Opinion
E073518
03-11-2022
THE PEOPLE, Plaintiff and Respondent, v. JESUS PLANCARTE, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1703865, Bernard J. Schwartz, Judge. Reversed.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I. INTRODUCTION
Defendant and appellant, Jesus Plancarte was convicted of first degree murder and sentenced to life without the possibility of parole. He argues the trial court erroneously admitted his statement confessing to the murder because it was obtained in violation of his Miranda rights. He also argues the trial court erred by denying his request for a continuance of the trial to retain new counsel and that his sentence is unconstitutional.
We conclude the trial court erred by admitting defendant's confession and that the error was prejudicial. We therefore reverse the judgment and need not address defendant's other arguments.
II. FACTUAL AND PROCEDURAL BACKGROUND
The victim, Joel Cisneros, lived in a trailer on a property in Perris. Y.I. lived in the main house on the property.
On the afternoon of September 30, 2017, A.D. and R.G. went to Cisneros's trailer to watch soccer with Cisneros and defendant. A.D. and R.G. left around 7:30 p.m.
Around 10:30 or 11:00 p.m., Y.I. was in her house and heard three loud bangs that sounded like fireworks. A neighbor, L.B., heard four loud bangs that sounded like gunshots.
Another neighbor, T.D., left her house around midnight to drop off her mother. Right before leaving her house, she heard a single bang. When she returned about 10 minutes later, she saw a skinny person with long hair who appeared to be Hispanic walking toward a parked silver or grey truck parked down the street. The truck drove away shortly afterward. T.D. testified that the person she saw did not resemble defendant.
Cisneros was found dead the following morning. He had been shot three times in the head. Three .38 caliber cartridge casings were found near his body.
Cell phone records revealed that during the night of the shooting, defendant's phone communicated with a nearby phone tower around 7:00 p.m., and communicated with a phone tower near his house around 10:00 p.m. Around 11:30 p.m., his phone again communicated with the phone tower near Cisneros's house.
Defendant was arrested for Cisneros's murder the next day. Law enforcement found a pistol holder and a box of .38 caliber cartridges in defendant's room, but no gun.
After extensive questioning by homicide detectives, defendant confessed to murdering Cisneros. He told the detectives that Cisneros offended him when they were in Cisneros's trailer, so defendant went home, got his gun, returned to the trailer, and shot Cisneros several times while he was distracted.
A jury convicted defendant of one count of first degree murder (Pen. Code, § 187, subd. (a)(1)). The jury also found true allegations that defendant caused Cisneros's death by personally discharging a firearm (§ 12022.53, subd. (d)) and that he murdered Cisneros after lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to life without the possibility of parole. The trial court also sentenced defendant to a separate term of 50 years to life, but stayed the term under section 654.
All further statutory references are to the Penal Code.
III. DISCUSSION
Defendant contends (1) the homicide detectives obtained his confession in violation of Miranda and the trial court prejudicially erred by admitting it, (2) the trial court erroneously denied his request for a continuance of the trial so that he could retain a new attorney, and (3) his sentence is unconstitutional. We agree that defendant's confession should have been excluded and that its admission was not harmless beyond a reasonable doubt. We therefore reverse the judgment and need not address his remaining arguments.
Miranda v. Arizona (1966) 384 U.S. 436.
1. The Trial Court Prejudicially Erred by Admitting Defendant's Confession
a. Background
Riverside County Sheriff's Department homicide investigators Jose Vasquez and Alberto Loureiro interviewed defendant after his arrest. We summarize the interview's salient parts below.
Before questioning defendant, Vasquez advises defendant of his Miranda rights and explains the purpose of the interview. Defendant agrees to talk with Vasquez.
Vasquez asks defendant questions about his background, his relationship with Cisneros, and what they were doing together on the day Cisneros was killed. Vasquez then begins challenging defendant's story. He says they have evidence that contradicts defendant's account and that Cisneros's property has a security camera, and that he thinks defendant is being dishonest.
Vasquez then questions defendant about his relationship with Cisneros. Vasquez explains that they will search his phone records and check his fingers for gunshot residue. Vasquez reiterates that he does not believe defendant is telling the truth and presses defendant to tell him what happened.
