PEOPLE v. SAUCEDA-CONTRERAS

Appellant's Answer Brief on the Merits

Cal.November 14, 2011

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) 4 CALIFORNIA, ) Supreme Court No. Plaintiff and Respondent, ) $191747 | ) V. . ) Court of Appeal No. ) G041831 JOSE SAUCEDA-CONTRERAS, ) Defendant and Appellant. ) Superior Court No. ) O7NF0170 Fourth Appellate District, Division Three Orange County Superior Court, Honorable Richard F. Toohey, Judge ANSWERBRIEF ON THE MERVBTLED NOV 14 201 Diane Nichols | State Bat feg@H9443Ohirich Clerk P.O. Box 2194 “Bepu Grass Valley CA 9594 530-477-8448 dianelnichols@aol.com Attorney for Defendant And Appellant Jose Sauceda-Contreras a By appointmentofthe a Supreme Court under the Appellate Defenders, Inc. independentcase system COPY .8.25(b)/ If TABLE OF CONTENTS Page TABLE OF CONTENTSj......cccccccsseseseessescessecesesensesnesnscseeceaesseeseaeesseesatessenaes i TABLE OF AUTHORITIES 0.0... ec ceccscesneeseeeneesaeeenessnteseeeateeseessesenesenees ill ISSUES PRESENTED... iccceesceeeeectseeneesenecseetseeseaseaeesaeeeneesnaneeeessaeeeneeaes 1 RESPONDENT’S CONTENTIONS.......cccecccecccesecececeeeeeeeeneeeececsaesaeeeseeeatens 2 APPELLANT’S CONTENTIONS1.00... cceccceseeseretseeceesensecertsneeeseenerestevseens2 STATEMENTOF THE CASE... ..cccccccsseeceesseecnrecareeereseeneeenereeeeetereeenteares 3 STATEMENTOF FACTSooo. ccccesccsseesessreceeessnseneesseseaesseesneseneresseeneeesatented 5 PROSECUTION EVIDENCE 2... eeeeccscceeseeenneeeennesseeeesaeerseeeeeeaeseaeseseaetanes 5 The Events of January 9 and 10... eccessseceneenseeceneeteaeeeteeeeseaeecneeereeeanes 6 Autopsy and Toxicology ReSults ..........ccccccesssccseteeeeeneesetteecsnaeeeeeeuresessnneseas 7 Other Evidence... eecscesssseesecseseesseecesceeseceseessaeeeseeenseseseesressuensessegessarens 10 Mr. Sauceda-Contreras’s Interrogation..........c.ccccccsssscsseeeesseessseeeesessreeeeseens 13 DEFENSE EVIDENCE1... ceceecccesceseecseseeseeeseseeseeeeeeceesenaecnaesnaseeaeeauesenasans 19 ARGUMENTS uu... eeeeeecseceesssesseeceneesseeeceeneteessseseneeseneesearestrseeeeeesstessneeeenees 21 1. The Court of Appeal correctly found that police ignored Mr. Sauceda-Contreras’s unequivocal invocation ofhis rights to counsel andto silence, in violation of his constitutional rights under Miranda......ccccccccccccssssesstsesssceesnsseneeeessnesesssessness21 A. Introduction... eeeceeeseseeeseeseeeeeeseeeseaeeseaeecenaeseaaessaeeessesesanetersuessnneerses21 B. Proceedings Below ........cccceeseescessecseeesseeseceecsneessecessnsesseeeeessesenresessees2] C. Standard of review.........ccecesccssesccteevesssevsessaeseaeseesenaeeeeeeeeeesesneeesseeaes26 TABLE OF CONTENTS (CONT’D) D. Mr. Sauceda-Contreras unequivocally invoked his right to counselandhis right to cut off questioning, but police failed to scrupulously honor those requests. Further, police did not obtain an express waiver and there was no implied waiver on these facts ..........ccccccsscceseceseeesseeeseeees L. Tntroduction ........ccccccccsecesecccccccccuseseececcececcccecaussneeceseecceessueussasceseueceas 2. Mr. Sauceda-Contreras unequivocally invoked his right to counsel and his right to cut off questioning, but police failed to scrupulously honorhis request .........:cccceseeseeteeees 3. Mr. Sauceda-Contreras did not expressly waive any Of his Miranda rights ......ccccccccssccsssesseeseesecensesssessessessaeecsesssesseseesesses 4. Mr. Sauceda-Contreras did not impliedly waive any Of his Miranda rights......cccccccccccscececeeceseseeseeeceeceseseesseesesseeesnsenes E. Conclusion oo... cccecccecccssececccscecceceuecececccusececscaaececsatesesesaesseetesueesesees II. The Court of Appeal correctly found admission of the statements was not harmless beyond a reasonable doubt ...........ccccecsseeseessseeeeees III. In the alternative, this Court should remand the case to the Court of Appeal for consideration of the undecided issues ON APPCAl ooo... cecccccsssecssseecseeeceesneeeesseecseetecseetessesaseseeeseeaeeseasaeeesnetees CONCLUSION 0.0... ceccececcceseeeceeeeeaeeneceeeeeeaeeceaeeseaeesaeensaseneeeeaeeeneeeees WORD COUNT CERTIFICATION wo..eecceeccceeeceeeseeeeeeeeeeeteeeeteetens APPENDIX “A” Court’s Exhibit No. 1C APPENDIX “B” Court’s Exhibit No. 1B DECLARATION OF SERVICE ii Page besa27 eves27 been29 bees43 betes44 bites48 bese49 ieee62 bees63 beets 64 TABLE OF AUTHORITIES Page(s) CASES Arizona v. Roberson (1988) 486 U.S. 675 [108 S.Ct. 2093, 100 L.Ed.2d 704]...30, 45 Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859occcccsccessssccesseecessececsecsusesevessasesesenees 32 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]... ccccceesecseeenees49 Colorado v. Connelly (1986) 479 U.S. 157 [107 S.Ct. 515, 93 L.Ed.2d 473]...eee26, 46 Connecticut v. Barrett (1987) 479 U.S. 523 [107 S.Ct. 828, 93 L.Ed.2d 920]...31, 33 Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2326, 147 L.Ed.2d 405]...ee27 Edwards v. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378]...cece30 Fare v. Michael C. (1979) 442 U.S. 709 [99 S.Ct. 2560, 61 L.Ed.2d 197]...cece41 Inre HV. (Tex. 2008) 252 S.W.3d 319 ccccceccesseccerssccssssescessssecesteesetuecesseesetaaess 32 Lawson v, Borg (9th Cir, 1995) 60 F.3d 608 wou. ccessccesssecssscccccvssecessteesetsceesaeeverseess 52 McNeil v. Wisconsin (1991) 501 U.S. 171 [111 S.Ct. 2204, 115 L.Ed.2d 158]...32, 40 Michigan v. Harvey (1990) 494 U.S. 344 [110 S.Ct. 1176, 108 L.Ed.2d 293]...30, 42 Michigan v. Jackson (1986) 475 U.S. 625 [106 S.Ct. 1404, 89 L.Ed.2d 631]...cece27 ili TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d Michigan v. Mosley (1975) 423 U.S. 96 [96 S.Ct. 321, 46 L.Ed.2d 313]...eeeeeeeee41 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]... passim Missouri v. Seibert (2004) 542 U.S. 600 oe ecccccccceceesseeeseeeeaeeeeneeceaeeeacersaeeeesaeeeeaeesesseeatessaeey27 Montejo v. Louisiana (2009) 556 U.S. 778 [129 S.Ct. 2079, 173 L.Ed.2d 955]...eee27 Moran v. Burbine (1986) 475 U.S. 412 [106 S.Ct. 1135, 89 L.Ed.2d 410]...26, 44 North Carolina v. Butler (1979) 441 U.S. 369 [99 S.Ct. 1755, 60 L.Ed.2d 286]...ee28, 44 People v. Anderson (1968) 70 Cal.2d 15 ieeeececeessereteerseeeeeeeseeeseneetsseesssaeesseeeienens 59, 60 People v. Arias (1996) 13 Cal.4th 92... cccccccsececeerereceneeesetteeteesereseneeeneeeeeeneaseinees 59 People v. Bacon (2010) 50 Cal.4th 1082.0... ccccececeeeneeseretneeteeteeetneeeteeneaeeaeeee27, 60 People v. Cahill (1993) 5 Cal.4th 478 oo. cccccccesscersresseeeneeteeeeereceeersessneeesseteeseesseeeseeeets 52 People v. Cardenas (1982) 31 Cal.3d 897 oo. eeccceseeeseteteeneeceeeeeeeeneesassnsecsresaseseseeesenenegs 52 People v. Chavez (2004) 118 Cal.App.4th 379 ooeeeserecsseesseseessssssessssseneescsesseseneeses 51 People v. Cooper (1991) 53 Cal.3d 771 o.cecceccessceseeeeeceeneetereeneeeteeesssessseeessessseesseeseeeeseeenes 52 People v. Crandell (1988) 46 Cal.3d 833 ooo. ecccceeeetereneeereeeetesseesesseessseeseessseseaseseseeeenes 59 iv TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) People v. Crittenden (1994) 9 Cal4th 83 ooo. secssesccseecsnessecsneecesesenesesesieesssessetsasesseeerseneentes42 People v. Filson (1994) 22 Cal.App.4th 1841occceececsecssseeenseerssetsneresaseneeessseenes 52 People v. Gonzalez (2005) 34 Cal.4th Li)icececseeneeesnsessersnsesneeeeeesseseseaeeeses 31, 34, 40 People v. Lee (1987) 43 Cal.3d 666.0... cecccccseestssceeesneseeeseessecereesersiescneessseeaeesneeenes 51 People v. Marshall (1990) 50 Cal.3d 907 occcsccesecnteserecteessecnressseesessesscecatecneesrseaeseseeats42 People v. Martinez (1995) 11 Cal.4th 434oeeseeesesseeenercesesseeessesseesssesstceateserseaeeseneaees 52 People v. Martinez (2010) 47 Cal.4th 911ieeceeccnsneeeseeeeectaeeserseeesseesreseeseseeneesnesenes 34 People v. Randall (1970) 1 Cal.3d 948 ooo ccescescseeseersnsectaeeeeeaeeeteceetesetaeesstessteeeseeeens32 People v. Roquemore (2005) 131 Cal-App.4th 11 oo.esccscseccseeessteesecssessseeesseessreeesseens4] People v. Scaffidi (1992) 11 Cal.App.4th 145 ooo icceccssscsseeessecessesestesseesseessesenes 32, 41 People v. Schmies (1996) 44 Cal.App.4th 38occeeeseccssseesteeestressreesssersnesesressaeesrees 53 People v. Sims (1993) 5 Cal.4th 405 ooo eecccesescecssesecsseenesssseessessesenseseessseessssaeestens49 People v. Stitely (2005) 35 Cal.4th 514eceneecneeseecstsessessseeceseeesceesssessneesateenes40, 41 People v. Valentine (2001) 93 Cal.App.4th 1241 occceecccsseesnesstecsesseectscseeetesseeesseentens 50 TABLE OF AUTHORITIES (CONT’D) Page(s) CASES(cont’d) People v. Whitson (1998) 17 Cal.4th 229 oo. ccccccssesssecessneeessneeecsneessnaeesseneeeesseeeseeaees44 People v. Williams (2010) 49 Cal.4th 405 oo. ccccccssscessececssseessseseeeseeessseeeerseees 32, 37, 38 Rice v. Wood (9th Cir. 1996) 77 F.3d 1138 vcecccccsscssseeestecseteccseeseneeceseeeseeeeeiseeeneees 53 Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 [126 S.Ct. 2669, 165 L.Ed.2d 557]...eee47 Smith v. Illinois (1984) 469 U.S. 91 [105 S.Ct. 490, 83 L.Ed.2d 488]...eee passim State v. Blackburn (So. Dak. 2009) 766 N.W.2d 177 .....ccccccccceceteeeseneeetsneeeeseseeesnteeesseeeeeeens 32 State v. Bowlin (2010) 43 Kan.App.2d 671 ooo. cccccceeeeeeserereeseneeenaeeseeeeereaesenaeeeeeeesneey 35 Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182]...49 Tague v. Louisiana (1980) 444 U.S. 469 [100 S.Ct. 652, 62 L.Ed.2d 622]...ee26 United States v. Balsys (1998) 524 U.S. 666 [118 S.Ct. 2218, 141 L.Ed.2d 575].ee46 CONSTITUTIONS United States Constitution Fifth AMendMeIt...ccccccccccsesesessessceseccscuscsssevesseeseusuenenensess21, 29, 32 Fourteenth Amendment ......cccccccccccccccccsccccccceesececseseusussuuueeeuuseseuuenssaaeuena21 California Constitution Article [, section 24 wiccicccccssessscsccceessssssnneeeeeeeeeeceeeessssenceeeeeseeeeseeseenen21 vi TABLE OF AUTHORITIES (CONT’D) Page(s) STATUTES Penal Code Section 187, SUBCIVISION (A) ........ccccccecsccesssscceccsssseceesesenueesecsaeesesesseeeeess 3 Section 836C ooo... eeceeccesceesseceseetsneeessneceeceeecseeeseeseteaeessaeeeseeeeeesentensaeeeneees 47 California Rules of Court Rulle 8.204(d) oo... eeeeeecsesccssserccseesseesacseeetsecsseeseeeaeseaeeseerseessesteesieeeateents 22 JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS CALCRIM No.362 oo... cecccescesseceesneceeerseeenseeeeseeesetessaeessueseneesseeseaetenes 62 OTHER AUTHORITIES Black’s Law Dictionary (9th ed. 2009)... ceeeccsscesssecrenseeeseesetestaeesneees46 The New Shorter Oxford English Dictionary (1993)... eeeeeseeeeees32 Vienna Convention on Consular Relations, article 36 ...........ccccccceeeenee47 vil IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) Supreme Court No. Plaintiff and Respondent, ) $191747 ) Vv. ) Court of Appeal No. ) G041831 JOSE SAUCEDA-CONTRERAS, ) Defendant and Appellant. ) Superior Court No. ) O7NF0170 Fourth Appellate District, Division Three Orange County Superior Court, Honorable Richard F. Toohey, Judge ANSWERBRIEF ON THE MERITS ISSUES PRESENTED 1. After defendant had been given his Miranda! rights, did his statement-- “If you can bring me a lawyer... that way I can tell you everything that I know andeverythingthat I needto tell you and someone to represent me” -- constitute a clear invocation ofhis right to counsel that required questioning to cease and did not permit the interrogating officers to attempt to clarify what defendant meant? 2. Wasanyerror in the admission of defendant’s subsequent statements harmless beyond a reasonable doubt? ‘Miranday. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] RESPONDENT’S CONTENTIONS 1. After being advised of his Miranda rights, defendant’s initial response was not immediately understood to be an invocation of any of those rights, so the officer properly asked a non-coercive follow-up question to clarify the response; moreover, no substantive questions were put to defendant until after his position was madeclear and he validly waivedhis Miranda rights. 2. In light of the balance of the evidence presentedattrial, even if defendant’s police interview was improperly admittedat trial, the error was harmless. APPELLANT’S CONTENTIONS 1. The Court of Appeal correctly found that police ignored Mr. Sauceda-Contreras’s unequivocal invocation ofhis rights to counsel and to silence, in violation of his constitutional rights under Miranda. 2. The Court of Appeal correctly found admission of the statements was not harmless beyond a reasonable doubt. 