Filed 6/27/16 P. v. Nguyen CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042172
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1243737)

         v.

MY LOAN NGUYEN,

         Defendant and Appellant.


                                              I. INTRODUCTION
         Defendant My Loan Nguyen was convicted after jury trial of willful, deliberate,
and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, 189)1 and two
counts of discharging a firearm from a vehicle at another person (§ 26100, subd. (c)).
Regarding the attempted murder, the jury also found true the allegation that defendant
personally discharged a firearm in the commission of the offense (§ 12022.53, subd. (c)).
The trial court sentenced defendant to life with the possibility of parole, consecutive to
20 years.
         On appeal, defendant contends the trial court erred by admitting statements she
made during two police interviews and in an apology letter, all of which were made after
she invoked her right to remain silent.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       For reasons that we will explain, we will affirm the judgment.
               II. FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged by information with attempted premeditated murder
(§§ 664, subd. (a), 187, 189; count 1) and two counts of discharging a firearm from a
vehicle at another person (§ 26100, subd. (c); counts 2 & 3). The information further
alleged that during the commission of the offenses in counts 1 and 2, defendant
personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) &
(d)). The information also alleged that defendant had served a prior prison term (§ 667.5,
subd. (b)).
       The evidence at trial reflected that in October 2012, the victim was waiting outside
of a store to meet defendant, whom the victim had known for about 10 years. The victim
was with her boyfriend, and defendant’s boyfriend was nearby. The victim and
defendant had earlier exchanged angry words on the phone before deciding to meet.
Defendant arrived at the victim’s location as a passenger in a vehicle. As the victim and
her boyfriend approached the vehicle, defendant fired a gun from the vehicle. The driver
and defendant then drove off.
       The police were dispatched to the scene and defendant was apprehended shortly
thereafter. Defendant was interviewed in the back of the police car and later at the police
station. She also wrote a letter of apology at the suggestion of the police during the
second police interview.
       The jury found defendant guilty of attempted murder of the victim, and also found
true the allegation that the offense was committed willfully, deliberately, and with
premeditation (§§ 664, subd. (a), 187, 189; count 1). The jury found not true the
allegation that defendant caused great bodily injury to the victim (§12022.53, subd. (d)),
but found true the allegation that defendant personally discharged a firearm (§ 12022.53,
subd. (c)). The jury also found defendant guilty of two counts of discharging a firearm
from a vehicle at another person with respect to the victim and her boyfriend (§ 26100,

                                             2
subd. (c); counts 2 & 3). Regarding count 2, the jury found not true the allegation that
defendant caused great bodily injury.
       At a subsequent court trial in June 2014, the court found not true the allegation
that defendant had served a prior prison term (§ 667.5, subd. (b)).
       On January 30, 2015, the trial court sentenced defendant to life with the possibility
of parole, consecutive to 20 years. The sentence consists of the term of life with the
possibility of parole for the attempted murder, a consecutive term of 20 years for the
firearm enhancement, and a concurrent midterm of five years for one count of
discharging a firearm from a vehicle. The court stayed the sentence on the other count
for discharging a firearm from a vehicle pursuant to section 654.
                                    III. DISCUSSION
       A. Parties’ Contentions
       Defendant contends that the police violated her rights under the Fifth and
Fourteenth Amendments by continuing to question her after she unambiguously invoked
her right to remain silent. Although defendant argued below that she made three
invocations of her right to counsel and/or her right to remain silent during her first police
interview, on appeal she relies on only the second purported invocation. Specifically,
after answering the officer’s questions about the events just prior to the shooting,
defendant was asked by the officer, “And then what happened?” Defendant stated, “And
then, then I think I shouldn’t say any more from there.” Defendant contends that the
remainder of that police interview, the entirety of a second police interview, and an
apology letter written at a police officer’s prompting should have been suppressed by the
trial court. Defendant further contends that the court’s error in refusing to suppress her
statements was prejudicial.
       The Attorney General contends that defendant’s statement, “I think I shouldn’t say
any more from there,” was not a clear invocation of the right to remain silent. The



