P. v. Feigley

Filed 8/2/07 P. v. Feigley CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

On May 5, 2004, the Monterey County District Attorney filed an amended information charging appellant with one count of first degree murder. (Pen. Code, 187, subd. (a).)^[1] The information alleged that the murder was committed for the benefit of, at the direction of, or in association with a Sureno criminal street gang. ( 186.22, subd. (b)(l).) In addition, the information alleged that in the commission of the murder appellant personally discharged a firearm, to wit a .32 caliber handgun. ( 12022.53, subd. (d).)

Jury trial commenced on May 9, 2005, and concluded on May 16, 2005. On May 18, 2005, after deliberating for two-and-a-half hours, the jury found appellant guilty of first degree murder and found true both enhancements.

On July 15, 2005, the trial court sentenced appellant to an aggregate term of 50 years to life in state prison.

On July 22, 2005, appellant filed a notice of appeal.

On appeal, appellant raises eight issues. First he contends that the denial of his motions to exclude pretrial statements that he made violated his right to counsel and privilege against self-incrimination because police officers continued to interrogate him despite his unambiguous invocation of his rights. Second, admission of his statements violated his right to due process and privilege against self-incrimination because the statements were involuntary. Third, the trial court erred "by refusing to give [his] requested instruction on factors relevant to evaluating the credibility of his statement, especially in light of other instructions that the jury must decide whether the statement was 'voluntary.' " Fourth, his rights to due process and a fair trial were violated because the trial court failed to instruct the jury that the prosecution had the burden of proving he did not act with an actual but unreasonable belief in the need to defend himself. Fifth, his right to instructions on the defense theory of the case was violated when the trial court refused to give instructions on the prosecution's burden to prove that he did not act in self-defense. Sixth, this court should strike a no contact order because it was not actually imposed by the lower court, was not authorized by law, and was unconstitutionally vague. Seventh, imposition of a court security fee violated the prohibitions against retroactive and ex post facto application of statutes. Eighth, the clerk's minutes and abstract of judgment should be modified to correct the sentence length, date of conviction and presentence custody credits.

The People concede the sixth and eighth issues. We agree. In addition, we agree with appellant's seventh contention regarding the court security fee. Accordingly, we will order the trial court to correct the abstract of judgment to correct the sentence length, date of conviction and presentence custody credits. We strike the no contact order and court security fee. In all other respects, we affirm.

Subsequently, Feigley filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his writ petition, Feigley presents three arguments why his trial counsel provided ineffective assistance of counsel. First, he was deprived of the effective assistance of counsel because trial counsel failed to object to admission of his confession on the ground that it was involuntary. Second, trial counsel provided ineffective assistance by failing to investigate and present evidence of his borderline mental retardation in support of the motion to suppress his confession and in support of his argument to the jury that his confession was not credible. Third, trial counsel provided ineffective assistance by failing to investigate and present evidence of his mental retardation in support of the claim that he acted in self-defense and lacked the mental intent for murder or a gang enhancement. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(2)(A).)

Facts

Stephanie Gonzales testified that in February 2003 she was attending Montorro High School in Salinas. Her boyfriend, 17-year old David Mendoza, Jr., attended North High School. Sometimes he would pick her up after school in the parking lot of the Rodeo Market.

On February 20, 2003, Stephanie got out of school at 3:06 p.m. and walked down Sherwood Drive with her friends Kymanie and Elizabeth. While they were waiting to cross the street at the corner of La Posada and Sherwood, Stephanie saw a man running towards them from near the Rodeo Market. The man was wearing a gray hooded jacket, white t-shirt and blue jeans. He was holding his pants as if he was carrying something in them. The man made eye contact with Stephanie.^[2] As he did so, he tried to pull up the hood of his jacket, but he did not succeed. He ran around the corner toward some apartments.

Stephanie and her friends crossed the street to the market, but Mendoza's car was not parked in the usual location. Stephanie walked around the parking area, saw Mendoza's car and walked up to it. She saw that Mendoza was slouched in the driver's seat and he did not respond. Stephanie gave him "mouth-to-mouth" and he took a breath and seemed to be choking. After a few minutes, Stephanie went into the market to call the police, but was told that the police had already been called. She was able to flag down a passing deputy sheriff. Stephanie, Kymanie and Elizabeth stayed by the car until the police arrived. Kymanie got in the car and was holding Mendoza up and talking to him.

Around the same time, Nik Dorado was working in an apartment building behind the Rodeo Market when he heard what sounded like five gunshots in quick succession. Dorado went outside. He saw that people were running toward the market. However, he saw one man jogging away from the area. Dorado described the man as big man with short hair and no facial hair, 18-30 years old, wearing a gray sweatshirt and blue pants. He had his right hand in his pocket. It seemed to Dorado as though the man made a gesture and then a nearby car drove off. He did say that he thought this could have been a coincidence.

Hortencia Yanez, who lived near the Rodeo Market, also heard three or four shots. She looked out her window a minute or two later and saw a person inside a car, leaning back.^[3] After another one or two minutes, Yanez looked out the window again and saw two girls and a boy approach the car. One of the girls started screaming and went toward the store. She saw an officer, who had been stopped waiting for the stop light, come over to the car.

