Filed 8/28/17 P. Zetino CA1.3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Jessy Zetino ingested drugs during a Halloween party and then stabbed a stranger to death on the street. The defense claimed the killing was not premeditated and deliberate but the result of drug-induced hallucinations. The jury rejected the defense and convicted defendant of first degree murder. (Pen. Code, §§ 187, subd. (a), 189.) He is serving an indeterminate prison term of 25 years to life plus an additional year for personal use of a knife. (Pen. Code, §§ 190, subd. (a), 12022, subd. (b)(1).)

Defendant appeals, claiming his confession should have been excluded because the police coerced his confession through threats and promises of leniency and ignored invocations of his right to counsel and to remain silent. He also claims the court erred when instructing the jury on the effect of intoxication and hallucinations upon the elements of homicide. Finding no error, we shall affirm the judgment.

Evidence Presented at Trial

In October 2012, defendant was 20 years old and living in a small shed on his parents’ property with his girlfriend, Zoe Kind. Kind testified that she saw defendant consume hallucinogenic drugs “many times” prior to Halloween 2012.[1] He ate “psychedelic” (psilocybin) mushrooms on at least 10 occasions and also took “tabs of LSD” (lysergic acid diethylamide) “many times.” Defendant’s friends Lincoln Turner and Zoe Catalano-Kase also testified to observing defendant ingest hallucinogenic drugs prior to Halloween 2012.[2]

On Halloween night in 2012, Turner and Catalano-Kase hosted a party at their apartment on 4th Street in Santa Rosa. Defendant, Kind and other friends attended, arriving around 8:00 p.m. People gathered at the apartment with the intention of attending a larger house party later that night. Turner testified that he and defendant discussed “what people were doing for that night, were they drinking or doing drugs,” and Turner said he was doing ecstasy and drinking. Turner also mentioned that he “had some LSD” and defendant said “he would like some.” Turner removed from his bedroom dresser drawer a long strip of blotter paper containing about 10 “hits” of LSD, cut off a small piece, and lay the piece on the dresser for defendant to take it he wanted it. Turner left the room and did not see how much LSD defendant took, if any.

Around 10:00 p.m., the group of friends left Turner’s apartment and went to a big house party. Kind testified she and defendant were at the house when she saw him holding tabs of LSD. Defendant told her he was “going to take the acid” and she told him it was “not a good idea” because he had “bad experiences on it before, bad trips.” He replied that “he could handle it” and not to “tell him what to do.” Kind watched defendant place at least two tabs of LSD on his tongue. Within an hour, defendant started to get “high.” Kind testified that defendant had enlarged pupils and was “[r]adiating energy.” About 90 minutes after taking LSD, defendant told her “everything was starting to go bad and dark and he felt like people were out to get him and they were turning into, like, demons, and that he couldn’t be around people because . . . he was starting to trip badly.” Kind testified that defendant looked “scared” and “paranoid.” Catalano-Kase observed defendant to be “scared and confused.” Defendant told Kind he needed to take a walk, stepped outside, then returned to the party. Around 12:30 a.m., defendant and his friends decided to go to another party. Defendant drove his car with Kind as a passenger and others drove separately. Upon their arrival, they saw that the police were shutting down the party so they all returned to the house party. The group remained at the house party for a short time and then returned to Turner’s 4th Street apartment around 1:30 a.m. Catalano-Kase testified that defendant still appeared “scared” and “a little confused.”

Defendant went for a walk on 4th Street where he met Turner, who was going to a nearby convenience store. Defendant later told the police that he was walking with Turner when he saw the victim, 24-year-old Michaela Wooldridge, walk pass them toward downtown. Defendant did not know Wooldridge. He told the police that he did not even notice that the person wearing a coat and knit cap was a woman. Turner continued walking to the store but defendant turned around and followed Wooldridge. Defendant’s encounter with Wooldridge apparently occurred just before 2:00 a.m. because the store’s surveillance camera shows Turner at the store at 1:57 a.m., minutes after the camera recorded Woodbridge walking past the store toward downtown.

