Filed 3/28/13 P. v. Alford CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H036961
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F17852)

                  v.

DAVID PATRICK ALFORD,

         Defendant and Appellant.



         A jury convicted defendant David Patrick Alford of the second degree murder of
Hans Hugo Heath and found that he used a gun to commit the crime. (Pen. Code, §§ 187,
subd. (a), 12022.53, subd. (b).) Defendant shot Heath from the back seat of his car while
Heath was sitting in the front passenger’s seat. On appeal, defendant claims that he
invoked his right to counsel during his interrogation by two law enforcement detectives
and the trial court violated his rights under Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) by allowing the jury to hear the detectives’ questioning of him after he did so.
         We conclude that the trial court erred when it ruled that the recording was
admissible, but defendant was not prejudiced by this error. Accordingly, we will affirm
the judgment.
                            FACTS AND PROCEDURAL BACKGROUND
         There is little dispute about the events leading to defendant’s murder conviction.
All agree that defendant fatally shot Hans Hugo Heath in the head as Heath sat in the
front passenger seat of defendant’s Lexus sport-utility vehicle and that defendant
disposed of Heath’s body by casting it over the side of a coastal highway. The only
dispute at trial concerned defendant’s mental state when he killed the victim.
         Almost all of the evidence regarding the few disputed facts came from defendant’s
testimony. There were no witnesses to the killing other than perhaps defendant’s 24-year-
old daughter, Laura Alford (Laura). Because the state charged her with being an
accessory (Pen. Code, § 32) to the murder of Heath—although the parties inform us that
the jury acquitted her—she was not required to testify and did not do so.
         The prosecution’s favored theory, advanced through cross-examination and at
closing argument, was that defendant killed Heath in anger, and with sufficient
premeditation and deliberation to constitute a first degree murder (Pen Code, § 189), due
to the victim’s belligerence, uncouth behavior, and vulgarity.
         Defendant testified that on April 20, 2009, he met Heath at a liquor store near
defendant’s home in Santa Cruz. Heath, considerably intoxicated, was loitering there,
and defendant, evidently out of courtesy or a desire to converse, invited him over to his
house.
         Laura was at the house when her father showed up with his guest. Heath tried to
put his arms around Laura and dance with her. Laura pushed him away. Heath also made
licentious remarks about Laura’s physical attributes. Defendant told Heath to stop.
Heath commented that he had just been released from the California State Prison at San
Quentin, could slit the throats of defendant and his wife at any time and kill their
children, and would be indifferent to doing it.
         As tensions arose, Heath “started kicking at me” and “throwing punches,”
defendant testified. The record suggests generally that defendant had an obsession with
tidiness, and defendant not only had to deal with Heath’s physical aggression but was
irritated that Heath was lying on his couch without removing his boots and hat. He



                                               2
decided that Heath should leave. Defendant, Heath, and Laura went to the Lexus and got
in. Laura drove; Heath was in the front passenger seat and defendant sat behind him.
       Heath continued to make belligerent remarks and soon he “started grabbing at
Laura’s arms and at the steering wheel.” As the vehicle swerved, defendant tried to grab
Heath, flailed at him, and yelled at him to get his hands off Laura. At the same time
Heath was grappling with Laura, he flailed back at defendant, trying to grab his arms and
hair. Defendant was afraid for the safety of Laura; he feared that Heath was about to
cause a serious automobile accident. “I was extremely concerned we were going to have
an accident with the vehicle,” he testified, “and that we would be seriously injured . . . .”
He was also trying to get Heath to “stop attacking my daughter.” It was “a matter of self
defense” and “of protecting my daughter,” he explained on cross-examination.
       Then defendant killed Heath, using a handgun that was in a camera case at his feet
in the rear seat. On direct examination, he testified as follows:
       “Q. Why did you grab the pistol?
       “A. Because I wanted to hit him in the head with it to inflict enough pain so he
would stop grabbing at my daughter and the steering wheel and I could sit him up in the
front seat and regain control of the vehicle.
       “Q. Which hand did you have the pistol in?
       “A. My right hand.
       “Q. How were you holding it?
       “A. By the handle.
       “Q. What did you attempt to do with it?
       “A. I tried to hit him in the head with it to inflict enough pain that he would stop
attacking my daughter.
       “[¶] . . . [¶]
       “Q. Were you doing anything with your left hand at that point?



