P. v. Palacios

Filed 7/26/06 P. v. Palacios CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Reversed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Defendant and appellant Nilda Saradya Palacios appeals from the judgment entered following a jury trial that resulted in her conviction of first degree murder. She contends: (1) her statements to police were obtained in violation of her Miranda rights; (2) her statements were coerced; (3) evidence that her polygraph examiner was found to have coerced a false confession in another case was erroneously excluded; (4) a continuance to allow defendant's competency to be determined was erroneously denied; (5) there was insufficient evidence to support the judgment; (6) refusal to instruct on voluntary manslaughter as a lesser included offense was error; and (7) the errors, even if individually harmless, were cumulatively prejudicial. Although we find no merit to defendant's other contentions, we find the trial court erred in denying her motion to suppress statements she made to police on August 16, 2001, and in failing to instruct on the lesser included offense of voluntary manslaughter. Accordingly, we reverse.[1]

FACTUAL AND PROCEDURAL BACKGROUND

1. The Killing of Alvarado

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that the victim, Noe Alvarado, was 25 years old, four feet, seven inches tall, weighed about 134 pounds and had a curved spine and very thin legs consistent with a person suffering from polio. He used crutches to walk. In early 2001, Alvarado lived alone in a camper/trailer parked in front of an abandoned house in which defendant lived with Manolo Morataya.

On July 29, 2001, police found Alvarado's dead body in a sleeping bag in a parking lot. An autopsy revealed that Alvarado died as the result of blunt head trauma and strangulation. Three potentially fatal head lacerations were inflicted while Alavardo was still alive, and a shirt found tightly wrapped around Alvarado's neck was the means of strangulation. Alvarado had no defensive wounds on his hands.

2. Pretrial Interviews With Police And Related Proceedings

Defendant, her mother and Morataya were brought to the police station on August 16, 2001, where they met with detective Jesus Linn of the Los Angeles Police Department (the August 16th interview). Defendant and her mother were released; Morataya was held. The next day, criminalist Buffy Miller and her partner, Debbie Daniels, went to Alvarado's trailer to look for physical evidence. They found blood stains inside the trailer and in the house defendant shared with Morataya, including on one of Morataya's tennis shoes found in a closet. It was stipulated that it was Alvarado's blood on Morataya's tennis shoe. Two wood blocks were discovered near the trailer tires.

Six weeks later, at about 1:30 p.m. on September 25, 2001, Detective Linn went to defendant's home to ask her to return to the station for further questioning. Defendant agreed to do so. Linn did not advise defendant of her Miranda rights because she was not in custody. After hearing defendant's version of events, Linn asked defendant whether she would agree to take a polygraph test. He did not tell her that she could consult with a lawyer. Defendant agreed, and Linn arranged for the test to be administered that same day.

Polygraph examiner Ervin Youngblood conducted the test which consisted of a pre-interview, the polygraph test itself and a post-test interview. During the examination, defendant initially maintained that Morataya killed Alvarado in her presence and she helped him dispose of the body. After Youngblood told her the polygraph showed she was not being truthful, defendant admitted hitting and choking Alvarado. She was arrested for Alvarado's murder that day.

Defendant filed a motion in limine to suppress evidence of the August 16th and Youngblood interviews. With the opposition, the prosecutor submitted a Miranda waiver form signed by defendant on August 16th.

At the conclusion of the hearing on the motions, the trial court found: (1) defendant was advised of and waived her Miranda rights before the August 16th interview; (2) defendant signed a Miranda waiver card that day; (3) defendant did not make an unambiguous request for counsel during the August 16th interview; (4) defendant was not in custody prior to and during the Youngblood interview; (5) Youngblood did not coerce defendant's confession; (6) because defendant was in custody immediately following the Youngblood interview, statements she made after that interview violated her Miranda rights.

3. Trial Testimony

a. Youngblood evidence

Defendant's trial commenced on October 21, 2004. Youngblood testified and the recording and transcript of Youngblood's interview were introduced into evidence.[2] Defendant told Youngblood that she had been raped by an uncle when she was seven years old and, the year before the killing, had been raped by a teacher. As a result, she had been in therapy for the last eight years and was taking an anti-depressant.

Defendant said she got along with Alvarado but Morataya did not. But shortly before the killing, she had learned Alvarado had taken some of her underwear. This caused her to think about the prior rapes and conclude that no one could be trusted. The day of the killing, Alvarado invited defendant and Morataya into his trailer to talk about some problems the three were having with each other.[3] Inside, Morataya became angry as he asked Alvarado why Alvarado had insulted him and humiliated him by having defendant's underwear. When defendant told Morataya to calm down Morataya's anger increased. Alvarado hit Morataya with his crutch. Morataya responded in turn, and despite defendant's efforts to calm him down, he punched Alvarado with his fists, and with a brick-shaped piece of wood, and then choked him with a shirt. Fearful that Morataya would assault her, defendant did not intercede, except to urge Morataya to calm down. Youngblood asked defendant whether she was hit by a microwave cord during the fight. Defendant said, more than once, that she was not.[4]

Defendant maintained she â€