Officer Gabriel Carvey was dispatched to the Rodeo Market at 3:23 p.m. When he arrived at the market three minutes later, he found Mendoza in the car. Mendoza was unconscious and had no pulse. Officer Carvey and Detective Kenneth Wynne, who arrived a little later, examined the scene. The blue Oldsmobile that Mendoza had been in was parked on the north side of the Rodeo market and the driver's side window was down. Mendoza had been wearing a red shirt over a white t-shirt. There were six bullet holes in the left sleeve and one in the chest with an exit hole in the back. The officers searched the car and found Mendoza's identification on the driver's seat and a cell phone on the floor under the steering wheel. They did not find any weapons.^[4] However, there were seven .32 caliber casings on the ground near the rear driver's side of the car and one expended bullet on the floor of the car behind the driver's seat. The location of the casings indicated the gun was a semi-automatic revolver and that the shooter had been standing between the wall of the market and the car.

Forensic pathologist Dr. John Hain performed an autopsy on Mendoza. He opined that the cause of death was seven gunshot wounds in Mendoza's left shoulder, upper forearm, and chest; six bullets were removed from his body. Several of the bullets entered Mendoza's body in close proximity to each other. One of the bullets severed Mendoza's spinal cord, another passed through the aorta, and two passed through the heart. The wounds probably caused Mendoza to become unconscious within 10 seconds and die within a few minutes. The pattern of the wounds was consistent with Mendoza sitting in the driver's seat and turning away as shots were fired from a gun held at his chest level, though he conceded that the shooting could also have happened some other way.

Scott Armstrong, a criminalist with the state Department of Justice, examined the bullet found inside the car and those removed from Mendoza's body. He determined that they were Remington .32 caliber rounds. All were fired from the same gun.

On the day David Mendoza was shot, Detectives Richard Maldonado and Gerry Davis showed Stephanie Gonzales about 20 photographs of local men generally matching the description of the man she had seen leaving the area of the market. These included a photograph of appellant. Stephanie thought one of the photographs "kind of" looked like the man she had seen, but she was not sure and did not pick anyone out.

About a month later, the police showed Stephanie several photographic line-ups, including one with a different, apparently more recent, photograph of appellant. This time, Stephanie was positive that appellant was the man she had seen near the Rodeo Market. According to Stephanie, she could tell by his eyes.

The police showed Nik Dorado photo line-ups, including one with the older photograph of appellant, but Dorado could not identify anyone as the man he saw near the market.

Salinas Police Officer Scott Gemette testified he approached appellant on Atlantic Street in Salinas on March 23, 2003. Appellant was holding a piece of cloth made of sweatshirt material. When appellant saw the officer, he ran into his apartment, but eventually came out and talked to the officer. Appellant denied he had had anything in his hands and refused to allow Officer Gemette to search the apartment.

On March 31, 2003, pursuant to a search warrant, Detective Heath Johnson helped search appellant's house. During the search, officers forced open a locked dresser in a hallway. In the dresser, among other items, they found a box of .32-caliber Remington ammunition, which had originally contained 50 rounds. There were 18 rounds left in the box. These bullets were the same type and weight as those at the homicide scene, but it was not possible to tell whether they all came from the same box. The officers found a recent cell phone bill and earnings statement addressed to appellant, as well as a newspaper article about Mendoza's death.

Other officers found numerous other items in or behind the locked dresser. These included a loaded .380 caliber handgun, a holster, a nightstick, and a variety of ammunition. In addition, officers found clothing, including a blue Nike jacket, a Dallas Cowboys jersey, a shirt with "Southsiders" and "13" on it, blue and black beanies (one with "Players 69" written on it), and a kerchief with gang drawings. Additional items included photographs depicting other people wearing the clothing found in the dresser, and letters addressed to "Steven," "Pit" and "Pit Bull."

Detective Johnson testified that he did not know whether any of the clothing actually belonged to appellant or whether any of the letters were addressed to appellant. Neither the ammunition nor the gun could be connected to the Mendoza killing. Furthermore, Johnson conceded that the jackets and beanies were not necessarily gang-related, and that none of the clothing matched that worn by the man seen leaving the Rodeo Market.

On March 31, 2003 Detective Gerry Davis interviewed appellant. During most of the interview, appellant insisted that he had been out of town when Mendoza was killed and did not know anything about the murder. Eventually, appellant admitted he had been in town and had heard about the shooting. Then, he admitted he was at the Rodeo Market that day, but not when the shooting occurred. Later, appellant said that he saw the shooting, but that he was not the one who did it. Appellant said he had heard someone say that Mendoza was killed because he did something he should not have done and was a Norteno "at a place at the wrong day at the wrong time."

Finally, appellant admitted that he shot Mendoza. He explained that he had been walking to the store and was carrying a gun, "for protection," when he saw Mendoza, with whom he had had a dispute in the past. Appellant walked over to talk to Mendoza, saw him reach for something, and thought he was grabbing a gun or a bar. On a reflex, appellant reacted and shot him.^[5]

Appellant said that the shooting did not have anything to do with gangs and that he did not tell anyone about it. He knew Mendoza was a "buster" or Norteno, but so are some of his relatives and he gets along with them. Appellant denied being currently active in a gang, but said that he hangs out with Surenos and he would "back up my people." He had just had a "La Posada" tattoo put on his neck, but that was because La Posada was his neighborhood; he was planning to add his cousin's name and "RIP" to it.