                                                3
       “A. . . . I was pulling his . . . head . . . to sit him up[,] pulling his head in the
opposite direction.
       “Q. So what did you actually do with the gun?
       “A. Well, I came down to hit him in the head. I believe that I grazed his head.
And then there was a flash and a bang and I realized that the gun had discharged.
       “Q. Were you expecting that to happen?
       “A. No, by no means was I expecting it to happen.
       “Q. Did you intend to have the gun discharge?
       “A. No, sir.
       “[¶] . . . [¶]
       “Q. After the gun went off, what happened to Mr. Heath?
       “A. Unfortunately, Mr. Heath went completely limp. And I was able to sit him up
in the seat in an upright position.
       “[¶] . . . [¶]
       “Q. Could you tell at that time what had happened to him?
       “A. Unfortunately, yes.
       “Q. What could you determine?
       “A. I determined that the round went through the back of his neck and out the . . .
left side of his skull.
       “Q. What was going through your mind at that point?
       “A. Panic. Total panic. I did not—could not believe what had transpired.”
       Later, defendant and his counsel had this exchange before the jury:
       “Q. Did you want to kill Mr. Heath?
       “A. No, by no means.
       “Q. Did you intend to kill him?
       “A. No, sir.
       “Q. Did you intend for the gun to go off?

                                                4
       “A. No, sir.
       “[¶] . . . [¶]
       “Q. What were you trying to do when you took the gun out?
       “A. Trying to stop him from attacking my daughter.”
       Cross-examination of defendant elicited a detailed second-by-second description
of the moments before he killed Heath:
       “Q. . . . [W]hat part of the gun were you holding?
       “A. I was holding the handle, the—where the clip goes inside.
       “Q. The grip?
       “A. The grip.
       “Q. So you just had your hand around it, the grip?
       “A. That’s correct.
       “Q. And then you started hitting him in the head?
       “A. That is correct.
       “[¶] . . . [¶]
       “A. . . . I’m hitting with the butt of the gun with the bottom of the clip.
       “[¶] . . . [¶]
       “Q. Sort of overhead and the gun’s coming out the bottom of your hand and
you’re hitting him with it?
       “A. That’s correct.
       “[¶] . . . [¶]
       “Q. Now, you heard the testimony that Mr. Heath was shot on the right side of his
neck; right?
       “A. Correct.
       “Q. How’s the gun hit[ting] him there if you’re hitting him only with the butt?
       “A. It may have slid down. Apparently it had slid down past the top of his head
down toward his neck.

                                              5
         “Q. Apparently?
         “A. Apparently so. I mean, that’s quite obvious. There’s a hole there.
         “[¶] . . . [¶]
         “Q. And it’s your testimony that somehow when you were hitting him in the head,
holding just the grip, that the gun somehow accidently fired and shot him in the back of
the neck and passed through his skull?
         “A. That is correct. And my hand was on the other side of his head.
         “[¶] . . . [¶]
         “Q. You’re holding his head—
         “A. Trying to pull him off Laura, yes.
         “Q. Now, when you picked up the gun, did you stick your finger in the trigger
guard?
         “A. More than likely.
         “Q. You don’t remember?
         “A. Not specifically, no, but that’s how typically you hang on to the gun the best.
         “[¶] . . . [¶]
         “Q. To use as a bludgeon to hit somebody with? You think you hold on to it with
your finger in the trigger guard?
         “A. Yes, ma’am.
         “Q. Were you trying to shoot him?
         “A. No, ma’am.
         “Q. Then why did you put your finger in the trigger guard if in fact you did?
         “A. Because that’s how you typically can hang on to the handle without it flying
out of your hand the best.
         “Q. So you don’t think you could have just held the handle without putting your
finger in the guard and hit him with the butt?
         “A. I believe the gun probably would have went flying out of my hand.