3. In the alternative, this Court should remand the case to the Court of Appeal for consideration of the undecided issues on appeal. STATEMENT OF THE CASE On November2, 2007, the Orange County District Attorney charged Jose Sauceda-Contreras with one countofthe first degree murder of Martha Mendoza (Pen. Code, § 187, subd. (a)). (2 cr’ 308-309.) The court denied Mr. Sauceda-Contreras’s motion to suppresshis statements to police pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. (2 CT 422; 1 RT 72.) After deliberating for 18 hours over the course offive days on the one charge, a jury found Mr. Sauceda-Contreras guilty offirst degree murder. (2 CT 308-309, 443, 453, 513-514; 3 RT 627-629.) The court sentenced Mr. Sauceda-Contreras to 25 yearsto life in state prison. (2 CT 555, 568; 3 RT 637.) In an unpublished opinion filed February 16, 2011, the Court of Appeal, Fourth Appellate District, Division Three, reversed the judgment, finding Mr. Sauceda-Contreras had clearly invokedhis right to counsel under Miranda, but police had failed to scrupulously honorthe invocation. (Typed opn., p. 19.) The court could not conclude beyond a reasonable doubt that, had Mr. Sauceda-Contreras’s statements been excluded,the jury would have convicted Mr. Sauceda-Contreras of murder, noting “the Attorney General fails to respond to Sauceda-Contreras’s contention he was *“CT” stands for the clerk’s transcript. “RT” stands for the reporter’s transcript. prejudiced by the admission of the interviews.” (Typed opn., pp. 22-23; see also typed opn., pp. 1-6 (dis. opn. of Aronson,J.).) In respondent’s petition for rehearing, respondent argued, for the first time, the admission of the statement was harmless and raised another possible interpretation of Mr. Sauceda-Contreras’s invocation of counsel. The Court of Appeal denied the petition, with Justice Aronson again dissenting. Respondentfiled a petition for review and, on June 8, 2011, this Court granted the petition. STATEMENT OF THE FACTS PROSECUTION EVIDENCE Jose Sauceda-Contreras, who worked twojobsat two different restaurants, had lived in Anaheim for about 18 months with his two brothers, sister-in-law, and niece and nephew. (3 CT 609-613, 616.) Before that, he had lived for four years in Long Beach with Martha Mendoza,his then-girlfriend of eight years. (3 CT 619, 631, 640.) Ms. Mendoza wasa crystal methamphetamine addict, but Mr. Sauceda- Contreras does not use drugs or drink alcohol.? (1 RT 189-190, 3 CT 619, 656-658, 777, 4 CT 884.) Mr. Sauceda-Contreras had supported Ms. Mendoza, giving her a bank account and a car, but she spent all the money in his account and had been stopped with the car full of drugs. (3 CT 631, 633, 638-639.) She had stolen money from him. (3 CT 629, 714.) Ms. Mendozasold herself on the streets; he had seen her coming out of motel rooms with men; she sometimes demanded moneyandthenleft with another man;her clients sometimes hit her. (3 CT 627, 633, 4 CT 882, 884, 922, 941-942.) Mr. Sauceda-Contreras hadtried to take care of Ms. Mendoza’s five children during her frequent absences, but the government had taken them away. (3 CT 620-621.) He was scared of finding another woman because she might be like Ms. Mendoza. (4 CT 884-886, 896-898.) *Mr. Sauceda-Contreras tested negative for alcoholor drugs. (2 RT 438.) In June or July of 2007, Ms. Mendozahad found him again at the Anaheim house and came over twoor three times a month, wantingto live with him again because he had a house and money. (3 CT 621, 645-646.) On January 9, 2007, Ms. Mendoza had showedupagain, around 8:00 a.m. (3 CT 618, 623, 644, 650.) The Events of January 9 and 10 Around 2:00 p.m. on January 9, Mr. Sauceda-Contreras’s neighbors in Anaheim heard a man and womanarguing at his house. (1 RT 111, 120- 121, 137, 147-151.) The womanyelled, “Fucker, if you don't want me to go out, if you don't want me to go, you go and bring me that moneyto pay” and wordslike “fucker” and “bastard,” while the man spokein a low voice. (1 RT 122, 126-132.) The womansaid “‘if this wasall that he had[,] to give her more until he got tired,” followed by a bang which soundedlike a personhitting a wall, after which the womancried for aboutfive to ten minutes. (1 RT 122-125, 132.) The next day, around 10:30 or 11:00 a.m., the same neighbors called 9-1-1 after they smelled smoke, burning hair, and burning flesh* and saw Mr. Sauceda-Contreras on his patio pouring something liquid into a metal trash can and then running back as fire flared up. (1 RT 113-115, 117, 138- 140, 142-145, 147-148.) ‘The couple reported only smoke, not any other burning smells, to the 9-1-1 operator and to respondingfirefighters. (1 RT 114, 147, 152-155.) At the back corner of his house, firefighters met Mr. Sauceda- Contreras, who seemed agitated, nervous, and scared. (1 RT 155-156, 175.) Mr. Sauceda-Contreras told them there had beena fire, but it was out and there was no problem now. (1 RT 157, 174.) There was a mattress leaning over the trash can andthe sight and smell ofa little smoke and flame from the trash can. (1 RT 157, 159.) Mr. Sauceda-Contreras attempted to stop onefirefighter from approachingthe trash can. (1 RT 158.) Firefighters called police and waited with Mr. Sauceda-Contreras in the front yard. (1 RT 159-160.) Asked what was going on, Mr. Sauceda- Contreras said he was cookinga pig in the backyard, but in a trash can rather than in the ground as he would have done in Mexico. (1 RT 160- 162, 179-180, 187.) Whenpolice arrived, firefighters went to the trash can, took off the mattress leaning against it, and saw a burned body. (1 RT 163-165, 167, 232, 239-241.) Nearby were a charred sauce pan, a bucket with liquid that smelled like gasoline, a charred metal rod, and a workman’s glove. (1 RT 232-233, 236, 244.) Autopsy and Toxicology Results The body was that of Martha Mendoza, Mr. Sauceda-Contreras’s formergirlfriend. (2 RT 317; 2 CT 437.) Board-certified forensic pathologist Anthony Juguilon, whose medical group provides autopsy services for Orange County, performed the autopsy, in which he determined Ms. Mendoza wasdead before her body had been burned. (2 RT 314-317, 322-323, 348.) Dr. Juguilon could not determine the cause of death, listing it as “undetermined”on the death certificate, although he could rule out trauma(blunt force, shotgun, stabbing) and found no natural causes. (2 RT 323-324, 330-332; People’s Exhibit No. 58.) Dr. Juguilon could not determine the mannerof death. Of the five accepted mannersof death (natural, accident, suicide, homicide, and undetermined), it could have been accident, homicide, or suicide. (2 RT 333, 343-344.) Although the extensive thermal injuries (which had burned off skin, coagulated or dehydrated some organs, and sometimes extended into the muscles) hindered Dr. Juguilon’s ability to render a cause of death, even in cases where a bodyis not burned, he sometimes cannot determine the cause of death. (2 RT 319, 321-322, 347.) According to Dr. Juguilon, manual strangulation is the use of a hand to compress the airway, and ligature strangulation (which can besuicide, accident, or homicide) is the use of an implement to constrict the airway. (2 RT 371.) He could notrule out ligature strangulation, which would include suicidal hanging. (2 RT 327, 354-356.) However, there was no evidence ofligature strangulation, such as a cord or implement around the neck, there were no ligature furrows (due to absence of skin), and there were no petechial hemorrhagesin the eyes, on the facial skin, or in the lining of the mouth, found sometimes in asphyxial deaths (becausetissue and eyes were absent dueto fire damage). (2 RT 324-325, 327, 349-350.) In a nonsuicidal ligature strangulation, the findings could be very similar, the presence of hemorrhage could be very minimal, and, typically, there are no fractures of bones in the neck. (2 RT 326-327.) In a suicidal hanging, there are often minimalor no findings, that is, no blood and nofractures in the neck, although there are usually furrow marksand pectechial hemorrhages. (2 RT 324-326.) The hyoid bone in the protected area behind the jaw is usually fractured in manualstrangulation, but it is unusual forit to be broken in suicidal hangingorligature strangulation. (2 RT 352.) The thyroid cartilage, adjacent to the hyoid bone, is sometimes fractured in manual strangulation, but it is unusualin ligature strangulation. (2 RT 354.) Here, the hyoid bone and thyroid cartilage were intact. (2 RT 353-354.) There are several different layers of muscle in the neck. (2 RT 350.) In either strangulation or suicidal hanging, there may or may not be bruising in the neck muscles, depending on the amountofpressure used. (2 RT 350.) Here, the external or surface muscles were damaged thermally, but he did not find any hemorrhaging in the deeper musclesofthe neck, either with the naked eye or microscopically. (2 RT 350-351, 357.) Toxicological results from cross sections of the brain and liver showed elevated levels of amphetamine and methamphetamine. (2 RT 328, 358-360, 363, 372.) The level of methamphetaminein theliver, 6.8 mg, wasa fatal level for an intact body with no thermal injury and would have been the cause of death in the absence of thermal injuries. (2 RT 364-365.) Dr. Juguilon would be comfortable saying the cause of death was an overdose if the body had not been burned. (2 RT 368.) A microscopic examination showed nosignificant thermal changes in the liver, and the cross section analyzed was taken from deep within the liver. (2 RT 358- 359.) Dehydration alters the tissue and the concentration of the toxic substance (2 RT 328-329), although Dr. Juguilon is not a toxicologist and could not say precisely what the heat would have doneto the presence of methamphetaminein tissue, that is, whether it may have altered the toxicological results. (2 RT 329, 376.) The toxicology laboratory indicated the levels “may” have been altered by heat but could not say to what extent the fire might have done so or whetherthe levels were actually altered; the levels “might” be higher because of dehydration of the tissue. (2 RT 360, 366, 369-370, 373, 375.) Even if the level in the liver were adjusted downwardto 4.5 mg or 5 mg, those amounts wouldstill be consideredfatal. (2 RT 366.) Other Evidence The mattress in Mr. Sauceda-Contreras’s bedroom was askew, and all of the sheets and blankets piled on a chair. (1 RT 228, 248-249.) There were no pry marks on the bathroom door jamb and handle. (1 RT 254, 258, 276, 279.) 10 Mr. Sauceda-Contreras was wearing a well-worn leather belt. (1 RT 209-210, 212-213; People’s Exhibit Nos. 8A, 62, 63.) The belt was warped, curved, and broken from wear. (1 RT 224-225.) A forensic specialist opined there was a diagonal impression 11 inches from the buckle. (1 RT 207, 214.) Theinside of the belt was swabbed,in three sections. (1 RT 215- 217.) According to forensic scientist Annette McCall, the source of the DNA(e.g., blood) could not be determined. (2 RT 396.) Theleft third of the belt, near the buckle, showed a mixture ofDNA from two people; Ms. Mendozacould not be excluded as a major contributor and Mr. Sauceda- Contreras could not be eliminated as a minor contributor. (2 RT 379-381, 2 RT 394-395.) The middle section contained insufficient material for testing. (2 RT 394, 395-396.) The right side showed a mixture ofDNA from two people; Ms. Mendoza and Mr. Sauceda-Contreras could not be eliminated as equal contributors. (2 RT 394, 396.) DNA can betransferred to an item by touchortransfer, even by hand-to-hand touching. (2 RT 398- 399, 405.) Ms. McCall could not say how or when DNA wasdeposited or howlong it was present. (2 RT 405.) A small smudgeofblood from the bathroom floor showed Ms. Mendoza as a major contributor and excluded Mr. Sauceda-Contreras, with the DNA of multiple individuals present. (1 RT 255, 2 RT 386-389; 1] People’s Exhibit Nos. 48, 49.) Ms. McCall performed no frequency estimate as to Ms. Mendoza. (2 RT 388.) Photographs of Mr. Sauceda-Contreras showed minorinjuriesto his nose, upperlip, and chest (1 RT 219-220; People’s Exhibit No. 9B), a small abrasion on his head (1 RT 220; People’s Exhibit No. 9D), and small cuts on both hands (1 RT 220-221; People’s Exhibit Nos. 9EF, 9F). Mr. Sauceda-Contreras and Ms. Mendozahadlived together in Long Beach until nine months earlier, according to Ms. Mendoza’s sister, Maria Rodriguez. (1 RT 188-189, 192.) While Ms. Mendoza wasstaying with Ms. Rodriguez, Mr. Sauceda-Contreras had cometo the apartment, the two had argued, and Mr. Sauceda-Contreras had told Ms. Mendozahe did not want her there and would beat her up if she did not go with him. (1 RT 191-194.) Forthefirst time at trial, Ms. Rodriguez related another incident in March 2006, when Mr. Sauceda-Contreras told Ms. Rodriguez he would not leave Ms. Mendozaalone and would rather see her dead than loseher. (1 RT 195.) Ms. Rodriguez claimed she told the police in March 2007 about the secondincident, but police must not have recorded her remark.” (1 RT 197-198.) ‘The prosecutor conceded in argumentthe interview transcript did not reflect the second purported threat. (3 RT 514.) 