After about an hour and fifteen minutes of mostly Vasquez questioning defendant, Loureiro begins to interrogate defendant. Loureiro tells defendant that he is "digging [himself] into a hole," his story is "bullshit," and that he is "blowin' smoke up our ass." Loureiro then exits the interrogation room.
Vasquez says that he knows defendant was at Cisneros's trailer when he was shot. Vasquez repeatedly urges defendant to explain what happened and why.
Vasquez tells defendant that "[t]his is your opportunity to explain yourself. . . . [¶] . . . why this happened to [Cisneros]." Defendant then says, "Can I get, like a lawyer then so I could, you know . . . [¶] . . . so I could feel more comfortable "cause I don't- the questions that you're tellin" me right now and all this is some-you know?"
The ellipsis in this sentence does not omit anything defendant said. The ellipsis is in the transcript because Vasquez interrupted defendant with "That's up to you," after he said "you know."
Vasquez interrupts defendant, "I can't answer that for you. That's up to you. "This is your opportunity to clear things." Vasquez continues: "I can just tell you that what I have here and I wanna give you the opportunity to say, you know what-you know Investigator Vasquez? This is what happened, you know? He was coming at me, I was afraid. Whatever the case may be. It's your opportunity." Vasquez tells defendant, "You're a young man. You're doin' well. You don't need to get into the mess." "I just need you to be honest with me and say, hey, you know what, Investigator Vasquez, shit happens. And-and-and some errors were made. Some peo-things got heated, whatever the case may be."
Vasquez again urges defendant to tell the truth and explains that he "need[s] to hear it" from defendant. He goes on: "[A]nd you want to get this off your-I know it's on your chest. I know it's weighing on you, man. Uh, it has to." Vasquez says he has lied before, it "feels heavy" on him, and that he is sure "it's feelin' heavy on you." "I want you to just explain to the world, to this family, whatever the case may be, to 12 jurors that are gonna be lookin' at this later, and say, look, Jesus is not a bad dude. Jesus he-here's what he-Jesus has to say about this." Vasquez reminds defendant that they have evidence incriminating defendant, tells him that he should not throw his life away, and suggests that he "do the right thing."
Defendant replies, "Yeah, I get you. Well, if I could speak with a lawyer for me?" Vasquez interrupts defendant and tells him he can "speak to whoever you want," that he cannot tell defendant what to do, and that he is "tryin' to be here" for defendant. Defendant says he wants to talk to Vasquez because "I feel like you are tryin' to help me out." Vasquez responds that "this is the opportunity you have, man." Vasquez then asks if defendant would be willing to take "a lie detector" test and asks whether the results would show that defendant was being honest. When defendant suggests that the lie detector test would show that he is telling the truth, Vasquez explains that he does not believe defendant and presses defendant to "[t]ell us the truth."
Vasquez explains what will happen next: "when we pull the, uh, the gunshot residue from underneath your nails, we'll get your clothes, "cause they're doin" search warrants right now to hit your sister's house, your mom's house, your car, your phone. We're gonna get all that." Vasquez says that "twelve jurors are gonna look at this and say this guy was given all kinds of opportunities from Investigator Vasquez to be honest. He showed him the evidence that he didn't have to show him, yet he still wants to continue to lie about it."
Vasquez once again urges defendant to tell the truth and to explain "[i]f this was some kind of self-defense thing" because he is "diggin' [himself] deeper and deeper" and making things "a lot worse." He again tells defendant that this is an "opportunity" for him. Vasquez explains that he has dealt with "self-defense cases" where the suspect told him what happened and he "can see the reason, justifiable homicide, self-defense." Vasquez reiterates that they are going to get a search warrant for defendant's parents' house (where defendant lived at the time) and asks if anyone other than his parents lives there.
Defendant says he wants to "work with" Vasquez. Vasquez mentions that defendant previously "mentioned something about [a] lawyer" and confirms whether defendant is willing to talk without a lawyer present. Defendant says that he willing to do so, and Vasquez readvises him of his Miranda rights.
