        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                 CARL EDWARD MOLANO,
                  Defendant and Appellant.

                           S161399

               Alameda County Superior Court
                         H38118



                        June 27, 2019

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
                     PEOPLE v. MOLANO
                            S161399


              Opinion of the Court by Corrigan, J.


      Carl Edward Molano was convicted by jury of first degree
murder, with the special circumstance that the murder was
committed during a rape.1 After he waived jury on prior
conviction allegations for spousal abuse with great bodily injury
and two rapes, the court found the allegations true. After the
jury returned a verdict of death, the court imposed that
sentence. This appeal is automatic. We affirm the judgment in
full.
                      I. BACKGROUND
     A. Guilt Phase
      On June 16, 1995, friends of Suzanne McKenna had been
unable to reach her by phone and went to her cottage in
Hayward. Judy Luque knocked on the front door but received
no response. Peering through the blinds, she saw a heavy-set
man with brown hair standing in McKenna’s kitchen, wearing a
blue Pendleton shirt. She yelled to her husband, Jeff, as the
man left through another door. Jeff ran to the side of the cottage
and saw a man walking quickly away, carrying something in his
arms.




1
      Penal Code, sections 187, subdivision (a), 189, 190.2,
subdivision (a)(17)(C). Further unspecified statutory references
are to the Penal Code.


                                1
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Jeff shouted at him and the man began to run. Jeff gave
chase but lost sight of him. Meanwhile, Judy entered the
cottage. There was garbage all over the kitchen floor and a foul
smell. The living room appeared to have been ransacked. Judy
called for McKenna but heard nothing. She left and a neighbor
called 911. Alameda County sheriff’s deputies responded,
searched unsuccessfully for the fleeing suspect, then entered the
cottage. A trail of fecal matter led from the living room to the
bathroom, where they found McKenna’s corpse. There was a
Reebok shoe print on the bathroom floor.
      McKenna’s face was purple. A bra, panties, and a strip of
leather were wrapped around her neck. Rigor mortis had set in.
There was no sign of forced entry. Some fingerprints were
recovered, but none were useful. The deputies found a tin of
condoms, as well as an empty condom wrapper on the couch.
Two tubes of personal lubricant were found nearby. Various
items of McKenna’s property, along with a pair of Reebok shoes,
were discovered in the surrounding neighborhood.
       The pathologist testified that it would have taken “a
couple of minutes” for McKenna to lose consciousness when she
was strangled, and another one or two minutes before she died.
The greatest pressure had been applied to the front of her neck.
One breast bore abrasions that could have come from a blow or
a bite. There were contusions on her face, which could have been
inflicted by a fist or open hand. Abrasions on her back and
buttocks were consistent with having been dragged across the
floor. The vagina and anus showed no signs of trauma.2 Sperm
was detected on a vaginal swab. A toxicology screen showed a

2
     An expert testified that around 40 percent of rape victims
show no sign of genital trauma.


                                  2
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


blood alcohol level of .15 percent, with 40 micrograms per liter
of methamphetamine. The latter level was considerable, and
reflected illicit rather than prescribed usage.
      Biological samples were preserved. Strands of hair were
found wrapped around the strip of leather used as the ligature.
In 1995, the crime lab was not able to do DNA testing. When no
leads developed, the investigation was put on hold.
       In May 2001, defendant’s wife Brenda brought their 13-
year-old son Robert to the sheriff’s station.3 Robert had recently
told his mother about an encounter with defendant in 1995,
when they lived near McKenna, and he wanted to tell the police
about it. While he and some friends were playing outside, he
had seen defendant jogging from the area of the cottages behind
their apartment complex. He knew defendant socialized with
residents at the cottages. About 20 minutes later, Robert and
his friends heard a commotion at the crime scene and decided to
go see what was happening. When he went to a storage unit to
get his bicycle, he found defendant inside, sweating and holding
a barbecue fork. Defendant said he would kill Robert if he told
anyone where he was. Frightened, Robert returned to his
friends.
     Brenda also gave a statement to the police. At 7:00 a.m.
on the day of the investigation, she had been getting ready for
work. Defendant came into the apartment, without his shoes
and appearing nervous. He said that he had been partying with
a couple in one of the cottages, when the man got into an
argument with the woman and choked her to death. Brenda told
defendant to go to the police, but he replied that the man had


3
     Both Brenda and Robert testified at trial.


                                  3
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


threatened to kill his family if he did so. Defendant left the
apartment, wearing a blue Pendleton shirt. Brenda was upset
and called in sick. That afternoon, a sheriff’s deputy came to the
door and told her a suspect had been seen in a neighboring
apartment where someone was killed. Defendant returned
about three hours later, and said he had gone back to the cottage
to wipe away his fingerprints. The dead woman’s brother had
come in and seen him. He ran because he was anxious about
being seen. He changed his clothes, cut his hair, and shaved off
his mustache. He and Brenda drove to the San Leandro Marina,
where defendant threw the Pendleton shirt in the water.
Brenda did not then suspect he was the killer.
     The investigation was reopened after Brenda and Robert
came forward.      Judy Luque identified defendant in a
photographic lineup as the man she had seen. One of the Reebok
shoes found near the cottage tested positive for Brenda’s DNA.
Defendant’s DNA was detected on the leather ligature. The
analyst was unable to recover a DNA profile from the sperm
sample.
      Defendant gave a series of statements to investigating
sheriff’s deputies and the district attorney, as set out more fully
below. He admitted having consensual sex with McKenna and
claimed McKenna had asked him to choke her during the
encounter. He tied her panties and bra around her neck but did
not intend to kill her. Realizing she was dead, he panicked,
dragged her body into the bathroom, and tried to clean up. He
returned to McKenna’s cottage the next day to make sure he
hadn’t left anything inside.
      The prosecution introduced evidence of defendant’s
violence against other women. In 1982, he sexually and


                                  4
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


physically assaulted 19-year-old Anne H. Defendant visited
Anne when her husband was out of town. He was friendly at
first, but when Anne resisted his sexual advances, he forced
himself on her, choking and threatening to kill her. He raped
and sodomized her, then forced her to orally copulate him. He
threatened to kill her unless she agreed he could visit again.
Anne reported the assault and defendant ultimately pleaded
guilty to one count of rape.
      In 1987, defendant sexually assaulted 60-year-old Mabel
L., whom he had known since his childhood. Late one night he
appeared at her door and asked to use the bathroom. Inside, he
knocked Mabel to the ground and raped her. When he drew a
knife, Mabel pleaded for her life and promised not to report the
attack. Defendant stabbed her in the back, knocked her down,
and choked her. Mabel was able to get free and defendant fled.
Mabel reported the assault. Defendant pleaded guilty to forcible
rape and use of a knife.
      In 1996, defendant physically assaulted his wife, Brenda,
choking her to unconsciousness. She awoke to find her wrists
and hands tied and a pillowcase shoved in her mouth.
Defendant returned and again choked her. When she awoke a
second time she was no longer bound and defendant was gone.
It took six months for her voice to return to normal. Defendant
subsequently pleaded guilty to corporal injury on a spouse,
admitting to a probation officer: “ I choked my wife. I was under
the influence of crack and I got paranoid. I thought she was
going to call the police.”
      Defendant presented no evidence in his defense at the
guilt phase.




                                  5
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


     B. Penalty Phase
         1. Prosecution Evidence
      McKenna’s brother, Ronald testified he and his children
had been close to the victim. Her death devastated the entire
family. McKenna had been very supportive of her sister, Patti
Dutiot, who struggled with alcoholism and psychological
problems. Dutiot was a recluse and McKenna was her lifeline
to the outside world. Dutoit died in 1996. Ronald commented
that he “lost two sisters because of this clown,” referring to
defendant. McKenna was estranged from her sister Lori, but
had a close relationship with her 10-year-old nephew, Michael.
After McKenna’s death, Lori had a “breakdown” over the
estrangement. It was very painful for her to explain McKenna’s
death to Michael.
         2. Defense Evidence
     Defendant’s single mother raised him and his siblings.
His half-brother, Ernest Molano, testified that their mother
spanked them with her hand, a belt, or anything else she could
grab. He felt that their mother loved them and only punished
them when they deserved it. They always had food, clothing,
and a roof over their heads.
      Defendant’s former girlfriend, Bonnie Alexis, testified he
was good with young children, including his own niece and
Bonnie’s son. Defendant supported Bonnie and helped her
during difficult times. Another friend, Evelyn Horne, said
defendant was kind and had helped her leave an abusive
relationship. Other family members and friends likewise
described defendant as a good person and role model who was
close to his family and helpful to others.




                                  6
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Several correctional officers testified about defendant’s
behavior in prison. They reported that defendant had a good
attitude and work ethic and got along well with other inmates.
      Psychologist Rahn Minagawa compiled defendant’s social
and family history. Defendant’s mother had seven children by
different men, and his father’s identity is unknown. The mother
was verbally and physically abusive. She whipped him, said she
hated him, and wanted to give him up for adoption. He began
drinking when he was 12 years old, and began using cocaine in
high school.
      Neuropsychologist Myla Young assessed defendant’s IQ to
be 85. His previous test scores were 109 in 1982 and 94 in 1988.
He has significantly impaired attention and mild impairment of
verbal memory.       His cognitive flexibility and executive
functioning are impaired, undermining his ability to
conceptualize and plan. Neuropsychological testing and brain
tomography suggested damage to his hippocampus and frontal
lobe. Test results showed no evidence of malingering. Young
opined defendant would function well in a structured
environment.
      Frank Agee, a chaplain at the Santa Rita Jail, met with
defendant weekly for several months before his trial. He
described defendant as a born-again Christian who had
experienced genuine spiritual growth.
      Retired correctional officer Daniel Vasquez testified that
people sentenced to life without the possibility of parole do not
receive conduct credits and are not allowed outside the prison
walls.




                                  7
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


                       II. DISCUSSION
     A. Guilt Phase Issues
         1. Admissibility of Defendant’s Statements
      Defendant argued his statements to officers and the
district attorney were taken in violation of his rights to remain
silent and be assisted by counsel. (Miranda v. Arizona (1966)
384 U.S. 436 (Miranda); Edwards v. Arizona (1981) 451 U.S. 477
(Edwards).) On appeal, he challenges the court’s denial of his
suppression motion. When reviewing a Miranda ruling, “we
accept the trial court’s determination of disputed facts if
supported by substantial evidence, but we independently decide
whether the challenged statements were obtained in violation of
Miranda.” (People v. Davis (2009) 46 Cal.4th 539, 586; see
People v. Bradford (1997) 15 Cal.4th 1229, 1311 (Bradford).)
      Defendant gave three taped statements to law
enforcement officers. The first was made at San Quentin State
Prison. The second occurred in a patrol car while defendant was
driven from prison to the sheriff’s substation. The third was
made the same day at the station. An audiotape of the prison
interview and a videotape of the station interview were played
for the jury. The conversation in the patrol car was not offered
in evidence.
      Defendant claims he was deceived into waiving his
Miranda rights at the outset of the San Quentin interview. He
urges he did not reinitiate communication with the officers after
invoking his Miranda rights, rendering subsequent statements
inadmissible. He argues he invoked his right to counsel a second
time during the drive to the station. He also contends his
apparent waivers of Miranda rights at the station were
involuntary because the officers disregarded his invocations and


                                  8
                        PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


attempted to soften him up during the transport. We hold to the
contrary.
                a. Background
                   i.   The San Quentin Interview
      On March 21, 2003, six years after the murder, Sergeant
Scott Dudek and Detective Edward Chicoine went to San
Quentin to interview defendant. They knew he was scheduled
to be released from prison in about two weeks. His criminal
record reflected two prior rape convictions as well as the spousal
assault for which he was then incarcerated. Chicoine testified
that he and Dudek concocted a “ruse,” planning to present
themselves as “290 investigators” looking into defendant’s past
sexual offenses before he returned to the community. (See § 290
et seq. [Sex Offender Registration Act].) Although Chicoine was
in fact responsible for monitoring released sex offenders, he was
also a homicide investigator and his true goal was to talk about
the McKenna case.
       The interview was tape recorded, though there was some
preliminary conversation before the recording began. Chicoine
and Dudek identified themselves as deputies with the Alameda
County Sheriff’s Department. At the beginning of the tape,
Chicoine said: “Ok. Carl, like I’ve explained to you before we
want to talk to you about some of your past crimes and some of
the sex registration laws and things like that. Before we do that,
I had mentioned to you before that we’re going to read you your
rights . . . .”  Chicoine then recited the Miranda rights.
Defendant said he understood them, was willing to talk, and
signed a written waiver. As he was filling out the form, he asked
if his parole would be affected “[i]f I don’t answer any of these
questions.” Chicoine replied, “No, absolutely not.”


                                  9
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


      When defendant asked if “[y]ou do that for everybody now?
All the sex registrants?” Dudek replied it was “our normal
procedure.” Chicoine explained: “I list every single sex
registrant that comes across my desk, I look at.” “Every single
one and I’m constantly on the phone and I have two files full.”
Chicoine said, “And here’s, here’s one of the things that I do just
so you know, is that, you know, especially when you’re out there
your whole goal in life is you want to stay in my file. I mean
you’re going to be there for life anyhow.” Defendant echoed that
he would be “there for life anyway.” Chicoine said, “Right. But
you want to stay [i]n the filing cabinet.” Defendant said “Yeah.”
Chicoine continued, “If you’re causing a problem or if I’m getting
called or whatever else, then it gets put in a red file and it sits
on my desk and I have about 4 or 5 of them on my desk at any
time. And those are the guys that I’m looking for. Those are the
guys I’m going after. So, the goal . . . objective is to stay in the
file and stay off my desk. Correct?”4 Defendant’s response is
not audible, but Chicoine followed up with “All right.”
      For about an hour, they discussed defendant’s job
prospects, family background, substance abuse issues, and prior
offenses. After reviewing the assault on Brenda, Chicoine told
defendant “we want to look at other things to see if, you know,
maybe you have an involvement in, in other situations that were


4
      We have independently reviewed the recorded interviews.
(People v. Wash (1993) 6 Cal.4th 215, 238.) Quotations are from
the prosecutor’s transcripts provided to the trial court. We have
not corrected minor typographical and grammatical errors in
the original quoted material. Bracketed words and phrases
reflect statements that were deemed unintelligible in the
transcripts, but that we have been able to discern from our
independent review of the recordings.