                                              3
Attorney General also argues that any error in failing to suppress defendant’s statement
was harmless.
       B. Background
       Defendant made statements regarding the shooting on three occasions. The first
occasion occurred shortly after the shooting, when defendant was interviewed in a police
car after having been advised of her Miranda rights.2 The second occasion occurred
when defendant was interviewed at the police station after having again been advised of
her Miranda rights. The third occasion occurred when defendant wrote a letter of
apology at the suggestion of the police.
       Prior to trial, defendant filed a motion seeking an Evidence Code section 402
hearing to determine the admissibility of the two police interviews and the letter of
apology. The prosecution filed a motion seeking to admit all of defendant’s post-
Miranda statements. The prosecution argued that defendant was advised of her Miranda
rights during the first police interview, that she waived her rights, and that she did not
make an unequivocal and unambiguous invocation of her rights thereafter.
       At the hearing on the parties’ motions, the trial court listened to an audio recording
of defendant’s first police interview and was provided a transcript by the prosecution.
The parties stipulated that the court could rely on or use the transcript as an aid to the
audio recording.
       At the beginning of the first police interview, Officer Santiago asked defendant for
her name and then immediately advised her of her Miranda rights – the right to remain
silent, the consequences of forgoing that right, the right to the presence of an attorney,
and the right to appointment of an attorney if defendant was indigent. Defendant
indicated that she understood her rights and proceeded to answer the officer’s questions.




       2
           Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

                                              4
       Officer Santiago asked defendant generally what had occurred and then followed
up with more specific questions. Defendant stated that she had gotten into an argument
with her boyfriend on the phone. At the time, her boyfriend was at the residence of the
victim, who was the mother of his children. While defendant was on the phone with her
boyfriend, the victim started “talking shit” to defendant by phone and by text. The victim
told defendant to “meet up” with her. Defendant and a friend, who drove defendant’s car,
went to meet the victim.
       Officer Santiago eventually asked, “[W]here did you guys meet up at?”
Defendant responded, “Mm, we met up at um, should, should I have an attorney present?
I don’t know if uh, I should have an attorney present.” (Italics added.) The officer
responded that he was trying to get defendant’s side of the story. Defendant stated that
they met at a store.
       Defendant thereafter continued to answer the officer’s questions about what
happened. Defendant indicated that the victim, the victim’s boyfriend, and defendant’s
boyfriend approached the front of defendant’s car on foot. The following exchange then
occurred between Officer Santiago and defendant:
       “[Defendant:] And I thought they were gonna come up, uh, you know?
       “[Officer:] And then what happened?
       “[Defendant:] And then, then I think I shouldn’t say any more from there.
       “[Officer:] Well, like I said, I, I’m just tryin’ to get your side of the story, I mean,
it sounds like, like your—
       “[Defendant:] And—
       “[Officer:] Your baby daddy, you know, caused some drama.
       “[Defendant:] He did.
       “[Officer:] And—
       “[Defendant:] He’s always like that.
       “[Officer:] Yeah, see, well, well, you know, uh—

                                               5
       “[Defendant:] And then they came at me, so, man, I’m pregnant, I, I ain’t gonna
fight with her.
       “[Officer:] Well, see—
       “[Defendant:] And I don’t . . .
       “[Officer:] The thing is that, that I don’t know you, I don’t know him, I don’t
know her.
       “[Defendant:] So you’re just . . .
       “[Officer:] So, so that’s why—
       “[Defendant:] Getting the background.
       “[Officer:] Hold on, so—
       “[Defendant:] He has a warrant too.
       “[Officer:] Does he?
       “[Defendant:] Yeah, he does.
       “[Officer:] So that, that’s why I’m trying to get your side of the story, because I, I
wanna understand what happened from your perspective, and if you’re tellin’ me that,
that your baby daddy started some drama, then . . .
       “[Defendant:] He did.
       “[Officer:] I mean, I, I, I, if I go ask him that, he’s probably gonna give me a
different story, right?
       “[Defendant:] Yeah, you can ask him that.
       “[Officer:] So, so that, that’s why . . .
       “[Defendant:] (Inaudible.)
       “[Officer:] I wanna get your side of the story, so I understand from your
perspective . . .
       “[Defendant:] Yeah, I got so many . . .
       “[Officer:] What occurred.
       “[Defendant:] People to vouch for me, that he’s just (inaudible), and he’s—