                                               6
       “Q. Why do you think that?
       “A. Because of just the way you hold the grip on the gun.
       “[¶] . . . [¶]
       “Q. Now, you testified that you hadn’t had any experience with guns?
       “A. That’s correct.
       “Q. Why did you testify earlier . . . that that’s where you hold a gun is by putting
your finger in the trigger guard?
       “A. Well, that’s what I’ve seen from the past 40 years as far as someone holding a
gun and shooting it.”
       Also on cross-examination, defendant testified that he told Heath he could kill him
just as Heath was threatening to kill everyone in defendant’s family. But defendant
considered Heath’s threats to be the ramblings of a drunk person and not conveying a
serious menace. As cross-examination continued, defendant could not explain why he
failed to register the gun despite knowing that it had to be registered. Defendant also
testified that he had Laura drive home. He dropped her off and drove away with Heath’s
body in the vehicle. He deposited the body at an isolated spot along the coast.
       Defendant acquired the gun in the early 1990s. A neighbor in Oregon, where he
used to live, gave it to him. He would carry it on construction industry business trips in
which he carried large amounts of cash. The last time he serviced it, about a decade
before the killing, he was unaware that it was loaded. He saw at that time that the clip
held a bullet but did not believe that there was a round in the chamber and did not check
to see if there was one.
       The authorities were not long in identifying defendant as the suspect in Heath’s
killing. They found the phone number of one Robert Ledesma in a pocket of Heath’s
clothing. Before they could locate Ledesma he contacted them, having heard about the
killing of Heath, and he told them that Heath had called him on the night of April 20,
2009, i.e., the night that Heath was at defendant’s house. Heath, who was drunk, said that

                                             7
he was at the house of people who had lived in Oregon, as defendant had and Laura still
did. The authorities traced Heath’s call back to the telephone of Laura. After arresting
defendant and Laura, they examined defendant’s vehicles and found blood throughout the
front part of the Lexus, although its interior had been cleaned. Deoxyribonucleic acid
analysis showed some of the blood to be Heath’s and some defendant’s. They also found
gunshot residue in the front part of the vehicle.
       The authorities took defendant to a station for questioning on suspicion that he had
killed the victim. Two detectives, one from Santa Cruz County and one from Monterey
County, questioned defendant. As noted, the interrogation was recorded.
       Before trial, the prosecution moved to admit defendant’s statements during that
interrogation. Defendant moved to exclude them. As we will describe further below, the
trial court denied defendant’s motion and, as part of its case-in-chief, the prosecution
played a video recording and an audio recording of defendant’s statements to the jury.
       During the interview, one of the detectives read defendant his Miranda rights, and
defendant indicated he understood them. He asked if he was under arrest and was told
that he was not.
       After acknowledging his understanding of his Miranda rights, defendant described
making dinner and drinks for himself and Laura. When asked if anyone else was present,
defendant first said no, and then stated, “I think at this point I would like an attorney.
Cause I don’t know how to answer the questions correctly.” One of the detectives asked,
“Are you saying you don’t want to talk to me anymore and you’d rather have an attorney
here?” Defendant replied, “Well, I don’t, I don’t know, there was an individual that
happened to stop by and he was there for about an hour and we told him to get the heck
out of there . . . this guy was crazy. And I don’t know where we’re going with that. And
so I’m, I’m, concerned.”