Defendant told the police he had been “slipped” a hallucinogenic drug earlier that night and “thought everyone was the devil.” Defendant described his hallucinations to the officers: “I would see your horns. I would see blood squirt out of your faces. I would feel the blood trickle down your necks. I would taste the iron in, on my tongue and trickle down and then I would start bleeding and it felt like you were sucking the life out of me.” Minutes into the police interrogation, defendant said he thought he “would wake up from this and become a real person . . . if [he] killed the devil.” Defendant provided more details as the interrogation progressed. After seeing Wooldridge on the street, defendant told Turner he “was gonna go back to the apartment” but, in fact, turned around intending to find her. When asked by the police if defendant turned back with the “intention to kill her,” defendant said “I felt like I had to like, be brave. . . . I felt like . . . the only way to like, get out of this was to overcome. I felt like if I didn’t do it then I was like, being a chicken, you know? I felt like I was . . . being a pussy if I didn’t fuckin’ do this. I felt like that was the only way to transcend somehow.”

Defendant described the killing to the police. He ran to catch up with Wooldridge from behind, “hesitat[ed]” when he reached her, and then plunged a knife in her back. Defendant said he carried the knife in his pocket for “protection.” Defendant stabbed Wooldridge in the back “multiple times.” She screamed “stop” and “help me, help.” Defendant did not stop. Defendant told the police he “didn’t think it would take that many times” to kill her but it did. Wooldridge collapsed to the ground and defendant ran away. Defendant told the police he later “went back to see what happened” and “almost wanted to call an ambulance” but did not. He threw the knife in the river and returned to Turner’s apartment.

Kind testified that defendant returned to the apartment and said he needed to talk to her. She went with defendant into the bathroom where he showed her deep cuts across his hands and “a lot of blood on his hands.” He told her “I think I stabbed somebody, and I think it was a woman.” Kind testified that defendant “appeared shell shocked and kind of manic, and . . . looked like he was still tripping hard and badly.” Kind disbelieved defendant’s talk of a stabbing and demanded defendant show her the body. Defendant appeared “hesitant” but Kind insisted. They went outside together and Kind asked defendant “Which way?” Defendant pointed her in the opposite direction of where Wooldridge’s body lay. Kind walked in that direction but, seeing no body, believed defendant “was just tripping.” Kind and defendant returned to the apartment, said goodbye to their friends, and departed. Defendant drove to a drug store where he and Kind purchased bandages and antibacterial ointment for his hands. The couple then returned home where Kind dressed defendant’s wounds and they went to sleep. Kind testified there was nothing wrong with defendant’s driving. He needed no directions to the drug store or help operating the car.

Joggers discovered Wooldridge’s body on 4th Street hours after the stabbing. An autopsy revealed she was stabbed a total of 13 times and suffered two additional superficial cuts. Eight of the stab wounds were to the back, with three of the wounds deep enough to damage organs and cause significant internal bleeding. She was stabbed in the chest and shoulder area four times. One thrust to the chest penetrated her heart and a shoulder thrust penetrated three inches deep and up to the hilt of the knife, which left an abrasion on the skin. Wooldridge also suffered a stab wound to her right forearm, which the pathologist characterized as a defensive wound incurred in trying to fend off the assault. The pathologist opined that all of the back injuries were inflicted in succession and preceded injuries to the chest. In addition to the stab wounds, Wooldridge had bruising on the inside lining of her upper lip. The pathologist testified that the injury was consistent with force applied by a hand held over her mouth as she struggled.

On the morning following Halloween, Turner and Catalano-Kase learned of the killing in their neighborhood and suspected defendant. Kind testified that Catalano-Kase telephoned her that morning with the news and, immediately following the call, defendant said “he needed to get rid of his clothes.” Defendant placed the clothes he wore the night before into garbage bags and put the bags in his car. With Kind as a passenger, defendant drove to the apartment complex next door and placed the bags in a dumpster. The couple returned home and defendant dressed for work. They then went to a sporting goods store where defendant bought fingerless gloves to cover the cuts on his hands. Defendant drove Kind to her mother’s house then went to work. Defendant and his friends did not report defendant’s involvement to the police.