Loureiro asks defendant if he is willing to talk without a lawyer. Defendant says that he is. Loureiro states, "earlier you said-you mentioned you wanted an attorney or something like that," and defendant interrupts him: "Yeah I did because. . . ." Loureiro says he is trying to clarify whether defendant is willing to "continue talkin' to us without an attorney? Is that a yes or a no?" Defendant replies, "Yes."
Vasquez explains what he anticipates will happen to defendant. He says a judge had already approved a search warrant and that defendant will likely be arrested and booked for Cisneros's murder. Vasquez then explains what that process entails and describes the judicial process to defendant.
Vasquez tells defendant "there's all kinds of other things that could happen" but that he cannot give him legal advice. Defendant replies, "All right. I just want to tell you, that's why I want a lawyer. I was telling you because I don't know what to answer right now. I don't." "I've never been in this situation." Vasquez responds, "All I can tell you is two things. Do the right thing and honesty, in my experience, has always been best." Vasquez keeps admonishing defendant to be honest and reiterates that he cannot tell defendant what else to do. Defendant asks "If I go, like you said, they book me or whatever, then I could be able to still have a lawyer and talk?"
Vasquez restates he cannot give defendant legal advice and explains that his role is to gather the facts and "present those facts unbiasedly." He shows defendant a photograph of defendant's car and says that he "would love to hear more about, you know, how this bullet hole showed up on your car." Vasquez explains that he will execute a search warrant no matter what defendant tells him. He suggests defendant can tell them where evidence might be in his parents' house so he does not "have to trash the whole place looking for a gun."
Vasquez tells defendant that he knows "shit happens," that he was shot at when he was a kid, and that he has "done some stupid stuff," but learned from his mistakes. He explains that he will listen if defendant wants to tell him about what happened, but that he "can't sit here . . . all night long . . . if we're not gonna really talk." Defendant replies: "I do know I have my right as-to get a lawyer and stuff. "So if I do speak with a lawyer and, um."
Vasquez says that is "an area I can't answer" and "that . . . has to be up to you." Vasquez asks defendant if he wants to tell him what happened. Vasquez points to a photograph and asks, "Do you wanna tell me what happened here with this? Let's start with that. Do you wanna tell me about this?" "All right tell me about this." "In your own words, man, just tell me what happened." Defendant says, "I don't know how to explain it," and Vasquez again tells him to be honest.
After some back-and-forth during which Vasquez reiterates that "honesty has always helps," Vasquez tells defendant that he can either talk to them or not and urges him to "tell me how this happened." While looking at and touching the photograph, defendant says he cannot explain what happened. Vasquez then asks defendant to tell him about the shooting at Cisneros's property.
Vasquez again implores defendant to talk to him, but tells defendant he has the right not to. Defendant responds, "I'll just go with the lawyer, man."
Vasquez says, "no worries," organizes his papers, and stands up. He tells defendant that they will collect his clothes and that "we have to move with all of that regardless." He explains that "[e]very time you mention the word lawyer, I have to stop." Vasquez asks if defendant wants to continue to talk, and he replies, "I'm gonna just take the lawyer."
Vasquez tells defendant what will happen: "we're going to serve the search warrant. We're going to take all your clothes. We're going to take the [gunshot residue] from your . . . hands and fingernails. Um, we're going to process your truck. We're going to look for . . . gunshot residue inside your truck. We're going to look for all kinds of goodies inside your truck. Your phone, that's going to be all downloaded and . . . processed. Your mom's house is going to be hit, and your sister's. . . ."
Vasquez asks defendant again if anyone other than his parents live at their house. Defendant confirms no one else lives there. Defendant says he does not want his mother to "get freaked out," to which Vasquez responds, "it is what it is at this point . . . her son's getting arrested for murder."
Someone enters the interrogation room and hands Vasquez some papers. Vasquez shows them to defendant and explains that it is "the search warrant . . . signed by the judge." Vasquez continues: "This is serious. This is real. I get where you're thinkin' right now. This is real. This is happening." He then asks if defendant wants to talk "some more." Defendant says that he does, Vasquez readvises him of his Miranda rights, and defendant agrees to talk to Vasquez without a lawyer present.