Detective Burnett, the former gang intelligence officer for the Salinas police department, testified regarding gangs and gang activity in Salinas. One of the local Sureno gangs is called "La Posada Trece," and the Rodeo Market is on the outskirts of that gang's "stronghold." The primary activities of Sureno gang members are homicides, robberies, assaults with deadly weapons and drug sales.

Detective Burnett described specific predicate offenses committed by people identified as Sureno gang members.^[6] According to Detective Burnett, Nich, Jaime and Jesse Albertos are Las Posadas Trece members, who informants had identified as the highest level Surenos in Salinas.^[7] On Thanksgiving Day 2002, the Albertos's brother Adrian was shot when Nortenos approached Surenos during a football game and a fight broke out. Detective Burnett opined that gang culture demanded retaliation for such a killing and said that there was a rash of gang crimes after Adrian Albertos was killed, including several shootings of people wearing red shirts.

Detective Burnett reviewed records documenting appellant's alleged past gang activities. Burnett prepared a list of about nine prior police contacts between November 1996 and April 1998 during which appellant had been in the company of alleged Sureno members, wearing blue clothes, or admitted to being a La Posada Trece member. Burnett also reviewed records showing that appellant was involved in gang incidents while incarcerated in the California Youth Authority. Appellant returned to Salinas in 2002 and when police contacted him on February 18, 2003, he was with another Sureno gang member, whose nickname is "Trigger." During that contact, appellant said he used to be a Sureno, but wasn't active anymore.

Mark Lazzarini, a gang intelligence officer with the Salinas police department, took photographs of appellant when he was arrested in March 2003. Appellant had a "La Posada" tattoo on his neck that seemed fresh because it was red and there was a layer of Vaseline on it. Lazzarini and Burnett opined that appellant had other tattoos with Sureno gang significance, including three dots below one eye, a"sur" on top of the right hand, and "La Posada and "13"on his knees.

Detective Burnett testified that items found during the search of appellant's house had gang relevance. She said it is common for Sureno gang members to keep news articles about crimes they commit and to wear blue clothes and Dallas Cowboys gear. In addition, some of the clothing was imprinted with gang logos and nicknames. She identified people in the photographs found in the dresser in appellant's home as being Sureno members wearing gang insignia and making gang signs. She opined that the letters found in appellant's house were from gang members and discussed gang activities. Burnett testified that the weapons found in appellant's house might be shared and traded by gang members.

Monterey County jail staff testified that appellant had contact with gang members and conducted gang activities while he was in custody pending trial. Sheriff's Deputy Brandon Smith said that when appellant was booked, he admitted that he was a La Posada Trece member with the nickname "Bubbus." Accordingly, appellant was housed in cell 207 in G pod, which is designated for Sureno or Mexican Mafia gang members. When Smith searched appellant's cell in November 2003, he found a letter addressed to appellant that said "Southside La Posada Trece," a paper that said "LP-13" and a piece of cardboard in the window that said "LP" and "XIII."

On June 17, 2004, Deputy Kim Robinson, found "kites" or notes in G pod cell 206 wrapped in Saran wrap. Deputy Jose Lizarraga reviewed these notes. They were signed by "Bubbus, La Posada Trece Mafiosos." Although Lizzaraga did not know who wrote them, they appeared to be in appellant's handwriting. Lizzaraga believed the kites were addressed to Sureno members or associates housed in other parts of the jail. They contained various commands and directions. Lizarraga concluded that the person who wrote the notes was the Sureno "shot caller" or leader in G-pod.^[8] In a search of appellant's cell on June 18, 2004, Lizzaraga found drawings and graffiti including the words "Bubbus LP," "LPT" and "13."

The prosecution presented evidence that appellant had been in contact with members of the Albertos family while he was in jail. Martin Sanchez, an investigator for the District Attorney's office, testified that Nich and Jaime Albertos's phone number in Bakersfield was in an address book taken from appellant when he was arrested. Sanchez reviewed recordings of calls made from the jail's G-pod to that number.^[9] Portions of two of those calls, placed on February 2 and 14, 2004, were played to the jury. During those calls, a man who identified himself as "Bubbus" spoke with "Nick."[10] They discussed various people's legal cases and transfers, including those of "Trigger" and "Player"; Nick also arranged for "Leo" to put some money in Bubbus's jail account. In discussing the charges pending against him, Bubbus said, "We stopped one person that was sweet."

Jail records showed that Leo Evangelista and "Nich" put $150 on appellant's account in February 2004 and that "Leo" and "Nich" sent another $100 in May 2004.^[11] Detective Burnett examined visiting records from the jail. She concluded that four people who were believed to be gang members visited appellant.