                                               8
       The detective asked, “what are you saying? You don’t want to . . . talk to us
anymore without an attorney?” Defendant replied, “I don’t know . . . the correct thing to
do here[,] guys.” The detective said, “the truth is always the right thing to do.”
       Defendant said that if he continued to speak with the detectives “I don’t think that
will allow me to walk out [of] here tonight.” “I’m concerned of how . . . I present it so
that . . . the situation doesn’t end up . . . unfolding correctly [sic]. . . . I really don’t know
what to do here[,] guys.” Again the detective recommended that defendant confess,
saying that “being truthful is the way to go.” Defendant said, “I have every intention of
doing that. But I want to make sure that I do that[ ] correctly[;] that’s my only concern.”
       Continuing to debate with himself about the right course of action, defendant said,
“maybe I’ve watched too much T.V. . . . I don’t know what the correct thing to do here[ ]
is[;] I know what transpired and had to happen. Okay?”
       The detectives waited for defendant to speak further, and he volunteered, “it’s not
a good situation. A waste.” Then he resumed debating what to say: “I’m really trying to
choose my words correctly[,] guys. Um, suffer the consequences because [of] someone
else’s ignorance, ignorant actions, well, I don’t know how else to say it. And I just want
to make sure that I do it right.”
       A detective said that they were willing to hear defendant’s explanation, but
defendant replied, “that’s still going to put me in the slammer for X amount of time . . . .”
Without further ado, defendant said, “we were attacked and I had to do something about
it.” He then reverted to wondering what to say: “I don’t know what else to do here other
than to say, okay, do I, do I talk to an attorney . . . I don’t know what to do[,] guys.”
       One of the detectives asked, “who attacked you?” and defendant said someone “so
intoxicated and so belligerent that I couldn’t understand him.” After defendant had the
man come over to his house, he started acting peculiarly. Defendant offered to take him
to the nearby town of Soquel. Defendant said Laura was driving and he had to do
something to stop Heath. Defendant continued to provide information about the man,

                                                9
including his bizarre and sometimes vulgar behavior, and other details about the evening,
none of it directly inculpating him or Laura—rather, defendant was “trying to diffuse [sic:
defuse] the situation.” He then said, “we finally convinced him, okay, hey look, get in
the car, let’s take you up to Soquel, you can go do whatever you want to do. . . . And . . .
that’s all I . . . want to say without talking to some legal counsel . . . .” The interview
ended after the detectives made further efforts to persuade defendant to provide
additional information and he declined to do so.
       Based on the evidence, the trial court instructed the jury on a number of options.
       With regard to the substantive law of unlawful homicide, the court instructed the
jury that it could convict defendant of first or second degree murder or voluntary or
involuntary manslaughter. With regard to murder, the court explained the concepts of
express and implied malice. With regard to manslaughter, the court explained the
concepts of provocation and imperfect self-defense. The court also told the jury that it
could acquit defendant on the basis that the homicide was justifiable or excusable and
therefore lawful. The basis for a justifiable homicide could be defendant’s lawful defense
of himself or Laura. Mere accident, the jury learned, constituted excusable homicide.
       As for the gun-use sentence enhancement statute (§ 12022.53), the trial court also
instructed the jury on a number of options. In terms of increasing seriousness, the jury
was informed that it could find that defendant merely used a firearm, that he intentionally
fired a firearm, or that he intentionally fired a firearm and injured or killed someone as a
result. The jury chose the least serious of these three options.
                                        DISCUSSION
       Defendant claims that the trial court violated his right to due process of law under
the Fifth and Fourteenth Amendments to the United States Constitution by allowing the
prosecution to play to the jury his recorded statements to the detectives who were
interviewing him. He claims that this was done in violation of Miranda, supra, 384 U.S.
436.

                                              10
       I.     Pretrial Motions
       At a hearing on the pretrial motions, the trial court stated that it had reviewed the
videotaped interview and read the transcript. Viewing the video recording was
“instructive because not only do you hear audio, but you have an opportunity to at the
same time see the parties as they’re speaking . . . .” “[T]he advantage of the videotape is
that you get to see the body language, you get to see the inflections, you get to see the
facial expressions of the people,” including defendant’s “relaxed nature throughout the
entire interview.”
       The trial court ruled, first tentatively and then definitively, that defendant “did not
make an unequivocal and unambiguous request for an attorney” at the first mention of an
attorney when he said, “I think at this point I would like an attorney. Cause I don’t know
how to answer the questions correctly.” He did so only when he said, “that’s all I . . .
want to say without talking to some legal counsel . . . .” The court indicated that it was
considering “the totality of the entire record” of the interrogation in ruling against
defendant.
       II.    Standard of Review and Underlying Legal Principles
       “In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of
disputed facts and inferences and its evaluations of credibility, if supported by substantial
evidence, and we independently determine, from the undisputed facts and facts properly
found by the trial court, whether the challenged statement was illegally obtained.
[Citation.] Because what defendant here said during his interview with the detectives is
undisputed, we engage in a de novo review of the legal question of whether the statement
at issue was ambiguous or equivocal.” (People v. Bacon (2010) 50 Cal.4th 1082, 1105.)
Even under independent review, we “may ‘give great weight to the considered
conclusions’ of a lower court that has previously reviewed the same evidence.” (People
v. Jennings (1988) 46 Cal.3d 963, 979.)