Defendant then confesses to shooting Cisneros. He explains that he became angry when Cisneros insulted him by calling him a name. They began fighting, causing defendant injuries on his hands and forehead. Defendant was angry and wanted to "get revenge" for being "punked," so he went home, got his gun, and returned to Cisneros's trailer to "let him have it." After socializing with Cisneros for about 10 to 15 minutes, defendant pretended like he was going to leave. While Cisneros was distracted, defendant shot him three times, then fled the scene.
Defendant moved to suppress his confession because it was obtained in violation of his Miranda rights. The trial court denied the motion and played for the jury defendant's videotaped confession.
b. Applicable Law and Standard of Review
"A defendant who has waived his Miranda rights may reinvoke them during the interrogation. If he clearly and unequivocally does so, police must stop questioning. [Citations.] Once a suspect has invoked his right to counsel, police may not resume questioning until counsel is provided or the suspect himself reinitiates contact. [Citations.] '[The United States Supreme Court] set forth a "bright-line rule" that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through "badger[ing]" or "overreaching"- explicit or subtle, deliberate or unintentional-might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.' [Citation.]" (People v. Henderson (2020) 9 Cal.5th 1013, 1022 (Henderson).)
Once a suspect has invoked the right to counsel, "[i]f the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." (McNeil v. Wisconsin (1991) 501 U.S. 171, 177.) This rule is "'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.' [Citation.]" (Ibid.)
"'In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect "must unambiguously" assert his right to silence or counsel.' [Citation.] Ambiguous or equivocal references to an attorney are not sufficient. [Citation.] The suspect must express his desire for counsel with sufficient clarity 'that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.' [Citation.] '[T]his is an objective inquiry.' [Citation.]" (Henderson, supra, 9 Cal.5th at p. 1022.) The issue is whether, "'in light of the circumstances, a reasonable officer would have understood [the] 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.'" (People v. Cunningham (2015) 61 Cal.4th 609, 646.)
When, as here, the interview is recorded and the facts underlying the defendant's asserted Miranda violation are undisputed, we review the claim de novo. (Henderson, supra, 9 Cal.5th at p. 1023.)
c. Analysis
Defendant argues that he requested counsel five times during the interrogation when he said: (1) "'Can I get like a lawyer then so I could, you know . . . feel more comfortable...?'"; (2) "'Well, if I could speak with a lawyer…?"; (3) "'I just want to tell you that's why I want a lawyer. I was telling you. Because I don't know what to answer right now. I don't. . . . I've never been in this situation'"; (4) "'I'll just go with a lawyer then"; and (5) "I'm gonna just take the lawyer.'"
The People concede that defendant's fourth and fifth statements were unequivocal requests for an attorney, but argue that the first three were ambiguous and were thus insufficient to invoke his Miranda right to attorney. We find defendant's first statement, "Can I get like a lawyer then so I could, you know . . . feel more comfortable . . . ?," was a clear and unequivocal invocation of his Miranda right to an attorney.
In re Art T. (2015) 234 Cal.App.4th 335 (Art. T.), which defendant relies on heavily but the People do not mention in their respondent's brief, is instructive. There, after police officers showed the juvenile a video of a shooting, he said, "'Could I have an attorney? Because that's not me.'" (Id. at p. 338.) The Art T. court held this was "an unequivocal request for an attorney." (Id. at p. 355, fn. omitted.) In doing so, the court noted that several "[o]ther courts have found statements using words similar to 'can I have a lawyer?' to be sufficiently clear to invoke the accused's right to counsel." (Id. at p. 350 [collecting cases]; see also Tobias v. Arteaga (9th Cir. 2021) 996 F.3d 571, 580 [holding the juvenile's statement in Art T. was an unequivocal request for an attorney in the juvenile's subsequent federal civil rights action].) Joining these courts and Art T., we hold that defendant's question, "Can I get like a lawyer then so I could, you know . . . feel more comfortable . . . ?," was a clear and unambiguous request for an attorney.