The police investigation went cold. The police had found DNA underneath Wooldridge’s fingernails belonging to a man but the man was not identified in existing data bases. The police canvassed the local transient community to which Wooldridge belonged but suspended the investigation after a year with no suspects or leads. In March 2014, 17 months after the homicide, the DNA was matched to defendant.[3]

The police reopened their investigation. A review of defendant’s cell phone records revealed that he was in the area of the homicide on Halloween night and had been in frequent contact with Kind. The police conducted surveillance of defendant and Kind, who were no longer living together. Their relationship ended in 2013. In August 2014, the police placed a wiretap on the telephones of defendant and Kind and, to “stimulate conversation,” delivered to Kind a copy of a 2012 newspaper article about the homicide with the words “time to make amends” handwritten on it. Minutes later, Kind telephoned defendant. They spoke about “Halloween” and arranged to meet in person. The police observed them meeting and, immediately afterwards, picked up Kind for questioning. The police arrested defendant the following day. Defendant confessed to killing Wooldridge and a videotape of his confession was admitted in evidence and viewed by the jury.

Defendant did not testify at trial. The defense presented an expert witness, Charles Saldanha, a psychiatrist who treats substance abuse. Saldanha testified that LSD and 25i (25i-NBOMe) are chemically synthesized hallucinogens with similar effects. He said users of LSD often experience changes in visual perception. A user may “see trails on moving objects,” flowing patterns and intense colors. Sounds may be heard as “more pronounced or rich.” One may experience a feeling or euphoria or, alternatively, fear and anxiety. Saldanha testified that experiences vary among users: “any use of a substance is an interplay between that chemical and its effects on the brain and a person’s . . . life history.” The hallucinogenic effects of LSD abate after 12 hours but “a small percentage of users” may experience “visual effects” indefinitely. Saldanha testified that hallucinogens may be associated with violent behavior but knew of no instance of murder associated with the drug.

In rebuttal, the prosecution presented a physician, Reese Jones. Jones testified that violence is not typically related to LSD intoxication and that users are capable of decision-making and judgment. Jones testified that it is “the person and not the drug that dictates any bad behavior” because “what’s going on in your brain is as important as what’s in the [drug]” in producing an effect.

In closing argument to the jury, defense counsel conceded that defendant killed Wooldridge but claimed the killing was not premeditated and deliberate but the result of drug-induced hallucinations from drugs “slipped” to defendant. The court instructed the jury on first and second degree murder, involuntary manslaughter and the effect of hallucinations and intoxication (voluntary and involuntary) in relation to homicide. The jury convicted defendant of first degree murder.

Discussion

1. Defendant’s confession was properly admitted in evidence.

On appeal, defendant contends the trial court erred in denying his motion to exclude his confession. He claims the police coerced his confession with implied promises of leniency and threats of prosecution against his ex-girlfriend Kind. The police had said they would “assume the worst” if defendant did not provide “perspective” by telling them what happened which, defendant argues, implied that he would be treated with leniency if he confessed to the stabbing. The “threats” against Kind, defendant maintains, consisted of statements that Kind could face prosecution if defendant did not “come forward” and talk “about what took place” to clarify “how involved she was.” Defendant also claims the police ignored invocations of his right to counsel (“I need to talk to my lawyer”) and to remain silent (“I don’t want to talk about it anymore”).

We look to the totality of the circumstances in determining whether a confession was given freely and voluntarily or coerced by threats or false promises. (People v. Carrington (2009) 47 Cal.4th 145, 169.) Whether a defendant has invoked his right to counsel or to remain silent also requires close consideration of the circumstances, as an invocation of these rights must be done “unambiguously.” (Berghuis v. Thompkins (2010) 560 U.S. 370, 381; Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Accordingly, we provide a detailed account of the interrogation.

A. The interrogation

The interrogation lasted about one and a quarter hours, from 7:57 p.m. to 9:10 p.m. It was conducted at the police station in a room furnished with small couches, overstuffed chairs, end tables holding magazines, and a table with straight backed chairs on either side. Initially, defendant was seated at the table with one wrist handcuffed to the arm of a chair but the handcuffs were removed about four minutes into the interrogation. Defendant reclined on a couch toward the end of the interrogation. Two plain-clothes police officers conducted the interview with one asking most of the questions. The officers sat across the table from defendant and, when defendant moved to a couch, sat in chairs nearby. The officers’ demeanor was calm and measured throughout the interrogation, never raising their voices or displaying aggression. Defendant sipped from a glass of water during the course of the interrogation.