Based on appellant's tattoos, admissions, and contact with other gang members, Detective Burnett opined that appellant was a street gang member on the day that he killed Mendoza. Further, she opined that a Sureno who sees someone in Sureno territory wearing a red shirt would assume the person is a Norteno. A Sureno's normal reaction would be to attack that person to show Nortenos they are not allowed in that area. Alternatively, a Sureno will have to attack if he doesn't want to be ostracized by his own gang. Such an attack enhances both the member's reputation and the gang's power and instills fear in other members of the community so the gang can commit more crimes without being reported. Burnett opined that appellant's apparent rise in status in the gang was consistent with him having done a service for the gang by killing the son of a high-ranking Norteno member.^[12] However, Detective Burnett admitted that even gang members sometimes have a legitimate need to defend themselves.

Appellant testified in his own defense that he grew up in an unsafe area on the east side of Salinas. He admitted his nickname was Bubbus and that he has been connected with the La Posada Trece gang since age 11. He has known the Albertos family a long time. He started getting gang tattoos at age 12. He got the "La Posada" tattoo on his neck before Mendoza died; it was red when he was arrested only because he "went over it."

On the morning of February 20, 2003, he went out to eat. Then, he went to the Lakeview Apartments down the street from the Rodeo Market. He "hung out" there for an hour or so. In the afternoon, he walked to the Rodeo Market. As was his habit, he was carrying a .32 caliber semi-automatic for protection because the area is dangerous. He went into the store and bought beer and cigarettes, then he started to walk back to the apartments. He heard someone whistle and noticed a parked car, but he did not recognize the person who was in it. Thinking it might be a friend, he walked up to the car. When he got close, he recognized the person in the car as someone from his sister's old school. He and the guy in the car had "mad-dogged" or stared at each other a few times in the past.

Appellant testified he had never talked to Mendoza before, and did not know who he was or know anything about his family. He did not see the color of Mendoza's shirt. When he approached the car, Mendoza punched him in the face. Appellant testified that he swung back, but did not connect. He saw Mendoza try to open the car door and reach under his seat. He did not know what Mendoza was reaching for and figured it was probably a gun or weapon. He felt his life was in danger, so he pulled out his gun and shot all seven bullets. It all happened "real quick." Appellant said that he was not thinking that he was shooting a Norteno or that shooting Mendoza was going to benefit the Surenos or enhance his standing. After the shooting, he left the area, hid out and then went home. He threw the gun away in the trash.

Discussion

Appellant's Pretrial Statements-Miranda

Appellant contends that the denial of his motions to exclude pretrial statements that he made violated his right to counsel and privilege against self-incrimination because police officers continued to interrogate him despite his unambiguous invocation of his rights.

Background.

When appellant was arrested on March 31, 2003, he was taken to the police station, where, according to appellant, he waited in a holding cell for two or three hours. Then, he was taken to an interview room, where law enforcement officers, primarily Detective Gerry Davis, interviewed him. The interview was videotaped and the videotape was transcribed.

Detective Davis began by asking appellant for identification information, which appellant provided. When appellant asked, "What's all this for," Davis told appellant that he was under arrest for the murder of David Mendoza. Davis read appellant the "Miranda rights" pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and asked him, "Do you understand those rights?" The defense interpreted appellant's reply as, "I prefer to wait till I talk to an attorney for all this." As interpreted by the prosecutor, appellant's reply was, "I prefer before you try to talk to an attorney for all this." Davis continued questioning as follows:^[13]

"GD: Is that what you are asking for?

SF: 'Cause,

GD: Did you understand the rights?

SF: Some of them I understand.

GD: Which one of them didn't you understand? I want to make sure that you understand okay? You have been arrested before, right?

SF: Yeah, I have been locked up in the system in for five years and a half.

GD: Okay, and when you have been arrested before you've had your rights read to you right?

SF: I was younger back then. I was barely, I was barely fifteen when I went in.

GD: Okay, well you watch TV and they read their people's rights on TV and stuff. So, let me, which one, what didn't you understand?

SF: Like, I understand the first two.

GD: Okay. You have the right to remain silent. Do you understand that one?

SF: Yeah.

GD: Okay, anything you say may be used against you in court. Do you understand? Is that one of the ones that you understand?

SF: Yeah like the one, that's like saying like, like, if you remain silent it's like, it's like, when are you talking trying to speak or something and you just like side track someone and they start talking and all that. I already know that one there.

GD: Okay, you have the right to the presence of an attorney, before and during any questioning. Is that, is that one of the ones you understand?

SF: Yeah I understand that one.

GD: Okay if you cannot afford an attorney, one will be appointed for you, free of charge before any questioning if you want. Is that, do you understand that one?

SF: [NODS HEAD YES.]

GD: So, everything I have read to you so far you understand right?

SF: Yeah.

GD: Okay.

SF: It's like w, w, w. Like these questions right here. That you are going to ask me. Like what is it for?

GD: I want to talk to you about the murder of David Mendoza. And since you are in custody I have to advise you of your rights. You understood those rights correct?

SF: Yes.

GD: Okay, so now I want to talk to you about the case that I am working on.

SF: Meaning, like, like, what are you, uh, like an attorney or?

GD: I am not an attorney.

SF: Are you a police officer?