12 Mr. Sauceda-Contreras’s Interrogation Anaheim Police Department detectives Robert Blazek and Spanish- speaking officer Lisa Julissa Trapp interrogated Mr. Sauceda-Contreras for the greater part of the afternoon ofhis arrest. (2 RT 414-415, 416-420, 421-424, 437-438.) About two-thirds of the interrogation was played for the jury. (2 RT 426, 429; People’s Exhibit Nos. 60A [tape], 59A [transcript of 60A], 60B [tape], 59A [transcript of 60B].) Mr. Sauceda-Contreras worked two jobs. (3 CT 609-613, 616.) He had lived in Long Beachfor four years with Ms. Mendoza, his former girlfriend, a methamphetamine addict, but Mr. Sauceda-Contreras did not use drugs or alcohol. (3 CT 619, 631, 640, 656-658, 777.) When Ms. Mendoza found him again aboutfive or six months ago, she visited two or three times a month and wanted to live with him because he had a house and money. (3 CT 621, 645-646.) She had shownup on January 9, around 8:00 a.m. (3 CT 618, 623, 644, 650.) They had arguedthat afternoon, whenhetold her he loved her, but did not want anything to do with her because she wasnot going to change and wanted herto leave; at one point, she scratched him but calmed down. (3 CT 622-624, 675.) No oneelse in the house knew she wasthere; he told her to be quiet, afraid the others would hear. (3 CT 652-654, 676- 680.) 13 When asked about the argument overheard by neighbors, Mr. Sauceda-Contreras said it was not a big argument. (3 CT 758-759.) He and Ms. Mendoza fought, and she yelled and yelled; he told her to shut up and said he was not going to give her money. (3 CT 763-764.) In Mr. Sauceda- Contreras’s opinion, the argument was small comparedto past ones. (3 CT 768-770.) One moment Ms. Mendoza could be calm andthe next destroy everything; she would get mad over anything. (3 CT 680-681, 712.) He knew howshegot; the entire block could hear her, and it was better for him to be quiet. (3 CT 681, 713, 761-762.) Mr. Sauceda-Contreras had not pushedor hit her during the argument. (3 CT 765-767.) Ms. Mendoza had gone out a doorto the street for a while in the afternoon. (3 CT 739-748, 4 CT 878-879.) They wentto a video store, rented a movie, and ate and spent the night together. (3 CT 624, 651.) She had stolen from him before, so he hid his wallet. (3 CT 629, 714.) She was really nervous like she needed drugs. (3 CT 624.) When Ms. Mendozasaw an iPod Mr. Sauceda-Contreras had bought, she demanded money,telling him he earned good moneyat two jobs and bought himself expensive things, but never did anything for her. (3 CT 674, 711-712, 718.) She wanted money to buy drugs; she scratched and hit him. (3 CT 623, 716, 719-727.) However, he did not hit her that night or the next day, nor did he choke her. (3 CT 716, 733-734, 800.) 14 She did not use drugs that night, but wanted money,and he told her to sleep, to eat, to rest; she got angry butfell asleep. (3 CT 655-656, 675.) They had sex during the night. (4 CT 907, 927.) When they woke up that morning, she wasstill nervous; everything bothered her. (3 CT 625, 660, 662.) At one point, she slept again; they heard everyoneelse leave. (3 CT 660, 692, 697.) Ms. Mendoza wassitting on the floor by the bed watching television, naked and staring at Mr. Sauceda-Contreras lying on the bed. (3 CT 689, 692, 4 CT 832, 848, 853-854, 859-861.) She said she had thought about what she was going to do. (3 CT 625.) Mr. Sauceda-Contreras said he was not going to give her anything because she would useit for drugs. (3 CT 626.) She said she hadlost everything -- her children, her mother, him; no one loved her any more, and she did not even love herself. (3 CT 626, 689-690.) She did not want to be on the street, with one manafter another, earning just enough moneyfor the day. (3 CT 627.) She asked him to get a bike and somethings for each of her children andtell them that she loved them. (3 CT 635.) She wanted him to promise to burn her and keep the ashes with him whenshedied; he told her she was crazy. (3 CT 627-628, 663, 693, 4 CT 847.) Mr. Sauceda-Contreras had told her earlier they needed to do laundry, so he got the laundry ready. (3 CT 661, 664, 687-688, 4 CT 828- 830, 833, 840, 852.) Ms. Mendozaleft the room; he thought she had gone to take a shower. (3 CT 629, 664, 694, 4 CT 841, 856, 863-864.) Mr. 15 Sauceda-Contreras folded blankets, cleaned upa little, put away plates from their evening snacks, and picked up trash. (3 CT 628-629, 4 CT 834, 838, 841, 847, 865, 868.) Whenhedid not see her, he got scared, looked for her, saw the bathroom door wasopen, and foundherin the tub, not breathing. (3 CT 629-630, 665, 667, 4 CT 842.) He had seen on television how “they putair in the mouth,” but did not know how to doit. (3 CT 667-668.) She had no heart beat and wasvery still, but not stiff, with white bubbles coming out of her mouth. (3 CT 684, 735, 787, 802, 807-808.) Angry, he thought how many years he had spent on her and then she died. (3 CT 700.) He yelled and tried to wake her, but realized she wasreally dead, so he took her out of the tub. (3 CT 702, 787.) She wasreally cold; he hit her, but she did not get up or do anything. (3 CT 668.) He did not know how shedid it as there was no medicinein that bathroom and no other drugs in the house. (3 CT 683, 738.) There was a showerhose near the faucet, but it was thin and not strong enoughfor her to choke herself. (4 CT 874.) He had not done anything to her. (3 CT 775.) He did not know how muchtime passed from the last time he saw her until he found her in the tub. (3 CT 668, 695.) He had been gathering clothes and stripping the bed. (3 CT 669.) Whenpressed the time, he estimated an hour and a half, but did not really know because everything happenedso fast. (3 CT 670-671, 695.) When asked whyhedid not look 16 for her soonerif she stole, he said she had disappeared before without him knowing, only to return in days. (3 CT 780-782.) The detective contended the tasks only took 20 minutes and she could not have gotten that cold in 20 minutes; Mr. Sauceda-Contreras said he did not know how muchtime passed, but she was cold. (4 CT 868-872.) He had thought aboutcalling the police, but could only remember whatshe had told him. (3 CT 630, 671, 702-703, 788.) He also believed police would put him in jail anyway, because she was dead in his house and police would think he did it. (3 CT 790, 799, 823.) He did not think police would believe that she just died like that, just as they did not believe him now. (3 CT 791.) Police had not believed him before, when Ms. Mendoza had called them “a thousand”times, saying he was going to hit her. (3 RT 793-794.) Mr. Sauceda-Contreras admitted burning the body, doing it because he had promised her. (3 CT 634, 703-704, 736, 4 CT 823.) He did not know that funeral homes would burn the body and give onethe ashes. (3 CT 798-799.) Whenhe sawheronfire, he tried to take her out with the gloves, but the fire was too big and the gas can caughtfire. (3 CT 706-707, 756-757, 4 CT 824-825.) He lied to the firemen. (3 CT 709.) After several hours, Mr. Sauceda-Contrerasstill denied culpability for Ms. Mendoza’s death, but told detectives more details of their conversation and gavea different version of how he had found her. (4 CT 17 887 et seq.) Ms. Mendoza said she wanted to change, quit drugs, get back with him, and get her children back. (4 CT 884.) He told her she would never change. (4 CT 929.) He needed to go to work, but wasafraid to leave her for fear she would steal something. (4 CT 928-929.) Hetold her meanthings -- he had seen her coming out of hotel rooms with men, she wastrash causing everyone problems, she had ruined his life and his family’s, he had lost everything because of her, and he wasscared of other women who mightbe like her. (4 CT 884-886, 896-898.) He told her to leave and never comeback; she said to hit her, but nottell her such things. (4 CT 886, 896.) He loved her and wantedto stop her crying, but pride stopped him. (4 CT 885, 909.) She said that he did not love her any more, but he said he just did not want anything to do with her. (4 CT 908.) As she had in the past, she threatened him -- if they did not get back together, she was going to make him and his “fucken [sic] family” lose their house and get him and his family, who were here without papers, sent back to Mexico. (4 CT 912-913, 924.) He was not angry, just hurt and tired; she had ruined his life before and would have doneit again. (4 CT 917-919, 924-925.) However, he was mad whenshesaid she wasselling herself on the street and being hit by her clients, while he was living in a house and everything was fine. (4 CT 941.) Ms. Mendoza went to the bathroom and cried, which she had done before to manipulate him,like the time she had cried until he broke down 18 and gave her money, whereupon shecalled him a “fucking stupid Mexican” and left with another man. (4 CT 887, 920-922.) A lot of time went by, and, when he could not hear water, or anything, he knocked and heard choking. (4 CT 893, 933.) He put shorts on, went outside, and knocked on the window. (4 CT 934, 964-965.) It got quiet, and he used a key to push open the door; there would be marks on the door from the key. (4 CT 893-895, 977-979.) Ms. Mendoza hadkilled herself. (4 CT 887.) He found herin the tub with his nine-year-old belt around her neck, wrapped around or connected to the faucet. (4 CT 891, 901, 947-954.) There were marks on her neck. (4 CT 948.) His belt had been taken from his pants in the bedroom;he did not choke her with it. (4 CT 900, 903, 906, 975.) She had threatened suicide before, saying she was going to throw herself in front of a car or train or something. (4 CT 981.) Mr. Sauceda-Contreras thought about calling Ms. Mendoza’s mother, but was worried abouttelling her because of her medical problems. (4 CT 936-937, 970.) DEFENSE EVIDENCE The defense rested without presenting evidence. (2 RT 441.) The defense theory of the case wasthat there was no proof as to how Ms. Mendozadied (3 RT 567-568), that her death could have been suicide or accident (3 RT 552, 556, 568), that she had a fatal amountof methamphetaminein her body (3 RT 536), that much ofthe prosecutor’s 19 case, suchasthe belt, its indentation, and strangulation was speculation, not evidence (3 RT 540, 545, 546, 569), and that the prosecutor had failed to prove Mr. Sauceda-Contreras had committed an act causing death (3 RT 532, 538, 551). 20 ARGUMENTS I. THE COURT OF APPEAL CORRECTLY FOUND THAT POLICE IGNORED MR. SAUCEDA-CONTRERAS’S UNEQUIVOCAL INVOCATIONOF HIS RIGHTS TO COUNSEL AND TO SILENCE, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS UNDER MIRANDA. A. Introduction. The Court of Appeal properly reversed Mr. Sauceda-Contreras’s conviction when it found Mr. Sauceda-Contreras’s statements to police had been erroneously admitted over his objection attrial, because he had invoked his Fifth Amendmentrights to counsel and to silence under Miranda. (U.S. Const., 5th, 14th Amends.; Miranda y. Arizona (1966) 384 US. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (“Miranda”); Cal. Const., art. I, § 24.) The Court of Appeal wasright. Police never asked for or obtained an express waiver of Mr. Sauceda-Contreras’s Miranda rights. There was no valid implied waiver. Mr. Sauceda-Contreras clearly and unequivocally invokedhis rights to counsel andto silence, but police did not scrupulously honorhis invocation by ceasing interrogation. There was no ambiguity in whathesaid calling for clarification. This Court should affirm the decision. B. Proceedings Below. Twodetectives, Robert Blazek and Spanish-speaking Julissa Trapp, interrogated Mr. Sauceda-Contreras. (Court’s Exhibit Nos. 1C, 1B.) The 21 trial court reviewed the DVD ofthe interrogation and translated transcripts, one provided by the prosecution (Court’s Exhibit No. 1B) and one by the defense (Court’s Exhibit No. 1C). (1 RT 67.) Court’s Exhibit Nos. 1B and 1C are attachments to this brief under rule 8.204(d), California Rules of Court. Thetrial court noted the highlighting and handwriting on Court’s Exhibit No. 1C was doneby the court. (1 RT 72.) Thetrial court indicated there were some minor variations between the two,but, as to the Miranda issue, “both translation transcriptions pretty much matched up.” (1 RT 72.) The version below is from Court’s Exhibit No. 1B, but the translation of Mr. Sauceda-Contreras’s invocation and Trapp’s responseis provided from both exhibits, as indicated. [Blazek]: We'd like to talk to you. [Trapp]: The detective would like to speak with you. [Blazek]: But because you’ ve been handcuffed and transported in a police car... [Trapp]: But because you’re handcuffed and they brought you in the police car [Blazek] Wehaveto advise you of somerights. [Trapp]: I want to advise you of some ofthe rights you have. [Blazek]: Okay? [Sauceda- Contreras]: Okay. [Trapp]: You havethe right to remain silent. Do you understand? 