Defendant had been arrested at a bar, but the officer who interrogated defendant testified that he saw no signs of intoxication. A blood test taken after the interrogation showed defendant’s blood alcohol level to be .05 percent, below the .08 legal limit for driving. A criminalist extrapolated the blood alcohol level to have been .07 percent 90 minutes earlier, which corresponds to the start of the interrogation.

At the start of the interrogation, defendant was advised of his constitutional rights and waived them. When told he would be appointed an attorney “free of charge” if he could not afford one, defendant laughed and jokingly asked the officers if he could have any attorney he wanted, even a “million dollar attorney.” An interrogating officer started the interrogation by saying “you probably know why you’re here.” Defendant replied “I know why I’m here.” The officer said “it seems like . . . you’re carrying a heavy burden that you wanna get lifted . . . off your chest.” Defendant said “Yeah, but the truth will set you free. And this is it.”

The officer asked “What can you tell us?” Defendant replied “What do you know?” The officer said “why don’t we start with this?” and asked defendant if he knew a female named Michaela Wooldridge. Defendant said “no.” Defendant said “when that, all that happened, I don’t even know that she was a female” and “if I knew that I would have probably held back a lot more.”

The officer said “let’s talk about that night, okay? We know you were at a party.” Defendant asked how he knew and the officer replied, “we’ve investigated it for the last two years, that’s why.” The officer asked defendant “When did you first have contact with her” or “first see her” and defendant said “It was very, very random.” The officer asked “Was it on 4th Street?” and defendant said “Yeah.” The officer said “Take us through the moments leading up to that.”

Defendant told the officer “I overdosed on 25i^[[4]] . . . I was insane. I didn’t believe anything was real. I didn’t trust anything. . . . I understand why I’m here, and I would never do that to anybody. I became unstable. . . . For two years . . . I was literally hallucinating for weeks. . . . I didn’t know how to get back to normal. . . . And now that I’m finally reaching like, normality, of course this hits me.” Defendant said he had been “cleansing” himself of toxins in his body and the officer suggested that “this is the final chapter of that cleansing.”

About eight minutes into the interrogation, the officer directed the conversation back to “that night” and asked defendant “do you know whereabouts on 4th Street you were?” Defendant said “you know where it happened” and asked “Are you just tryin’ to get me to admit everything?” The officer said, “Well, we’re here to talk about it. This is your opportunity to cleanse yourself . . . . [T]his is your opportunity to provide us with information and we need to get a statement from you. We need to know what happened.” Defendant replied, “I don’t wanna talk about it anymore.”[5] In response, the officer said “Who did you . . . go to the party with that night? So here’s, here’s the point . . . where I wanna give you a little something.” Defendant said “But you already know” and “I’m scared that you’re gonna put more on me.” The officer said “There’s nothing more that we can put on you.”

Defendant asked “What do you know? Tell me what you know.” The following exchange ensued: Officer: “We know that somebody was murdered. [Defendant]: Okay. Did you have my fingerprints? [Officer]: And that’s . . . the sticking point because when we see somebody down on the ground who’s been stabbed and is dead . . . we always assume the worst, that somebody was out to get them, that somebody stalked them, somebody came after them. [Defendant]: It’s nothing like that. [Officer]: Well, and that’s why we’re talkin’ to you, ‘cause you’re right, we, we know that happened. But . . . we need perspective. [Defendant]: When, when just listen. When I was dosed on 25i . . . I literally saw, like, devils. I literally, I overdosed on 25i. . . . [Officer]: Did you think she was the devil? [Defendant]: I thought everyone was the devil. Everybody. [Officer]: So what did you do? [Defendant]: I thought the only way to get out of, I thought I was in hell. . . . [¶] . . . [¶] I thought I would wake up from this and become a real person . . . if I killed the devil. [Officer]: . . . [A]nd you thought Michaela was the devil? [Defendant]: Thought everyone was connected to the devil . . . So what I needed to do was kill a devil to wake up, ‘cause . . . it felt like it was similar to like, pinching myself awake . . . out of a dream.” [Officer]: “Mm-hmm. So take us through. We need you to describe what you did that night. [Defendant]: I don’t want to.^[[6]] [Officer]: Here’s the thing . . . . [Defendant]: You know what I did.”