GD: I am a police detective. He's a police detective and we have been working this case since the day it happened. And now you have been arrested for that murder and I would like to talk to you about that.

SF: Well makes you guys bring it down on me for?

GD: Well let me uh, because, first of all, okay, do you want to talk about this?

SF: Yeah, 'cause it is something I didn't do.

GD: Okay. So it is okay if I ask you questions and all that?

SF: Yeah."

Detective Davis told appellant that four eyewitnesses identified his photograph and a Rodeo Market video camera recorded him shooting Mendoza. Appellant said that at the time of the shooting he was in "Bosso, Texas." Detective Davis said that appellant's mother and sister had already confirmed he was in town. Immediately, appellant said, "No. I ain't going to say nothing more. I want an attorney. 'Cause man, homes."

The interrogation continued as follows:

"GD: Is that what you want?

SF: This is too much. You guys been on me since I have been out, for no reason. Always stopping me. Like the last time when I was out and then now you guys want to get me for something else. For something serious. That I didn't even do. Come on man. And there is an officer out there that's got a grudge on me.

GD: I don't know anything about that.

SF: And-

GD: So what are you asking me for?

SF: Man, I am willing to work with you guys 'cause this ain't, I didn't do this. You know what I mean. And, man, it's like for something I didn't even do man. And then, I even stopped there twice and walked in to that store. And I know those persons that work there. They would of, they would, they would have said something. You know what I mean. And then for them to just come at me like this, telling me I did this.

GD: Okay, one of the last things you said was you didn't want to say anything else 'cause you wanted an attorney. Do you want to talk about this? 'Cause if you, if you ask for an attorney I can't talk to you about this.

SF: Well like for you guys, what is this going to lead to? What we are talking about?

GD: Your, I explained to you when I read you your rights that anything that you say may be used against you in court. Okay, and you understood that right?

SF: Yes.

GD: So you need, you need to make a decision.

SF: I am willing to talk to you guys.

GD: I am sorry[,] what?

SF: I will talk to you."

Appellant asked what would happen and whether he would be going to court if he talked. Davis reiterated that anything appellant said could be used against him in court, and that he had to decide whether he wanted to talk to Davis or talk to a lawyer. Appellant confirmed that he wanted to talk to Davis.

Detective Davis repeatedly accused appellant of lying about his involvement in Mendoza's murder. Detective Davis repeated that he had proof that appellant killed Mendoza but he needed to "understand why. Why it happened." Davis told appellant that this was his "opportunity to tell [his] side of the story." When appellant protested that the allegations were "bullshit," Davis again asked him if he wanted to talk or "go with the rights that I read you?" Appellant said, "The reason that I start to talk anyways to you is cause you have to make a police report," and then said he did want to talk.

Detective Davis told appellant about the evidence that the police had allegedly gathered, telling appellant they had witnesses who saw him do it, had the killing on videotape, and had matched the bullets that killed Mendoza with those found in appellant's house. Appellant continued to protest that he didn't do it. Davis continued to insist that he did.

At one point, Detective Davis told appellant he would look ridiculous in court denying involvement when there were four eyewitnesses and a videotape of the crime. Davis told appellant that it was his opportunity to explain why it happened because once they were "done here" he was "never going to have the opportunity to tell [his] side of the story again." Davis said that unless appellant told the police why he did it, he was going to look like a "cold-blooded killer."

Detective Davis told appellant that he should make a statement because "what takes place in this room right now, could have an impact on whether or not [he spent] the rest of [his] life behind prison bars."

Eventually, appellant admitted that he had not been out of town on the day of the shooting. Then, he said he had been at the Rodeo market on the day of the shooting, but hours before the shooting. Thereafter, Detective Davis described in detail the evidence that he had against appellant. He told appellant that people were not going to believe him and this was his only chance to say why he did it. At this point, appellant said, "I just need to get an attorney. I want an attorney man." Detective Davis asked him, "Is that what you want?" Appellant confirmed that it was. Detective Davis told appellant that he was being charged with first degree murder, and gang and firearm enhancements. He told appellant that it was the "worst that anything could ever get, ever. It will never get any worse for you than right now." Detective Davis refused to answer when appellant started to ask him a question and ended the interrogation. It appears that the tape was turned off.

When the tape was turned on again, the following conversation took place:

"GD: Before we start talking um, you just have to make sure we understand that since we last talked, you ended it by saying you wanted an attorney. Okay. You are re-, you are asking this contact right? [NODS HEAD YES.] I didn't ask you did I?

SF: [NODS HEAD NO.]

GD: You are asking for me right?

SF: [NODS HEAD YES.]

GD: Okay, do you remember the rights that I advised you of?

SF: Yeah.

GD: You still remember those. [NODS HEAD YES.] Okay would you like to talk to me more about the case?

SF: Like,

GD: Would you like to talk some more about it?

SF: Yes I was there, at the time right there when the incident happened but I ain't the one that did it you know."

The interview continued as before. Appellant continued to deny killing Mendoza and Davis continued to say that appellant was lying and that the police had proof against him. Davis told appellant to think about whether he would "rather go before a judge or a jury and have them think that [he] cooperated . . . or not cooperated." The interview continued:

"SF: Well, and then if I go through a judge I am going to have to get an attorney too.