22 [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: A huh,yes. Whatever you say can be used against you in a court of law. Do you understand? Yes, You havethe right to have a lawyer present before and during this interrogation. Do you understand? Yes I understand. If you would like a lawyer but cannotafford one, one can be appointed to you for free before the interrogation if you wish. Do you understand? Yes I understand. Having in mind these rights that I just read, the detective wouldlike to know if he can speak with you right now? If you can bring me a lawyer, that way I I [sic] with who... that way I can tell you everything that I know and everything that I needto tell you and someone to represent me. (Court’s Exhibit No. 1B.) If you can bring mea lawyer, I, I, that way I know with who, it’s that this way I can tell you everything that I know and everything that I need to tell you. And have someone to represent me. Please. (Court’s Exhibit No. 1C.) Okay, perhaps you didn’t understand your rights. Um... whatthe detective wants to know right nowis if you’re willing to speak with him right now without a lawyer present? (Court’s Exhibit No. 1B.) 23 [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: [Sauceda- Contreras]: [Trapp]: O.K. maybe you did not understand yourrights correctly. What the detective wants to know nowis if you are willing to speak with him now without an attorney present? (Court’s Exhibit No. 1C.) Oh, okay that’s fine. The decision is yours. Yes. It’s fine? A huh,it’s fine. Do you wantto speak with him right now? Yes. [English only] I explained to him, he said, aboutthe attorney, I would tell you everything, I have no problem talking to you. AndI said well I want to make sure that you did understand me correctly. The detective wants to know ifyou wantto talk to him right now without an attorney present and hesaid yes. (Court’s Exhibit Nos. 1B, 1C, 2 CT 573-576.) Defense counsel moved to exclude Mr. Sauceda-Contreras’s statements to police pursuant to Miranda, arguing that Mr. Sauceda- Contreras had invokedhis rights to an attorney and silence when, immediately after police informed him ofhis right to remain silent and his right to have a lawyer present during interrogation and asked him if he wanted to talk, he said “If you can bring me a lawyer . . . I can tell you 24 everything that I know andeverything that I need to tell you. And have someone to represent me. Please.” (1 RT 67-72.) At the motion hearing, although the prosecution had the burden of proof to show a knowing,intelligent, and voluntary waiver (Miranda, supra, 384 U.S. at p. 475), it elected not to present any live testimony. (1 RT 68.) The prosecutor contended that Mr. Sauceda-Contreras made a knowing and voluntary waiver, and the officer “did a good job to figure out whatthe defendant wanted to do.” (1 RT 69.) Defense counsel countered Mr. Sauceda-Contreras had invokedhis right to counsel, makingit clear he wanted a lawyer before he wouldtalk to police, after which the police should have ceased questioning him, but instead sought to overcomehis request for a lawyer by asking him further questions. (1 RT 69-70.) Mr. Sauceda-Contreras’s invocation was not vague or ambiguous, defense counsel maintained, as shown bythe specificity of his request for a “lawyer” andhis desire for “someoneto represent [him]” before he spoke with the detective. The clarity of his request was shownby the detective’s subsequent question, which did not clarify Mr. Sauceda-Contreras’s rights or his invocation, but instead challenged his request for a lawyer and his request not to answerquestions without a lawyer’s presence. (1 RT 70-71.) Thetrial court denied the motion to exclude Mr. Sauceda- Contreras’s statements, finding that the interrogator’s questions were “clarifying questions,” that the interrogator had told him the choice washis, 25 and that he had answered “‘yes” when asked if he wanted to speak with the detective now, and that Mr. Sauceda-Contreras was appropriately given his Mirandarights and knowingly and intelligently waived them. (1 RT 72; 2 CT 422.) The prosecution played the interrogation recording for the jury during its case-in-chief. (1 CT 435-436; People’s Exhibit Nos. 60A [DVD of first interrogation], 59A/3 CT 607-816 [transcript of first interview], 60B [DVD of second interrogation], 59B/4 CT 818-985.) The content of the interrogation is set forth in the Statement of Facts, ante, “Mr. Sauceda- Contreras’s Interrogation” at pages 14 to 20 and notreiterated here. C. Standard Of Review. The prosecution bears the “heavy burden” of demonstrating a suspect’s waiverofrights has been given knowingly,intelligently, and voluntarily (Miranda, supra, 384 U.S. at p. 475; Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135, 89 L.Ed.2d 410] (“Moran”); Tague v. Louisiana (1980) 444 U.S. 469, 470 [100 S.Ct. 652, 62 L.Ed.2d 622]) by a preponderanceofthe evidence (Colorado v. Connelly (1986) 479 U.S. 157, 168 [107 S.Ct. 515, 93 L.Ed.2d 473]). This Court accepts the trial court’s resolution of disputed facts and inferences andits evaluations of credibility, where supported by substantial evidence, and independently determines from those undisputed facts whetherthe interrogators illegally obtained the challenged statements. 26 (People v. Bacon (2010) 50 Cal.4th 1082, 1105.) Here, the prosecution chose notto call either of the interrogating detectives or other witnesses, so there was noresolution of disputed facts or credibility. Therefore, this Court engagesin “de novoreview ofthe legal question of whether the statement at issue was ambiguous or equivocal.” (Ibid.) Contrary to respondent’s contention Miranda is merely a “prophylactic” remedy (RBOM 22), Mirandais in fact a constitutional rule. (Dickerson v. United States (2000) 530 U.S. 428, 444 [120 S.Ct. 2326, 147 L.Ed.2d 405]; see also Missouri v. Seibert (2004) 542 U.S. 600, 609 [124 S.Ct. 2601, 159 L.Ed.2d 643 [accord]). As with other fundamentalrights, any doubts about invocation must be broadly construed and resolved in favor of invocation. (Michigan v. Jackson (1986) 475 U.S. 625, 633 [106 S.Ct. 1404, 89 L.Ed.2d 631], overruled on other grounds in Montejo v. Louisiana (2009) 556 U.S. 778 [129 S.Ct. 2079, 173 L.Ed.2d 955].) D. Mr. Sauceda-Contreras Unequivocally Invoked His Right To Counsel And His Right To Cut Off Questioning, But Police Failed to Scrupulously Honor Those Requests. Further, Police Did Not Obtain An Express Waiver And There Was No Implied Waiver On These Facts. 1. Introduction. First, prior to custodial interrogation, police must warn an individual that he hasa right to remain silent, that any statement he makes may be used in evidence against him, and that he has a right to the presence of an attorney, before and during interrogation. (Miranda, supra, 384 U.S.at pp. 27 478-479.) Here, police gave barely adequate warnings, with no attemptto ensure Mr. Sauceda-Contreras understood those warnings other than the repeated query, “Do you understand?” (Court’s Exhibit No. 1B, 1C.) Second,if the individual indicates in any manner he wishesto consult with an attorney before speaking,all police-initiated interrogation must cease unless and until the suspect has consulted with an attorney. (Miranda, supra, 384 U.S. at p. 474.) Here, Mr. Sauceda-Contreras invoked his rights to an attorney andto silence, but the interrogators did not cease questioning. Police are permitted to seek clarification when an invocation is ambiguous,i.e., expressing both a desire for counsel and a desire to continue the interview without counsel. (Davis, supra, 512 U.S.at p. 459.) Here, however, no clarification was permissible because Mr. Sauceda-Contreras’s invocation was strong, immediate, and direct; there was no ambiguity in his request. Anindividual may waive these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The waiver may be expressor, undercertain limited circumstances, implied. (North Carolina v. Butler (1979) 441 U.S. 369, 375-376 [99 S.Ct. 1755, 60 L.Ed.2d 286] (“Butler’’).) Here, there was neither an express or valid implied waiver. “Invocation and waiverare entirely distinct inquires, and the two must not be blurred by merging them together.” (Smith v. Illinois (1984) 469 U.S. 91, 98 [105 S.Ct. 490, 83 L.Ed.2d 488] (“Smith v. Illinois’’).) 28 Respondentdiscusses invocation, waiver, and post-waiver invocation asif they were one. (RBOM 23-25.) This approach obscuresthe real issue, which turns on Mr. Sauceda-Contreras’s immediate invocation upon being advised ofhis rights under Miranda. This brief will examine invocation and waiverseparately. 2. Mr. Sauceda-Contreras unequivocally invokedhis right to counsel andhis right to cut off questioning, but police failed to scrupulously honor his request. Thebasic tenet of Fifth Amendmentjurisprudenceis that, when law enforcementofficials seek to question a suspect about a crime, they must cease interrogation if the individual indicates, in any mannerandat any time prior to or during questioning, that he wishes to remain silent or that he wants an attorney. (Miranda, supra, 384 U.S. at p. 474.) Ifthe individual has invoked his right to counsel, the police must cease interrogation until he is accorded an opportunity to confer with an attorney or have the attorney present during questioning. (/bid.) When police continue interrogation without an attorney, the government bears the heavy burden of demonstrating the defendant waivedhis privilege against self- incrimination and his right to counsel. (/bid.) Any statementthe police elicit after an individual has shown he intends to exercise his Fifth Amendmentprivilege is presumedto be the product of compulsion, subtle or otherwise, because, without the right to cut off questioning, in-custody interrogation overcomesfree choice in 29 producing a statement. (Miranda, supra, 384 U.S.at p. 473; see also Arizona v. Roberson (1988) 486 U.S. 675, 680 [108 S.Ct. 2093, 100 L.Ed.2d 704] [accord]; Edwards v. Arizona (1981) 451 U.S. 477, 481-482 [101 S.Ct. 1880, 68 L.Ed.2d 378].) Likewise, any assertion ofthe right to counsel bars interrogation until counsel is present. (Michigan v. Harvey (1990) 494 U.S. 344, 350 [110 S.Ct. 1176, 108 L.Ed.2d 293]; Edwards, supra, 451 U.S. at pp. 484-485.) When,as here, a defendant seeks to suppress statements because the police improperly ignored his request for counsel, there are two questions -- whether the accused actually invoked his right to counsel and, if so, whether police scrupulously honored his request. (Smith v. Illinois, supra, 469 U.S.at p. 95.) Whether a suspect has invoked his right to counsel is an objective inquiry. (Davis, supra, 512 U.S. at p. 459.) After advising Mr. Sauceda- Contreras of his rights, Trapp said, “Having in mindthese rights that I just read, the detective would like to knowifhe can speak with you right now?”, and Mr. Sauceda-Contreras responded, “If you can bring me a lawyer ... I can tell you everything that I know and everything that I need to tell you. And have someoneto represent me. Please.” (Court’s Exhibit No. 1C, 1 B.) Respondentcontends that Trapp did “[nJot understand[] what defendant meant by that response.” (RBOM 19.) Theissue is not what 7rapp understood, but what“a reasonable officer in light of the circumstances would have understood.” (Davis, supra, 512 U.S. at p. 459; 30 People v. Gonzalez (2005) 34 Cal.4th 1111, 1124.) The wordsare to be understood as ordinary people would understand them. (Connecticutv. Barrett (1987) 479 U.S. 523, 529 [107 S.Ct. 828, 93 L.Ed.2d 920].) Here, the Court of Appeal found “a reasonable police officer should have known [Mr.] Sauceda-Contreras was invoking his right to the advice of counsel” and endedthe custodial interrogation. (Typed opn., p. 16.) Mr. Sauceda-Contreras asserted his privilege clearly and explicitly, telling Trapp, “If you can bring me a lawyer. . . I can tell you everythingthatI know and everything that I need to tell you. And have someone to represent me. Please.” (Court’s Exhibit Nos. 1C, 1B.) Mr. Sauceda- Contreras’s response was an unambiguousinvocation ofhis right to the immediate presence of an attorney (People v. Gonzalez, supra, 34 Cal.4th at p. 1126). He distinctly told Trapp he wanted an attorney present in order to talk to the detective. He asserted his right to cut off questioning until he had lawyerly assistance. He did not wish to deal with police questioning without “someoneto represent [him].” Any subsequentpolice-initiated questioning wasbarred until counsel wasin fact present. The interrogators need not cease questioning wherethe reference to an attorney is ambiguousor equivocal, i.e.,, where a reasonable officer in light of the circumstances would have understoodthat the individual only “might” be invoking the right to counsel. (Davis, supra, 512 U.S.at p. 459; People v. Gonzalez, supra, 34 Cal.4th at p. 1124.) “Ambiguous” means 31 ‘fa]dmitting more than one interpretation or explanation; having a double meaning or reference.” (1 The New Shorter Oxford English Dict. (1993)p. 64, col. 1.) An ambiguous request for counsel expresses both a desire for counsel and a desire to continue the interrogation without counsel. (See, e.g., People v. Scaffidi (1992) 11 Cal.App.4th 145, 153; see, e.g., State v. Blackburn (So. Dak. 2009) 766 N.W.2d 177, 181) No particular word-formula is required to invokea privilege. (People v. Williams (2010) 49 Cal.4th 405, 427 (‘“Williams’’); People v. Randall (1970) 1 Cal.3d 948, 956.) “While police often carry printed cards to ensure precise Miranda warnings, the public is not required to carry similar cards so they can give similarly precise responses.” (Un re HV. (Tex. 2008) 252 S.W.3d 319, 326.) There is no “talismanic phrase” to invoke Mirandarights, such as “I invoke myright to silence under the Fifth “Amendment.” (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859, 866.) A suspect is not required “to speak with the discrimination of an Oxford don.” (Davis, supra, 512 U.S. at p. 476 (conc. opn. of Souter, J.).) However, the suspect must make somestatement “that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” (McNeil v. Wisconsin (1991) 501 U.S. 171, 176 [111 S.Ct. 2204, 115 L.Ed.2d 158], emphasis original.) Respondent contends Mr. Sauceda-Contreras did not make a “clear and unambiguous invocation ofhis right to have an attorney present during 32 the police interview” (RBOM 25) and characterizes his straightforward response to Trapp’s question as “confusing” (RBOM 26). Although the prosecution had the burden below,it elected not to call Trapp or other witnesses, so there is no evidence Trapp viewedthe question as confusing. Respondent, adhering to the dissent in the appellate court, speculates Mr. Sauceda-Contreras wasactually asking a question about whether police could bring him an attorney, a question which implied the further question whether they could bring him an attorney “right now,” since that was when the detective wanted to talk to him. (RBOM 27,citing typed opn., pp. 1-2 (dis. opn. of Aronson, J.).) This interpretation ignores the rule that words are to be understoodin their plain meaning (Connecticut v. Barrett, supra, 479 U.S. at p. 529). This construction is also convoluted, reading into the invocation words and meanings whichare not present. Mr. Sauceda- Contreras did not ask a question. He used a declarative sentence to make an affirmative statement. Mr. Sauceda-Contreras’s use of “[p]lease”at the end ofhis invocation further showsit was not a question, but a politely phrased request. Respondentalso posits Mr. Sauceda-Contreras was underthe impression he needed to have an attorney present in order to talk to police. (RBOM 27.) The prosecutor did not proffer this implausible interpretation. Thetrial court did not adopt it. Respondent did not suggestit in the appellate briefing. Respondentfirst broached it in respondent’s Petition for 33 Rehearing, apparently uncomfortable with the dissent’s strained construction of the invocation as a question and wanted to offer an interpretation that made“senseofall the words he usedin the sentence.” (Pet. Rehearing, p. 2; RBOM 28.) Further, respondent suggests this interpretation is plausible because Mr. Sauceda-Contreras spoke “only Spanish” (Pet. Rehearing, p. 2) and “broken English” (RBOM 27), but he and Trapp spoke in Spanish. However,his affirmative request is not a question in Spanish any more thanit is in English. Respondent also justifies the interpretation based on Mr. Sauceda-Contreras’s limited education (RBOM 27), whichis certainly relevant to waiver, but does not substantiate any belief by Mr. Sauceda-Contreras that he could nottalk to detectives without an attorney. Therefore, this Court need not considerthis 11th-hour purported ambiguity now. Respondent maintains the word “if” made the request conditional and therefore ambiguous. (RBOM 30.) While conditional requests may be ambiguous (People v. Martinez (2010) 47 Cal.4th 911, 952; People v. Gonzalez, supra, 34 Cal.4th at p. 1126), Mr. Sauceda-Contreras’s request to have a lawyer was not conditional or contingent. In People v. Martinez, supra, 47 Cal.4th 911, the request for a lawyer was contingent on taking a polygraphtest (id. at p. 952) and, in People v. Gonzalez, supra, 34 Cal.4th 1111, the request was contingent on the defendant’s being charged with an offense (id. at p. 1126). Here, Mr. Sauceda-Contreras did not make his 34 request for a lawyer subject to any event or condition. The only conditionality here was that he would not speak with the detective unless and until he had an attorney, as the interrogator had just advised him was his right. Respondent agrees the context of the invocation is important in determining whether an invocation is ambiguous and permits further questioning forclarification. (RBOM 25, citing Williams, supra, 49 Cal.4th at p. 429.) Indeed, the timing, content, and context of a reference to counsel helps determine whether there was an unambiguousassertion of the right. (See, e.g., State v. Bowlin (2010) 43 Kan.App.2d 671, 684.) As the Court of Appeal explained, Trapp advised Mr. Sauceda-Contreras of his right to have a lawyer present before and during interrogation, and he said he understood; Trapp advised him an attorney would be appointed if he could not afford one, and he said he understood. (Typed opn. p. 17.) Trapp then asked, “Having in mindtheserights that I just read, the detective would like to know if he can speak to you right now?” (Typed opn., p. 17.) Mr. Sauceda-Contreras answered “If you can bring me a lawyer,. . . that way I can tell you everything that I need to tell you and have someoneto represent me.” (Typed opn., p. 18.) As the Court of Appeal aptly summarized, “[a]fter being advised it washis right to have a lawyer present during the interrogation [Mr.] Sauceda-Contreras essentially responded-- bring me a lawyerand I will talk.” (Typed opn., p. 18.) Mr. Sauceda- 35 Contreras replied directly, immediately and responsively to Trapp’s question, on the heels of her explanation of his right to an attorney. His response to Trapp’s asking whether he wantedto talk to the detective was to ask for the lawyer she hadjust told him he could have. The timing, context, and content of his response show he madea straightforward invocation ofhis rights. Asthe Court of Appeal noted in its opinion, the facts here are identical to those in Smith v. Illinois, supra, 469 U.S. 91. (Typed opn., pp. 16-17.) Although the Court of Appeal relied heavily on Smith v. Illinois, respondenthas ignored Smith v. Illinois in this court, just as it did below. (Typed opn., p. 17.) There, after police informed the suspectof his rights to remain silent and have a lawyerpresent during questioning, they asked “Do you understand that?” The suspect told the officers, “Uh, yeah, I’d like to do that.” (469 U.S. at pp. 92-93.) Instead of stopping, officers continued to read the Miranda warnings, informing the suspect that if he could not afford a lawyer, one would be appointed for him, and the defendant then agreedto talk to police. (/bid.) The subsequent statements were inadmissible because, as the Supreme Court explained, when a suspect unambiguously asserts his right to counsel, even if the officer has not finished reading the Miranda warnings,all questioning must cease. (/d. at p. 98.) ‘““Where nothing about the request for counsel or the circumstancesleading up to the request [for counsel] would renderit 36 ambiguous,all questioning must cease.” (/bid.) Here, as in Smith v. Illinois, there was no need to clarify what Mr. Sauceda-Contreras wanted, because what he wanted was manifest: a lawyer, someone to represent him, during questioning. There was no need for Trapp to try to determine what Mr. Sauceda-Contreras really wanted to do; he had just told her what he wanted to do. As in Smith v.Illinois, the detective was not permitted to continue andrephrase the question slightly in order to obtain a more favorable answer, but was required to cease questioning. Respondentrelies almost entirely on Williams, supra, 49 Cal.4th 405. However, as the Court of Appeal found, this Court’s decision in Williams is inapposite for a numberofreasons. (Typed opn., p. 20.) In Williams, police advised defendant of his Miranda rights, asked if he understood them, and defendant answered affirmatively. Police then told defendantabouthis right to silence and explicitly asked if he waived the right, to which he answeredaffirmatively. Police told him abouthis right to speak to an attorney and have onepresent during questioning, explicitly asked if he waived the right, and defendant asked, “You talking about now?” The officer, asked “Do you want an attorney here while youtalk to us?” and defendant answered “Yes,” but, when asked if he was sure and when a second officer commentedthat he did not wantto talk to them,the defendantsaid, “Yeah, I'll talk to you right now”and agreed to do so without an attorney. (49 Cal.4th at p. 426.) Oneofficer testified that 37 defendant appeared confused concerning the availability of counsel and that the officer was attempting to resolve the confusion. (/d. at p. 423.) The Court reasoned that, when asked if he would relinquish his right to an attorney, defendant responded with a question concerning timing. (/d.at p. 429.) Based on his intent to answer questions, shownby his waiver of the right to silence, the confusiontestified to by the officer, and the question about availability of an attorney, this Court found his response ambiguous, as a reasonable officer would be unsure if he intended to invokehis right to counsel. (/bid.) As the Court of Appeal found, Williams is not controlling because Mr. Sauceda-Contreras never waived his to silence, Trapp asked but a single compound question, and Mr. Sauceda-Contreras responded not with a question but with an affirmative, declarative statement. (Typed opn., p. 20.) Trapp did not interpret the response as a question, as she did not explain whether a lawyer could be brought. Instead, having failed to initially secure a waiver, she simply asked the question again, more forcefully, “by suggesting [Mr.] Sauceda-Contreras did not understand the rights he had just demonstrated he understood.” (Typed opn., p. 21.) The Court of Appeal found a// questioning (not merely “badgering”) must cease after an invocation. (Typed opn., p. 21.) Indeed, the police need not badger because Mirandais designed to “dispel whatever coercion is inherent in the interrogation process.” (Davis, supra, 512 U.S. at p. 460.) 38 Respondentclaimsclarification was necessary based on Mr. Sauceda-Contreras’s postrequest responses to Trapp. (RBOM 19, 26-27.) So does the dissent in the Court of Appeal, which relied upon Trapp’s slight modification of her question, adding whether Mr. Sauceda-Contreras was willing to speak to police “right now without a lawyerpresent.” (Typed opn., pp. 1-2 (dis. opn.).) However, “postrequest responsesto further interrogation maynotbe used to cast retrospective doubt on the clarity of the initial requestitself.” (Smith v. Illinois, supra, 469 U.S. at p. 100.) The interrogator cannot proceed “on his own termsandasif the defendant had requested nothing, in the hope that the defendant might be induced to saying something casting retrospective doubt on the clarity ofhis initial statement.” (/d. at p. 99.) Mr. Sauceda-Contreras’s initial invocation was clear, and respondent cannot rely upon postrequest responses to makehis invocation look unclear. Rather than scrupulously honoringhis right to cut off questioning, Trapp continued to question Mr. Sauceda-Contreras, telling him “O.K. maybe you did not understand yourrights correctly.” (Court’s Exhibit Nos. 1C, 1B.) Mr. Sauceda-Contreras had fully understoodhis right to have an attorney present, as he had just demonstrated by asking for the presence of one. However, Trapp explicitly questioned the accuracy ofhis understanding ofhis rights and implicitly challenged the correctness of his exercise of those rights. Had Trapp actually believed he did not understand 39 his rights, she would have explained those rights to him again, rather than telling him he did not understand and then asking him the same question slightly rephrased. This wasnotclarification, but gamesmanship. Trapp clarified nothing except her desire to have Mr. Sauceda-Contreras continue the interrogation. After her correction and re-questioning of him, Mr. Sauceda-Contreras would have been underthe impression that, because his initial understanding ofthe right to an attorney andhis exercise ofthat right had been questioned by authorities as incorrect, he must have wrongly understood and exercised his rights. Onepurpose of the Miranda-Edwards guarantee is to protect “the suspect’s desire to deal with the police only through counsel.” (People v. Gonzalez, supra, 34 Cal.4th at p. 1123.) Thus, although Mr. Sauceda- Contreras had communicatedhis “desire for the assistance of an attorney in dealing with custodial interrogation by the police” (McNeil v. Wisconsin, supra, 501 U.S.at p. 176), Trapp challenged his decision by telling him he did not correctly comprehendedhis rights, which was also a wayoftelling him he had not correctly exercised his rights. There is no ambiguity here based on uncertainty, no prefacing of his 99 66request with “I think,” “maybe,” “perhaps,” or “I reckon.” (Davis, supra, 512 USS.at p. 462 [“maybeI should talk to a lawyer” ambiguous]; People v. Stitely (2005) 35 Cal.4th 514, 533 [“I think it’s about time for me to stop talking” ambiguous].) There is no ambiguity here based on confusion, such 40 as asking for advice. (People v. Roqguemore (2005) 131 Cal.App.4th 11, 23 [“‘Can I call a lawyer or my mom to talk to you?” ambiguous].) There is no ambiguity here based on expressing frustration. (People v. Stitely, supra, 35 Cal.4th at p. 535 [“I think it’s about time for meto stop talking” ambiguous].) There is no ambiguity here based on indecisiveness. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 155 [“There wouldn’t be (an attorney) running around here now, would there . . . I just don’t know what to do” ambiguousin context of previous assertion he wanted to confess].) Here, the police failed to cut off questioning. The Supreme Court created a bright-line rule that “a// questions must cease” immediately after an accusedasserts his rights under Miranda. (Smith v. Illinois, supra, 469 US. at p. 98 [105 S.Ct. 490, 83 L.Ed.2d 488], emphasis original; Farev. Michael C. (1979) 442 U.S. 709, 719 [99 S.Ct. 2560, 61 L.Ed.2d 197] [describing rule as “rigid”’].) The interrogators are not allowed to ask further questions until the accused has an attorney present, once the accused has asked for counsel. Interrogators are not permitted to ask just a few more questionsor test a defendant’s invocation; all questioning must come to an end at once. The critical safeguard of Mirandais that interrogation immediately conclude upon invocation. (Michigan v. Mosley (1975) 423 U.S. 96, 103 [96 S.Ct. 321, 46 L.Ed.2d 313].) The admissibility of statements taken after invocation depends on whetherthe “right to cut off questioning” has been “scrupulously honored.” (/d. at p. 104.) Here, Mr. 41 Sauceda-Contreras invokedhis right to counsel, and his right to silence in the absence of counsel, but interrogators did not end questioning. The requirement that the police cease interrogation without an attorney’s presence following a suspect’s invocation of the right to counsel, is premised on the belief that more questioningat that point is coercive, even if the questioning is about the suspect’s Miranda rights. The requirement that questioning cease prevents “police from badgering a defendant into waiving his previously asserted Miranda rights.” (Michigan v. Harvey, supra, 494 U.S. 344, 350: see also People v. Crittenden (1994) 9 Cal.4th 83, 128.) Such coercion need not amountto harassing the defendant; Miranda acknowledgesthe possibility of “subtle” coercion. (384 U.S. at pp. 473-474.) When the initial response is an invocation, any change of mind results in a valid waiver only if officers have not improperly cajoled the waiver. In People v. Marshall (1990) 50 Cal.3d 907, the suspect initially invoked the right to counsel but immediately changed his mind without intervention by police. (Id. at p. 925.) Thus, underthose circumstances, it was acceptable under Miranda for officers to take a waiver and then to interrogate. (/bid.) Here, the police persisted after Mr. Sauceda-Contreras had invokedhis rights, and Mr. Sauceda- Contreras did not independently change his mind. Trapp did not honor Mr. Sauceda-Contreras’s clear request, but prevailed upon him,telling him “Okay, perhaps you didn’t understand yourrights,”i.e., his invocation of 42 his right meant he must not have understoodhis rights and implyingthat, otherwise he would, of course, have agreed to talk to police without an attorney. This was cajolery and overreaching. Mr. Sauceda-Contreras did not change his mind of his own accord; rather any change of mind wasthe result of the unwarranted police perseverance andrefusal to honorhis invocation. Trapp improperly persisted, and Mr. Sauceda-Contreras’s subsequent accession to her repeated requests was not knowing,intelligent, and voluntary. 3. Mr. Sauceda-Contreras did not expressly waive anyof his Miranda rights. Here, respondent misleadingly claimsthat the interrogator asked for an express waiverofhis rights when it says “[w]hen defendant wasasked if he was willing to give up those rights and talk to the detective... .” (RBOM 19.) Police never explicitly asked Mr. Sauceda-Contreras whether he was waiving or willing to give up either his right to counsel or his right to silence or even whether he was willing to waive his “Miranda rights.” Police never requested or obtained an express waiver before orafter his invocation. Respondent has not met its “heavy burden” of showing an express waiver, nor could respondent do so on these facts. Respondent appears to be relying upon an implied waiver by Mr. Sauceda-Contreras. 43 4. Mr. Sauceda-Contreras did not impliedly waive anyofhis Mirandarights. Miranda required an express waiverof the rights to counsel and to silence. (384 U.S. at pp. 475-476.) Subsequent cases accepted an implied waiverofthose rights, under certain limited circumstances. (Butler, supra, 441 U.S. at pp. 375-376; People v. Whitson (1998) 17 Cal.4th 229, 247- 248.) There is a presumption the defendant did not waivehis rights, but in some cases waiver can be “clearly inferred” from the defendant’s actions and words, but the government muststill prove the waiver was knowing, intelligent, and voluntary. (Butler, supra, 441 U.S. at p. 373.) Despite respondent’s reliance on implied waiver, however, respondent does not discuss the concept nor meetits “heavy burden” of showing that there was a valid implied waiver. The waiver must be both knowing andintelligent and voluntary, two distinct components. (Moran, supra, 475 U.S. at p. 421.) The issue of waiveris determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Butler, supra, 441 U.S. at pp. 374-375.) Here, there was no valid implied waiver because the government cannot makean affirmative showing that Mr. Sauceda-Contreras’s subsequent agreementto talk to detectives without an attorney present and his doing so constituted a knowing and intelligent and voluntary waiver under the circumstances. 44 Any implied waiveris not valid because respondenthas not shownit was knowing andintelligent. As respondent concedes, Mr. Sauceda- Contreras had a limited education (RBOM 27), which would have limited his ability to understandhis rights. Respondent also concedes he spoke “broken English” (RBOM 27) and, although the advisals were given in Spanish, his limited English ability meant his general knowledge of Miranda was morerestricted than that of most Americans. There is no evidence that Mr. Sauceda-Contreras was a repeat offenderoratall experienced with custodial interrogation and his constitutional rights. As a Mexicannational, he would not have been familiar with the American legal system. His comprehensionandability to express himself were certainly limited at times, such as when he had no word for faucet or shower (4 CT 891 [“thing with the water”]) or mouth-to-mouth resuscitation (3 CT 667- 668 [‘“Show they put air in the mouth”]. Furthermore, his understanding would have been belied by Trapp’s telling him his understanding and exercise were wrong. Anyimplied waiveris not valid because respondent has not shownit was voluntary. As a threshold matter, when,as here, a suspect believes he is not capable of undergoing questioning without the guiding hand of counsel, there is a presumption any subsequent waiveris at the authorities’ behest. (Arizona v. Roberson (1988) 486 U.S. 675, 681 [108 S.Ct. 2093, 100 L.Ed.2d 702].) 45 Respondent suggests that only coercion or deception renders a Miranda waiver involuntary. (RBOM 31.) Not so. Although Trapp did engage in deception, overreaching is another ground which renders a waiver involuntary. (Colorado v. Connelly (1986) 479 U.S. 157, 170 [107 S.Ct. 515, 93 L.Ed.2d 473] [“voluntariness of a waiver .. . has always depended on the absence of police overreaching”].) In fact, the core purpose of Miranda remains the prevention of government overreaching. (United States v. Balsys (1998) 524 U.S. 666, 691-692 [118 S.Ct. 2218, 141 L.Ed.2d 575].) “Overreaching”is “[t]he act or instance of taking unfair. . . advantage of another, esp. by fraudulent means.” (Black’s Law Dict. (9th ed. 2009) p. 1213, col. 2.) Here, there was deception and overreaching in obtaining any implied waiver. As set forth earlier, Trapp understood Mr. Sauceda-Contreras’s request perfectly well, because otherwise her response would have been to say she did not understand what he wassaying, rather than he did not understand his rights correctly. He had just demonstrated he fully understood his right to have an attorney present by asking for the presence of one. However, Trapp explicitly questioned that understanding and implicitly challenged the correctness of his exercise of those rights. Had Trapp actually believed he did not understand his rights, she would have explained those rights to him again, rather than telling him he did not understand and then asking him the same question slightly rephrased. She weakened his understanding of his rights and underminedhis exerciseofit. 46 Although he then accededto her repeated request, that accession wasfar from voluntary. Essentially, he gave in to her insistence he did not understand and to her implication that the interrogators expected answersto their questions now,regardless of what she may havetold him about any rights. Further, Trapp was not a disinterested translator, but a police detective in her ownright. She translated initially, but then gave the Miranda advisals and asked related questions on her own, not as Blazek’s translator. (Court’s Exhibit Nos. 1B, 1C.) The lack of neutrality weighs against voluntariness. Moreover, because Mr. Sauceda-Contreras was a Mexican national, the detectives should have advised him ofhis right to speak with a Mexican consular representative before speaking to police. (Vienna Convention on Consular Relations, art. 36; Pen. Code, § 836c.) Although suppression is not a remedyfor this violation (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 [126 S.Ct. 2669, 165 L.Ed.2d 557]), such a claim can beraised as part of a broader challenge to the voluntariness of statementsto police (id. at p. 350). By analogy, police failure to advise Mr. Sauceda-Contreras ofhis right to consult his consular representation, which is meant to ensureheis fully informedofhis legal rights and legal options, tends to further show the waiver wasnot voluntary. 47 Respondent has not shownthat any implied waiver wasvalid because it was both knowing and intelligent and voluntary. E. Conclusion. Respondent has not met its heavy burden to show an express waiver or a valid implied waiver. Respondenthasalso failed to show ambiguity in Mr. Sauceda-Contreras’s invocation permitting clarification or that police scrupulously honored his invocation. This Court should affirm the decision. 48 I. THE COURT OF APPEAL CORRECTLY FOUND ADMISSION OF THE STATEMENTS WAS NOT HARMLESS BEYOND A REASONABLE DOUBT. Under Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (“Chapman’’), reversal is required unless the government can show that introduction of the erroneously admitted statements was harmless beyond a reasonable doubt. (/d. at p. 24; People v. Sims (1993) 5 Cal.4th 405, 447.) This Court does not determine whether a guilty verdict would have been renderedin trial without the erroneously admitted statements, but “whetherthe guilty verdict actually renderedin this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [113 S.Ct. 2078, 124 L.Ed.2d 182], emphasisoriginal.) The Court of Appeal wasright when it found the government had not proven the error harmless beyond a reasonable doubt. The case was close. There was no evidence of a definitive cause or manner of death, and there were lethal doses of methamphetamine in Ms. Mendoza’s body. The jurors were deeply troubled, as shown by deliberations almost twice as long as evidence presentation. The statements were indispensable to the prosecution’s proof and argument. Respondenthasfailed to carry its 49 burden to show the error was harmless beyond a reasonable doubt,as it failed in the court below.° There is no question the prosecution made Mr. Sauceda-Contreras’s statements from the interrogation the centerpiece of its case against him. The prosecutor played the interrogation tapes before the jury for two hours, 35 minutes -- one-quarter of the total evidence presentation time. (2 CT 426-432, 433-436, 438-441.) The prosecutor presented other evidence to rebut the statements, such asthefirefighters, several forensic technicians, the pathologist, and the interrogator. The prosecutor spent 40 percent of his closing argument referencing Mr. Sauceda-Contreras’s statements, reviewing their details with the jury, and picking them apart. (3 RT 482, 485, 488, 493-514, 517-520, 523-529.) The prosecutor re-played nine different excerpts from the tapes during closing argument. (3 RT 488, 497, 499, 500.) There is no reason for this Court to treat this evidence as any less crucial than the prosecutor viewedit or as any less pivotal than the jury would have regarded it based on the prosecutor’s reliance. (People v. Valentine (2001) 93 Cal.App.4th 1241, 1246.) The prosecutor’s recurring theme in this murdertrial -- a case lacking a cause of death, manner of death and any direct physical evidence -- was consciousness of guilt, based on Mr. Sauceda-Contreras’s false * The Court of Appeal noted “the Attorney Generalfails to respond to Sauceda-Contreras’s contention he was prejudiced by admission ofthe interviews.” (Typed opn., p. 22.) 