Eleven minutes into the interrogation, the officer told defendant the police know he has an ex-girlfriend, Zoe Kind, and asked if he cared about her. After Defendant acknowledged caring about her, the officer asked “Do you want Zoe to get into trouble?” Defendant said “I know she won’t get in trouble.” The officer said “When she has knowledge of this? Absolutely she will. Okay, the only reason Zoe doesn’t get in trouble is if you come forward and tell us exactly what happened or else there’s a high likelihood Zoe can get in trouble.”[7] About Zoe, the officer said “we know she was in the area that night. We know the two of you talked that night, directly around the time of the girl being killed, and until someone clarifies it for us, we don’t know how involved she was, and so we need your perspective on that.” Defendant said Zoe “doesn’t know anything.” The officer told defendant “then you need to come forward right now and tell us what took place. You need to save Zoe.” The officer said “I don’t want her to have to . . . see the inside of a jail cell. . . . t’s time to come and talk to us, let us know what happened that night.” The other officer said, “Paint us a picture of what it looked like that night so we know that she wasn’t there. [Defendant]: She wasn’t there. [Officer]: That’s easy to say, but . . . if you can explain . . . the dynamics of the situation, and that . . . kind of a thing we’re missing too is, you know, the video of what happened because . . . [Defendant]: I don’t want to talk about it anymore.[8] [Officer]: . . . [O]bviously Michaela can’t talk to us and we need perspective on it ‘cause we have evidence, we have facts, and we have circumstances, we have measurements, but seeing it through your eyes is the only real . . . [Defendant]: She wasn’t there. . . . Zoe didn’t have anything to do with it. It was all me.”

“The test for the voluntariness of a custodial statement is whether the statement is ‘ “the product of an essentially free and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion. [Citation.] No single factor is dispositive; ‘rather courts consider the totality of [the] circumstances.’ ” ([i]People v. Cunningham (2015) 61 Cal.4th 609, 642.) “ ‘ “[T]he ultimate issue of the voluntariness of a confession is reviewed independently” ’ ” on appeal. (People v. Jones (1998) 17 Cal.4th 279, 296.)

Defendant claims the police officers falsely implied he would be treated with leniency if he confessed to the stabbing by saying they would “assume the worst” if defendant did not provide “perspective” by telling them what happened. No promise of leniency was implied by urging defendant to talk so they would not “assume the worst.” The police also told defendant that “this is your opportunity to cleanse yourself” and “you need to do what’s right.” In short, the police told defendant it was better to tell the truth but offered nothing in return. “A confession elicited by any promise of benefit or leniency, whether express or implied, is involuntary and therefore inadmissible, but merely advising a suspect that it would be better to tell the truth, when unaccompanied by either a threat or a promise, does not render a confession involuntary.” (People v. Davis (2009) 46 Cal.4th 539, 600.)

Defendant also argues he was promised leniency when he hesitated to tell the police details about the night of the stabbing and an officer said “I wanna give you a little something.” When read in context, it is clear that this statement is not a promise of leniency but an offer to divulge some of the evidence the police had against defendant. At the start of the interview, the police asked defendant “What can you tell us?” and he replied “What do you know?” Defendant continued to test the extent of police knowledge about the stabbing and, when asked about his party companion, said “you already know.” It was at this point that an officer offered to give defendant “a little something,” meaning information about the state of the evidence. Defendant understood the offer to be of this nature, immediately asking “What do you know? Tell me what you know” and “Did you have my fingerprints?” The offered “little something” was not an offer of leniency.

Nor is there merit to defendant’s contention that his confession was coerced by threats against his ex-girlfriend, Kind. The police told defendant “there’s a high likelihood [Kind] can get in trouble” if he did not “come forward and tell us exactly what happened” because “we don’t know how involved she was.” There is nothing improper in the police truthfully stating that Kind faced potential criminal liability and that defendant’s statement might exonerate her. (People v. McWhorter (2009) 47 Cal.4th 318, 350-358.) The police did not threaten to prosecute Kind if defendant did not confess nor promise to absolve her if he did. The police simply told defendant the truth: that the evidence suggested Kind’s complicity in the crime as an accessory after the fact and his account of the crime might exonerate her. A confession motivated by “ ‘ “the exoneration of another person who is suspected of complicity in the offense does not render the confession involuntary.” ’ ” (Id. at pp. 355-356, quoting People v. Abbott (1958) 156 Cal.App.2d 601, 605.)