                                  10
                      PEOPLE v. MOLANO
                Opinion of the Court by Corrigan, J.


out in that area.” He asked if defendant remembered “an
incident where there was a girl that died?” Defendant said, “My
neighbor next door.” He did not remember her name, but said
he had “a drink at the manager’s house with her and we got high
at the manager’s house together.” Dudek showed defendant a
picture of McKenna, and defendant recognized her as “my
neighbor.” Chicoine gave her name “Susan McKenna,” and
defendant acknowledged “we called her Sue.” He said at the
time of the murder his parole officer had asked him if he knew
anything, and he told her “no.”
      They talked about defendant’s use of drugs with McKenna
and asked if he had a sexual relationship with her. Defendant
admitted that he did, saying it was a “hit and run,” a single
occasion a day or two before her death. He was surprised no one
had come to see him after she died, “because I know what my
record looks like.” He said they had had “[r]egular missionary
style sex,” and answered “No” when asked if it was “rough sex.”
He said “it was just spontaneous sex.” He denied biting her.
      Chicoine asked if anyone had suspected him of the
murder. Defendant said, “Yes,” even his wife “thought so.”
When Dudek inquired what he had told his wife, defendant
became reticent, and said he needed to go to the bathroom. He
admitted, “I told Brenda I know what happened,” then again
asked to use the restroom. Pressed by Chicoine for “the gist of
what you told Brenda,” defendant said “It was so long ago, I
cannot remember. I’m not going to bullshit you.” The tape
recorder was turned off and defendant went to the restroom.
When he returned, he invoked his Miranda rights. The officers
turned the recorder back on, and said defendant wanted “to tell
us something specifically.” Defendant said, “No disrespect to
both of you gentlemen. I understand where this is leading to,

                                11
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


this conversation and I would rather not say anything else until
I have a public defender of mine.”
       The officers stopped the interrogation and said they had a
search warrant for blood and buccal swabs, dental casts, and his
shoes. They said if he wanted to talk to them again, “You have
to initiate the contact.” Defendant said he understood and asked
if they had a card. They each gave him one, and repeated that
he needed to initiate contact, telling him to “get ahold of the
guards here” and say “I want to talk.” Defendant responded,
“[or] my counselor [or my captain or something].” The tape
recording ended. Chicoine testified that defendant said he
wanted to tell them what happened, but would like to talk to a
counselor first, which Chicoine understood to mean a religious
counselor. Defendant said he would call them after he had that
opportunity.
      Chicoine conceded that defendant’s final statements about
wanting to talk after consulting a counselor were not on the
tape, or in his police report, written five days later. A
supplemental report from April 3, however, includes the
following summary: “Molano had previously invoked his right
to an attorney during an interview . . . on 3/21/03. At that time,
Molano told us that he intended to call us and tell us everything
about his involvement with Suzanne McKenna’s murder, but
said he wanted to have a counseling session with his
psychologist first. Dudek explained to Molano that we would
not be able to contact him, and that if he wanted to tell us
anything regarding the crime, he would have to contact us.”
       The officers finished collecting samples from defendant,
and informed prison staff of his status as a suspect. Chicoine
said it was understood that he would be placed in a “more secure


                                 12
                        PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


situation, because of the possibility of [a] criminal complaint
coming down in the future.”
                  ii.   The Conversation in the Car
      A complaint was filed on March 27, 2003, charging
defendant with murder. An arrest warrant issued, and on
March 31, Dudek and Chicoine drove to San Quentin to take
defendant into custody. They told him he was under arrest for
the murder. Chicoine testified that when the officers first
encountered defendant in a receiving area at the prison, he told
them “that he had been meaning to call us, that he had already
talked to a counselor and that he intended to call us.” There had
been no contact with defendant since the last interview, but he
said “[h]e knew we’d be coming back.” Chicoine understood
defendant’s statements as a reinitiation of the discussion at the
end of the March 21 interview, when he had said “he did want
to talk to us, he wanted to explain what was going on.”
      The court asked if that was only what Chicoine thought
defendant meant, or if defendant expressly said he wanted to
talk to them. Chicoine answered, “It sounded to me that that’s
exactly what he meant.” The court commented, “But he didn’t
overtly say ‘I want to talk to you now.’ ” Chicoine said, “Yes, he
did. He said he wanted to talk to us. He had already talk[ed] to
his counselor and that he meant to call us.” Chicoine told
defendant “to wait” and that “we would get an opportunity to
talk to him later.” On cross-examination, Chicoine said he could
not remember defendant’s exact words, “but I know that it was
very close to — he said that he wanted to — that he meant or
intended to call us, and that he had just wanted to get this over
with.” The court asked whether defendant made this statement




                                 13
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


before or after being told he was under arrest. Chicoine could
not remember the sequence of the exchange.5
       Dudek drove from San Quentin to the station. Chicoine
sat behind him and defendant was in the right rear seat. When
they got into the car, Dudek turned on a tape recorder placed on
the front passenger seat. At the outset of the ensuing
conversation, Dudek asked defendant if he had “any questions
or anything.” Defendant said he was “in limbo.” Dudek replied,
“You’re in limbo?” “Is that, is that a good thing or a bad thing
being in limbo?” Defendant said he didn’t know. Dudek asked
him, “Know what’s going on or no?” Defendant replied, “[No,]
run it down.” Chicoine told defendant he would be arraigned,
“hopefully on Wednesday.” After a pause, defendant asked,
“What’s it look like I’m facing?” Dudek said “obviously we can’t
tell one way or the other, but, I don’t know. You understand the
charge, right?” Defendant gave an affirmative response, and
silence ensued.
      Dudek resumed the conversation, saying “I’ve seen better,
I’ve seen worse. That’s a pretty chicken shit answer but . . . .”
“And obviously we’d like to have an explanation, but we’re not
in that position because of what you said the other day, but if
you’d like to give an explanation then we’re gonna give you
another opportunity once we get to our station. That’s kind of
where we’re at right now. And obviously, you know, we’re a little
bit more at liberty to tell you some things that we didn’t tell you
the other day that we can tell you now. That’ll come out if you
want it to, but [you kind of hold the,] you’re kind of in control



5
      No mention of the conversation in the receiving area was
included in Chicoine’s April 3 supplemental police report.


                                 14
                         PEOPLE v. MOLANO
                   Opinion of the Court by Corrigan, J.


here right now to say yeah, go ahead and tell me or I don’t give
a shit, I’ll find out sooner or later, so . . . .”
       Defendant said, “Tell me.” Dudek replied, “Alright. Does
that mean you want to talk to us again or does that mean you
just wanna, let me explain what’s gonna go on now and then
maybe [you’ll answer] our questions. You’re gonna go back,
we’re gonna put you in an interview room, we’re gonna read you
your rights again, we’re gonna go over the fact that we were out
to talk to you a week ago, ten days ago actually it is now, and at
that point you talked to us a little bit and you said hey, at this
point here you want to talk to your counselor, you wanted to talk
to whoever, and, and, we’ll go over that again . . . if at that point
you say I wanna know a little bit more, I wanna talk to you about
it a little bit more then we’ll go from there, and that’s where
we’re at, OK?” Defendant said, “[All right].”
        Dudek continued, “So, even if it’s one sided and you say
hey, I want to talk to you and you don’t say nothing, you gotta
tell us I want to have the conversation be more of a two-sided
conversation. Cause I think that’s only fair to us and you’ve
been in the system, you know what I mean? I’m not here to
clown you, like I told you the other day, you know. And it’s only
right that you say yeah, let’s go ahead and I want to hear what’s
up, and then once you give us that, and if you decide at one point
again, you know what, I’m hurting enough, and, and then we
stop again, so. I think truthfully, and you know this too, and
you even said it, that, you know, you, I think you did want to go
on with a little bit more, and I think there’s probably stuff that
you do want to share with us that we may not know about, but
. . . [¶] . . . Now ultimately . . . [¶] . . . You know, and the bottom
line is too, is, is, is ultimately there’s always a story behind
everything, and unfortunately when it comes down to the

                                   15
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


charging part of it, we’re, we’re, this is kind of a one shot deal
here. You get your [opportunity to] say this is where we’re at,
or let’s see how it shakes out, and then that’s [a decision you,]
Carl Molano the, the, the, the 46, 47 year old [dude’s gotta
make]. I, I can’t, Scott or Ed can’t do that for you. You have to
do it on your own, you know what I mean?”
       At this point Chicoine interjected, “Right now, there’s a
story [that’s being told, but it doesn’t have your side].” Dudek
resumed, “I’ll be more than happy, and so would Ed, we’d [be]
more than happy to share exactly, you know, how the story even
started. Why are we at this point after so many years, and, and,
and, you know, a lot of that has to do with, with your family and,
and, and, and it’s only fair that you know that cause you are
gonna know and my credibility and Ed’s credibility with you is
gonna mean everything as far as this goes. If you think I’m a
big bullshitter, horse’s ass, and you think he is, there’s no sense
of us even going any further, you know what I mean? And you’re
gonna find that what we tell you is ultimately, you know, we’re
not bullshitting you, so.”
      Defendant said, “No, you guys been straight up.” Dudek
replied, “I mean we’re, we’re trying to be that way cause this is
what we do. You, you got to do what you got to do, we got to do
want we got to do, you know what I mean, and, and I was up
front with you when I said the other day, I said I, I mean, I know
Suzy’s not an angel, or wasn’t an angel, you know what I mean,
and, and there could be some other factors, but that, that’s . . . .”
At this point Dudek evidently took a wrong turn, which
interrupted the conversation briefly. He resumed with, “like Ed
said, there’s two sides to every story, you know what I mean? I
mean, you can tell by where we were going that we obviously
talked to a bunch of people and somebody, you know, and, and,

                                  16
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


quite frankly, you know, we talked to your ex old lady who told
us some stuff and we talked to some other people, so that’s kind
of, that’s kind of where we’re at.”
        Defendant said, “I ought to be arraigned Wednesday [and
assigned a] (unintelligible).” Dudek told him, “[Nuh.] You’ll
probably just be arraigned, they’ll ask you your financial status,
more than likely you’ll be assigned a PD your next court
appearance, but you could get one right off the get go on
something like this, I’m, I’m, probably you will actually.”
Defendant said, “Can I ask you a question?” Dudek answered,
“Sure.” Defendant said, “They assign me a PD, right?” Dudek
said, “Right.” Defendant said, “I can sit down and talk to my PD
first, then talk with you all?” Dudek replied, “Yeah.” Defendant
said, “Can I do that?” Dudek told him, “Yeah. I mean, that’s
one of your options and that’s why we’re here, you know.”
Defendant said, “That’s, I would, I would (unintelligible).”
       Dudek responded, “Ok. If you’re [gonna go through] that
formally when we get to the tape, we’re gonna say Carl Molano,
you understand you’re being charged with this, and then, . . .
and then we’re gonna go through the rights thing again. It’s at
that time, you know, you can say hey, let me talk to my PD and
I’ll talk to you again, but, you know, that’s entirely up to you.
We’re here only to do shit on the up-and-up. If we don’t do it on
the up-and-up then we might as well just throw it away right
now, you know what I mean?”
      After a pause, Dudek said, “I know I read some of your
letters and I know you know I read them, when you were, you
were out there the other day with your other daughter, your
daughter there, the 4.0 whiz kid there, you know. I, I can’t think
of, Regina, is that her name?” Defendant said, “Jasmine.”


                                 17
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


Dudek said, “It sounds like you’re starting to, you know, at least
head in the right direction there with a relationship with her.
Irregardless whether you talk to us or not, when we get to our
station I think it’s only fair that you know that, is it Robert?
Robert’s your 17 year old son? Robert played a fairly key role in
this as far as where we’re at right now, and I just don’t want it
to be a, a, a mind blower from you when it comes out, ok? So,
that’s kind of, you know, you’ve got one relationship by your own
admittance you’re trying to get back together when you were
talking to us the other day, and, and really said you hadn’t
talked to Robert or your other, was it son, from, from your that
wife?” Defendant said, “Yeah.” Dudek continued, “But I think
what I’m asking you probably, from my standpoint [as a dad and
stuff,] that you’ve got to rebuild and don’t take it out on your
kids. They, they had to do what they had to do, so, you know
what I mean?”
       Dudek continued, “Ok. So, unfortunately, Robert’s had a
lot of problems over the years because of, you know, the stuff
and, and Robert felt he had to do what he had to do, and you’ll
probably never have a relationship with Robert, but in the
scheme of things hopefully you’ll, you’ll view it as Robert’s
becoming a man, that type of thing, you know what I mean? And
I think the reason I’m telling you this is because when I first
talked to your ex-wife, the first thing was well, of course she’s
coming forward because she can’t stand your guts because, you
know what I mean?” Defendant said, “Yeah I know.” Dudek
said, “So that’s something that, that the whole thing weighed
on, so.”
      After an extended pause, Dudek asked about the
temperature in the back seat, then opened a new topic: “Other
thing too is, and then this is just kind of [weird], obviously this,

                                  18
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


this murder occurred in 1995. It’s gonna be fairly a, a big deal
in the newspapers and probably even the media and stuff
because it’s, you know, it’s an eight year old homicide, so I’m just
kind of preparing you for that. I don’t know, I mean I know your
mom’s not around anymore, but if you think there’s somebody
you may want to prepare for it, you may want to let us know
that so we can tell them before they hear it on the 7 o’clock news
[tonight], i.e. your, your daughter, or whoever else, know what I
mean?”
      After a long pause, there was some talk about the art work
defendant had done, and his life in prison. After another
extended pause, Dudek asked if defendant had told anyone
about their previous visit. Defendant said inmates had seen
them, but Dudek said, “I meant family or something, not
inmates.” Defendant asked, “I can give you two numbers to
call?” Dudek said, “I can let you call two numbers, how’s that?
I don’t really like to tell people what’s up. I’d rather have them
hear it from you, or, you know, I mean if you don’t want to do
that I understand, but it’s up to you. That’s a decision you can
make from now until the 150th exit, right?” This was a
reference to the freeway exit for the station. Defendant said,
“Yeah.” After some further conversation about defendant’s
other son who was serving a prison term in New York, there was
a long pause broken by defendant saying, “Hey.” Dudek replied
“[Heyo],” and defendant said, “[I have a question,] if I want to
get this over with as soon as possible, right?” Dudek said, “Uh-
huh.” Defendant asked, “Who [do I talk] to? [PD? DA?]”
       Dudek said, “Yeah, you mean you just wanna plead and
get, get on with your time?” Defendant said, “Yeah.” He wanted
to be “sentenced, you know, or whatever.” Dudek said, “We can,
we can let the DA know that that’s your, your wish[es] . . . I

                                  19
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


mean, they’re, they’re gonna go on the guidance of your PD
anyway . . . .” Defendant said, “Yeah,” and commented, “PD
doesn’t (unintelligible).” After some discussion about waiving
time, Dudek told defendant, “It’s going to be up to you.” He
explained, a defense attorney would be “[t]here to advise you,
but you, you’re still in the driver’s seat, you know, it’s your
defense. I mean, he’s there to advise you, but if you say hey, you
know, you’re still a young guy, let’s just get on with this so I can
. . .” Defendant said, “I’m the only one that [holds it]. I actually,
you know, it’s like [at the house? I have the keys to all the
doors].” Dudek said, “Exactly.”
      After a pause Dudek said, “When we get here it’s a lot
easier, let, let us do what we gotta do and then we can talk to
you and you can talk to us [and]. I mean, I understand what you
said before, but let’s just, just get in here and do what we gotta
do.” After another pause he asked defendant, “You consider
yourself institutionalized? By that (unintelligible) talk to a
whole bunch of people and some dudes are just kind of reserved
to the fact that that’s the way it’s always gonna be, and
sometimes . . .” “It’s easier and just do time, or do you consider
yourself, I want to get over with this so I can try to make at least,
have ten good years or whatever.” Defendant’s response is
unintelligible. Dudek concluded the conversation with an
exhortation:
       “It’s kind of unfortunate for you because . . . it seems like
you were at least heading in the right direction as far as with
the religion, and the making amends with your kids, and stuff
like that. What you can’t do Carl though, is, is, is, it’s, it’s your
heart and it’s your soul, don’t, don’t give up on yourself, alright?
It’s, you know, believe it or not your, your, your daughter
obviously is pissed off at you for not having a relationship [but

                                  20
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


at least] she’s kind of proud of herself [and] proud of [making
amends], [and] you can still do some good, you know what I’m
saying, and, and you, you can’t give up on yourself. Once you
give up on yourself then, you know, the healing process has to
start with you first, you know.” Defendant said, “Yeah.”
       Dudek continued: “It does, so I’m not gonna jump into this
Bible thumping thing or anything like that, but I’m just telling
you don’t give up on yourself, alright? Cause then you don’t do
anybody any good. Believe it or not, what families want more
is, like Ed said, they want to know the why and they want to
hear something from your mouth and people, even people that
are victims of something terrible, they get over it too, you know
what I mean? So, they mainly look at you and, you know that
from your previous crimes too though, you know. Just like that
lady that you see walking around.[6] You know, that was one of
your more powerful moments, was meeting up with her on the
streets. [So, people] get over it. People realize that, you know.
I told you before that before I did this I was in, you know, I, I did
dope, I was a dope sergeant, you know what I mean, and believe
me I know when, when crack cocaine and, and crank, and
everything else does to people. People, it’s the wors[t] thing that
they ever had because you take people that have been clean and
you could sit there and you could, and trust them and, and you’d,
you’d want to have them come around and, and then I see these
[fuckin’], more so the girls (unintelligible) and stuff spun out on
the [crank] and shit. It’s like damn, it’s like how can anybody


6
      During the San Quentin interview, defendant had
described an encounter on a street corner with one of his prior
rape victims, a family friend. He had written her to apologize,
and she told him she forgave him.