50 statements and burning the body. (3 RT 500, 501, 502, 516, 517, 519, 528, 576, 582, 583, 586.) In addition to the statements, the prosecution presented as much evidenceas possible to show that these statements were false and that Mr. Sauceda-Contreras wasa liar. The prosecutor then argued that Mr. Sauceda-Contreras should be found guilty because his own statements established the manner and cause of death,i.e., his statement that he found Ms. Mendoza with his belt around her neck showed that he had strangled her with that belt. (3 RT 476, 521-522.) The prosecutor discounted the admittedly fatal levels of methamphetaminein Ms. Mendoza’s body based on the statements, saying “We know it’s not a drug overdose. We knowit was not a drug overdose. We know that from the defendant’s statement about what happened.” (3 RT 585, 521, 523.) The prosecutor also argued that Mr. Sauceda-Contreras should be found guilty, because some statements were inconsistent with other statements (3 RT 495) or inconsistent with the other evidence (3 RT 505, 506, 507, 508). “Our case,” the prosecutor argued, “‘is all the lies and the deceit and the attempts to destroy the evidence” (3 RT 584; see also 3 RT 482, 484, 487, 491, 492, 494-494, 495-496, 499-500 [“‘it’s all, all a lie”], 501, 502, 505, 510, 525, 528, 576-577, 583, 586.) Closing arguments are relevant to prejudice (People v. Chavez (2004) 118 Cal.App.4th 379, 388; People v. Lee (1987) 43 Cal.3d 666, 677), and, here, the prosecutor concentrated on the statements, used them to 51 fill crucial evidentiary gaps, and relied upon them to paint Mr. Sauceda- Contreras as deceitful and guilty of premeditated and deliberate murder. An obviousindication of a close case is lengthy jury deliberations, as this Court stated in People v. Cardenas (1982) 31 Cal.3d 897, 904-907. (See also People v. Cooper (1991) 53 Cal.3d 771, 837; Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612.) Where the length ofjury deliberations exceeds the length of the evidentiary phase,it is a compelling indicator of prejudice. (People v. Filson (1994) 22 Cal.App.4th 1841, 1852, overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.) Here, the case wasvery close, as shownbythe jury deliberations of 18 hours over five days on only one count with no enhancements, almost twice as long as the 10-hour presentation of evidence. (2 CT 426-432, 433-436, 438-441, 443-448, 513-514.) Confessions are considered evidentiary bombshells. (People v. Cahill (1993) 5 Cal.4th 478, 497.) The statements here were not admissionsof guilt, but rather recitals of facts that the prosecutor argued established guilt. Nonetheless, statements by a defendant, the person who sits before the jury every day as the focusofthe trial and about whom the jury must makeits grave decision, naturally have significant impact, especially when, as here, a defendant doesnot testify. Furthermore, just like a wrongly admitted confession, a wrongly admitted admission forces the defense “to devote valuable trial resources neutralizing the [admission] 52 or explaining it to the jury, resources that could otherwise be used to create a reasonable doubt as to someother aspect of the prosecution’s case.” (Rice v. Wood (9th Cir. 1996) 77 F.3d 1138, 1142.) Murderrequires, in addition to the death of a human being,an unlawfulact that is the proximate cause of that death. (People v. Schmies (1996) 44 Cal.App.4th 38, 47-48.) Proof of criminal agencyis indispensable. Here, the prosecutor presented noaffirmative proofthat death resulted from criminal agency. The government’s own expert forensic pathologist testified at trial that he could not determine the cause of death andlisted it as “undetermined.” (2 RT 330-332.) The pathologist could not determine the mannerof death, which, in his opinion, could have been accident, homicide, or suicide. (2 RT 333, 343-344.) The toxicology laboratory founda fatal level of methamphetamine in Ms. Mendoza’s liver, and the pathologist testified he would have declared an overdose as the cause of death, were thermal injuries absent. (2 RT 364-365, 368.) Although healso opined that the concentration of methamphetamine might have been altered by heat, neither he nor the laboratory could say whether that had actually happenedor, if so, to what extent. (2 RT 328-329, 376, 360, 366, 369-370, 373, 375.) Further, the liver cross section tested was taken from deep within the liver and showednosignificant thermal changes. (2 RT 358-359.) If the prosecutor did not have the statements of Mr. Sauceda-Contreras to spin into a speculative cause and mannerof death 53 -- homicidal ligature strangulation -- any inference of criminal agency would have been absent. Respondent argues any error in admitting Mr. Sauceda-Contreras’s statement to police was harmless beyond a reasonable doubt becausethe remaining evidence showed (1) a violent domestic relationship, (2) a struggle inside the house, (3) Ms. Mendoza’s blood on the floor of the bathroom, (4) scratches on Mr. Sauceda-Contreras, (5) Ms. Mendoza’s DNA on Mr. Sauceda-Contreras’s belt, and (6) the risky and incriminating manner in which Mr. Sauceda-Contreras attempted to destroy the body. Respondent’s contentions can be disposed of speedily. First, respondent points to evidence it characterizes as “consistent with a violent domestic relationship.” (RBOM 35.) This evidence was Ms. Mendoza’s sister testifying Mr. Sauceda-Contreras had threatened to beat Ms. Mendoza on oneoccasion, yet had not touched her and, on another occasion, he hadtold the sister he would rather see Ms. Mendoza dead than lose her, but again had not touched her. However, as the Court of Appeal recognized, the sister “was not the most credible witness as she did not report the [second] threat[] to law enforcementofficers when they interviewed her”(typed opn., p. 22), and the prosecutor downplayed her testimony about the second episode as well. (3 RT 514.) The third occasion was the neighbors’ overhearing what sounded like Ms. Mendoza being shovedinto a wall, after apparently pressuring Mr. Sauceda- 54 Contreras to give her money and then goading him to hit her the day before. (1 RT 122-125.) This evidence alone would not have supported guilt, but the prosecutor wove this weak and somewhatequivocal domestic violence evidence with Mr. Sauceda-Contreras’s own statements to convey “a long history of violence between them” (3 RT 510-511) portraying Mr. Sauceda- Contreras as an “abusive, controlling individual” (3 RT 511). Second, respondent relies upon “indications of a struggle inside the house, with the bedroom in disarray and the mattress slightly off the box spring.” (RBOM 35, citing 1 RT 249.) The mattress is perhaps one to four inches off the box spring (People’s Exhibit Nos. 35, 36, 37), as happens whenonestrips a bed. The mattressis stripped, with sheets, blankets, and other clothes piled on a chair,as if it is laundry day. (People’s Exhibits No. 36, 37.) The entertainment unit, with its television, DVD’s, and knickknacks, is undisturbed. (People’s Exhibit Nos. 38, 39.) The photographs show the appearanceofthe bedroom does not amountto slight untidiness, let alone showsignsofa struggle. Third, respondent notes that Ms. Mendoza’s blood wasfound on the bathroom floor. (RBOM 35, citing 1 RT 255-256, 2 RT 387-389; see People’s Exhibit Nos. 48, 49 [evidence marker B].) The evidence does not show Ms. Mendoza’s blood elsewhere in the house. The photographs show the blood is a very small smudge, which could have occurred naturally or happened during the fight the neighbors overheard. (1 RT 122-125.) Other 55 unknownindividuals’ DNA waspresent in the blood. (1 RT 255, 259, 270, 2 RT 386-389.) The pathologist ruled out trauma as a cause of death (2 RT 323-324), and the prosecution relied upon a bloodless ligature strangulation as the cause of death. The prosecutor never explained whatfatal injury (or even domestic violence injury) could haveleft so little blood. Fourth, respondent points to evidence that there were scratches on Mr. Sauceda-Contreras.’ (RBOM 35-36.) The photographsspeak for themselves-- the small abrasion on his head is almost undetectable (People’s Exhibit No. 9D), the facial injuries are nearly indiscernible (People’s Exhibit Nos. B, C), and the small cuts on both handsare not fresh and are consistent with being a restaurant worker (People’s Exhibit Nos. 9E, 9F). The only fresh, significant mark is a scratch on his upper chest (People’s Exhibit Nos. 9B, 9C). However, that scratch aloneis insufficient to show guilt and could have been caused by the wood or box springs ofthe mattress placed next to the trash can (1 RT 159, 234-2235) or by one ofthe many metal objects he used while burning her body (1 RT 232-233, 236, "Respondent inadvertently cites as evidenceat trial the preliminary hearing testimony. (RBOM 36,citing 1 CT 289.) The cited testimony wasnot before this jury and certainly cannot be relied upon by this Court in evaluating harmless error. Similarly, respondent cites the description of some photographsas recorded by the clerk on the “Exhibit List.” (RBOM 36, citing 2 CT 513.) The Exhibit List and its descriptions of exhibits are also not part of the evidence before the jury and cannot be relied upon by this Court for prejudice analysis. 56 244); it could also have occurred during the fight overheard by the neighbors the day before (1 RT 122-125). Fifth, respondent admits the pathologist could not determine if Ms. Mendozahadbeenstrangled, but nonetheless points to two facts supporting that conjecture, that Ms. Mendoza was a major contributor to DNA found on the inside third of Mr. Sauceda-Contreras’s belt, near the buckle (RBOM 35, citing 2 RT 394) and that there was a “noticeable indentation” 11 inches from the buckle (RBOM25,citing 1 RT 214). The prosecutor speculated in closing argumentthat 11 inches was the approximate circumference of a skinny person’s neck (2 RT 522-523), but there was no testimony establishing that nor any evidence that Ms. Mendoza wasskinny or had a particularly skinny neck. More importantly, the measuring tape laid sloppily next to the belt extends beyond the buckle; a more accurate estimate to the “indentation” would be nine to ten inches, far too smal! for even a very skinny neck. (See People’s Exhibit Nos. 62, 63) Further, the belt, when viewed, was extremely worn, with breakage, curling, and warping from wear. (1 RT 224-225; People’s Exhibit Nos. 62, 63.) Characterizing what appears to be mere warping as an “indentation,” and conjecturing that the “indentation” was caused by a few minutes of pressure, yet visible a yearlater, is not credible proof. An old, well-used belt could have warping or “indentation” for many reasons. The prosecutor’s speculation that the force used wasso “tremendous” (3 RT 57 523) that it permanently distorted the belt is contradicted by evidencethat, if strangulation had occurred, solittle force was used that there was no hemorrhaging in the deeper muscles of the neck (2 RT 350-351, 357) and no fractured hyoid boneor thyroid cartilage (2 RT 354), as shownby the pathologist’s evidence. As to DNA,the expert testified DNA can be transferred to an item, like the belt, by touch or transfer. (2 RT 379-381, 398-399.) Ms. Mendoza’s DNAcould have been on the belt because she or her belongings had contact with it or Mr. Sauceda-Contreras had touched her and thenit. Significantly, the DNA analyst performed no frequency estimate as to Ms. Mendoza’s DNA (2 RT 388), so it is unclear how often a match to her DNAmight be expected to occur in the general population. Sixth, echoing the prosecutor’s argument below (3 RT 505, 510, 526), respondentrelies upon the burning of the body to show that “defendant was willing to destroy evidence and lie to governmentofficials to protect himself,” that, had she died from an accidental drug overdose, he would have no motive to burn her body in such a “risky and incriminating manner,” and that he could only have done so to eliminate evidence he had murdered her. (RBOM 34, 36.) The prosecutor also argued that “[h]e doesn’t act like one would expect an innocent person to act” and burning a body showed consciousness of guilt. (3 RT 516.) 58 Whena prosecutor depends upon destruction of evidence as consciousnessof guilt, the question becomes-- guilt of what? This Court has recognized that consciousnessof guilt evidence is not a permissible inference for legal guilt of the crime charged (i.e., the ultimate determination ofthe truth or falsity of the criminal charges), but is instead a permissible inference for non-legal, moral, or psychological guilt of some wrongdoing. (People v. Crandell (1988) 46 Cal.3d 833, 871; People v. Arias (1996) 13 Cal.4th 92, 142.) Mr. Sauceda-Contreras possessed a plethora of moral and psychological guilt -- he had tried to end a long-term, deeply troubled relationship with a methamphetamine addict; he had failed to save Ms. Mendoza or her children from her drug addiction and prostitution. Asan illegal immigrant (4 RT 924), with two brothers who also may have beenhereillegally as well, he would naturally be worried that a dead bodyin his house, even one he did not kill, would haveled to their deportation. He could easily and simply have panicked. Most importantly, even if one could infer legal guilt of homicide from destruction of the body, consciousness of guilt would not have answered the question of the degree of homicide. As this Court has explained, although consciousness-of-guilt evidence in a murder case may bear on a “defendant’s state of mind afterthe killing, it is irrelevant to ascertaining defendant’s state of mind immediately prior to, or during, the killing.” (People v. Anderson (1968) 70 Cal.2d 15, 32, emphasis original.) 