                                               6
        “[Officer:] Okay.
        “[Defendant:] But anyway, yeah, and—
        “[Officer:] Well, that, that’s what I’m saying—
        “[Defendant:] And they came up, they were in front of my car, and then I come,
like, to here, and they’re comin’ at me, so, so I do what I had to do, and they left, I don’t
know.
        “[Officer:] So you had to do what you had to do, what do you mean by that?
        “[Defendant:] I don’t know, you know what, I think that, I, I don’t think I should
say anything, I . . . need an attorney, I don’t know.[3] I don’t know, just like, and they, he
started shit, he, they called me out, yeah, I was, three of ‘em standing, but I’m pregnant,
you know, so, that’s, I—I ain’t gonna have her beat on me, I’m pregnant. And you know,
she had two guys with her. So, yeah. So.” (Italics added.)
        Defendant then indicated that after the incident occurred, she and her friend drove
away. The officer asked what happened to the gun, but defendant did not provide a direct
answer.
        After the recording of defendant’s first police interview was played for the trial
court, the court heard argument from the parties. Defendant contended that she had
clearly invoked her right to counsel and/or her right to remain silent on the following
three occasions during the interview: (1) “Mm, we met up at um, should, should I have
an attorney present? I don’t know if uh, I should have an attorney present”; (2) “And
then, then I think I shouldn’t say any more from there”; and (3) “I don’t know, you know


        3
         We have quoted from the transcript of the audio recording of defendant’s
statement to the police. The trial court, in making its ruling, appeared to rely on the
transcript. However, in referring to this particular statement by defendant, the court
quoted her as saying, “ ‘I think I shouldn’t say,’ period. ‘I need an attorney,’ period.
‘I don’t know.’ End of quote.” The minor differences between the transcript of the audio
recording and what the court apparently determined was stated by defendant at this point
is not material to our analysis.

                                              7
what, I think that, I, I don’t think I should say anything, I . . . need an attorney, I don’t
know.” Defendant contended that the officer continued to interview her in violation of
her Fifth Amendment rights, and that her second interview at the police station and the
apology letter should be suppressed. The prosecution contended that defendant did not
clearly invoke her right to counsel or her right to remain silent.
          The trial court took the matter under submission. The following day, the court
denied defendant’s motion to exclude defendant’s post-Miranda statements. The court
found that defendant’s three cited statements during the first police interview,
individually or in totality, were not an unequivocal and unambiguous invocation of her
rights.
          At trial, audio recordings of defendant’s two police interviews and a redacted
version of defendant’s apology letter were admitted into evidence.
          C. General Legal Principles
          “ ‘In order to invoke the Fifth Amendment privilege after it has been waived, and
in order to halt police questioning after it has begun, the suspect “must unambiguously”
assert his [or her] right to silence or counsel. [Citation.] It is not enough for a reasonable
police officer to understand that the suspect might be invoking his [or her] rights.
[Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers
are not required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or
to cease questioning altogether.’ [Citations.]” (People v. Suff (2014) 58 Cal.4th 1013,
1068.)
          Thus, to invoke the right to counsel, the defendant “ ‘must articulate his [or her]
desire to have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.’
[Citations.]” (People v. Nelson (2012) 53 Cal.4th 367, 376 (Nelson).) “[W]hile
‘requiring a clear assertion of the right to counsel might disadvantage some suspects
who—because of fear, intimidation, lack of linguistic skills, or a variety of other