                                  21
                         PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


get to that point, but you understand [how they can, ‘cause,]
especially with the crack man, it’s just so powerful and stuff you
know. I mean, you gotta realize people are going to do you in
one fashion, but only you know what, what Carl’s all about
inside, inside your heart. That pretty much ends my sermon
here so that’s where I’m coming from.”
      There was a considerable period without conversation
before they arrived at the station.
                  iii.   The Statements at the Station
      Chicoine testified that at the station, defendant stopped
by the rear of the car and said, “ ‘I have a question.’ ” Chicoine
said, “ ‘What?’ ” and defendant told him that he “wanted to get
this over with . . . that he had been speaking with inmates in the
prison and they told him not to talk to the police. He said he
knows that the public defender would tell him not to talk to the
police, but he told me that he had to walk in his shoes, that they
don’t have to walk in his shoes. He just wants to get closure
from this, and he just wants to tell the story, and get it over
with.” Chicoine told him to wait until they got into the building,
where they would give him another opportunity after reading
him his rights. Chicoine understood defendant to be saying that
he wanted to discuss the McKenna murder.7




7
      Chicoine’s supplemental report of April 3 provided a
similar account. It stated that after the recorder was turned off
and defendant got out of the car, “he told Dudek and I that he
wanted to tell us everything. He explained that he did not want
the court procedure to be a long drawn out ordeal. Dudek
reiterated that he should wait until we got into the station
where we would read him his rights again.”


                                 22
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Defendant was taken to an interview room, where the
conversation was video and audiotaped. Dudek began by
reciting that 10 days earlier, he and Chicoine had gone to San
Quentin and spoken with defendant. He said, “You were
advised of your Miranda rights prior to the interview and at
some point in the interview you told us that you wanted to
invoke your Miranda rights, and you wanted to consult with an
attorney before you talked to us, is that correct?” Defendant
said, “Correct.” Dudek then said, “at some point” during the
“transportation from San Quentin,” “you then told us you
wanted to talk to us, and, and hear what we had to say, and, and
didn’t want your attorney present anymore, correct?’’
Defendant paused and replied, “I didn’t have an attorney
present.”
       Dudek said, “That’s what I mean though, you, you said you
wanted to talk to us and you understood you were now waiving
your rights to have an attorney present, is what I meant to say,
if I didn’t make that clear. And, and that’s kinda where we’re at
right now, if that’s correct, then I want to go ahead and re-read
you your rights so you understand them again, so at any point
you can go ahead and invoke your rights again. You follow me?”
Defendant answered, “Oh, ok, so I do want to talk to an
attorney?” Dudek repeated that defendant was read his rights
on the 21st, and had said he wanted to talk to an attorney.
Defendant said, “Right.” Dudek said, “On the trip over here, you
said now I want to talk to you for a little while, I want to make
sure that’s clear, and then I’m gonna read your rights again, so
you know we can talk, because you approached us, to talk to us
but then at a point, you can always re . . . , you’re not giving up
your rights, I’m just gonna re-advise you that at, at this
interview point you can again say no, stop.” Defendant said,


                                 23
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


“[Stop] if I wanted to.” Dudek asked if what he had said was
accurate, and defendant agreed it was. Dudek said, “So you’re
freely giving up your rights at this point here, and then I’m
gonna advise him. You approached us, is the only thing I’m
getting to, is that correct?” Defendant said, “Uh-huh.” Dudek
said, “Without any promises from us or anything, correct?”
Defendant said, “Correct.”
      Dudek then told defendant “at this point I’m gonna re-
advise you of your rights, and then we can start talking again,
okay?”      He repeated the Miranda rights; defendant
acknowledged he understood each one. The officers began the
interrogation by telling him they had spoken with his wife.
Defendant said he knew what she had told them. They then
discussed his son Robert, and the psychological issues he had
been dealing with as a result of his interaction with defendant
on the day of the murder. They talked about defendant’s drug
habit at the time. Defendant said it had been “out of control.”
      Dudek brought up the importance of closure, for defendant
and for “Susie’s family.” Defendant agreed this was important.
Chicoine asked, “Carl did things just get out of hand?”
Defendant said, “[Neh,] yeah.” Dudek said, “It’s gonna be
painful that it got out of hand, to the point where she died,
correct? And you understand that, right?” Defendant replied,
“I understand. Can I ask you a question?” Dudek said “Sure.”
Defendant said, “I don’t actually want to relive this.” He
affirmed Dudek’s comments that “[y]ou know where we’re
heading” and “we want to go over every fine detail.” Defendant
then interjected, “my thing is, is this.” In a series of statements
interspersed with brief acknowledgments from the officers, he
told them, “if I choose to say what happened, all the way down
the whole 411, whatever, right? I just . . . .” “I don’t have to live

                                  24
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


it again after this.” “If I give this testimony now, I say whatever
I have to say now, I don’t want to live it again.”
       Dudek told defendant that his having admitted to things
getting out of hand was “a step in the right direction. You have
to take it to at least to the part, where you have to give us some
of the details. Whether it’s painful or not, we don’t have to sit
here and harp on ya, and say, how come this and how come that?
Go through it. Once you get it off your chest Carl, it, it’s not
gonna be as difficult as you think, and if it does get difficult,
we’re not gonna sit here and, and badger you.” Defendant asked
if what he said would be in the newspaper. He continued,
“Whatever I say I, you know it’s, it’s bad enough that you know
like, you know I’ve already fucked up, and I you know, I wanna
just, I don’t want it to be in the paper and have my kids hurt
anymore than they already are.” Dudek said the way the
information would become public was if there were a trial, and
“there’s certain ways that you can get closure where it may not
even go into trial, and that’s a decision that you’re gonna have
to make.” Defendant said “I just want to, I want to get it over.”
He said, “If I can ask you this question,” and “this is the question
that concerns me, all right?”
       In another series of statements interspersed with
acknowledgments from Dudek, defendant said, “What I would
like, you know I can talk to you guys. I can even talk to the DA.”
“You know, with my Public Defender there or whatever right,
and after I say what I have to say, just ask to be sentenced, if I
can be sentenced.” “You know I’m not asking for a jury trial
’cause I don’t want a jury trial.” “I just want you know, if I can,
if what I’m saying, if I can have that, right, I can get this all over
with.” “. . . I understand you thought you guys say you can’t
promise me that.” Dudek told defendant he would “be absolutely

                                  25
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


lying to you if I told you that, ’cause that’s just not the way the
system works, okay? But can we let ’em, can we let ’em know
that that’s your request? We can let them know verbally and
they’re gonna watch this, too.” Defendant asked if he could “sit
down wit’ you two and the DA, right?” “Can I sit down with the
DA?”
       Chicoine told him, “Carl after this it’s all over.” Defendant
said, “It’s all in their hands?” Chicoine said, “It’s all over there.
Right now this is, I’m, I’m the one that has to talk to the family,
man. That’s, that’s my concern, man. My concern is just making
sure everything now is at peace. Obviously it’s not like peace
with you.” Dudek said, “Carl you’ve already started in the right
direction here too, you’ve already said I killed Susan, or Susie.”
Defendant said, “Yeah.” Dudek said, “Ok so no matter what you
say at this point here is only gonna benefit Carl, because Carl’s
gonna be able to tell his side of the story.”
      Chicoine suggested that defendant’s drug habit may have
been “the reason,” but that “we need to kinda hear that from you
though.” Dudek said, “You got to tell us what you’re gonna tell
us. There’s a way actually and they have a DA that’s on stand
by for murders, and when murder defendants, which you are,
okay, start to talk, like you’re starting to talk to us okay, they’ll
get a DA up here today, okay? To, to come back and they’ll come
in and they’ll ask you questions too, from the DA, not from the
cops’ standpoint. But we got to know what you’re gonna tell the
DA, and that can happen today, okay? So I, within probably an
hour, forty five minutes we can have a DA up here to say, ‘hey
the cops already told ya, what I did yeah, this is what I want,’
okay? And that can, that can happen today okay? But you know
the hardest part is, is you’ve already done it and you know what
that is.” Defendant said, “Ok.” After obtaining assurances that

                                  26
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


a district attorney would be on the way if they called for one, he
said, “You call them now,” and, “Come back and we’ll continue.”
      While Dudek was out calling the district attorney,
Chicoine asked defendant whether he “want[ed] to have
everybody here all at once?” Defendant said he didn’t “wanna
live this whole story over,” that “it eats me up more and more
and more and more,” that he was “tired of it,” that he was at
peace with God but had to “live with the consequences of what
I’ve done,” and “this conversation I only want to say it one time.
The DA comes in, he looks [and] he listens to it, you know, I want
to get over with it.” He added, “I’ve made peace with me, but I
it has to come out.” Dudek returned and said it would take the
DA thirty to forty minutes to get there. He told defendant,
“You’re not gonna leave here until you talk to him.” Defendant
indicated that he understood, and Dudek proceeded to question
him.
       Defendant described a consensual sexual encounter when
he and McKenna were both “loaded.” They drank. He used
crack cocaine; she methamphetamine. It became “rough sex”
when, during intercourse, “she starts to like hitting me, slapping
me.” Their prior sexual encounter had been different. He said
it was “possible” that he bit her, and answered “Yeah” when
Dudek asked whether she asked him to choke her. He had used
her panties or bra, but she said it wasn’t tight enough. He could
not remember what he used to exert more pressure. The officers
told him she was found with a shoelace around her neck.
Defendant said, “I learned so much here.” Asked “Probably from
what?” he said, “My own shoes.” He had panicked when he
realized she was dead, and dragged her into the bathroom to try
to “clean up.”



                                 27
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


     The next day he went back to make sure he hadn’t left
anything in McKenna’s cottage. Someone knocked on the door
and saw him inside, so he ran. The only thing defendant could
remember saying when Robert found him in the storage unit
was not to tell anyone he was there. Dudek returned to the
circumstances of the killing, asking if McKenna had asked
defendant to stop. He said no, and told Dudek, “I didn’t rape
her.” But he conceded she “may have” asked him to stop
choking, he simply didn’t know.
      When Deputy District Attorney Andy Sweet arrived, he
turned first to the circumstances of his statements that day.
Defendant acknowledged that he had previously invoked his
Miranda rights, but then wanted to talk. When asked, “What
changed from before to now?” defendant said, “I just . . . I’m . . .
I’m tired.” Sweet said, “It was your decision to start talking.”
Defendant agreed, saying, “It was my decision. I’m tired now.”
“In my mind, they didn’t press the issue, understand me?”
Sweet turned on a tape recorder, though the conversation was
already being recorded, and again advised defendant of his
Miranda rights, obtaining an express waiver. He returned to
defendant’s decision to talk, saying, “When they came to pick
you up today, some place between San Quentin and here, the
Sheriff’s Department in Alameda County, you started talking to
the officers about your case and about what was going on. Isn’t
that true?” Defendant said, “That’s correct.” He reaffirmed that
he changed his mind because he was “tired and I just want
closure,” and that it was “[m]y decision.” He said the officers
had not said or done anything that made him think he had to
talk to them, adding, “I asked them on the way here if I would
be able to talk to a DA.”



                                  28
                        PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Sweet asked, “Would it be a fair statement to say that you
reinitiated kind of the discussion about the case?” Defendant
answered, “Ok. I, it, that would be fair because I asked like if I
will be straight up with you both like I was with them, right. I
understand ok, I don’t have the money for a public defender,
blah blah blah. Right. But I understand my public defender
said well, look you shouldn’t do this you shouldn’t do that
because they’re not here. Ok. I know what I did. All right. And
I just want to get it over with.” He agreed with Sweet’s
statement that “They didn’t ask you any questions, you were the
one asking them questions to start the conversation going again.
Correct?” He said, “They made me no promises or anything. My
only, my main concern was that you were to come down here.”
      Defendant gave Sweet essentially the same version of the
crime he had just given the officers. Under the influence of
drugs, he and McKenna had engaged in rough sex, and she
asked him to choke her. He didn’t intend that she die. He said
McKenna “was the aggressor that night,” taking off his clothes.
He twice emphasized that he did not rape her. After the
intercourse ended, he noticed she wasn’t breathing. He
panicked and tried to clean up. The next day he returned to
clean up more, and fled when seen. The only thing he
remembered telling his son was not to tell anyone where he was.
                  iv.   The Suppression Hearing
      Defendant moved to suppress his statements. The
prosecutor said he was not going to offer the conversation in the
car. Chicoine testified at length about the circumstances of the
statements and the trial court listened to the conversation in the
car. On cross-examination, defense counsel asked Chicoine
about his April 3 supplemental police report, which did not



                                 29
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


mention defendant’s statements in the San Quentin receiving
area about a willingness to talk. Chicoine acknowledged that he
had not reported the conversation, saying, “I inadvertently left
that out. At the time, I didn’t realize that that was an important
issue.” He also conceded that when the taped interview began
in the station, the officers did not ask defendant about any
statements he made after getting out of the car. He denied that
the reason defendant was brought to the station was to take a
statement from him. He said a variety of procedures had to take
place before defendant was taken to jail.
      Chicoine agreed that Dudek began the station interview
by summarizing the events of the day without mentioning any
statements by defendant at San Quentin about wanting to talk
to the officers. He further agreed that Sweet, the district
attorney, made no such mention in his initial summary. Nor did
Sweet mention any statements by defendant after leaving the
car at the station. On redirect, the prosecutor showed that
Chicoine had memorialized the unrecorded statement by the car
in his supplemental police report. He also established that
Chicoine’s preliminary examination testimony included both
that statement and defendant’s earlier statements in the San
Quentin receiving area. Defendant did not testify at the
hearing. No direct evidence contradicted Chicoine’s testimony
about defendant’s unrecorded statements.
      The court denied the motion to suppress the statements.
As to the March 21 statement, it ruled that the “ruse” employed
by the officers did not invalidate defendant’s Miranda waiver.
The court noted that, in addition to mentioning the sex offender
registration process, Chicoine had told defendant that “they
wanted to talk about some of your past crimes which could well
have alerted the defendant that this event was fair game.” The

                                 30
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


court found defendant had voluntarily reinitiated contact with
the officers on March 31. It relied on “numerous indications in
subsequent statements of the defendant and the various
interrogations to substantially corroborate the statement under
oath of [Chicoine] of the statement that was not recorded at San
Quentin, that the defendant basically communicated that he
knew that they would be coming back and he meant to call them
and that he wanted to talk to them and that he wanted to get
the whole thing over with. And I find that most particularly in
the statements . . . to Andy Sweet.”
      The court further found that “any conduct of Sergeant
Dudek in his statements in the trip down from San Quentin to
[the station] were not so psychologically compelling that they
would have overborne Mr. Molano’s free will. And [that] in fact
is belied by the sheriff’s officers preventing Mr. Molano from
making his statement until after he had been given his Miranda
rights, and he was perfectly free once given those Miranda
rights to reaffirm that he wanted an attorney or that he wanted
to remain silent. So under either analysis, under voluntary
reinitiation or under [a] voluntariness analysis, I believe that
Mr. Molano was given his Miranda rights at [the station] and
that by continuing talking . . . he impliedly waived those rights,”
making his subsequent statements to the officers and to Sweet
“legal and voluntary.”
                 b. Validity of Miranda Waiver on March 21st
      Defendant claims his initial Miranda waiver was
constitutionally invalid because he was deceived into waiving
his rights at the outset of the San Quentin interview.
Specifically, he agreed to speak to Chicoine because Chicoine
said he was a sex crime investigator conducting a routine pre-



                                 31
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


release interview of defendant, who would have to register as a
sex offender under section 290. According to defendant, because
of Chicoine’s deliberate falsehood the waiver was not knowing,
intelligent, and voluntary. The claim fails.
      The governing principles are well established. Before
subjecting suspects to custodial interrogation,8 the police must
inform them of their Miranda rights and obtain a waiver that is
knowing, voluntary, and intelligent. (Miranda, supra, 384 U.S.
at pp. 444, 478–479.) The test for validity is as follows. “First,
the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the ‘totality of the circumstances
surrounding the interrogation’ reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” (Moran v.
Burbine (1986) 475 U.S. 412, 421 (Moran).) The prosecution
must demonstrate the validity of a suspect’s waiver by a
preponderance of the evidence. (Colorado v. Connelly (1986) 479
U.S. 157, 168–169 (Connelly).)
      There is no factual dispute as to the circumstances of
defendant’s initial waiver at San Quentin. Chicoine testified
that he and Dudek came up with a “ruse” to make defendant

8
     We recognize that defendant’s incarceration for an
unrelated offense does not necessarily constitute custody for
Miranda purposes. (See Howes v. Fields (2012) 565 U.S. 499,
508–516; Maryland v. Shatzer (2010) 559 U.S. 98, 112–114
(Shatzer).) However, the People have not contested the point, so
we need not further consider it.