GD: Okay, well I already explained to you that if you can't afford an attorney one will be appointed to represent you. So if you don't have any money you don't have to worry about that. The court will make sure you have an attorney. Okay?

SF: And then like so you're just trying to step up to help and then the attorney, if you get an attorney, they do their part too?

GD: Yes. But right now, we are beyond the point of whether or not you did it."

Once, more, Davis reiterated that the police knew appellant did it and this was his opportunity to explain what happened. When appellant again said he didn't do it, Davis responded, "Okay, well then, I don't know what else to say. I cannot help you, I cannot help people, I cannot help you make people see who you really are if you want to continue with that."

Davis said that if appellant explained why he killed Mendoza, "the why" could make a difference in the case and the way people looked at him. Appellant said he had heard someone say Mendoza was killed because he was a Norteno "at a place at the wrong day at the wrong time." Davis again insisted that appellant was the killer.

Finally, about 20 minutes after the interview resumed, appellant admitted he shot Mendoza. He said that he and Mendoza had a past dispute and when he saw Mendoza sitting in the car, he walked over to talk to him. He saw Mendoza reaching for something, and thinking that it was a gun or bar, he shot him. The interrogation continued for another 20 minutes, with discussion of the details of the shooting, appellant's gang history and juvenile record, and the disposition of the gun.

On January 22, 2004, defense counsel filed a motion to exclude appellant's statements at trial on the ground that they were taken in violation of his constitutional rights. The prosecutor responded by arguing that there was no Miranda violation. On February 5, 2004, the court held a suppression hearing, at which Detective Davis testified that appellant was "very difficult to understand. At times he mumble[d]. Sometimes, he speaks very quietly. Sometimes some of the things he [said] just don't make sense." With respect to his request for an attorney, Detective Davis testified that it was "kind of mumbled, and I caught the word 'attorney.' It wasn't until later, when I went and sat down with the transcript - - with the tape that I was able to figure out what he had said."

The court ruled that appellant's first request for an attorney was difficult to understand. Furthermore, "there was not a clear request for counsel and . . . there was, in fact, a waiver of rights, and Detective Davis was free to question him." Moreover, appellant's second request for counsel was also ambiguous, and "nothing in Miranda precludes the police from clarifying whether he understands the questions relating to constitutional rights and whether he intends to waive them." The court ruled that the detectives were correct in terminating the interrogation after appellant's third unequivocal request for an attorney, but ruled that appellant voluntarily reinitiated contact.

Over a year later, on the same day that the jury trial was set to begin, the court held a second suppression hearing.[14] The thrust of the renewed motion to suppress was that after appellant invoked his right to counsel and the detectives stopped questioning him, appellant "did call the officer back, but it was instigated by the officer and . . . there will be testimony to that effect."

Subsequently, appellant took the stand and testified that when police officers arrested him at his home, he told them he wanted to speak to a lawyer. During the police interrogation he asked for a lawyer "four different times," but the detectives did not provide one. However, after the fourth time, the detectives took him to the "holding tank." Then, after two or three minutes, Detective Davis came into the cell and said, " 'why are you playing games?' " Five minutes later, appellant told another officer that he wanted to speak to Detective Davis. Immediately, Detective Davis came and took appellant back to the interrogation room. When defense counsel asked appellant why he asked to speak to Detective Davis, appellant replied, "I don't know." Thereafter, defense counsel asked appellant if it had "anything to do with Detective Davis coming to talk to [him] in the holding cell?" Appellant stated that Detective Davis's remark "just got to me." Appellant testified that he told "the officers" that he was under the influence of methamphetamine and heroin.[15] Later, defense counsel asked appellant what effect Detective Davis's comment had on him. Appellant testified that he wanted to "find out what [was] really going on."

The prosecutor asked the court if she could have Detective Davis testify regarding his alleged comment about "playing games." The court stated that even if the officer made the remark, there was no violation of Miranda. Appellant was "clearly motivated by his own reasons and interests." Nevertheless, Detective Davis testified that he did not have contact with appellant in the holding cell until he was told that appellant wanted to speak to him. Detective Davis denied that he made any comment to appellant about "playing games." Further, Detective Davis testified that appellant did not appear to be under the influence of any drugs.

The court clarified that it granted the motion for a second suppression hearing only to hear evidence that was not presented at the original hearing.[16] The court ruled that appellant's testimony was consistent, "he did initiate the interview. He says he did. He wanted his own interests dealt with and observed. He wanted them to know what his state of mind was on the date that this happened or allegedly happened. And it doesn't amount to a violation of Miranda, so that motion is denied."

During the trial, the videotape of appellant's interview was played for the jury. Afterwards, defense counsel lodged another objection, which the court overruled. Prior to sentencing, the court considered appellant's motion for a new trial, but opined that appellant's confession was "rightly admitted" and denied the motion.

Appellant argues that he made "repeated requests for an attorney, prior to, at the beginning of, and mid-way through the interrogation. There was nothing ambiguous about any of these requests."