                                                8
reasons—will not clearly articulate their right to counsel although they actually want to
have a lawyer present,’ it is the Miranda warnings themselves, which—when given to the
suspect and waived prior to questioning—are ‘ “sufficient to dispel whatever coercion is
inherent in the interrogation process.” ’ [Citation.]” (Id. at p. 377.)
       “The requirement of an unambiguous and unequivocal assertion likewise applies
to a suspect’s invocation of the right to silence. [Citations.]” (Nelson, supra, 53 Cal.4th
at p. 377.) The California Supreme Court has held that “ ‘[a] defendant has not invoked
his or her right to silence when the defendant’s statements were merely expressions of
passing frustration or animosity toward the officers, or amounted only to a refusal to
discuss a particular subject covered by the questioning.’ [Citations.]” (People v.
Williams (2010) 49 Cal.4th 405, 433-434 (Williams).)
       The California Supreme Court has construed statements similar to the one made
by defendant here (“I think I shouldn’t say any more from there.”) to be equivocal and
ambiguous. For example, the California Supreme Court determined that the statement,
“ ‘I think it’d probably be a good idea for me to get an attorney,’ ” was not “sufficiently
clear in and of itself” because it “contains several ambiguous qualifying words (‘I think,’
‘probably,’ and ‘it’d’).” (People v. Bacon (2010) 50 Cal.4th 1082, 1105 (Bacon); see
People v. Shamblin (2015) 236 Cal.App.4th 1, 20 (Shamblin) [the “defendant’s
statement—‘I think I probably should change my mind about the lawyer now. . . . I think
I need some advice here’—contains language that is conditional (‘should’) and equivocal
(‘I think’ and ‘probably’)”].) The California Supreme Court similarly concluded that the
statement, “ ‘I think it’s about time for me to stop talking,’ ” was ambiguous and
“expressed apparent frustration, but did not end the interview.” (People v. Stitely (2005)
35 Cal.4th 514, 535 (Stitely).)
       Likewise, some federal courts have determined that a defendant’s statement
prefaced with “I think” is an ambiguous or equivocal assertion of rights. (See United
States v. Delaney (E.D.Mich. 2008) 562 F.Supp.2d 896, 904 [“ ‘I don’t think that I

                                              9
should be saying anything without my lawyer” was ambiguous]; United States v. Mohr
(8th Cir. 2014) 772 F.3d 1143, 1146 [“ ‘I think I should get [a lawyer]’ ” was equivocal];
Burket v. Angelone (4th Cir. 2000) 208 F.3d 172, 198 [state court’s determination that
“ ‘I think I need a lawyer’ ” was equivocal was not an unreasonable application of federal
law]; Henness v. Bagley (6th Cir. 2011) 644 F.3d 308, 319-320 [state court’s
determination that “ ‘I think I need a lawyer’ ” was ambiguous was not an unreasonable
application of federal law]; Clark v. Murphy (9th Cir. 2003) 331 F.3d 1062, 1069, 1071
[state court’s determination that “ ‘I think I would like to talk to a lawyer’ ” was
ambiguous was not an unreasonable application of federal law]; Williams v. Horel
(9th Cir. 2009) 341 Fed.Appx. 333, 335 [state court’s determination that “ ‘I think first,
um, I should have a lawyer’ ” was ambiguous was not an unreasonable application of
federal law].)
       On the other hand, some federal courts have determined that an invocation of
rights prefaced with “I think” is not ambiguous or equivocal. (See Wood v. Ercole
(2d Cir. 2011) 644 F.3d 83, 91-92 [state appellate court correctly concluded that “ ‘I think
I should get a lawyer’ ” was an unambiguous assertion of right to counsel]; Cannady v.
Dugger (11th Cir. 1991) 931 F.2d 752, 755 [determining that the defendant’s petition for
writ of habeas corpus should be granted because his statement, “ ‘I think I should call my
lawyer,’ was an unequivocal request for counsel” and therefore his confession was
illegally obtained].)
       The determination of whether a defendant has invoked his or her right to silence
often depends on the context of the statements. “In certain situations, words that would
be plain if taken literally actually may be equivocal under an objective standard, in the
sense that in context it would not be clear to the reasonable listener what the defendant
intends.” (Williams, supra, 49 Cal.4th at p. 429.)
       “[T]he standard of review—like the standard applicable in the trial court—focuses
on ‘whether, in light of the circumstances, a reasonable officer would have understood a