Any potential ambiguity in defendant's first request for an attorney was dispelled by his second request. After his first request, Vasquez continued interrogating defendant for several minutes. He told defendant there was evidence proving that defendant shot Cisneros and urged him to "do the right thing." Defendant responded, "Yeah, I get you. Well, if I could speak with a lawyer for me?" This was another unequivocal request for an attorney. (See United States v. Lee (7th Cir. 2005) 413 F.3d 622, 626 ["Lee's statement-'Can I have a lawyer?'-was similar to . . . statements recognized by this court as proper invocations of the right to an attorney."]; ibid. [finding "there is no real difference" between "'Could I get a lawyer?'" and "'Can I have a lawyer?'"]; Smith v. Endell (9th Cir. 1988) 860 F.2d 1528, 1529 [suspect unequivocally invoked Miranda right to attorney by saying "Can I talk to a lawyer? At this point, I think maybe you're looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?"]; United States v. De La Jara (9th Cir. 1992) 973 F.2d 746, 749 [suspect's question "'Can I call my attorney?'" was unequivocal request for an attorney]; see also Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995, 998 [suspect's questions "'Can I get an attorney right now, man?, '" "'You can have attorney right now?, '" and "'Well, like right now you got one?'" constituted unequivocal request for an attorney "when considered together"].)
After defendant's two unequivocal requests for an attorney, "all questioning should have ceased." (Art T., supra, 234 Cal.App.4th at p. 356.) "[E]ven one question was one question too many." (Jones v. Harrington (9th Cir. 2016) 829 F.3d 1128, 1132.) Vasquez was "required to stop the interrogation." (Henderson, supra, 9 Cal.5th at pp. 1029 .) Vasquez could resume the interrogation only if defendant reinitiated the conversation himself. (Henderson, supra, 9 Cal.5th at p. 1022.)
Vasquez, however, continued interrogating defendant for over three minutes before he made his second request for an attorney. And after that request, Vasquez interrogated defendant for another two minutes. During these intervals, Vasquez insists more than once that defendant was not telling the truth, urged him to do so, told him that 12 jurors will see that he is lying, asked if he would take a lie detector test and suggested that he would fail it, told him that he was making matters "a lot worse" for himself by "digging" himself "deeper and deeper," and urged him to admit if he killed Cisneros in self-defense.
After defendants' two unequivocal requests for an attorney, he made three more requests for an attorney. We disagree with the People that his third request was ambiguous. Defendant could not have been clearer when he said, "I just want to tell you that's why I want a lawyer." In any event, the People concede that defendant's fourth and fifth requests for an attorney were unequivocal.
The People argue, however, that defendant subsequently initiated the conversation after his fifth request. We disagree.
At oral argument, the parties discussed our Supreme Court's recent opinion in People v. Johnson (2022) 12 Cal.5th 544 (Johnson), which was decided after we issued our tentative opinion. Johnson provides helpful guidance on when a suspect initiates an interrogation after a valid invocation of his Miranda rights such that law enforcement may resume the interrogation so long as the suspect validly waives his Miranda rights. (See People v. Mickey (1991) 54 Cal.3d 612, 649.)
Our Supreme court explained that, "as a general rule, 'where law enforcement officers have disregarded a suspect's previously-invoked rights by continuing to interrogate him, a renewal of contact by the defendant will be considered an "initiation" only if the decision to renew contact was not a "response to" or "product of" the prior unlawful interrogation.'" (Johnson, supra, 12 Cal.5th at p. 584.) This is because "a defendant's initiation cannot be the product of the authorities' coercion." (Ibid.) Thus, an initiation occurs when a suspect's "words or ... conduct" can be "'fairly said to represent a desire' ... 'to open up a more generalized discussion relating directly or indirectly to the investigation.'" (People v. Mickey, supra, 54 Cal.3d at p. 648.)
