeable and unimpeachable source of information about his past conduct.
Certainly, confessions have profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if told to do so.’ [Citations.]
While some statements by a defendant may concern isolated aspects of the crime or may
be incriminating only when linked to other evidence, a full confession in which the
defendant discloses the motive for and means of the crime may tempt the jury to rely
upon that evidence alone in reaching its decision.” (Arizona v. Fulminante, supra, 499
U.S. at p. 296.)
Defendant’s confession supplied the best and most compelling evidence the killing
was willful, deliberate and premediated—a necessary element to support the first degree
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murder conviction. (§ 189, subd. (a) [willful, deliberate, and premeditated killing is
murder of the first degree].) And, unsurprisingly, because his interview statements were
the most compelling evidence in this regard, they were the centerpiece of the
prosecution’s closing arguments on this issue.
In asserting the crime was willful, deliberate and premeditated, the prosecutor
highlighted defendant admitted to shooting DeJong in the head—not that he was aiming
for another body part, was trying to fire over his head, or was otherwise attempting to
scare DeJong. Defendant’s statements confirmed that shooting DeJong in the head was
no accident. For purposes of deliberation, the prosecutor argued defendant’s interview
statements also showed he weighed the consequences of his choices, “because there was
a lot of evidence in that statement that he did,” including that defendant told Newman he
took everything he wanted for once in his life by shooting DeJong. The prosecutor
argued premeditation was shown through acquiring the weapon ahead of time from
Dennis, but also that defendant told Newman he felt that DeJong had been demeaning
him in front of Bonnie, including just before the shooting.
The jury was instructed on voluntary manslaughter based on heat-of-passion
evidence defendant thought DeJong and Bonnie had been engaged in a sexual act when
he went into the shed and shot DeJong. The prosecutor argued the shooting was not done
in the heat of passion based on defendant’s statement to Newman he did not do anything
at the moment he heard DeJong yell out to D.N.; thus, there was a cooling off period and
defendant did not react immediately. The prosecutor emphasized defendant’s admission
to Newman that he was waiting for DeJong to come out of the shed, and when DeJong
did not appear, defendant sought him out in the shed. The prosecutor argued this too
reinforced the conclusion defendant’s actions were deliberate.
Bonnie did not see defendant waiting outside the shed prior to the shooting, nor
was she privy to any of the internal thought processes he revealed to Newman. She
testified defendant had been acting possessive and jealous about her; defendant had been
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by the shed several times to ask Bonnie to spend the night with him and DeJong kept
telling him to leave; and defendant told Bonnie later that he misunderstood what DeJong
yelled back to D.N. just before the shooting, that he was angry Bonnie would not spend
the night with him, and that he had had enough of DeJong mistreating him, but that he
should not have shot DeJong. There was also testimony from the coroner the gun that
killed DeJong was fired from a distance of less than two feet, and the gun—found in the
bushes where Bonnie said it would be—matched the type of gun Dennis had given
defendant. But taken together in the absence of defendant’s statements, this was not
overwhelming evidence defendant’s shooting of DeJong was necessarily willful,
deliberate and premeditated. Nor did it overwhelmingly eliminate the possibility the
killing was done in the heat of passion, given Bonnie’s testimony of her sexual
relationship with defendant, defendant’s jealousy, and his mistake about what DeJong
had yelled to D.N. just before defendant entered the shed and shot DeJong. Indeed, the
prosecutor urged the jury to conclude the evidence proved first degree murder and not
voluntary manslaughter by pointing almost exclusively to defendant’s interrogation
statements.
As to the kidnapping conviction, defendant acknowledged during his interview
that he “took [Bonnie] to the room” because he “just wanted one more night with her,”
but “she was uncomfortable the whole time ‘cause [he] was holding her hostage.”
Although mentioning Bonnie’s testimony in closing arguments, the prosecutor again
emphasized defendant’s statements, noting they showed he knew Bonnie did not go with
him willingly and they corroborated Bonnie’s testimony.
Other than defendant’s confession, Bonnie’s testimony was the only evidence of
the kidnapping—it was not supported by other disinterested and reliable eyewitnesses,
nor was it confirmed by uncontroverted physical evidence. (See People v. Cahill (1993)
5 Cal.4th 478, 505 [offering a series of nonexhaustive examples to illustrate when
erroneous admission of confession might be found harmless].) While Bonnie’s testimony
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alone was certainly sufficient to support the verdict, it is impossible to know how the jury
would have weighed or credited it in the absence of defendant’s statements. Defendant’s
statements by themselves supported the verdict regardless of how the jury viewed
Bonnie’s testimony. Importantly, they also corroborated Bonnie’s testimony in almost all
salient respects. Although her version of events was undisputed, Bonnie did not have
unblemished credibility. She was not a disinterested witness, and she admitted she had
been smoking methamphetamine and marijuana with defendant the entire day before the
shooting. Defendant’s confessions bolstered any credibility or believability issues her
testimony may have presented for the jury.
For these reasons, while there was independent evidence defendant shot and killed
DeJong, we cannot conclude the guilty verdicts for first degree murder and kidnapping
were “‘surely unattributable’” to the admission of defendant’s confessions. (People v.
Quartermain (1997) 16 Cal.4th 600, 621.)
III. Remaining Arguments
In light of our conclusion defendant’s convictions must be reversed, the remaining
assertions of error are moot and we do not address them.
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DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further
proceedings consistent with this opinion.
MEEHAN, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DETJEN, J.
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