The police conduct was not coercive. Nor do the surrounding circumstances—the characteristics of the accused and the details of the interrogation—show the confession to be involuntary. (People v. Benson (1990) 52 Cal.3d 754, 779.) At the time of the interrogation, defendant was a 22-year-old high school graduate. The police officers spoke softly and respectfully to defendant. Defendant showed no signs of fear or intimidation. After confessing, defendant repeatedly thanked the officer for freeing him from his burden and placed his head on the officer’s hand. Defendant asserts he was emotionally unstable and the officer manipulated him, but the record shows only an interrogating officer establishing rapport with a suspect in an effort to obtain information. Nothing suggests that defendant’s will was overborne and his confession involuntary.

C. Defendant did not unambiguously invoke his right to counsel or to remain silent

Defendant contends the interrogating police officers failed to honor several invocations of his right to remain silent and a single request for counsel. (Miranda, supra, 384 U.S. 436.) “Under Miranda and its progeny, ‘a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.’ [Citation.] If at any point in the interview the suspect invokes the right to remain silent or the right to counsel, ‘the interrogation must cease.’ [Citations.] But, as the high court has stated, an officer is not required to stop questioning a suspect when ‘a suspect makes a reference to an attorney that is ambiguous or equivocal.’ ” (People v. Bacon (2010) 50 Cal.4th 1082, 1104-1105.) “If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation [citation], or ask questions to clarify whether the accused wants to invoke his or her Miranda rights . . . .” (Berghuis v. Thompkins, supra, 560 U.S. at p. 381.)

The same standard applies to the right to remain silent. (Berghuis v. Thompkins, supra, 560 U.S. at p. 381.) “There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.] Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity.” (Id. at pp. 381-382.)

“In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of disputed facts and inferences and its evaluations of credibility, if supported by substantial evidence, and we independently determine, from the undisputed facts and facts properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.] Because what defendant here said during his police interview is undisputed, we engage in a de novo review of the legal question of whether the statement at issue was ambiguous or equivocal.” (People v. Bacon, supra, 50 Cal.4th at p. 1105.)

Defendant did not unambiguously invoke his right to remain silent. The first claimed invocation occurred during questions about Halloween night. The police said they knew he had been on 4th Street and asked him where, exactly. Defendant said “you know where it happened” and asked “are you tryin to get me to admit everything?” The officer said “we need to know what happened.” Defendant said “I don’t wanna talk about it anymore.” He mumbled the statement softly, with his head rested on his hand while looking down at the table. In context, the statement reflects defendant’s frustration with the examination and reluctance to relive the event, not a demand to stop the interrogation. “ ‘A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.’ ” (People v. Williams (2010) 49 Cal.4th 405, 433.) Defendant’s statement is similar to the statements “I don’t want to talk about it” and “I really don’t want to talk about that,” both of which have been found, in a given context, to indicate a reluctance to discuss certain subjects rather than a demand to terminate an interrogation in progress. (Id. at p. 434; People v. Silva (1988) 45 Cal.3d 604, 629-630.)

Defendant’s subsequent statements also indicate a reluctance to discuss a painful subject rather than an invocation of his right to remain silent. The police told defendant “We need you to describe what you did that night” and defendant said “I don’t want to.” When asked to provide a picture of what happened, defendant replied “I don’t want to talk about it anymore.” Defendant provided certain information then, when asked about the type of knife he used, defendant said “I don’t have to talk anymore.” “[A]n accused who wants to invoke his or her right to remain silent [must] do so unambiguously.” (Berghuis v. Thompkins, supra, 560 U.S. at p. 381.) Defendant’s ambiguous statements did not require the police to stop questioning him.

Nor was defendant’s reference to an attorney an unambiguous invocation of his right to counsel that precluded further questioning. Defendant admitted carrying a knife and the police questioned him closely on this matter, asking if it was “spring-loaded” and whether he had the knife in his hand when he confronted Wooldridge. Defendant, with his head resting on a propped hand and eyes closed, softly mumbled “Guys, I need to talk to my lawyer. I, I, I don’t know what you’re trying to get at, I mean like, how . . .” The officer replied, “Well, I’m just asking you what kind of knife it is.” Defendant did not respond that he wanted to speak with an attorney before answering but simply answered the question.