The court in Miranda v. Arizona, supra, 384 U.S. 436, at pages 444-445, held that if a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (Italics added.) Although he need not "speak with the discrimination of an Oxford don," a suspect must articulate his desire for counsel clearly enough that a reasonable police officer in the circumstances would understand that he is requesting an attorney. (Smith v. Illinois (1984) 469 U.S. 91, 95.) "Doubts must be resolved in favor of protecting the constitutional claim," and courts must "give a broad, rather than a narrow, interpretation to a defendant's request for counsel . . . ." (Michigan v. Jackson (1986) 475 U.S. 625, 633.)

In California before 1994, if a suspect requested counsel, precedent held that it did not need to be unequivocal or absolute to invoke Miranda. (People v. Thompson (1990) 50 Cal.3d 134, 165.) The Miranda holding was construed by California courts to mean that "a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely." (People v. Duran (1983) 140 Cal.App.3d 485, 492, italics added.) Thus, courts found invocations of the right to counsel where suspects stated "Do you think we need an attorney" or "I guess we need a lawyer" (People v. Superior Court (Zolnay ) (1975) 15 Cal.3d 729, 736, cert. den. (1976) 429 U.S. 816), "Well, maybe I should talk to my attorney" (People v. Munoz (1978) 83 Cal.App.3d 993, 995), and "Well then I think it's better that I have an attorney here" and "Have you got an attorney right here present, close" (Duran, supra, 140 Cal.App.3d at pp. 490-492). These holdings preceded Davis v. United States (1994) 512 U.S. 452 and the adoption of Article I, section 28, subdivision (d) of the California Constitution, requiring our courts to apply federal standards in deciding whether to exclude a confession for violating Miranda. (People v. Crittenden (1994) 9 Cal.4th 83, 129 [noting California's adoption of federal standard, requiring invocation of right to counsel be unambiguous and unequivocal]; People v. Cunningham (2001) 25 Cal.4th 926, 993.)

Our Supreme Court comprehensively discussed the issue of the invocation of the right to counsel in People v. Gonzalez (2005) 34 Cal.4th 1111. Applying Davis v. United States, supra, 512 U.S. 452 (Davis), in which "the United States Supreme Court held that a defendant's invocation of the right to counsel during custodial interrogation . . . must be unambiguous and unequivocal to be valid," (Gonzalez, supra, at p. 1116.) Gonzalez repeated the standard of review as follows. "Davis now provides the standard by which we assess whether a defendant's reference to counsel constituted an unambiguous and unequivocal invocation of the right to counsel. [Citations.] [] Consistent with Davis, a reviewing court--like the trial court in the first instance--must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.] In reviewing the issue, moreover, the reviewing court must 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [The reviewing court] independently determine[s] from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " (Id. at p. 1125.)

After reviewing the videotape, and applying Gonzalez and Davis, we agree with the trial court that appellant's second alleged request for counsel was ambiguous and equivocal.[17] It is significant that counsel could not agree on exactly what it was that appellant said. Defense counsel interpreted appellant's alleged request for counsel as, "I prefer to wait till I talk to an attorney for all this." On the other hand, the prosecutor interpreted appellant's statement to be, "I prefer before you try to talk to an attorney for all this."

Davis imposes no requirement upon the interrogating officer to ask clarifying questions following an equivocal invocation. However, if a suspect "expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights," officers may "continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights." (People v. Johnson (1993) 6 Cal.4th 1, 27.) Here, the trial court properly considered that the officers could ask clarifying questions under the circumstances present in this case. We agree with the trial court that we do not "know how more meticulous or painstaking an interviewer can be to make sure that there was or was not a waiver, and it appears that there was a waiver in the context of that entire statement."

As to appellant's third alleged request for counsel, appellant said, "I want an attorney." However, after a pause, appellant continued by saying, "cause, man, homes." " '[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him' [citations] . . . 'unless the accused himself initiates further communication, exchanges, or conversations with the police.' [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 80) Here, after his unambiguous request for counsel, appellant continued to speak. Detective Davis could have allowed appellant to keep talking, instead he tried to clarify whether appellant wanted a lawyer or wanted to keep talking. By asking for a lawyer and then continuing to speak, appellant created an inherently ambiguous situation. Given that once before he had mentioned an attorney and then continued to ask Detective Davis questions about why he was being accused of the murder it was reasonable for Detective Davis to clarify what appellant wanted to do. (Davis, supra, 512 U. S. at pp. 461-462, ["If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him"].)

As respondent points out, it is instructive to compare appellant's third and fourth requests for counsel. In both instances, appellant said, "I want an attorney." In both instances, Detective Davis asked, "Is that what you want?" In the fourth instance, appellant replied, "Yeah." Detective Davis terminated the interview. On the other hand, in the third instance, appellant replied to the same question with a long substantive denial that he committed the crime.

Under these circumstances, it was reasonable for Detective Davis to assume that appellant wanted to continue talking about the crime. Even so, Detective Davis did the prudent thing and reminded appellant that he had mentioned wanting a lawyer. Then, he told appellant that he had to decide if he wanted a lawyer or wanted to keep talking. Appellant replied by saying, "I am willing to talk to you guys. . . . I will talk to you." When taken in context, it is evident that appellant waived his right to counsel. This was not a case where the officers simply changed the subject of questioning to avoid giving effect to appellant's invocation of his right to counsel. (See People v. Clark (1992) 3 Cal.4th 41, 122.)