59 “Evasive conduct showsfear: it cannot support the double inference that defendant plannedto hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation.” (/bid.) Fear may have motivated Mr. Sauceda-Contreras to burn Ms. Mendoza’s body, butit could not establish his state of mind for purposes of commission of a homicide, much less commission of deliberate and premeditated first degree murder. Lastly, respondent mentionsthat, during the interrogation, Mr. Sauceda-Contreras “never wavered from his position that he had nothing to do with [Ms.] Mendoza’s death.” (RBOM 37.) While this Court has found prejudice arguments questionable where the defendant’s statements bolstered an exculpatory claim (People v. Bacon (2010) 50 Cal.4th 1082, 1108), that is not the situation here. In People v. Bacon, the defendant had admitted consensual sex with the murder victim during the legal part of his interrogation and madea second admission during the subsequent challenged interrogation. (bid.) Not only did the jury have the unchallenged admission of consensual sex, but also the second admission addeddetails that bolstered the admissions. (/bid.) Here, while Mr. Sauceda-Contreras made exculpatory statements, they were contradictory or false, and the prosecution relied upon this series of negativesto create its positive proof. 60 Respondent has not shownthat the admission of the statements was harmless beyond a reasonable doubt. The prosecution relied heavily on the statements in evidence and in argument. The remaining evidence against Mr. Sauceda-Contreras wasflimsy, particularly as to criminal agency and premeditation and deliberation. The theme that Mr. Sauceda-Contreras was guilty becausehelied to police wascritical to the prosecution’s case, precisely because the remaining evidence of guilt was so equivocal as to homicide and so completely lacking as to the degree of homicide. The evidence highlighted by respondentin its brief is minimally probative, equally consistent with absolute innocence, or incapable of establishing the degree of homicide. The jury was deeply troubled by the case and took a very long time to deliberate. There is substantial scope for doubt and misgivings. Reversal is mandated. 61 Il. IN THE ALTERNATIVE, THIS COURT SHOULD REMAND THE CASE TO THE COURT OF APPEAL FOR CONSIDERATION OF THE UNDECIDED ISSUES ON APPEAL. On appeal, Mr. Sauceda-Contreras raised six other issues, including erroneous denial of his suppression motion (Appellant's Opening Brief (AOB) 44-55), constitutionally insufficient evidence of commission of an act causing death (AOB 56-65), constitutionally insufficient evidence of premeditated and deliberate murder (AOB 66-80), constitutionally impermissible inference of guilt created by CALCRIM No. 362 (AOB81- 96), cumulative error (AOB 97-99), and independent review of subpoenaed documents not released to the defense (AOB 100-102). Because the Court of Appeal reversed the judgment,it did not address these claims. (Typed opn., p. 2.) Were this Court to reverse the judgment of Court of Appeal, this Court should remandthe case to the Court of Appeal for determination of these issues. 62 CONCLUSION This Court should affirm the decision of the Court of Appeal that Mr. Sauceda-Contreras’s statements were admitted in violation of his constitutional rights under Miranda andthat the governmentfailed to show their admission harmless beyond a reasonable doubt. In the alternative, this Court should remandthe case to the Court of Appealfor determination of the undecided issues. Dated: November 10, 2011 Respectfully submitted, /s/ Diane Nichols Attorney for Jose Sauceda-Contreras 63 CERTIFICATION OF WORD COUNT I hereby certify the number of words in Appellant’s AnswerBrief on the Merits is 13,995, based on the calculation of the computer program used to prepare thisbrief. Dated: November 10, 2011 /s/ Diane Nichols 64 APPENDIX “A” Court’s Exhibit No. 1C Copy of Defense Counsel’s Tape Transcription Dated 1/10/2007 PUBLIC DEFENDER ORANGE COUNTY TAPE TRANSCRIPTION DEFENDANT: JOSE SAUCEDA-CONTRERAS 5 PD TAPE NO.: amor OVE S case no: Opa1- CHARGE: 187 INVESTIGATOR: ATTORNEY(S): WAITE TRIAL DATE: NOT YET SET INTERVIEW DATE: outoo7 = |. QoP™- LEGEND: JP Q: DETECTIVE attorney present before and during the interrogation. Do you Understand? Yes, I understand. A: If you would like an attorney and I: cannot afford one. One can © appointed to you with no charge before the interrogation if you wish. Do you understand? Yes, I understand. A: Havingthese rights that [have just I: read you. The detective would like to know if he can talk to you now? Ifyou can bring me a lawyer, 1,1, A: that way I know with who,it’s that this way I can tell youeverythin that I know and everything thatI —— needto tell you. And have oo Plearg JOSE SAUCEDA-CONTRERAS 3 JOSE SAUCEDA-CONTRERAS TAPE NO.: S148-07 Si. Usted tiene derecho a tener presente un abogado antes y durante su enterratorio. Entiende usted? Si, entiendo. Si usted quiere un abogado y no puede pagarlo se le puede nombrar uno gratis antes del enterratorio si usted lo desea. Entiende usted? Si, entiendo. Teniendo estos derechos en mente quele acabo de leer. El detective quiere sabersi él puede hablar con usted horita? Si me puedetraer un abogado,yo, yo, asi ya se dé con quien, es que, ya asi le puedo decir todo lo que yo se y todo lo que necesito decirle y alguien que merepresente. Porlo. menos 2A « a * \ I: DEFENDANT: INTERVIEWEKE(s): INTERVIEW DATE: 1-10-07 I; O.K. maybe youdid not \F . understand yourrights correctly. Whatthe detective wants to know now is if youare willing to speak with him now without an attorney present? A: Oh, oh, 0.k. That’sfine: I: The choice is yours. A: Yes. I: Is this O.K. A: Ah huh.It’s fine. I: Do you wantto speak with him now? A: Yes. I: I did explain his, well about the attorney, I will explain everything. I wanted to make sure he didn’t understand me correctly. The detective wants to know if you wantto talk to him right now. Without an attorney present and he said yes. JOSE SAUCEDA-CONTRERAS 4 JOSE SAUCEDA-CONTRERAS TAPE NO.: S148-07 O.K. a lo mejor no entendio bien ae sus derechos. Lo que el detective ply quiere saber orito es que si usted esta dispuesto a hablar conel horita, sin un abogado presente? Oh,oh, o.k esta bien. es, es la decision es deusted. Si. Esta bien? Ah huh,esta bien. Quiere hablar conel horita? Si. APPENDIX “B” Court’s Exhibit No. 1B Copy of Prosecution’s Tape Transcription Dated 1/10/2007 COURTROOM. ieee e o S D N a W w t w \ O o o ay Anaheim Police Department Date: ~ a Time: DR: # 07-5034 Location: Personspresentin the interview are: Detective: Robert Blazek (RB) Julissa Trapp (JT) Elizabeth Faria (EF) Unidentified Maile 1 (UM1) Suspect: Jose Sauceda (JS) - Transcribed by Linda Lock, P/T Word Processing Operator, Auto Theft/Warrant Detail. All Spanish will be placed in () & bold. [Start of Tape 1- Side A] (UM1) (Es de mano derecha 0 izquierda.) Are you right handedorleft handed? (EF) (Con que escribes?) ~—_ Which do youwrite with? (JS) (Con la derecha.) oo - With the right. . (UM1) (Okay dame!a otra. Esta bien? No te esta apachurrando?) Okay give methe other one. I|s it all right? It’s not squeezing you? (JS) No (EF) (Horrita hablamos con tigo en un momento,okay.) “We'll speak with you in just a moment, okay. a N w a - _ w e h o ~ . 2| [ Detectives leave the room] - [Detectives enter the room} (RB) (JS) (RB) (JS) (JT) (JS) (RB) (JT) (RB) (JT) (RB) (JT) Jose? A huh Hi, 'm Detective Blazek, Detective Trapp. (Hola, buenastardes yo soyia Detective Trapp.) Hello, good afternoon | am Detective Trapp. (Buenas tardes comoesta?) Good afternoon how are you? (Yo voy a traducir para usted okay?) {'m going to translate for you okay? (Okay esta bien.) Okay that’s fine. We'dlike to talk to you. . (El Detective quiere hablar con usted.) The detective wouldlike to speak with you. But because you've been handcuffed and transported in a police car... (Pero porque esta esposadoy lo trajeron aqui en un carro de policia) But because you're handcuffed and they brought youin the police car we have to advise you of somerights. (Le quieroavisar usted de unos derechosquetiene usted.) -“¥ o n = ~ ) . G A s it ote O o ~ d a n w a - t o X O 25 26 ie 27 28 30 3} 32 33 34 (JT) (JT) (JS) US) i want to advise you ofsome ofthe rights you have. Okay? Okay. (Usted tiene ei derecho de permanecercallado. Entiende usted?) You have the right to remain silent. Do you understand? (A huh,si.) A huh, yes. (Cual quier cosa que usted diga se puede usar en contra usted en unacorte. Entiende usted?) Whatever you say can be used against you in a court of law. Do you understand? (Si.) Yes... (Usted tiene el derecho de tener préSente un abogadoantesy durante su entrega torio. Entiende usted?) You have the right to have a lawyer present before and during this interrogation. Do ee you understand? (Si entiendo) Yes ! understand. | tae (Si usted quiere un abogadopero no puede pagarlo se le puede nombrar uno gratis antes deel integratoriosi usfed lodesea. Entiende usted?) If you would like a lawyer but you cannotafford one, one can be appointed to you for free before the interrogation if you wish. Do you understand? (Sientiendo) - Yes | understand. & W h i n W O C O S I N N w (o o m a m 33 34 (JT) (JS) (JT) (JT) (JS) (Teniendo estos derechos en mente quele acabole leer, el detective quiere sabersi puede el hablar con usted horrita) Having in mind these rights that | just read, the detective would like to knowif he can speak with you right now? (Si me puedestraer un abogado,yo yo asi ya se de con quieneste...ya si le puededecir todo io que yo sey todo lo que necesito decirle y alguien que me represente.) if you can bring me a lawyer, that way | | with who...that way | can tell you everything that | know and everything that | need to tell you and someoneto represent me. (Okay, ala mejor no entiendo bien sus derechos. Um...lo que el detective quiere saber horrita es que usted esta dispuesto a hablar con el horita sin un abogado presente?) Okay, perhaps you didn’t understand your rights. Um...what the detective wants to knowright nowis if you're willing to speak with him right now without a lawyer present? (O, okay esta bien.) Oh, okay that’s fine. (La decision es de usted.) The decisi6n is yours. (Si) --~ Yes. (Esta bien?) it’s fine? (A huh,esta bien) A huh, it’s fine. (JT) N e o 24 25. (JT) 26 27 (JS) 28 29. (JT) 30 31 32. (JS) 33 34 {Quiere hablar con el_horrita) ‘Do you want to speak with him right now? {Si.) Yes. 1 expiained to him, he said, about the attorney, | would tell you everything. | have no probiem talking to you. And ! said well | want to make sure that you did understand me correctly. The detective wants to know if you wantto talk to him right now without an attorney present and he said yes. Okay. What's your name? Jose Sauceda. And your birthdate? (Su fecha de nacimiento?) Yourbirthdate? (Ah, 17 de Febrero...) Ah, February 17... February 16 oom oe 87 (Diez y seis o Diez y siete?) Sixteen or seventeen? {Dies y siete) Seventeen. DECLARATION OF SERVICE PEOPLE OF THE STATE OF CALIFORNIA SUPREME COURTNO. 8191747 v. JOSE SAUCEDA-CONTRERAS COURT OF APPEAL NO. G041831 The undersigned declares: I-am-an attorney duly licensed to practice in the State of California and am not a party to the subject cause. My business addressis P.O. Box 2194, Grass Valley, California 95945-2194. I served the attached APPELLANT’S ANSWERBRIEF ON THE MERITSbyplacing a true and correct copy thereof in a separate envelope for each addressee namedhereafter, addressed as follows: Supreme Court of California Appellate Defenders, Inc. Clerk’s Office, First Floor 555 West Beech Street, Ste. 300 350 McAllister Street San Diego CA 92101 San Francisco CA 94102 Orange County Superior Court Court of Appeal Fordelivery to: Fourth Appellate District, Honorable Richard F. Toohey Division Three 700 Civic Center Drive West, Room P.O. Box 22055 K100 Santa Ana CA 92702 Santa Ana CA 92702 Office of the Attorney General Jose Sauceda-Contreras 110 West “A”Street, Ste. 1100 G55875 P.O. Box 85266 P.O. Box 5006 San Diego CA 92186-5266 Calipatria CA 92233 Each envelope wasthen sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Nevada City, California on November 10, 2011. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. a Date: November 10, 2011 /s/ Diane Nichols