As an examples of coerced initiation, the Johnson court cited Mack v. State (2014) 296 Ga. 239 (Mack) and Blake v. State (2004) 381 Md. 218, 849 (Blake). (Johnson, supra, 12 Cal.5th at p. 584.) "In Mack, police disregarded the suspect's invocation of his right to stay silent by badgering and cajoling him to come clean for more than 90 minutes, after similarly having ignored his invocation of rights on the previous day. [Citation.] Approximately 10 minutes later, the suspect relented and asked to speak with police. [Citation.]" (Johnson, supra, 12 Cal.5th at p. 585.) The Georgia Supreme Court held that this was not a valid initiation by the suspect. (Mack, supra, at pp. 903-904.) "In Blake, after the suspect invoked his right to counsel, a detective gave the suspect a charging document for first degree murder stating the penalty was 'DEATH," even though the suspect was not eligible for the death penalty due to his youth. [Citation.] The Maryland high court concluded that the suspect's subsequent question about the detective's comment ('I bet you want to talk now, huh!') was a response to interrogation rather than initiation. [Citation.]" (Johnson, supra, 12 Cal.5th at p. 585.)
Applying these principles, the Johnson court held the defendant reinitiated the discussion after invoking his Miranda rights and thus his incriminating statements were admissible. (Johnson, supra, 12 Cal.5th at p. 582.) Law enforcement asked to speak with the Johnson defendant about a homicide while he was hospitalized. (Id. at 568.) After he was transferred to another hospital, the prosecution retained psychiatrist Donald Patterson to interview the defendant about the homicide. (Id. at p. 570.) Patterson told the defendant he was working for the prosecution and Mirandized him, but he again invoked his Miranda rights. (Id. at p. 571.) Patterson left the room to inform the prosecutor that the defendant was not willing to speak. (Id. at p. 572.) At the prosecutor's request, Patterson followed the defendant around the hospital for about 20 minutes without speaking to him while he received medical attention. (Ibid.) Then, without any prompting, the defendant said to Patterson, "'[s]till here, huh?'" (Ibid.) Following a brief exchange unrelated to the homicide, the defendant asked Patterson, "'You wanna talk about it?'" (Ibid.) Patterson agreed. (Ibid.) The defendant then "controlled" and "directed" a lengthy conversation during which he made several incriminating statements to Patterson. (Ibid.)
Although the Johnson court found it to be a "close case," the court held that the defendant initiated the conversation with Patterson and rejected the defendant's argument that it was coerced for four reasons. (Johnson, supra, 12 Cal.5th at p. 585.) First, the defendant was not subject to "berating" that "might readily wear down a suspect," but instead he engaged in "a handful of one- to two-minute conversations over a period of a few hours." (Ibid.) Second, Patterson "did not ask further questions after defendant invoked his right to counsel." (Id. at p. 586.) Third, the defendant "clearly . . . engag[ed] Patterson - defendant initiated the conversation and Patterson only responded." (Ibid.) "Fourth, and most importantly, the record indicates that defendant was aware he was providing information that might be used against him, yet he viewed the tradeoff a worthwhile one." (Id. at p. 587.) The defendant unambiguously told Patterson why he chose to speak to Patterson, and his "statements showed he was making a deliberate decision to speak with Patterson because he determined that it was 'best to be honest.'" (Id. at p. 588.)
This case is far more like Mack than Johnson. Like the officers in Mack, Vasquez disregarded defendant's multiple requests for an attorney and continued "badgering and cajoling him to come clean" for an extended period of time before he confessed. And after defendant's fifth invocation of his right to an attorney-made about one hour and 45 minutes into the interrogation-Vasquez continued interrogating defendant. Like the defendant in Blake, defendant only continued talking in response to Vasquez's comments. He did not re-start a conversation by asking questions that Vasquez answered like the defendant in Johnson did.
Immediately after defendant's fifth request for an attorney, Vasquez told defendant that law enforcement was going to serve a warrant, take defendant's clothes, look for gunshot residue on defendant and in his truck, search defendant's truck for "goodies," download defendant's phone, and that the warrant would tell defendant's mother that "her son's getting arrested for murder."
The People characterize Vasquez's comments as merely telling defendant about the status and next steps of the investigation and asking whether there was anyone at his parents' house that may pose a safety concern. The People thus claim that Vasquez's comments did not amount to interrogation, but rather were permissible questions about the investigation and public safety.