                                 32
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


think they had come to talk to him about sex offender
registration matters. Chicoine told defendant that he had “files
full” of sex registrants, and that “the objective” was for
defendant to stay out of the “red file” on his desk of “the guys
I’m going after.”     Chicoine did not reveal that he was
investigating McKenna’s death. Nonetheless, he did say that he
wanted to talk to defendant “about some of your past crimes and
some of the sex registration laws and things like that.” (Italics
added.) Whether Chicoine’s statements about the purpose of the
interrogation invalidated defendant’s Miranda waiver is a legal
question subject to our independent review.
      The high court has made it clear that merely withholding
certain information from a defendant does not invalidate a
Miranda waiver. In Moran, supra, 475 U.S. 412, a public
defender called the police station where the defendant was in
custody on a burglary arrest. She said she would act as his
counsel if he were to be interrogated and was told he would not
be. However, the defendant’s cohorts in the burglary had
implicated him in a murder, and police from a different
jurisdiction soon began questioning him about that crime. The
defendant waived his Miranda rights and gave a statement.
(Moran, at p. 417.) The court affirmed the denial of a
suppression motion, holding there was no need for the police to
inform the defendant that his attorney was trying to reach him.
      Noting there was no question the waiver was voluntary,
and that the defendant understood his rights, the Moran court
said “[e]vents occurring outside of the presence of the suspect
and entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a
constitutional right.” (Moran, supra, 475 U.S. at p. 422.) The
court reasoned that “we have never read the Constitution to

                                 33
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


require that the police supply a suspect with a flow of
information to help him calibrate his self-interest in deciding
whether to speak or stand by his rights. [Citations.] Once it is
determined that a suspect’s decision not to rely on his rights was
uncoerced, that he at all times knew he could stand mute and
request a lawyer, and that he was aware of the State’s intention
to use his statements to secure a conviction, the analysis is
complete and the waiver is valid as a matter of law.” (Id. at pp.
422–423; see People v. Suff (2014) 58 Cal.4th 1013, 1070 [valid
waiver does not require that a defendant be told of the evidence
against him, the severity of his predicament, or the chances he
will be charged]; People v. Boyette (2002) 29 Cal.4th 381, 411
[valid waiver does not require that a defendant be informed of
an arrest warrant].)
      The court returned to the subject of withholding
information in Colorado v. Spring (1987) 479 U.S. 564 (Spring).
There, an informant told agents of the Bureau of Alcohol,
Tobacco, and Firearms (ATF) that Spring was selling stolen
firearms, and had spoken of his role in a Colorado killing.
Agents arrested him when Spring tried to sell them guns during
an undercover operation in Kansas City. (Id. at p. 566.) He was
given his Miranda rights and signed a waiver form. After
questioning about the transactions for which he was arrested,
the agents asked if he had a criminal record. He admitted to a
juvenile record for shooting his aunt. Asked if he had ever shot
anyone else, he mumbled, “ ‘I shot another guy once.’ ” He went
on to deny he had ever been to Colorado and denied shooting a
man there. (Id. at p. 567.)
     Some two months later, Colorado officers interviewed
Spring in a Kansas City jail. Given the Miranda warnings, he
again signed a waiver. When they brought up the Colorado

                                 34
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


homicide, Spring indicated he was ready to talk, and confessed.
(Spring, supra, 479 U.S. at pp. 567–568.) The trial court denied
a suppression motion, but the Colorado Court of Appeals and
Supreme Court held the waiver invalid because the ATF agents
had not told Spring he would be questioned about the Colorado
homicide during his interview. (Id. at pp. 568–570.) The high
court reversed, finding the waiver voluntary, knowing, and
intelligent. (Id. at pp. 573–577.)
       It was undisputed that “ ‘the agents did not tell [the
defendant] that they were going to ask him questions about the
killing of Walker before [the defendant] made his original
decision to waive his Miranda rights.’ ” (Spring, supra, 479 U.S.
at p. 575, fn. 7.) Nonetheless, the court observed that, under
Moran, supra, 475 U.S. at page 422, “a valid waiver does not
require that an individual be informed of all information ‘useful’
in making his decision or all information that ‘might . . . [affect]
his decision to confess.’ ” (Spring, at p. 576.) Instead, the
essential requirement of Miranda is that a suspect understand
“the nature of his constitutional right—‘his right to refuse to
answer any question which might incriminate him.’ ” (Ibid.)
The court explained:       “This Court’s holding in Miranda
specifically required that the police inform a criminal suspect
that he has the right to remain silent and that anything he says
may be used against him. There is no qualification of this broad
and explicit warning. The warning, as formulated in Miranda,
conveys to a suspect the nature of his constitutional privilege
and the consequences of abandoning it. Accordingly, we hold
that a suspect’s awareness of all the possible subjects of
questioning in advance of interrogation is not relevant to
determining whether the suspect voluntarily, knowingly, and
intelligently waived his Fifth Amendment privilege.” (Ibid.)


                                  35
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


       In People v. Tate (2010) 49 Cal.4th 635 (Tate), we applied
Spring’s ruling. Tate was arrested while driving a murder
victim’s car on the day of the murder. (Id. at pp. 641–642.)
Brought to the police department’s homicide division, officers
told him they were investigating the car because it was stolen
and “a lady had been ‘hurt.’ ” (Id. at p. 681.) They gave the
Miranda admonitions and Tate agreed to talk. At the beginning
of a recorded interview, he asked if he was in the homicide
division. Told that he was, the defendant noted “ ‘ So I’m here
for a car that was stolen.’ ” (Ibid.) The interviewing officer said
again that “he was investigating an incident in which a car was
stolen and a lady was ‘hurt’; and . . . stated that ‘I’m not here to
trick you into anything.’ Defendant said, ‘I know you ain’t, just
tell me, you just said a car was stolen.’ [The officer] repeated
that he was investigating ‘the incident [in] which the car was
taken.’ Defendant responded, ‘Whatever you said, okay.’ [The
officer] asked if everything was now clear in defendant’s head,
and defendant answered, ‘Yeah.’ ” (Ibid.)
       After another Miranda advisement, Tate denied any
knowledge of the incident, and lied about how he obtained the
car. The officers eventually told him the victim was dead. They
confronted him with the implausibility of his story and the facts
that he had just been arrested wearing bloodstained clothing
and in possession of the victim’s car and other property. Urged
to tell the truth, the defendant responded, “ ‘Why should I tell
the truth? Well, what’s in it for me? I’m going to jail anyway.’ ”
(Tate, supra, 49 Cal.4th at p. 681.) The trial court rejected his
claim that he had been tricked into waiving his Miranda rights
when the officers did not tell him he was suspected of a
homicide, saying instead they were investigating a car theft in
which a lady got hurt. The court noted that the defendant knew


                                  36
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


he was being questioned in the homicide division and must have
inferred a killing was involved. (Id. at p. 682.)
       We upheld the ruling. Summarizing the holding in
Spring, we observed: “The warnings required by Miranda,
supra, 384 U.S. 436 for a suspect in custody—i.e., that the
suspect has the right to refuse to talk, to talk only with counsel
present, and to stop talking at any time, and that criminal
prosecutorial use will be made of any statements the suspect
does utter—are designed fully to protect the knowing,
voluntary, and intelligent exercise of the constitutional right
against compelled self-incrimination in that custodial context.
[Citation.] Thus, in general, a suspect in custody who, having
heard and understood a full explanation of these rights, then
makes an uncompelled and uncoerced decision to talk, has
thereby knowingly, voluntarily, and intelligently waived them.”
(Tate, supra, 49 Cal.4th at p. 683.) The facts in Tate supported
a conclusion that defendant understood the serious nature of the
investigation. He did not appear to have been “misled by any
ambiguity in the officers’ use of the word ‘hurt’ rather than
‘killed.’ ” (Id. at p. 682.) He had ascertained that he was in the
homicide division, and “must certainly have understood that the
injury at issue was fatal.” (Id. at p. 683.) We further observed
that “[e]ven if this evidence were not present . . . we would not
accept defendant’s contention. We conclude the officers did
nothing to invalidate defendant’s two separate waivers of his
Miranda rights.” (Ibid.) This is because “mere failure by law
enforcement officers to advise a custodial suspect of all possible
topics of interrogation is not trickery sufficient to vitiate the
uncoerced waiver of one who heard and understood the
warnings required by Miranda.” (Ibid., citing Spring, supra,
479 U.S. at pp. 564, 576.)


                                 37
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


       Consistent with these authorities, the court properly
concluded defendant’s Miranda waiver was knowing,
intelligent, and voluntary. Notwithstanding Chicoine’s failure
to disclose that he was investigating McKenna’s death,
defendant was aware that he was speaking with law
enforcement officers and that the scope of the interview would
include his “past crimes.” Having received full and complete
Miranda warnings, defendant was also aware that anything he
said during the interview could be used against him. This
“broad and explicit warning” conveyed to defendant “the nature
of his constitutional privilege and the consequences of
abandoning it.” (Spring, supra, 479 U.S. at p. 577.) “Thus, in
general, a suspect in custody who, having heard and understood
a full explanation of these rights, then makes an uncompelled
and uncoerced decision to talk, has thereby knowingly,
voluntarily, and intelligently waived them.” (Tate, supra, 49
Cal.4th at p. 683.) As in Spring, the fact that the officers did not
tell defendant they were going to ask him about McKenna’s
killing does not invalidate the waiver. Defendant’s lack of
“awareness of all the possible subjects of questioning in advance
of interrogation is not relevant to determining whether [he]
voluntarily, knowingly, and intelligently waived his Fifth
Amendment privilege.” (Spring, at p. 577.) The officers were
not constitutionally required to “supply [defendant] with a flow
of information to help him calibrate his self-interest in deciding
whether to speak or stand by his rights.” (Moran, supra, 475
U.S. at p. 422.)
      Defendant attempts to distinguish Moran, Spring, and
Tate because none of those cases involved affirmative deception.
(See Spring, supra, 479 U.S. at p. 576 & fn. 8; Moran, supra, 475
U.S. at p. 423; Tate, supra, 49 Cal.4th at pp. 682–683.) Here, by


                                  38
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


contrast, defendant argues that misleading him about the
purpose of the interview “constitute[s] a form of misconduct by
officers that society seeks to discourage,” is “likely to overbear
the will of suspects and therefore produce involuntary
confessions,” and constitutes “a kind of unfairness that shocks
the conscience and brings law enforcement and the justice
system into disrepute . . . .”
       Defendant’s arguments are unpersuasive. The high court
has intimated that some circumstances may invalidate a waiver.
The Miranda court declared: “[A]ny evidence that the accused
was threatened, tricked, or cajoled into a waiver will, of course,
show that the defendant did not voluntarily waive his privilege.
The requirement of warnings and waiver of rights is a
fundamental with respect to the Fifth Amendment privilege and
not simply a preliminary ritual . . . .” (Miranda, supra, 384 U.S.
at p. 476, italics added.) In Berkemer v. McCarty (1984) 468 U.S.
420, the court said, “The purposes of the safeguards prescribed
by Miranda are to ensure that the police do not coerce or trick
captive suspects into confessing . . . .” (Id. at p. 433, italics
added and deleted.) Similarly, in Moran, supra, 475 U.S. 412,
the court stated that “the relinquishment of the right must have
been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or
deception.” (Id. at p. 421, italics added; see Berghuis v.
Thompkins (2010) 560 U.S. 370, 382–383.)
      The Supreme Court has nonetheless clarified that the
Constitution does not punish lack of candor for its own sake.
The Moran court explained: “Granting that the ‘deliberate or
reckless’ withholding of information is objectionable as a matter
of ethics, such conduct is only relevant to the constitutional
validity of a waiver if it deprives a defendant of knowledge

                                 39
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


essential to his ability to understand the nature of his rights and
the consequences of abandoning them.” (Moran, supra, 475 U.S.
at pp. 423–424.) Moran expressly dismissed the idea that the
intent of the police to deceive might make a difference. (Ibid.)
And in Spring, the court cited examples of “certain
circumstances” under which the court had previously
invalidated Fifth Amendment waivers; those examples all
involved misrepresentations that were coercive in nature.
(Spring, supra, 479 U.S. at p. 576, fn. 8, citing Lynumn v. Illinois
(1963) 372 U.S. 528, 534–535 [misrepresentation by police
officers that suspect would be deprived of state financial aid for
her dependent child unless she cooperated]; Spano v. New York
(1959) 360 U.S. 315, 319, 322–324 [misrepresentation by
suspect’s friend that friend would lose his job if suspect failed to
cooperate].)
      The officers’ ruse, that their purpose was to interview
defendant regarding his sex offender registration status, was
not coercive. Defendant argues that Chicoine’s reference to a
“red file” of problem offenders that sits on his desk “plainly
implied that there might be consequence for failing to
cooperate.” The record belies this assertion. The comment
suggested only that defendant should stay out of trouble
following his release from prison. Moreover, as he was filling
out the waiver form, defendant asked if his parole would be
affected “[i]f I don’t answer any of these questions.” Chicoine
replied, “No, absolutely not.”
      Defendant further maintains “it is clear from the record
that [he] would not have waived his Miranda rights if he had
actually been told who the officers were and what they were
investigating.” Defendant reasons that he promptly invoked his
right to an attorney when the officers actually broached the

                                  40
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


subject of McKenna’s death. But the fact that he did so only
reinforces the conclusion that he understood his options and his
will was not overborne. (See People v. Williams (2010) 49
Cal.4th 405, 442, 444.)
     For these reasons, defendant’s initial Miranda waiver was
knowing, intelligent, and voluntary.9
                 c. The Reinitiation of Questioning
      As noted, defendant asserted his right to counsel at the
end of the San Quentin interview and the officers promptly
stopped their questioning. Defendant contends the officers
violated his rights under Edwards, supra, 451 U.S. 477, when,
10 days later, they resumed questioning on the car trip to the
station despite his earlier invocation of Miranda rights. We
reject his claim. Defendant reinitiated further communications
with the officers when they arrived at San Quentin to take




9
      Defendant urges us to overrule Tate, supra, 49 Cal.4th
635, to the extent it can be understood to hold that only
deception “ ‘ “ ‘ “of a type reasonably likely to procure an untrue
statement” ’ ” ’ ” will be said to invalidate a Miranda waiver.
(Tate, at p. 684.)
      Tate’s discussion on that point was in response to the
defendant’s argument that “by deceptively minimizing the
seriousness of the investigation, the officers induced false
statements that were later used against him.” (Tate, supra, 49
Cal.4th at p. 684, italics added.) According to defendant, it is
unclear whether the holding in Tate addressed only deception
during the interrogation, or also applied to deception used to
obtain a waiver of Miranda rights. Given our conclusion that
defendant’s Miranda waiver was valid without resort to the
deception standard articulated in Tate, we need not address the
scope of that holding.