                                              11
       Under Miranda, “assertion of the right to counsel [is] a significant event and . . .
once exercised by the accused, ‘the interrogation must cease until an attorney is
present.’ ” (Edwards v. Arizona (1981) 451 U.S. 477, 485.)
       Once a suspect has waived his or her Miranda rights, however, any further
requests for counsel must be made affirmatively and unequivocally. “[A]fter a knowing
and voluntary waiver of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an attorney.” (Davis v. United
States (1994) 512 U.S. 452, 461 (Davis).) “If an accused makes a statement concerning
the right to counsel ‘that is ambiguous or equivocal’ . . . , the police are not required to
end the interrogation, or ask questions to clarify whether the accused wants to invoke his
or her Miranda rights.” (Berghuis v. Thompkins (2010) 560 U.S. __ [130 S.Ct. 2250,
2259-2260, 176 L.Ed.2d 1098].)
       The rationale for this rule is readily understood: “One of the Miranda Court’s
primary concerns was the temptation for law enforcement, operating with little or no
supervision of their investigative actions, to overbear a defendant in an isolated
interrogation setting” (Sessoms v. Runnels (9th Cir. 2012) 691 F.3d 1054, 1059), but “full
comprehension of the rights to remain silent and request an attorney are sufficient to
dispel whatever coercion is inherent in the interrogation process.” (Berghuis, supra, 560
U.S. at p. __ [130 S.Ct. at p. 2260].) Moreover, the suspect’s right to be free from
coercion must be balanced against the government’s interest in investigating crime, and
“when the officers conducting the questioning reasonably do not know whether the
suspect wants a lawyer, a rule requiring the immediate cessation of questioning ‘would
transform the Miranda safeguards into wholly irrational obstacles to legitimate police
investigative activity.’ ” (Davis, supra, 512 U.S. at p. 460.) “A suspect who knowingly
and voluntarily waives his right to counsel after having that right explained to him has
indicated his willingness to deal with the police unassisted. Although Edwards provides
an additional protection—if a suspect subsequently requests an attorney, questioning

                                              12
must cease—it is one that must be affirmatively invoked by the suspect.” (Id. at pp. 460-
461.)
        In summary, “We held in Miranda that a suspect is entitled to the assistance of
counsel during custodial interrogation even though the Constitution does not provide for
such assistance. We held in Edwards that if the suspect invokes the right to counsel at
any time, the police must immediately cease questioning him until an attorney is present.
But we are unwilling to create a third layer of prophylaxis to prevent police questioning
when the suspect might want a lawyer. Unless the suspect actually requests an attorney,
questioning may continue.” (Davis, supra, 512 U.S. at p. 462.)
        “ ‘[T]he exclusion of . . . statements . . . is a complete and sufficient remedy’ for
any perceived Miranda violation.” (United States v. Patane (2004) 542 U.S. 630, 641-
642 (plur. opn.); see People v. Nelson (2012) 53 Cal.4th 367, 371; People v. Thornton
(2007) 41 Cal.4th 391, 432.)1

        III.   Allowing the Jury to Hear the Continued Questioning of Defendant Violated
               Miranda
        On review, whether a statement is equivocal or unequivocal is examined according
to whether “a reasonable [police] officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel.” (Davis, supra,
512 U.S. at p. 459.) If so, “our precedents do not require the cessation of questioning.”