We disagree. Vasquez's comments about hitting defendant's parents' and sister's house were not permissible questions pertaining to under the public safety exception established in New York v. Quarles (1984) 467 U.S. 649 (Quarles), as the People contend. That "narrow exception to Miranda" applies only "in situations involving an imminent threat to public safety" where questioning a suspect is necessary "'to protect the police or the public from any immediate danger.'" (People v. Elizalde (2015) 61 Cal.4th 523, 532.) For instance, in Quarles, the victim approached officers, told them the suspect had raped her, and that he was armed with a gun in a nearby store. (Quarles, supra, 467 U.S. at p. 651.) Without Mirandizing him, officers apprehended the suspect and asked where the gun was. (Ibid.) The United States Supreme Court held this was permissible because of the officers' "need to protect the police or the public from any immediate danger associated with the weapon." (Id. at p. 659, fn. 8.)
"Cases applying the public safety exception have emphasized these factors" present in Quarles. (People v. Elizalde, supra, 61 Cal.4th at p. 541.) There is no evidence in the record of an imminent threat or danger that justified Vasquez's continued questioning after defendant's five requests for an attorney.
Moreover, the remainder of Vasquez's comments after defendant's fifth invocation of his Miranda rights were not permissible comments "routinely necessary for custodial purposes," but rather were impermissible comments "relating to the case." (People v. Boyer (1989) 48 Cal.3d 247, 274.) The People offer "no custodial reason why, once defendant had invoked his Miranda right to counsel, it was necessary" to tell defendant what would happen next. (Ibid.) Instead, Vasquez's comments appear to have been designed to "elicit an incriminating response from [defendant]." (Rhode Island v. Innis (1980) 446 U.S. 291, 301.)
In any event, after these comments but immediately before defendant agreed to talk without a lawyer, Vasquez showed defendant a search warrant and said, "This is serious. This is real. I get where you're thinkin' right now. This is real. This is happening." Critically, Vasquez then asked defendant whether he wanted to talk "some more," and defendant agreed.
As a result, defendant's agreement and subsequent confession were in response to a prior unlawful interrogation. (See Johnson, supra, 12 Cal.5th at pp. 584-585.) Defendant's words and conduct after his requests cannot be fairly viewed as representing a desire to open up a more generalized discussion with Vasquez. Rather, defendant's agreement to talk without a lawyer and his resulting confession were the product of a nearly two-hour-long interrogation that continued despite his five unequivocal requests for an attorney. When defendant eventually agreed to talk to Vasquez, it was not because he approached Vasquez or other law enforcement on his own accord. It was in direct response to Vasquez's asking defendant if he wanted to talk "some more."
We therefore conclude that defendant's confession was obtained in violation of Miranda and should have been suppressed. (Henderson, supra, 9 Cal.5th at p. 1022.) Defendant's subsequent waiver of his Miranda rights before confessing does not change this conclusion. (See McNeil v. Wisconsin, supra, 501 U.S. at p. 177 [a "suspect's statements are presumed involuntary and therefore inadmissible" after suspect requests an attorney "even where the suspect [subsequently] executes a waiver" of Miranda rights]; Alvarez v. Gomez, supra, 185 F.3d at p. 998 ["Because Alvarez's subsequent Miranda waivers in the recorded interviews were in response to further police initiated questioning, these waivers are without effect."]; Edwards v. Arizona (1981) 451 U.S. 477, 484 ["[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights."].) The trial court therefore improperly admitted defendant's confession.
We must reverse the judgment unless the People show that the erroneous admission of defendant's confession was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (People v. Johnson (1993) 6 Cal.4th 1, 32-33, disapproved on other grounds by People v. Rogers (2006) 39 Cal.4th 826, 879.) This burden is "difficult to satisfy." (People v. Sumagang (2021) 69 Cal.App.5th 712, 733.)