Defendant did not clearly assert his right to counsel. “f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect [i]might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (Davis v. United States (1994) 512 U.S. 452, 459.) “ ‘[A] statement either is such an assertion of the right to counsel or it is not.’ ” (Ibid.) “Although a suspect need not ‘speak with the discrimination of an Oxford don,’ [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Ibid.) “f a suspect is ‘indecisive in his request for counsel,’ the officers need not always cease questioning.” ([i]Id. at p. 460.)

“In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends.” (People v. Williams, supra, 49 Cal.4th at p. 429.) Defendant’s statement was not a clear request for counsel. He expressed the “need to talk to my lawyer” in the context of not knowing what the officer was “trying to get at.” His statement was similar to other equivocal statements held not to constitute an invocation of the right to counsel. (See Davis v. United States, supra, 512 U.S. at p. 455 [“maybe I should talk to a lawyer”]; People v. Bacon (2010) 50 Cal.4th 1082, 1106 [“I think it’d probably be a good idea for me to get an attorney.”]; People v. Shamblin (2015) 236 Cal.App.4th 1, 20 [“I think I probably should change my mind about the lawyer now. . . . I think I need some advice here.”].)

Defendant contends that references to the presence of an attorney similar to those that he made have been found to constitute invocations of the right to counsel. (E.g., People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 736 [“I guess we need a lawyer.”]; People v. Duran (1983) 140 Cal.App.3d 485, 492 [“it’s better that I have an attorney here” and “Have you got an attorney right here present, close?”].) The cases he cites, however, were decided under an outdated standard. They predate the United States Supreme Court’s holding that a suspect must unambiguously request counsel (Davis v. United States, supra, 512 U.S. at p. 459) and California’s adoption of that standard in reviewing Miranda claims (People v. Crittenden (1994) 9 Cal.4th 83, 129). The California Supreme Court has disapproved Zolnay and other “decisions of this court and the Courts of Appeal [that] have indicated that a request for counsel need not be unequivocal in order to preclude questioning by the police.” (Crittenden, supra, at pp. 129-130.) Defendant did not unequivocally invoke his right to counsel.

D. Any error in admitting defendant’s confession was harmless.

The erroneous admission of a confession that was coerced or obtained in violation of Miranda does not require reversal if the error was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 509; In re Z.A. (2012) 207 Cal.App.4th 1401, 1422.) While we find no error in admitting defendant’s confession, we also find there is no reasonable possibility that defendant would have obtained a more favorable verdict had the trial court excluded that portion of defendant’s confession that followed the alleged invocation of Miranda rights and coercive police conduct.

Defendant incriminated himself early in the interrogation. When the police officer opened the interrogation by saying “you probably know why you’re here.” Defendant admitted “I know why I’m here.” Defendant said he was “carrying a heavy burden.” When asked if he knew a female named Michaela Wooldridge, defendant said “when that, all that happened, I don’t even know that she was a female” and “if I knew that I would have probably held back a lot more.” Asked about his contact with her, defendant said It “was very, very random.” Defendant admitted meeting her on 4th Street, where she was killed, and said “I overdosed on 25i . . . . And I was insane. . . . I understand why I’m here, and I would never do that to anybody. I became unstable. . . . For two years . . . I was literally hallucinating for weeks.”

In addition to these admissions, there was witness testimony and a wealth of uncontroverted physical evidence establishing defendant’s guilt. Defendant contends that conviction for premeditated murder, rather than a lesser form of homicide, rested exclusively on statements made late in the interrogation but the contention disregards his early admission that he was sufficiently conscious of his actions that he “would have probably held back a lot more” had he realized the victim was a woman. Moreover, there was extensive eyewitness testimony that defendant’s intoxication did not prevent conscious and deliberate behavior, as he was able to operate a car, navigate the streets and converse cogently. The manner of the killing also supported a finding of premeditated murder. Defendant stabbed Wooldridge 13 times, first in the back and then in the chest and held his hand over her mouth while doing so. There was overwhelming evidence of guilt apart from that portion of defendant’s confession challenged on appeal.

2. The jury was properly instructed on intoxication in relation to homicide.

The trial court instructed the jury that it could consider evidence of defendant’s voluntary intoxication “in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation” but could “not consider evidence of voluntary intoxication for any other purpose.” (CALCRIM No. 625.) The jury was further instructed: “If you conclude that defendant was involuntarily intoxicated, you may consider whether defendant is guilty of the lesser crime of involuntary manslaughter.” Defendant asserts “the trial court’s decision to confine involuntary manslaughter to a predicate finding of involuntary intoxication was improper. In fact, voluntary intoxication too can lead to a conviction of involuntary manslaughter.”