                                 41
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


custody of him, thus allowing for further questioning under
Edwards. (Edwards, supra, 451 U.S. at pp. 484-485.)
        “[W]hen an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that
right cannot be established by showing only that he responded
to further police-initiated custodial interrogation . . . . [There is
to be no] further interrogation by the authorities until counsel
has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations
with the police.” (Edwards, supra, 451 U.S. at pp. 484–485;
accord, People v. Gamache (2010) 48 Cal.4th 347, 384.)
“Edwards set forth a ‘bright-line rule’ that all questioning must
cease after an accused requests counsel. [Citation.] In the
absence of such a bright-line prohibition, the authorities
through ‘[badgering]’ or ‘overreaching’ — explicit or subtle,
deliberate or unintentional — might otherwise wear down the
accused and persuade him to incriminate himself
notwithstanding his earlier request for counsel’s assistance.”
(Smith v. Illinois (1984) 469 U.S. 91, 98.) “[I]t is presumed that
any subsequent waiver that has come at the authorities’ behest,
and not at the suspect’s own instigation, is itself the product of
. . . ‘inherently compelling pressures’ and not the purely
voluntary choice of the suspect.” (Arizona v. Roberson (1988)
486 U.S. 675, 681; Gamache, at p. 385.) “Thus, the People must
show both that the defendant reinitiated discussions and that
he knowingly and intelligently waived the right he had
invoked.” (Gamache, at p. 385.)
     “The Edwards presumption of involuntariness ensures
that police will not take advantage of the mounting coercive
pressures of ‘prolonged police custody,’ [citation] by repeatedly
attempting to question a suspect who previously requested

                                  42
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


counsel      until    the    suspect     is    ‘badgered      into
submission.’ [citation.]” (Shatzer, supra, 559 U.S. at p. 105.) In
Shatzer, the high court considered the temporal reach of the
Edwards presumption, noting that without a time limit, “every
Edwards prohibition of custodial interrogation of a particular
suspect would be eternal. The prohibition applies, of course,
when the subsequent interrogation pertains to a different crime,
[citation], when it is conducted by a different law enforcement
authority, [citation], and even when the suspect has met with
an attorney after the first interrogation.” (Id. at pp. 108-09.)10
In the course of its discussion, the Shatzer court examined the
underpinnings of the Edwards rule.
      The court identified the benefits of the rule: “Edwards’
presumption of involuntariness has the incidental effect of
‘conserv[ing] judicial resources which would otherwise be
expended in making difficult determinations of voluntariness.’
[Citation.] Its fundamental purpose, however, is to ‘[p]reserv[e]
the integrity of an accused’s choice to communicate with police
only through counsel,’ [citation], by ‘prevent[ing] police from
badgering a defendant into waiving his previously asserted
Miranda rights,’ [citation].” (Shatzer, supra, 559 U.S. at p. 106.)
These benefits are typically realized in “the paradigm Edwards
case. That is a case in which the suspect has been arrested for
a particular crime and is held in uninterrupted pretrial custody
while that crime is being actively investigated. After the initial
interrogation, and up to and including the second one, he

10
      The significant exception to the bar against resumed
interrogation is the one stated Edwards: questioning is
permitted when “the accused himself initiates further
communication, exchanges, or conversations with the police.”
(Edwards, supra, 451 U.S. at p. 485.)


                                 43
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


remains cut off from his normal life and companions, ‘thrust
into’ and isolated in an ‘unfamiliar,’ ‘police-dominated
atmosphere,’ [citation], where his captors ‘appear to control [his]
fate.’ [citation]” (Ibid.)
      When, however, “a suspect has been released from his
pretrial custody and has returned to his normal life for some
time before the later attempted interrogation, there is little
reason to think that his change of heart regarding interrogation
without counsel has been coerced. He has no longer been
isolated. He has likely been able to seek advice from an
attorney, family members, and friends. And he knows from his
earlier experience that he need only demand counsel to bring
the interrogation to a halt; and that investigative custody does
not last indefinitely. In these circumstances, it is farfetched to
think that a police officer’s asking the suspect whether he would
like to waive his Miranda rights will any more ‘wear down the
accused,’ [citation] than did the first such request at the original
attempted interrogation — which is of course not deemed
coercive. . . . Uncritical extension of Edwards to this situation
would not significantly increase the number of genuinely
coerced confessions excluded.” (Shatzer, supra, 559 U.S. at pp.
107–108, fn. omitted.) The court considered how long of “a break
in custody” would be sufficient “to dissipate its coercive effects.”
(Id. at p. 109.) It determined that 14 days was the appropriate
period. “That provides plenty of time for the suspect to get
reacclimated to his normal life, to consult with friends and
counsel, and to shake off any residual coercive effects of his prior
custody.” (Id. at p. 110.)
       Here, defendant was questioned again 10 days after his
initial interview, within the Shatzer window period. During the
intervening 10 days, defendant did not entirely “return[] to his

                                  44
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


normal life” while in prison. (Shatzer, supra, 559 U.S. at p. 107.)
When the interview ended, the officers took blood and buccal
swab samples, dental casts, and defendant’s shoes. They told
prison staff that defendant was a suspect, and he was subject to
an enhanced level of prison security as a result. When
defendant next saw the officers, they arrested him. Instead of
anticipating a release from custody, as he had been at the time
of the first interview, he faced a new prosecution on a very
serious charge. Thus, he was under the “mounting coercive
pressures of ‘prolonged police custody,’ ” identified by the
Shatzer court as the rationale for the Edwards presumption of
involuntariness. (Shatzer, at p. 105.) “If further conversations
[were] initiated by the police . . . defendant’s statements are
presumed involuntary and inadmissible as substantive evidence
at trial. This [would be] true even [if] defendant again waive[d]
his Miranda rights and his statements [were] voluntary under
traditional standards.” (People v. Thomas (2012) 54 Cal.4th 908,
926.)
      “An accused ‘initiates’ ” further communication, when his
words or conduct “can be ‘fairly said to represent a desire’ on his
part ‘to open up a more generalized discussion relating directly
or indirectly to the investigation.’ ” (People v. Mickey (1991) 54
Cal.3d 612, 648, quoting Oregon v. Bradshaw (1983) 462 U.S.
1039, 1045 (Bradshaw) (plur. opn. of Rehnquist, J.); see People
v. San Nicolas (2004) 34 Cal.4th 614, 641–642.) The trial court
found that defendant initiated conversation with the officers in
unrecorded statements he made before the car trip began.
Chicoine testified that they had contacted prison staff to
coordinate defendant’s transfer to Alameda County custody.
Defendant was in a receiving area when they arrived. Without
prompting, he told them “he had been meaning to call us, that


                                 45
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


he had already talked to a counselor.” He said “[h]e knew we’d
be coming back” and “he wanted to talk to us.” Chicoine
understood these remarks as “a continuation” of what defendant
had said at the end of his first interview, which was that he
wanted to talk to them after he had a chance to talk to a
counselor.11 Chicoine told defendant to wait, and “we would get
an opportunity to talk to him later.” Chicoine also testified that
while in the receiving area they told defendant he was under
arrest for McKenna’s murder. He could not remember whether
this advisement came before or after defendant said he wanted
to talk.
      On appeal, defendant challenges Chicoine’s veracity. He
points out that the initiation of contact in the receiving area was
not noted in Chicoine’s police reports. He argues that the tape
of the conversation in the car reflects no readiness to talk on
defendant’s part, and no understanding on the officers’ part that
he had reinitiated the conversation.
      “When the facts are disputed, we must accept the trial
court’s resolution of disputed facts and inferences, and its
evaluations of credibility, if they are substantially supported.”
(Bradford, supra, 15 Cal.4th at p. 1311.) A trial court’s
credibility finding will be sustained so long as the account is
plausible. (Ibid.; People v. Waidla (2000) 22 Cal.4th 690, 731–
732; cf. People v. Lewis (2001) 26 Cal.4th 334, 384.)
      Chicoine’s version of events is both plausible and
corroborated by defendant’s own later recorded statements.

11
     The tape of the first interview included a reference by
defendant to his counselor. When the officers advised him to let
a guard know if he decided to talk, defendant responded “[or] my
counselor [or my captain or something].”


                                 46
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


When defendant first invoked his right to counsel during the
March 21 interview, the officers honored that request, stopped
the interview, and told defendant that if he wanted to talk to
them again, “You have to initiate the contact.” When the officers
returned to San Quentin on March 27, they did so to execute the
arrest warrant. According to Chicoine, defendant volunteered
that he had spoken to his counselor and was ready to talk. The
10-day break between the first interview and the officers’ return
on March 31 would have given defendant ample time to seek
advice. Indeed, he does not dispute that he did so.
      Despite defendant’s repeated statements about his
willingness to talk, the officers did not interview him
immediately. Instead, they repeatedly told him to wait until he
was re–Mirandized at the station. They explained that at the
station they would take him to an interview room and read him
his rights again. They explicitly told him: “[A]t that time, you
know, you can say hey, let me talk to my PD and I’ll talk to you
again, but, you know, that’s entirely up to you.”
       Back on tape at the station, Dudek clarified, “You
approached us, is the only thing I’m getting to, is that correct?”
Defendant replied, “Uh-huh.” In a subsequent interview,
Deputy District Attorney Andy Sweet also explored defendant’s
reinitiation of contact in detail. Defendant acknowledged that
he had previously invoked his Miranda rights. When asked,
“What changed from before to now?” defendant said, “I just . . .
I’m . . . I’m tired.” Sweet said, “It was your decision to start
talking.” Defendant agreed, saying, “It was my decision. I’m
tired now,” and, “In my mind, they didn’t press the issue,
understand me?” Sweet sought further clarification, asking,
“When they came to pick you up today, some place between San
Quentin and here, the Sheriff’s Department in Alameda County,

                                 47
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


you started talking to the officers about your case and about
what was going on. Isn’t that true?” Defendant said, “That’s
correct.” He reaffirmed that he changed his mind because he
was “tired and I just want closure,” and that it was “[m]y
decision.” He said the officers had not said or done anything
that made him think he had to talk to them, adding, “I asked
them on the way here if I would be able to talk to a DA.” Sweet
then asked, “Would it be a fair statement to say that you
reinitiated kind of the discussion about the case?” Defendant
answered, “Ok. I, it, that would be fair because I asked like if I
will be straight up with you both like I was with them, right. I
understand ok, I don’t have the money for a public defender,
blah blah blah. Right. But I understand my public defender
said well, look you shouldn’t do this you shouldn’t do that
because they’re not here. Ok. I know what I did. All right. And
I just want to get it over with.” He agreed with Sweet’s
statement that “[t]hey didn’t ask you any questions, you were
the one asking them questions to start the conversation going
again. Correct?” He volunteered, “They made me no promises
or anything. My only, my main concern was that you [the DA]
were to come down here.”
      This record amply supports the trial court’s factual finding
that defendant reinitiated conversation with the officers at San
Quentin before the car trip began. Accordingly, under Edwards,
the officers were permitted to resume their questioning of
defendant about the McKenna homicide. (Edwards, supra, 451
U.S. 477 at pp. 484-85.)
                d. Alleged Invocation in the Car
      Defendant argues that even if he reinitiated conversations
with the officers at San Quentin, he once again invoked his right



                                 48
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


to counsel during the drive, making any subsequent waiver at
the station involuntary under Edwards. He cites the following
exchange:
     Defendant: “Can I ask you a question?”
     Dudek: “Sure.”
     Defendant: “They’ll assign me a PD, right?”
     Dudek: “Right.”
      Defendant: “I can sit down and talk to my PD first, then
talk with you all?”
     Dudek: “Yeah.”
     Defendant: “Can I do that?”
      Dudek: “Yeah. I mean, that’s one of your options and
that’s why we’re here, you know.”
     Defendant: “That’s, I would, I would (unintelligible).”
      Although the transcript prepared for the suppression
hearing identifies the relevant portion of the tape as
unintelligible, defendant now argues on appeal that he actually
said, I would “feel more comfortable.”
      The claim was forfeited. Defense counsel did not advance
this interpretation of the tape during the suppression hearing
or ask Chicoine about it. Nor did she secure a finding of fact
from the trial court regarding this portion of the tape, or argue
that it amounted to a second invocation of counsel. For his part,
the Attorney General states that, because of the poor quality of
the tape recording, he cannot determine whether defendant
actually said he would “feel more comfortable.” We have
independently reviewed the tape recording and did not make out
the words “feel more comfortable.” Because the theory was


                                 49
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


never litigated and the relevant facts are subject to dispute, it is
not properly raised for the first time on appeal. (People v. Gurule
(2002) 28 Cal.4th 557, 602.)
      Even overlooking forfeiture and assuming, as defendant
asserts, that he said he would “feel more comfortable” if he spoke
to a public defender first, the comment did not amount to a
“clear assertion” of the right to counsel under our high court’s
precedent. (Davis v. United States (1994) 512 U.S. 452, 460
(Davis).) “The applicability of the ‘ “rigid” prophylactic rule’ of
Edwards requires courts to ‘determine whether the accused
actually invoked his right to counsel.’ ” (Id. at p. 458.)
Ambiguous or equivocal references to an attorney do not require
cessation of questioning. (Id. at pp. 458–459, 462.) As the high
court has emphasized, “we are unwilling to create a third layer
of prophylaxis [beyond the holdings in Miranda and Edwards]
to prevent police questioning when the suspect might want a
lawyer. Unless the suspect actually requests an attorney,
questioning may continue.” (Id. at p. 462.)
        Defendant’s first reference to an attorney was phrased in
equivocal language. He asked Dudek, “I can sit down and talk
to my PD first, then talk with you all?” and, “Can I do that?”
Similar statements have been found not to be a clear request for
counsel’s assistance. (Davis, supra, 512 U.S. at pp. 455, 462
[“ ‘Maybe I should talk to a lawyer’ ”]; People v. Bacon (2010) 50
Cal.4th 1082, 1105 [“ ‘I think it’d probably be a good idea for me
to get an attorney’ ”]; People v. Stitely (2005) 35 Cal.4th 514, 535
[“ ‘I think it’s about time for me to stop talking’ ”].)
     When Dudek affirmed that was one of defendant’s options,
defendant then allegedly said, “That’s, I would, I would [feel
more comfortable].” Although this statement was not framed in