                                             10
defendant’s reference to an attorney [or to remaining silent] . . . to be an unequivocal and
unambiguous request for counsel [or to remain silent], without regard to the defendant’s
subjective ability or capacity to articulate his or her desire for counsel [or to remain
silent], and with no further requirement imposed upon the officers to ask clarifying
questions of the defendant.’ [Citations.]” (Nelson, supra, 53 Cal.4th at p. 380.) “In
reviewing a trial court’s Miranda ruling, we accept the court’s resolution of disputed
facts and inferences and its evaluations of credibility, if supported by substantial
evidence, and we independently determine, from the undisputed facts and facts properly
found by the trial court, whether the challenged statement was illegally obtained.
[Citation.]” (Bacon, supra, 50 Cal.4th at p. 1105.)
       D. Analysis
       We determine that a reasonable officer would not have understood defendant’s
statement, “I think I shouldn’t say any more from there,” was an unequivocal and
unambiguous invocation of the right to remain silent. (Nelson, supra, 53 Cal.4th at
p. 380.)
       First, defendant’s statement contained ambiguous or equivocal language. Her
statement was prefaced with “I think,” which the California Supreme Court has
characterized as “ambiguous qualifying words.” (Bacon, supra, 50 Cal.4th at p. 1105;
accord, Shamblin, supra, 236 Cal.App.4th at p. 20 [“ ‘I think’ ” is equivocal language].)
Moreover, statements similar to defendant’s statement have been found to be equivocal
or ambiguous by California courts. (Bacon, supra, at p. 1105 [“ ‘I think it’d probably be
a good idea for me to get an attorney’ ”]; Stitely, supra, 35 Cal.4th at p. 535 [“ ‘I think
it’s about time for me to stop talking’ ”]; Shamblin, supra, at p. 20 [“ ‘I think I probably
should change my mind about the lawyer now. . . . I think I need some advice here’ ”].)
       Second, in considering the context in which defendant made the statement, the
record reflects that defendant continued to talk freely to the officer after making the
statement. (See Shamblin, supra, 236 Cal.App.4th at p. 20 [“that defendant did not

                                              11
intend to terminate the interview is clear from the exchange that immediately
followed”].) Immediately after defendant stated, “I think I shouldn’t say any more from
there,” the police officer started talking but barely finished one sentence before defendant
interrupted him. As the officer continued to try to speak, defendant repeatedly
interrupted him, including at times to express agreement with what the officer was
saying. The officer was unable to complete more than one sentence before defendant
again interjected. The officer even said to defendant, “Hold on, so—,” but he was
interrupted by defendant. The conversation continued, and defendant eventually
interrupted the officer to say that the victim, the victim’s boyfriend, and defendant’s
boyfriend were “comin’ at me, . . . so I do what I had to do,” apparently in reference to
shooting the victim from the vehicle. Defendant made this statement even though the
officer had not posed a question to her immediately prior to this statement.
       Thus, rather than ceasing to talk after making the statement, “I think I shouldn’t
say any more from there,” defendant displayed an ongoing willingness to talk to the
officer. In view of the words defendant used (“I think I shouldn’t say any more from
there”) and her eagerness to talk right after making the statement, it was reasonable for
the officer to interpret the statement as an equivocal reference to remaining silent.
(Nelson, supra, 53 Cal.4th at p. 380.)
       Third, the statement at issue was made between two other ambiguous and
equivocal references to counsel and/or to remaining silent. Defendant concedes that her
first mention of an attorney (“[S]hould I have an attorney present? I don’t know if . . .
I should have an attorney present.”) “did not unambiguously express a desire to have
counsel present.” Likewise, defendant’s last reference to an attorney and to not talking
(“I don’t know, you know what, I think that, I, I don’t think I should say anything, I . . .
need an attorney, I don’t know.”) was equally ambiguous and unequivocal, given her
repeated “I don’t know” statements and the fact that she continued to talk about the
incident thereafter without any comment from the officer.

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       Given the qualifying words that defendant used in all of her references to an
attorney and to remaining silent, and given that she continued to talk freely right after
making each of the three statements concerning an attorney and/or remaining silent, we
determine that defendant’s statement, “I think I shouldn’t say any more from there,” was
not sufficiently clear that a reasonable police officer would understand the statement to
be an invocation of the right to remain silent (Nelson, supra, 53 Cal.4th at pp. 376, 380).
Because we determine that defendant’s Miranda rights were not violated, we need not
address whether she was prejudiced by the admission of the statements that she made
after the asserted invocation of the right to silence.
       Accordingly, we conclude that the trial court did not err by declining to exclude
from evidence defendant’s two police interviews and her letter of apology.
                                    IV. DISPOSITION
       The judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