The jury was properly instructed. “California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice.” (People v. Rios (2000) 23 Cal.4th 450, 460.) At one time, intoxication (whether voluntary or involuntary) could negate the element of malice and reduce an unjustified killing from murder to involuntary manslaughter. (People v. Saille (1991) 54 Cal.3d 1103, 1117.) A defendant was “free to show that because of his voluntary intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought)” and did not intentionally and knowingly commit a dangerous act with conscious disregard for human life (i.e., implied malice). (Ibid.; see Pen. Code, § 188 [defining malice].)

In 1995, the Penal Code was amended to provide that, when the charge is murder, evidence of voluntary intoxication is admissible solely on the issue of “whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (Stats. 1995, ch. 793, § 1, p. 6149; Pen. Code, § 29.4.) The amendment reflects “a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1117.)[11]

Under current law, evidence of voluntary intoxication may not be used to negate implied malice and reduce an unjustified killing from murder to involuntary manslaughter. (Pen. Code, § 29.4.) “It is no longer proper to instruct a jury . . . that ‘when a defendant, as a result of voluntary intoxication, kills another human being without premeditation and deliberation and/or without intent to kill (i.e., without express malice), the resultant crime is involuntary manslaughter.’ This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate . . . .” (People v. Turk (2008) 164 Cal.App.4th 1361, 1376; accord People v. Carlson (2011) 200 Cal.App.4th 695, 705-707; People v. Martin, supra, 78 Cal.App.4th at pp. 1113-1115.) The California Supreme Court has recognized, in dicta, that “defendant’s voluntary intoxication, even to the point of actual unconsciousness, would not prevent his conviction of second degree murder on an implied malice theory.” (People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40.)

The prosecution relied chiefly on a theory of express malice but also presented evidence from which the jury could have found implied malice in defendant’s stabbing of Wooldridge. The jury was instructed on both express malice and implied malice theories. (CALCRIM No. 520.) As in Turk, defendant “fails to identify any evidence, apart from voluntary intoxication, from which the jury could have concluded that he was entitled to an involuntary manslaughter instruction on the ground that he committed the killing, but that he did not act with implied malice.” (People v. Turk, supra, 164 Cal.App.4th at p. 1378.) Voluntary intoxication does not negate implied malice. (Pen. Code, § 29.4.) An individual who kills while self-intoxicated may not argue that he was too drunk or drugged to intentionally and knowingly commit the lethal act with conscious disregard for human life. The jury instructions were correct.

3. The jury was properly instructed on hallucinations in relation to homicide.

The trial court instructed the jury that to convict defendant of first degree murder it had to find that defendant acted willfully (“intended to kill”), deliberately (“carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill”), and with premeditation (“decided to kill before completing the act that caused death”). (CALCRIM No. 521.) The jury instructions also defined “hallucination” and stated, in relevant part, “You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with deliberation and premeditation. If the People have not met this burden, you must find the defendant not guilty of first degree murder.” (CALCRIM No. 627.)

Defendant claims the instruction is incomplete because it should have informed the jury that it could consider evidence of hallucinations in deciding whether defendant acted willfully—not just in deciding whether he acted with deliberation and premeditation. The claim is forfeited by defendant’s failure to raise the issue below. (People v. Hart (1999) 20 Cal.4th 546, 622.) Defense counsel expressly agreed to the instruction as written. The claim also fails on the merits. “We have long held that ‘the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” (People v. Delgado (2017) 2 Cal.5th 544, 573-574.) While the challenged instruction did not tell the jury that evidence of hallucinations could be considered in determining whether defendant intended to kill, another instruction told the jury that defendant’s intoxication (the source of the alleged hallucinations) could be considered “in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation.” (CALCRIM No. 625.) The instructions as a whole correctly advised the jury to consider defendant’s evidence of drug-induced hallucinations in determining whether he acted willfully.

Disposition

The judgment is affirmed.

Pollak, J., Acting P.J.

We concur:

Jenkins, J.

Horner, J.*

A147592