                                  50
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


the form of a question, it was also not a clear invocation of the
right to an attorney. Most people would feel more comfortable
with a lawyer present during interrogation. But that reality
does not establish the converse: that defendant was unwilling
to speak without counsel’s assistance.
       In some respects, this statement is similar to that
statement in People v. Sauceda-Contreras (2012) 55 Cal.4th 203.
There, defendant was given his Miranda rights and asked if he
would like to speak with the detective. Defendant said: “ ‘If you
can bring me a lawyer, that way I[,] I with who . . . that way I
can tell you everything that I know and everything that I need
to tell you and someone to represent me.’ ” (Id. at p. 216.) We
held that because defendant’s reference to an attorney was
“conditional, ambiguous, and equivocal,” a cessation of
questioning was not required. (Id. at p. 219; see also Delashmit
v. State (Miss. 2008) 991 So.2d 1215, 1219, 1221 [defendant’s
statement, “ ‘I prefer a lawyer’ ” was ambiguous].) A similar
conclusion follows here, though in Sauceda-Contreras and
Delashmit the officers asked follow-up questions. (Sauceda-
Contreras, at pp. 216, 219–220; Delashmit, at pp. 1219–1221.)
That did not happen here, at least in the car. But clarification,
while advisable, is not required. (Davis, supra, 512 U.S. at pp.
461–462.) “[W]e decline to adopt a rule requiring officers to ask
clarifying questions. If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers
have no obligation to stop questioning him.” (Id. at p. 461.)
Further clarification was ultimately sought by both the officers
and the district attorney once defendant arrived at the police
station and was formally Mirandized.
       Because defendant reinitiated conversation with the
officers at San Quentin, and did not clearly invoke his right to

                                 51
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


counsel en route to the station, the officers were permitted to
resume their questioning of defendant about the McKenna
homicide. (Edwards, supra, 451 U.S. at pp. 484-485.)
                 e. Voluntariness of Miranda Waiver on March
                    31st
      Even when a suspect initiates further discussions, the
burden remains on the prosecution to show by a preponderance
of the evidence that the suspect knowingly, intelligently, and
voluntarily waived the rights he had previously invoked.
(Connecticut v. Barrett (1987) 479 U.S. 523, 527; Connelly,
supra, 479 U.S. at p. 168; Bradshaw, supra, 462 U.S. at p. 1044,
plur. opn. of Rehnquist, J.; People v. Davis, supra, 46 Cal.4th at
p. 596.) We independently review the validity of the waiver “ ‘in
light of the record in its entirety, including “all the surrounding
circumstances—both the characteristics of the accused and the
details of the [encounter]” . . . .’ ” (People v. Neal (2003) 31
Cal.4th 63, 80.)
      At the station, Dudek again read the Miranda rights, and
defendant acknowledged that he understood them. He concedes
that his willingness to talk after affirming that he understood
his rights is sufficient to establish an implied waiver. (See
Berghuis v. Thompkins, supra, 560 U.S. at pp. 383–385; North
Carolina v. Butler (1979) 441 U.S. 369, 373.) He argues,
however, that his waiver was not voluntary because the officers
lied to obtain the initial waiver, disregarded his invocations of
the right to counsel, and engaged in impermissible softening-up
tactics. His arguments are unpersuasive.
     As explained, the officers’ “ruse” did not invalidate
defendant’s initial waiver. Moreover, by the time defendant was
re–Mirandized on March 31, he knew that he had been arrested


                                 52
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


for McKenna’s homicide. There is no colorable claim of police
deception as to defendant’s second waiver.
      Nor did the officers disregard defendant’s invocation of the
right to counsel. When defendant asked for counsel during the
San Quentin questioning, the officers immediately ended the
interview. In the car ride to the station, defendant asked
whether he would be assigned a public defender and be allowed
to talk to that counsel before questioning. In response, Sergeant
Dudek directly affirmed defendant’s right to the assistance of
counsel, explained just how to make such a request, and
affirmed: “[T]hat’s entirely up to you.” Defendant did not make
an unequivocal request for counsel at that time.
       Defendant argues that the officers coerced him into
waiving his Miranda rights at the station by engaging in
improper softening-up techniques. Specifically, he claims the
officers disparaged the victim and appealed to defendant’s
desire to mend his relationship with his children. He relies
primarily on People v. Honeycutt (1977) 20 Cal.3d 150
(Honeycutt). There the defendant was initially hostile to one of
the interrogating officers. Without administering Miranda
warnings, a different officer who had known him for about 10
years had a 30-minute unrecorded discussion with him. (Id. at
p. 158.) They discussed past events and former acquaintances,
and the officer made disparaging comments about the victim.
(Ibid.) The defendant “ ‘soften[ed] up’ ” and agreed to talk about
the underlying offense, after which he was advised of and
waived his Miranda rights and confessed to murdering the
victim. (Id. at p. 158.)
      Honeycutt held the defendant’s Miranda waiver
involuntary. (Honeycutt, supra, 20 Cal.3d at p. 161.) It framed


                                 53
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


the issue as follows:       “Detective Williams had, prior to
explaining the Miranda rights, already succeeded in persuading
defendant to waive such rights. Thus the critical question is
what effect failure to give a timely Miranda warning has on the
voluntariness of a decision to waive which is induced prior to the
Miranda admonitions.” (Id. at p. 159.) Honeycutt concluded
that, “When the waiver results from a clever softening-up of a
defendant through disparagement of the victim and ingratiating
conversation, the subsequent decision to waive without a
Miranda warning must be deemed to be involuntary for the
same reason that an incriminating statement made under police
interrogation without a Miranda warning is deemed to be
involuntary.” (Id. at pp. 160–161.)
       Defendant’s reliance on Honeycutt is misplaced. First,
unlike that case, defendant here was well aware of his Miranda
rights, having previously and successfully invoked them. Dudek
affirmed defendant’s right to counsel during the very discussion
defendant claims was intended to soften him up. A key
predicate to the Honeycutt holding, the absence of Miranda
warnings, does not exist here. Second, defendant was not hostile
to the officers, and Dudek did not exploit a personal relationship
to encourage his waiver of rights. Third, in his interview with
Deputy District Attorney Sweet, defendant confirmed that he
waived his rights voluntarily, stating that it was his decision to
talk and that “[i]n my mind, [the officers] didn’t press the issue,
understand me?” He affirmed that the officers said or did
nothing that made him think he had to speak with them. All of
these factors weigh heavily against defendant’s argument that
his decision to waive his right to counsel and speak with the
officers was not voluntary.



                                 54
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Defendant argues that, as in Honeycutt, the officers here
disparaged the victim in an attempt to minimize the crime and
ingratiate themselves. He observes that the officers questioned
him about McKenna’s drug use and whether she favored multi-
party sex. Dudek commented that he knew McKenna was not
an angel. Honeycutt did cite the officer’s disparaging comments
about the victim before any Miranda admonition as one of
several factors that combined to render the defendant’s waiver
involuntary. (Honeycutt, supra, 20 Cal.3d at pp. 158, 160.) But
here, as noted, the other factors were absent: defendant was not
hostile or reluctant to speak; the officers did not exploit a long-
standing relationship; and he was forewarned of his Miranda
rights. The officers’ brief comments about the victim, standing
alone, did not render defendant’s waiver involuntary.
      The same is true of Dudek’s comments to defendant about
mending his relationship with his children. Dudek did not
threaten defendant’s children with prosecution or other harm if
he failed to confess. (See Lynumn v. Illinois, supra, 372 U.S. at
pp. 531–532; People v. Steger (1976) 16 Cal.3d 539, 550; In re
Shawn D. (1993) 20 Cal.App.4th 200, 212.) As defendant’s own
statements indicate, he was motivated to confess because he was
tired of living with the guilt of killing McKenna. He believed
that officers would be coming for him, and emphasized that “if
you didn’t come, I would have came to you.” He acknowledged
that his public defender would tell him not to cooperate, but
commented that “he doesn’t have to wear my shoes.” Defendant
wanted an expedited resolution, perhaps to spare himself and
his family the stress of a trial. He commented, “I know what I
did. All right. And I just want to get it over with.” The Fifth
Amendment is not “concerned with moral and psychological



                                 55
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


pressures to confess emanating from sources other than official
coercion.” (Oregon v. Elstad (1985) 470 U.S. 298, 304–305.)
      In sum, the conversation during the car ride did not
improperly “soften-up” defendant or render his waivers
involuntary. His statement at the police station was properly
admitted.
         2. Other Crimes Evidence
     As noted, the prosecutor introduced evidence of three
other crimes: two rapes and the physical abuse of his wife.
Defendant challenged the admissibility of this evidence below,
and renews his arguments on appeal. All three incidents were
properly admitted.
                 a. Crimes Against Anne H. and Mabel L.
                    (Evid. Code, § 1108)
      Under Evidence Code section 1108, the trial court
admitted evidence that defendant raped Anne H. and Mabel L.
That section carves out an exception to Evidence Code section
1101, subdivision (a)’s ban on character evidence offered to
prove a person’s conduct on a particular occasion. Specifically,
subdivision (a) of Evidence Code section 1108 provides: “In a
criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another
sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section
352.” Evidence Code section 352, in turn, provides that “[t]he
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” In short, if evidence satisfies section


                                 56
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


1108, and is not excluded under section 352, admission of that
evidence to prove propensity is permitted. (People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 823.)
       Defendant’s earlier rape offenses fall under the rule of
Evidence Code section 1108, subdivision (a). (See id., subd.
(d)(1)(A).) Nevertheless, defendant maintains their admission
violated due process under the federal Constitution. He
concedes that we rejected this argument nearly two decades ago
in People v. Falsetta (1999) 21 Cal.4th 903, 907, but urges us to
reconsider that holding. We have repeatedly declined to do so.
(See People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 827;
People v. Loy (2011) 52 Cal.4th 46, 60–61; People v. Lewis (2009)
46 Cal.4th 1255, 1288–1289.) He offers no persuasive reason for
reconsideration of this established precedent. Specifically, his
argument that Evidence Code section 352 does not provide the
“ ‘safeguard’ ” anticipated in Falsetta is unpersuasive. To the
contrary, the record here demonstrates the trial court’s careful
attention to Evidence Code section 352 factors.
                b. Crimes Against Defendant’s Wife, Brenda
                   (Evid. Code, § 1101, subd. (b))
      Defendant challenges the admission of evidence that he
strangled his wife, Brenda, to unconsciousness. Evidence Code
section 1101, subdivision (b) allows the admission of other crime
evidence relevant to prove a fact at issue, such as intent,
common plan, identity, lack of mistake, or accident. There was
no abuse of discretion here. (See People v. Jones (2013) 57
Cal.4th 899, 930.) Defendant’s assault on Brenda was relevant
to prove that he intentionally used deadly force on McKenna and
to defeat his claim that her death was accidental. The jury was




                                 57
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


properly instructed on the limitations on how the evidence could
be used.12
      In order to be relevant, the “least degree of similarity
(between the uncharged act and the charged offense) is required
in order to prove intent. [Citation.] ‘[T]he recurrence of a
similar result . . . tends (increasingly with each instance) to
[negate] accident or inadvertence or self-defense or good faith or
other innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence of the
normal, i.e., criminal, intent accompanying such an act . . . .’
[Citation.] In order to be admissible to prove intent, the
uncharged misconduct must be sufficiently similar to support
the inference that the defendant ‘ “probably harbor[ed] the same
intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th
380, 402 (Ewoldt).)




12
       Specifically, the jury was told that if it found the
uncharged offense to be proved by a preponderance of the
evidence, “you may, but are not required to, consider the
evidence for the limited purpose of deciding in the charged
offense whether or not: The defendant intended to kill; or the
defendant acted with the knowledge that his acts were reckless
and that they created a high risk of death or great bodily injury;
or, the defendant’s alleged actions were the result of mistake or
accident; or, the defendant reasonably and in good faith believed
that Suzanne McKenna consented. Do not consider this
evidence for any other purpose except for the limited purpose[s]
identified above. If you conclude that the defendant committed
the uncharged offense, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of the charged offense
and special circumstance allegation. The People must still prove
each element of the charge beyond a reasonable doubt.”


                                 58
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Defendant argues that his spousal abuse was so dissimilar
from the McKenna strangulation that it was irrelevant to prove
intent or demonstrate lack of accident. He observes that
corporal injury on a spouse is a general intent crime, while the
current crime was murder. He argues that the assault on
McKenna occurred during a sexual encounter, while the assault
on Brenda was prompted by an argument over his drug use and
his fear that she would report him to his parole officer. He
further contends that there could be no inference of lack of
accident from “ ‘the recurrence of a similar result’ ” (Ewoldt,
supra, 7 Cal.4th at p. 402), because here there was no similar
result. McKenna died and Brenda did not.
      His arguments miss the mark. Defendant’s statements to
police placed his intent at issue. He claimed that he and
McKenna engaged in consensual sex, during which she asked
him to strangle her. He insisted that she wanted to be strangled
and her death was accidental. McKenna’s death prevented her
from telling her side of the story. However, the assaults on
Brenda and McKenna were sufficiently similar to support
several inferences related to defendant’s own intent and motive.
In both cases defendant strangled women with whom he was
intimate. Brenda was rendered unconscious twice. The effect
on McKenna was lethal. Defendant’s conduct with Brenda could
support an inference that he acted with conscious disregard for
the danger to the lives of both women, and that he intended to
dominate his intimate partners in that manner. The fortuity
that Brenda survived the strangulation does not diminish the
legitimate inference that defendant harbored a similar intent
when he strangled McKenna, and that her death was not
accidental.



                                 59
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


      Defendant further argues that the trial court erroneously
admitted the evidence under a theory of common design or plan.
(See Ewoldt, supra, 7 Cal.4th at p. 393.) But the jury was
instructed it could consider the assault on Brenda only on the
issues of intent, mistake or accident, and whether the defendant
reasonably and in good faith believed that McKenna consented.
The jury was expressly told: “Do not consider this evidence for
any other purpose except for the limited purposes identified
above.” Defendant cites nothing in the record to suggest that
the jury was confused about the meaning of this limiting
instruction. We therefore need not decide whether the evidence
was also admissible to show a common design or plan.
      Finally, defendant argues that the trial court abused its
discretion by failing to exclude evidence of the assault against
Brenda under Evidence Code section 352. Not so. Defendant’s
denial of criminal intent and his claim of accident made his prior
assaultive conduct particularly probative. The spousal assault,
while certainly blameworthy, was not unduly inflammatory
compared to the gruesome murder of McKenna. Moreover, the
jury knew defendant had already served a prison sentence for
his attack on Brenda. (See People v. Balcom (1994) 7 Cal.4th
414, 427.) No abuse of discretion appears.
         3. Unreasonable Belief that the Victim Consented to
            Intercourse
      The trial court instructed the jury with CALCRIM No.
1000 defining rape. The instruction, as given, stated in relevant
part: “The defendant is not guilty of rape if he actually and
reasonably believed that the woman consented to the
intercourse. The People have the burden of proving beyond a
reasonable doubt that the defendant did not actually and
reasonably believe that the woman consented. If the People

                                 60
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


have not met this burden, you must find the defendant not
guilty.” Two other instructions also referred to a reasonable and
good faith belief that the victim consented to intercourse.13
      Defendant requested the relevant language of CALCRIM
Nos. 1000 and 1194, and did not object to the language of
CALCRIM No. 375, requested by the prosecutor. On appeal, he
argues that the trial court had a sua sponte duty to modify the
instructions to allow the jury to consider whether he harbored a
good faith but unreasonable belief that the victim consented to
intercourse. Defendant maintains that rape felony murder and
the rape-murder special circumstance require specific intent, as
opposed to the general intent required for rape. He reasons that
the element of specific intent may be negated by an
unreasonable mistake of fact, and he was entitled to an
instruction that if he had a bona fide but unreasonable belief
that McKenna consented, he lacked the requisite intent.


13
      CALCRIM No. 1194, as given, stated: “You have heard
evidence that Suzanne McKenna had consensual sexual
intercourse with the defendant before the act that is charged in
this case. You may consider this evidence only to help you decide
whether the alleged victim consented to the charged act and
whether the defendant reasonably and in good faith believed
that Suzanne McKenna consented to the charged act. Do not
consider this evidence for any other purpose.” Section 1127d,
subdivision (a) mandates that this instruction be given when
evidence is admitted that the victim consented to sexual
intercourse with the defendant before the occurrence of the
charged crime.
      CALCRIM No. 375, as given, told the jury that it could
consider evidence of defendant’s assault on Brenda Molano in
deciding, among other things, whether or not defendant
“reasonably and in good faith believed that Suzanne McKenna
consented.”