An error is harmless beyond a reasonable doubt if it is "unimportant in relation to everything else the [trier of fact] considered on the issue in question." (Yates v. Evatt (1991) 500 U.S. 391, 403.) Reversal is thus required if there is a "'reasonable possibility that the evidence complained of might have contributed to the conviction.'" (Chapman v. California, supra, 386 U.S. at p. 23, italics added; People v. Pearson (2013) 56 Cal.4th 393, 463 [harmless error analysis focuses on "whether the error might have tainted [the jury's] decision"].)
"Because confessions '"[a]lmost invariably" will provide persuasive evidence of a defendant's guilt . . ., the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard.'" (Henderson, supra, 9 Cal.5th at p. 1029.) This is because "[a] confession is like no other evidence. Indeed, 'the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him . . . . The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.' [Citations.] While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision." (Arizona v. Fulminante (1991) 499 U.S. 279, 296.)
On this record, we cannot find that the erroneous admission of defendant's confession was harmless beyond a reasonable doubt. To be sure, there was evidence that suggested defendant shot Cisneros. Before invoking his right to an attorney, defendant denied being at Cisneros's property when he was shot, but his cell phone records placed him nearby around the time neighbors heard loud bangs. This suggested he lied about his whereabouts, which in turn suggested his guilt. (See People v. Tate (2010) 49 Cal.4th 635, 698.) Law enforcement found .38 bullet casings near Cisneros's body and .38 ammunition in defendant's room. Cisneros had three gunshot wounds on the side and back of his head, which provided circumstantial evidence that defendant shot him while lying in wait. (People v. Russell (2010) 50 Cal.4th 1228, 1244 [lying in wait involves a surprise attack on an unsuspecting victim from a position of advantage].)
Although the evidence implicated defendant as the person who shot Cisneros, it did not overwhelmingly prove that defendant was guilty of first degree murder with a lying-in-wait special circumstance. For one thing, there were no eye witnesses. T.D., who saw someone near Cisneros's property around the time of the shooting, said that person did not resemble defendant. Other than defendant's confession, there was no direct evidence that defendant shot Cisneros or why he was shot. And other than Cisneros's wounds and the neighbors' testimony that they heard loud bangs or gunshots around the time he was shot, there was no evidence revealing the circumstances under which he was shot.
What's more, the prosecutor emphasized in closing argument that defendant's confession showed that he was guilty of first degree, lying-in-wait murder, and that the evidence corroborated "exactly what the defendant told you." This further suggests that the admission of defendant's confession was not harmless beyond a doubt. (See Jones v. Harrington, supra, 829 F.3d at p. 1142 [admission of the defendant's confession obtained in violation of his Miranda right to remain silent was not harmless in part because prosecutor referred to the confession in closing argument and told the jury that it "could convict beyond a reasonable doubt based only on [the defendant's] own statements"].)
Finally, defendant's confession was "a full confession in which [he] disclosed the motive for and means of the crime." (Arizona v. Fulminante, supra, 499 U.S. at p. 296.) It was not a statement that revealed only portions of the crime. (See United States v. Johnson (4th Cir. 2005) 400 F.3d 187, 198 [defendant's improperly admitted confession was harmless in part because he discussed only "'isolated aspects'" of the crime and "minimized his participation" in it].) Instead, defendant explained in detail how, why, and where he shot Cisneros. This may have "tempt[ed] the jury to rely upon [his confession] alone in reaching its decision." (Arizona v. Fulminante, supra, at p. 296.)
We must "exercise extreme caution before determining that the admission of" defendant's confession was harmless. (Arizona v. Fulminante, supra, 499 U.S. at p. 296.) Given the lack of overwhelming evidence of defendant's guilt for first-degree murder with a lying-in-wait special circumstance and the prosecutor's reliance on defendant's detailed confession, we cannot say that the jury's verdict was "surely unattributable" to defendant's improperly admitted confession. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279; People v. Pearson, supra, 56 Cal.4th at p. 463.) As a result, the erroneous admission of defendant's confession was not harmless beyond a reasonable doubt. We therefore reverse the judgment and need not address defendant's remaining arguments.
IV. DISPOSITION
The judgment is reversed and the matter remanded for further proceedings consistent with this opinion.
We concur: McKINSTER, Acting P. J., MILLER, J.