As noted, after appellant's fourth request for counsel, Detective Davis ended the interview and took appellant to a holding cell. Approximately 15 minutes later, appellant asked to speak to Detective Davis. Soon thereafter, appellant confessed to the crime. More than a year after the first suppression hearing, appellant testified for the first time that Detective Davis came by and said, " 'why are you playing games?' " The trial court ruled that even if Detective Davis approached appellant in the holding cell and asked that question, there was no Miranda violation because appellant was "clearly motivated by his own reasons and interest."

Appellant asserts that regardless of whether Detective Davis initiated contact, appellant's resulting confession was tainted by the extensive prior Miranda violations. Moreover, the evidence supports a finding that Detective Davis did impermissibly initiate further contact with appellant.[18]

Relying on Collazo v. Estelle (9th Cir 1991) 940 F.2d 411 and People v. Neal, supra, 31 Cal.4th 63 (Neal), appellant argues that even if he initiated contact, his waiver of his rights was not voluntary because the circumstances show that it was the product of the prior Miranda violations. The scenario here, however, differs from Collazo v. Estelle, supra, 940 F.2d 411 (Collazo). In Collazo, the 9th Circuit Court of Appeals found reversible error in the admission of a confession obtained after an interrogating officer attempted to discourage a suspect from talking with a lawyer by predicting a lawyer would direct him not to speak with the police and "it might be worse" for the suspect. (Id. at pp. 414, 416, 420.) A necessary predicate in Collazo was a finding that the defendant's confession following a second interrogation, "was the product of the coercive statements made by the police during the first illegal interrogation." (Id. at p. 421, italics added.)

In Neal, the investigating officer continued to badger the defendant into confessing despite the defendant's invocation of both his right to remain silent and his right to counsel "7 to 10 times." (Neal, supra, 31 Cal.4th at p. 81.) In addition, the officer in Neal improperly threatened the defendant by telling him that the officer had the power to take him "all the way to Timbuktu" and then improperly promised the defendant to let him off "closer to home" if the defendant cooperated. (Id. at p. 73.) The officer in Neal intentionally continued interrogating the defendant in deliberate violation of Miranda, in order to be able to impeach him, in spite of the defendant's invocation of both his right to remain silent and right to counsel. The officer obtained only an exculpatory statement. The following day, after defendant initiated further contact, the officer elicited defendant's two confessions. (Id. at p. 78.) In Neal, the Supreme Court concluded, "[I]n light of all the surrounding circumstances-including [the officer's] deliberate violation of Miranda; the circumstance that defendant remained in custody without being provided access to counsel before requesting to speak to [the officer]; defendant's youth, inexperience, minimal education, and low intelligence; the deprivation and isolation imposed on defendant during his confinement; and the promise and the threat [the officer] made to defendant during the initial interrogation after questioning should have ceased-defendant's initiation of further contact with [the officer], and his two subsequent confessions, were involuntary." (Ibid.) Again, the necessary predicate in Neal was a finding of something improper during the first interview.

Here, we have found that there was no Miranda violation and no coercive statements made during the first part of the interview.[19] Accordingly, we find that appellant voluntarily initiated the second part of the interview.

As to appellant's contention that there was evidence to support a finding that Detective Davis impermissibly initiated further contact with appellant, appellant asserts there was no lower court ruling for this court to defer to. It appears that appellant suggests that we should decide de novo whether Detective Davis made the statement.

Contrary to appellant's assertion, the trial court did decide that Detective Davis was more credible than appellant and impliedly ruled that Detective Davis did not make the "why are you playing games" statement when the court denied appellant's motion for a new trial, ruling that the confession was "rightly admitted." Since we must defer to the trial court's resolution of credibility issues, we decline to decide de novo that Detective Davis made the statement. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, [" 'the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence' "].)

Furthermore, we find that the trial court's implied finding that Detective Davis did not make the "playing games" statement supported by substantial evidence. Detective Davis testified that he did not have contact with appellant in the holding cell until he was told that appellant wanted to speak to him. In addition, he denied that he made any comment to appellant about "playing games."

Accordingly, we conclude that appellant reinitiated contact voluntarily and that his subsequent confession was properly admitted.

Appellant's Pretrial Statements-Voluntariness

As noted appellant contends the trial court should have suppressed his pretrial statements because his Miranda rights were violated. Alternatively, appellant contends that the trial court should have suppressed his pretrial statements because they were involuntary. Appellant argues that although defense counsel did not object to the admission of his statements on involuntariness grounds, this court should address the issue because it is a pure question of law based on undisputed facts or because trial counsel provided ineffective assistance of counsel in failing to raise the issue below.

Twice appellant moved to have his confession suppressed on the ground that Detective Davis ignored his request for counsel. However, counsel did not argue that the confession was involuntary. In fact, during the first suppression hearing counsel clarified that he was "not trying to say, in terms of a voluntariness of any statements, that there was any badgering or force applied or any forceful coercion . . . ."