                                 61
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


      Defendant is correct that rape is a general intent crime
(People v. Osband (1996) 13 Cal.4th 622, 685), while we have
said that rape felony murder requires a specific intent to commit
rape. (People v. Haley (2004) 34 Cal.4th 283, 314; People v. Jones
(2003) 29 Cal.4th 1229, 1256-1257; People v. Hernandez (1988)
47 Cal.3d 315, 346.) Contrary to defendant’s argument, we have
also said that a felony-murder special circumstance does not
require a finding of specific intent when the underlying crime is
one of general intent. (People v. Davis (1995) 10 Cal.4th 463,
518-519; but see People v. Hughes (2002) 27 Cal.4th 287, 342-
343; People v. Clark (1993) 5 Cal.4th 950, 1021.)
      People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry) held
that a defendant’s reasonable and good faith mistake of fact that
the victim consented to sexual intercourse is a defense to rape.
(Id. at p. 155.)      We have not considered whether the
reasonableness component of the Mayberry defense applies in a
case involving rape felony murder or the rape-murder special
circumstance.    We need not answer that question here.
Defendant has forfeited his claim of instructional error, and the
alleged error was harmless in any event.
                 a. Forfeiture
      “ ‘ “It is settled that in criminal cases, even in the absence
of a request, a trial court must instruct on general principles of
law relevant to the issues raised by the evidence” ’ and
‘ “necessary for the jury’s understanding of the case.” ’ ” (People
v. Brooks (2017) 3 Cal.5th 1, 73.) The court has a sua sponte
duty to give a Mayberry instruction about good faith and
reasonable belief in the victim’s consent “ ‘if it appears . . . the
defendant is relying on such a defense, or if there is substantial
evidence supportive of such a defense and the defense is not


                                  62
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


inconsistent with the defendant’s theory of the case.’ ” (Ibid.;
accord, People v. Maury (2003) 30 Cal.4th 342, 423–425; People
v. Lujano (2017) 15 Cal.App.5th 187, 194; People v. Burnham
(1986) 176 Cal.App.3d 1134, 1141–1142.) Section 1127d,
subdivision (a) requires that the trial court instruct on the
permissible use of evidence that the victim consented to sex with
the defendant on other occasions, and that such evidence is
relevant to “whether the defendant had a good faith reasonable
belief that the victim consented to the [charged] act of sexual
intercourse.” The trial court instructed the jury according to
these general principles.
       By contrast, at the time of defendant’s trial in July 2007,
no California case had held that a good faith but unreasonable
belief in consent would negate a specific intent to commit rape.
Our closest authority at that time was People v. Stitely, supra,
35 Cal.4th 514. There the defendant challenged the trial court’s
failure to instruct on a Mayberry defense in the context of rape
felony murder. (Id. at pp. 552–554.) We recited the requirement
that the defendant’s subjective belief in the victim’s consent be
“ ‘reasonable under the circumstances.’ ” (Id. at p. 554.) We
went on to note that the failure to instruct, if error, was
harmless. (Ibid.) We did not consider the precise claim
defendant raises here. And at the time of defendant’s trial at
least one appellate court had assumed that the Mayberry
reasonableness standard applies when the charged sexual
offense requires specific intent, such as assault with intent to




                                 63
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


commit rape. (People v. Rivera (1984) 157 Cal.App.3d 736, 738,
741–742.)14
       “[A] legal concept that has been referred to only
infrequently, and then with ‘inadequate elucidation,’ cannot be
considered a general principle of law such that a trial court must
include it within jury instructions in the absence of a request.”
(People v. Bacigalupo (1991) 1 Cal.4th 103, 126 (Bacigalupo),
judg. vacated and remanded on other grounds sub nom.
Bacigalupo v. California (1992) 506 U.S. 802, quoting People v.
Flannel (1979) 25 Cal.3d 668, 681 (Flannel), superseded on
other grounds as stated in In re Christian S. (1994) 7 Cal.4th
768, 777 (Christian S.).) In Flannel, we held for the first time
that “a genuine but unreasonably held belief [in the need for
self-defense] negates the mental state of malice aforethought
that is necessary for a murder conviction.” (Flannel, at p. 682.)
We also clarified that, going forward, trial courts would have a
sua sponte duty to instruct on unreasonable self-defense, when
warranted by the evidence. (Id. at pp. 682–683) But we held
that the trial court’s failure to instruct on that theory did not
require reversal because the theory of unreasonable self-defense
was not so well-established that the trial court could be faulted
for failing to instruct sua sponte. (Id. at pp. 675, 681–683.) This
was true even though several decisions from the Courts of
Appeal had already recognized unreasonable self-defense — and
even though we had previously “affirmed [its] existence” in
dicta. (Id. at p. 676; see also id. at pp. 675–676, citing People v.

14
     That assumption persists. (See, e.g., People v. Andrews
(2015) 234 Cal.App.4th 590, 602–603; People v. Sojka (2011) 196
Cal.App.4th 733, 736–739; People v. Dillon (2009) 174
Cal.App.4th 1367, 1383–1384; but see People v. Braslaw (2015)
233 Cal.App.4th 1239, 1249–1250.)


                                  64
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


Lewis (1960) 186 Cal.App.2d 585, People v. Best (1936) 13
Cal.App.2d 606, and People v. Sedeno (1974) 10 Cal.3d 703. As
we explained in Bacigalupo, “Flannel does not suggest that . . .
acceptance of a legal rule in one intermediate appellate decision”
imposes a sua sponte duty to instruct on that rule.” (1 Cal.4th
at pp. 126–127, fn. 4.)
       Defendant argues it is well established that a defendant
who genuinely makes an unreasonable mistake of fact as to
consent necessarily lacks the specific intent to rape. He relies
by analogy on cases holding that a bona fide belief in a claim of
right to property or that the property was abandoned disproves
the specific intent requirement for certain theft offenses, even if
that belief is unreasonable. (See, e.g., People v. Russell (2006)
144 Cal.App.4th 1415, 1425–1426; People v. Navarro (1979) 99
Cal.App.3d Supp. 1, 5–6, 10–11; see generally People v. Tufunga
(1999) 21 Cal.4th 935, 938.) He also relies on our recognition of
a defense to malice-murder based on an actual but unreasonable
belief in the need for self-defense. (See Christian S., supra, 7
Cal.4th at pp. 778, 783.) But extension of this principle to sex
crimes requiring specific intent is not a foregone conclusion. The
issue has not arisen frequently, and at the time of defendant’s
trial no Court of Appeal had squarely addressed the viability of
an unreasonable mistake of fact defense in this context. One
court has since issued a decision offering some support for
defendant’s position, but that decision was rendered several
years after defendant’s trial. (See People v. Braslaw, supra, 233
Cal.App.4th at pp. 1247-1249.) In any event, one appellate
decision in support of a legal rule does not “transform[] it into a
general principle of law” (Bacigalupo, supra, 1 Cal.4th at
pp. 126-127, fn. 4). We have never considered, let alone decided,
the issue.     Under the governing authority of Flannel and


                                 65
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


Baciagalupo, defendant’s unreasonable mistake theory falls far
short of a well-established rule that would have required a sua
sponte instruction. Because defendant never requested such an
instruction, he has forfeited the issue.
                 b. Harmless Error
      Notwithstanding forfeiture, and even assuming the
validity of defendant’s unreasonable-belief-in-consent theory,
the alleged error in failing to instruct on that defense was
harmless. “Error in failing to instruct on the mistake-of-fact
defense is subject to the harmless error test set forth in People
v. Watson (1956) 46 Cal.2d 818, 836.” (People v. Russell, supra,
144 Cal.App.4th at p. 1431; accord, People v. Watt (2014) 229
Cal.App.4th 1215, 1219–1220, and cases cited; People v. Givan
(2015) 233 Cal.App.4th 335, 349; People v. Hanna (2013) 218
Cal.App.4th 455, 462–463; People v. Soika, supra, 196
Cal.App.4th at p. 738.) Under this standard, a conviction “may
be reversed in consequence of this form of error only if, ‘after an
examination of the entire cause, including the evidence’ (Cal.
Const., art. VI, § 13), it appears ‘reasonably probable’ the
defendant would have obtained a more favorable outcome had
the error not occurred [citation].” (People v. Breverman (1998)
19 Cal.4th 142, 178, fn. omitted (Breverman).)15
      There was compelling evidence that defendant strangled
McKenna to death during an act of rape. McKenna had
contusions and abrasions on her upper torso, mouth, and nose
consistent with the use of force. The pathologist testified that

15
     Mayberry, supra, 15 Cal.3d at pages 157‒158, applied the
harmless error standard articulated in People v. Modesto (1963)
59 Cal.2d 722, 730. That standard, however, has long since been
repudiated. (Breverman, supra, 19 Cal.4th at pp. 175–176.)


                                 66
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


defendant would have had to apply pressure to McKenna’s neck
for “a couple of minutes” before she lost consciousness, and then
for one or two more minutes to stop her heart. This evidence
strongly supported an inference of premeditated and deliberate
intent to kill, and undermined any suggestion that defendant
believed in good faith the victim had consented. Defendant’s two
attempts to clean up the crime scene and his flight from the
apartment the next day also cast into doubt his description of a
consensual encounter and accidental death.                Finally,
defendant’s forcible rape and strangulation of Anne H. and
Mabel L. were strong evidence that he assaulted McKenna in a
similar fashion and with similar intent.
      The evidence presented at trial and the defense theory of
the case provided very little support for a claim that defendant
mistakenly harbored a good faith but unreasonable belief in
McKenna’s consent.       The defense argued actual consent:
defendant and McKenna engaged in foreplay, she removed his
clothes, and she willingly engaged in intercourse. Although
there were elements of force involved, defendant made clear that
McKenna instigated the “rough sex,” enjoyed it, and encouraged
him to choke her.
        According to defendant, this was not their first sexual
encounter. He claimed that two days before her death, he and
McKenna “got high together, we talked, we fooled around, what
people call petting, and one thing led to another, we had sex
. . . .” He claimed it was “[r]egular missionary style sex,” and
was not violent. “[W]e both wanted sex and we had sex.”
      Defendant said that, on the day of McKenna’s death, she
invited defendant to her apartment. The two of them used drugs
and drank together. They were “fooling around,” she removed


                                 67
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


his clothing, and “she was the aggressor that night.” During
intercourse, McKenna set the tone by hitting, slapping, and
biting him. Then she asked him to choke her. He used her
panties or bra to choke her, but she said it was not sufficient.
According to defendant, she seemed to enjoy it. He choked her
to unconsciousness, and at some point he realized she was dead.
He did not intend to kill her.
       When asked if McKenna slapped defendant during sex to
fight him off, he responded, “She had no reason to fight me off.”
Asked if McKenna had told defendant to stop choking her at
some point, defendant responded, “she may have,” and, “I don’t
know.” But defendant also repeatedly insisted that he did not
rape McKenna. He did not contend that McKenna revoked an
initial grant of consent or that he failed to appreciate that fact.
Moreover, such a theory would have been substantially
undermined by the length of time it would have taken to fatally
strangle McKenna, and by defendant’s subsequent conduct on
two successive days.
      Consistent with defendant’s description of events, defense
counsel argued in closing that the critical issue before the jury
was actual consent. She argued that defendant’s claim of a
sexual relationship with McKenna was corroborated by the
testimony of Brenda and Robert Molano that they frequently
saw defendant at McKenna’s residence. Counsel noted several
circumstances consistent with consensual intercourse. There
were no signs of forced entry into McKenna’s apartment. A
container of condoms, an empty condom wrapper, personal
lubricant, and empty wine and beer bottles were found inside
the cottage. The autopsy revealed no injuries to McKenna’s
genitalia. Defense counsel argued that this circumstantial



                                 68
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


evidence, as well as defendant’s own account, all pointed to
consensual sex.
      But the jury evidently rejected all of this, and instead
believed the People’s theory of the case: that defendant entered
McKenna’s home and forcibly raped her from the start of the
encounter. Even if defendant had received an instruction
permitting him to argue that he genuinely but unreasonably
believed McKenna consented, it is not reasonably probable that
such an instruction would have made a difference on this record.
      On appeal, defendant argues that he “has a history of
unreasonably believing that women with whom he has had sex
have consented to do so when in fact they have not done so,
particularly when [he] is under the influence of drugs and
alcohol or other altered psychological states.” But nothing about
the circumstances as defendant recounted them suggested that
he actually misperceived the situation or could not form the
specific intent to commit rape due to his intoxication. On the
contrary, defendant recalled several details about the
encounter, suggesting that his intoxication did not in fact
interfere to a significant degree with his perception. Moreover,
the jury was instructed that it could consider defendant’s
intoxication in deciding whether he intended to kill, acted with
deliberation and premeditation, or intended to commit rape.
Because the jury found defendant guilty of first degree murder,
it was unlikely to accept a theory of intoxication that would have
supported defendant’s argument of a good faith but
unreasonable belief in consent.
      Considering the strength of the prosecution’s case and the
lack of evidence or argument supporting defendant’s belatedly
advanced theory of mistake of fact, there is no reasonable


                                 69
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


likelihood that the jury would have reached a different result
had it been instructed in the manner defendant now suggests.
      For much the same reasons, we reject defendant’s claim
that the absence of an instruction undermined his right to
present a complete defense implicating due process and the
prejudice standard articulated in Chapman v. California (1967)
386 U.S. 18, 24. As we explained in People v. Rogers (2006) 39
Cal.4th 826: “Defendant relies on cases in which federal courts
have held that a trial court’s failure to give a requested
instruction (whether on a lesser included offense, or on some
other subject) embodying the defense theory of the case and
around which the defendant had built his or her defense,
violated the defendant’s due process right to present a complete
defense. [Citations.] [¶] In these cases, unlike the present one,
the instruction at issue was requested by the defense. The cases
do not support the proposition that a trial court’s failure to
instruct on a lesser included offense sua sponte denies due
process. Further, nothing in the record suggests the trial court
would not have given the express malice second degree murder
instruction had the defense asked for it. Nor can it be said that
the omitted instruction ‘embodied the defense theory of the
case.’ Rather, in closing argument the only lesser-included-
offense verdict that defense counsel asked the jury to return was
manslaughter. Although the defense presented evidence of lack
of premeditation and deliberation and argued the prosecution’s
evidence did not support a finding of premeditation, defense
counsel did not ask the jury to return a verdict of second degree
murder. Because defendant was allowed to present the defense
he chose, followed by jury instructions he agreed to, he was not
denied due process by being deprived of the opportunity to



                                 70
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


present a complete defense.” (Id. at p. 872, fn. omitted; accord
People v. Humphrey (1996) 13 Cal.4th 1073, 1089.)
     Here, too, defendant did not request an instruction on
unreasonable but good faith belief in consent. That theory
played no role in the defense he chose. No due process violation
appears.
     B. Penalty Phase Issues
         1. Victim Impact Testimony
      At the penalty phase, McKenna’s brother Ronald testified
that his sister Patti Dutoit committed suicide after the murder,
adding, “I lost two sisters because of this clown.” The court had
earlier ruled that the cause of Dutoit’s death was not to be
mentioned before the jury. Consistent with this ruling, it twice
admonished the jury to disregard Ronald’s statement.
Defendant claims that the prosecutor improperly elicited
evidence in violation of the court’s order and that the court
abused its discretion in denying his motions for a mistrial. He
argues that admission of Ronald’s testimony was “incurable
error” that violated the Fifth, Sixth, Eighth, and Fourteenth
Amendments and deprived him of a fair trial and due process,
notwithstanding the court’s corrective actions. We reject these
claims.
      “To constitute a violation under the federal Constitution,
prosecutorial misconduct must ‘so infect[ ] the trial with
unfairness as to make the resulting conviction a denial of due
process.’ [Citations.] ‘But conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of
deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’ [Citation.] To be cognizable on


                                 71
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


appeal, a defendant ‘ “must make a timely objection at trial and
request an admonition; otherwise, the [claim of prosecutorial
misconduct] is reviewable only if an admonition would not have
cured the harm caused by the misconduct.” ’ ” (People v. Valdez
(2004) 32 Cal.4th 73, 122 (Valdez).)
      Seven months after McKenna’s death, her sister, Dutoit,
died as a result of respiratory failure following a drug overdose.
Dutoit’s family members believed her death was a suicide
committed in response to McKenna’s murder. The defense
moved to exclude any such testimony at the penalty phase. The
court ruled that family members could testify about Dutoit’s
death, but not that the cause of the death was suicide. The court
authorized the prosecutor to “ask surviving family members
how Patt[i] reacted to Sue’s murder,” but cautioned the
prosecutor to admonish the witnesses not to state that her
reaction was to commit suicide.
      During the testimony of McKenna’s brother, Ronald, the
prosecutor asked if there was a special bond between Dutoit and
McKenna. He replied, “Yes. They hung out together a lot. They
were probably closest.” When the prosecutor asked, “How did
Patti take the news of Sue’s death?” Ron replied, “Very bad. She
committed suicide. So I lost two sisters because of this clown.”
Defense counsel objected to the answer and asked that it be
stricken. In response, the court admonished the jury that “you
are not to consider the suicide mentioned as in any way relating
to the defendant Molano.” In a discussion outside of the jury’s
presence, the prosecutor stated for the record that “I did this
morning in no uncertain terms make it very clear to both Yvonne
Searle and Ron McKenna that there would be no mention of
Patti committing suicide. I even explained the basis of the
ruling and discussed the parameters of what could be shared in

                                 72
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


court, and frankly Mr. McKenna wasn’t listening very closely
because we were all here when he did make the statement.”
      Defendant twice moved for a mistrial on the ground that
Ronald’s reference to Dutoit’s suicide had resulted in incurable
prejudice. The court denied the motions. At the close of the
penalty phase, the court again instructed the jury to disregard
Ronald’s testimony: “If I ordered testimony stricken from the
record, you must disregard it and must not consider that
testimony for any purpose. In this regard, the opinion testimony
of the witness Ron McKenna that his sister Patricia Dutoit had
committed suicide in reaction to Sue McKenna’s death and that
Carl Molano was responsible for Patricia Dutoit’s death has no
basis in fact, and that testimony was ordered stricken from the
record. You must not consider it for any purpose.” (Italics
added.)
      Defendant claims that the prosecutor committed
misconduct by eliciting the testimony about suicide. Not so. A
prosecutor commits misconduct by “ ‘ “ ‘intentionally elicit[ing]
inadmissible testimony.’ [Citations.]” [Citation.]’ ” (People v.
Tully (2012) 54 Cal.4th 952, 1035 (Tully).) “However, a
prosecutor cannot be faulted for a witness’s nonresponsive
answer that the prosecutor neither solicited nor could have
anticipated.” (Ibid.) Here, the prosecutor directly admonished
Ronald not to mention that Dutoit had committed suicide, and
further “explained the basis of the ruling and discussed the
parameters of what could be shared in court.” The prosecutor’s
representation was unchallenged by defense counsel and
accepted by the court. Defendant now asserts that the
prosecutor’s question was in fact “designed” to elicit
inadmissible testimony, and that the prosecutor either “failed to
admonish [Ronald] at all, or failed to admonish [him] in a

                                 73
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


manner sufficient to achieve the goal.” His argument “is mere
conjecture unsupported by the record.” (Tully, at p. 1041, fn.
32.)
      Citing People v. Hill (1998) 17 Cal.4th 800, defendant
further counters that “no showing of intentionality or bad faith
is required” to establish that a prosecutor committed
misconduct by eliciting inadmissible evidence in violation of a
court order. Hill reaffirmed that the prosecutor need not act in
bad faith or with intentionality in order to commit misconduct
of the type involved there. (Id. at pp. 822–823.) Hill involved
allegations that the prosecutor had misstated the evidence and
the law, referred to facts not in evidence, made derisive
comments about defense counsel, intimidated witnesses, and
made improper references to the Bible. (Id. at pp. 823, 827, 829,
832, 836–838.) Such behavior may be misconduct even if
inadvertent. Nonetheless, after Hill, we have repeatedly
reaffirmed that a claim of misconduct based on allegations that
the prosecutor elicited evidence in violation of a court order
requires proof that the prosecutor acted deliberately or
intentionally. (Tully, supra, 54 Cal.4th at p. 1035; People v.
Fuiava (2012) 53 Cal.4th 622, 679; People v. Chatman (2006) 38
Cal.4th 344, 379–380; Valdez, supra, 32 Cal.4th at p. 125; People
v. Smithey (1999) 20 Cal.4th 936, 960.) Indeed, Smithey noted
that the lead case for that proposition, People v. Bonin (1988) 46
Cal.3d 659, 689, had been overruled by Hill on another point.
(Smithey, at p. 960, citing Hill, at p. 800, 823, fn. 1 [overruling
the discussion in Bonin, 46 Cal.3d at p. 702 of bad faith
regarding the prosecutor’s argument to the jury].) As noted, the
prosecutor asked a question consistent with the court’s
direction. He also expressly admonished Ronald not to mention
Dutoit’s suicide. The witness’s apparent willful refusal to abide


                                 74
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


by this admonishment does not establish misconduct by the
prosecutor. (Valdez, at p. 125 [no misconduct where “the
prosecutor did not intentionally solicit, and could not have
anticipated,” the witness’s testimony].)
      Defendant argues another of the prosecutor’s questions
contravened the court’s ruling. Specifically, the prosecutor
asked Ronald and Yvonne Searle (McKenna’s mother), whether
McKenna was a “lifeline” for Dutoit. There was no objection to
this questioning, rendering any claim of misconduct forfeited.
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) Further, the
question was not improper. The trial court ruled that the
prosecutor could ask McKenna’s family members about how
Dutoit reacted to McKenna’s murder so long as he admonished
them not to say that her reaction was to commit suicide. Before
questioning the two witnesses, the prosecutor so admonished
them. In response to the prosecutor’s question about McKenna
being a “lifeline” for Dutoit, Ronald simply answered, “Yes.” He
had previously explained that McKenna and Dutoit “hung out
together a lot. They were probably closest.” In response to the
same question, Searle testified that Dutoit was an alcoholic and
a recluse, and that McKenna provided her with alcohol. The
prosecutor’s question was not designed to elicit, nor did it
actually elicit, inadmissible testimony in violation of the court’s
order.
      We also reject defendant’s claim that the court erred in not
granting a mistrial based on Ronald’s testimony. When a
witness’s volunteered statement is not attributable to either
party, a mistrial is called for only if the misconduct is so
inherently prejudicial as to threaten defendant’s right to a fair
trial despite admonitions from the court. (People v. Dement
(2011) 53 Cal.4th 1, 39–40 (Dement).) “ ‘ “Whether a particular

                                 75
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion
in ruling on mistrial motions. . . .” [Citation.] A motion for a
mistrial should be granted when “ ‘ “a [defendant’s] chances of
receiving a fair trial have been irreparably damaged.” ’ ” ’ ”
(Ibid.)
      Ronald’s comment was not “ ‘so incurably prejudicial that
a new trial was required.’ ” (Dement, supra, 53 Cal.4th at p. 40.)
The trial court took corrective action by admonishing the jury
immediately, and again at the end of the penalty phase. The
court’s admonition was decisive and clear. It told the jury that
the comment “has no basis in fact, and that testimony was
ordered stricken from the record. You must not consider it for
any purpose.” (Italics added.) The jurors are presumed to have
followed the court’s admonishment. (People v. Montes (2014) 58
Cal.4th 809, 888.)
      Defendant counters that Ronald’s comment was so
inflammatory that no admonishment could undo the damage.
He is incorrect. Although defendant describes the testimony as
“factually baseless, highly improper, and grossly inflammatory,”
we have in fact held that a family member’s attempted suicide
as a result of the victim’s death can be proper victim impact
evidence. (People v. Booker (2011) 51 Cal.4th 141, 154, 193;
People v. Wilson (2005) 36 Cal.4th 309, 356–357.) Acting within
the scope of its discretion, the court here ruled the evidence
inadmissible. But the fact that our decisions support a broader
view of admissibility “must certainly factor into any prejudice
analysis.” (Tully, supra, 54 Cal.4th at p. 1035, fn. 30.) On that
score, defendant is incorrect to suggest that there was no
concrete evidence that Dutoit actually committed suicide
because the death certificate did not explicitly indicate that

                                 76
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


cause of death. There was evidence before the court that the
cause of death was a drug overdose, and that Dutoit had
expressed a desire to take her own life after McKenna was
murdered. This evidence could certainly support an inference of
suicide.
      The jury was likely to see Ronald’s statement for what it
was: an opinion by a brother grief stricken over the loss of two
sisters. It is qualitatively different from the cases defendant
cites, where the prosecutor improperly suggested that the
defendant had been involved in drug sales or that there was a
specific description of the assailant that matched the
defendant’s appearance. (See, e.g., People v. Wagner (1975) 13
Cal.3d 612, 619–621; People v. Evans (1952) 39 Cal.2d 242, 248–
252.) Moreover, both parties elicited evidence that Dutoit was a
reclusive alcoholic and suffered from significant psychological
problems predating McKenna’s death. Dutoit lived with her
mother, Yvonne Searle. Searle described Dutoit as a “chronic
alcoholic” who could not leave the house and relied on McKenna
to bring her alcohol. Both the prosecution and the defense
questioned Ronald on these topics, and he admitted as much
before the jury. Specifically, the prosecutor asked Ronald, “In
fairness, it’s true, is it not, that Patti had significant
psychological problems before Sue was murdered, is that
correct?”    Ronald agreed.      This evidence countered any
suggestion by Ronald that defendant’s acts were the sole or even
primary reason Dutoit took her own life.
      Given the manner in which the evidence was presented,
and the trial court’s express admonitions to the jury, Ronald’s
assertion that defendant was responsible for Dutoit’s suicide
was not incurably prejudicial. The trial court did not abuse its



                                 77
                       PEOPLE v. MOLANO
                 Opinion of the Court by Corrigan, J.


discretion in denying the motion for mistrial, nor was defendant
deprived of a fundamentally fair trial or due process.
         2. Cumulative Error
      Defendant contends that the cumulative effect of the
asserted guilt and penalty phase errors was prejudicial. We
concluded Ronald testified at the penalty phase in contravention
of a court order, but that any prejudice was cured by the trial
court’s admonition and by other evidence tending to undermine
the significance of his assertions. We have also held that any
assumed error in failing to instruct at the guilt phase on a good
faith but unreasonable belief in consent to intercourse was not
prejudicial. No different conclusion results from considering
these two circumstances cumulatively.
         3. Challenges to the Death Penalty Statute
       Defendant raises a series of constitutional challenges to
California’s death penalty scheme, all of which we have
considered and rejected before. Because he offers no compelling
reasons to reconsider our precedent, we decline his invitation to
do so.
      “Section 190.2 adequately narrows the class of murderers
subject to the death penalty.” (People v. Delgado (2017) 2
Cal.5th 544, 591 (Delgado); accord People v. Brooks, supra, 3
Cal.5th at pp. 114–115.)
      Section 190.3, factor (a) properly permits the jury to
consider the circumstances of the crime in deciding the
appropriate punishment. (Tuilaepa v. California (1994) 512
U.S. 967, 975–976.) It does not allow arbitrary and capricious
imposition of the death penalty as applied. (People v. Henriquez
(2017) 4 Cal.5th 1, 45 (Henriquez); People v. Winbush (2017) 2



                                 78
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


Cal.5th 402, 489 (Winbush); People v. Simon (2016) 1 Cal.5th 98,
149 (Simon).)
      The death penalty statute is not unconstitutional because
it “does not require either unanimity as to the truth of
aggravating circumstances or findings beyond a reasonable
doubt that an aggravating circumstance (other than Pen. Code,
§ 190.3, factor (b) or factor (c) evidence) has been proved, that
the aggravating factors outweighed the mitigating factors, or
that death is the appropriate sentence.” (People v. Rangel (2016)
62 Cal.4th 1192, 1235; accord, Henriquez, supra, 4 Cal.5th at
p. 45; Delgado, supra, 2 Cal.5th at p. 591; Winbush, supra, 2
Cal.5th at p. 489.) Cunningham v. California (2007) 549 U.S.
270, Blakely v. Washington (2004) 542 U.S. 296, Apprendi v.
New Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536
U.S. 584, do not compel a different conclusion. (Henriquez, at p.
45; Delgado, at p. 591; Winbush, at p. 489.)
      “The death penalty law is not unconstitutional for failing
to require that the jury base any death sentence on written
findings.” (People v. Elliot (2005) 37 Cal.4th 453, 488; accord,
Henriquez, supra, 4 Cal.5th at p. 46; Winbush, supra, 2 Cal.5th
at p. 490.) Nor does the federal Constitution require intercase
proportionality review. (Henriquez, at p. 46; Winbush, at p. 490;
Simon, supra, 1 Cal.5th at p. 149.)
      “Use in the sentencing factors of such adjectives as
‘extreme’ (§ 190.3, factors (d), (g)) and ‘substantial’ (id., factor
(g)) does not act as a barrier to the consideration of mitigating
evidence in violation of the federal Constitution.” (People v.
Avila (2006) 38 Cal.4th 491, 614–615; accord, Delgado, supra, 2
Cal.5th at pp. 591–592; Simon, supra, 1 Cal.5th at p. 150.)




                                  79
                        PEOPLE v. MOLANO
                  Opinion of the Court by Corrigan, J.


      The court was not required to instruct the jury that section
190.3, factors (d), (e), (f), (g), (h) and (j) are only relevant as
factors in mitigation. (Delgado, supra, 2 Cal.5th at p. 592;
Winbush, supra, 2 Cal.5th at p. 490; Simon, supra, 1 Cal.5th at
p. 150.)
      The equal protection clause does not require California to
include in its capital sentencing scheme the same procedural
safeguards provided noncapital defendants. The two groups are
not similarly situated. (Henriquez, supra, 4 Cal.5th at p. 45;
People v. Sivongxxay (2017) 3 Cal.5th 151, 199 (Sivongxxay).)
      California’s use of the death penalty, as actually
implemented in this state, does not violate international law
and the Eighth Amendment. (Sivongxxay, supra, 3 Cal.5th at p.
199; People v. Trinh (2014) 59 Cal.4th 216, 255.)
      Finally, we reject defendant’s claim that “the cumulative
impact of the alleged deficiencies in California’s capital
sentencing scheme render California’s death penalty law
constitutionally infirm. We have individually rejected each of
defendant’s challenges to California’s death penalty law, and
‘[s]uch claims are no more compelling . . . when considered
together . . . .’ [Citation.]” (People v. Williams (2013) 58 Cal.4th
197, 296.)




                                  80
                    PEOPLE v. MOLANO
              Opinion of the Court by Corrigan, J.


                   III. DISPOSITION
    We affirm the judgment.


                                                 CORRIGAN, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                              81
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Molano
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S161399
Date Filed: June 27, 2019
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Allan D. Hymer

__________________________________________________________________________________

Counsel:

Wesley A. Van Winkle, under appointment by the Supreme Court, for Defendant and Appellant.


Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Juliet B. Haley, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Wesley A. Van Winkle
Law Offices of Wesley A. Van Winkle
P.O. Box 5216
Berkeley, CA 94705-0216
(541) 735-3170

Juliet B. Haley
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3797