        1It is a subject of dispute in the United States Supreme Court whether a Miranda–
Edwards violation occurs on the admission of evidence at trial or when the authorities are
questioning a suspect. (Compare Patane, supra, at p. 641 (plur. opn.) with id. at p. 645
(opn. of Kennedy and O’Connor, JJ., conc. in judg.).) It suffices to conclude here that a
Miranda–Edwards violation was complete when the trial court admitted the evidence,
whether or not it occurred when the detectives continued to question defendant.
Throughout this opinion we will speak of a Miranda–Edwards violation by the court
below, though we recognize that the question of when a violation occurs is still in
dispute.



                                               13
(Ibid.) The suspect’s comments on the subject are to be “understood as ordinary people
would understand them.” (Connecticut v. Barrett (1987) 479 U.S. 523, 529.)
       We have read the transcript and watched the video recording of defendant’s
statements to the two detectives. The recording shows continual hesitation and other
body language indicating that defendant was wrestling with conflicting impulses. The
first was to answer the questions or at least try to formulate answers that would be as
minimally inculpatory as possible. The second was to say nothing and disappoint his
questioners—although they were polite, low-key, and not coercive. In a nutshell,
defendant hemmed and hawed repeatedly over whether to tell his interrogators what
happened, providing some information as he openly debated with himself about the best
course of action, and finally deciding to say no more.
       Defendant, aware of the legal principles set forth above, argues that ordinary
people and certainly a reasonable law enforcement detective would understand him to
have been asking unreservedly for counsel the first time the subject arose. He argues, “In
ordinary, everyday English as it is used in this country, what appellant politely said to the
detectives was that he wanted an attorney’s help. [¶] . . . When appellant said, ‘I think at
this point I would like an attorney, Cause I don’t know how to answer the questions
correctly,’ there was no ‘probably would be a good idea’ equivocation as in Bacon
[People v. Bacon, supra, 50 Cal.4th at p. 1104], there was no ‘Maybe I should talk to a
lawyer’ equivocation as in Davis [Davis, supra, 512 U.S. at p. 455], and there was no ‘I
think it’s about time for me to stop talking’ equivocation as in . . . People v. Stitely (2005)
35 Cal.4th 514, 534. When appellant’s statement is analyzed standing alone, there was
just one way for the detectives to reasonably construe it: at that point in the interview,
appellant wanted an attorney’s assistance. . . . [P]roof that this was a reasonable
construction of what appellant said can be found in the very next question asked . . . :
‘Are you saying you don’t want to talk to me anymore and you’d rather have an attorney



                                              14
here.’ [Citation to the record.] This question shows that the detective in the interview
room understood exactly what appellant’s statement meant.”
       We agree with the foregoing interpretation of defendant’s statement. Defendant’s
request for counsel did not contain the ambiguities present in other cases he contrasts
with his own.
       People v. Sauceda-Contreras (2012) 55 Cal.4th 203 provides a recent example of a
comment about counsel found to be ambiguous. In that case, the suspect 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.) This garbled narrative, which also faced the additional opportunity for confusion
that the suspect was speaking Spanish and his words were interpreted into English by a
police officer (id. at pp. 210, 215), caused our Supreme Court to conclude that, among
other problems, including mentioning a desire for counsel in a conditional manner, the
suspect’s statement regarding counsel “was equivocal in that defendant went on to plainly
state his intent and desire to waive his right to remain silent and ‘tell you everything that I
know and everything that I need to tell you,’ but then ended his response ambiguously
with the words ‘and someone to represent me.’ From an objective standpoint, a
reasonable officer under the circumstances would not have understood defendant’s
response to be a clear and unequivocal request for counsel.” (Id. at p. 219.) Conversely,
as we have explained, the statement of defendant here was a politely phrased request to
have a lawyer summoned to help him answer questions.
       When the detective asked, “Are you saying you don’t want to talk to me anymore
and you’d rather have an attorney here?” defendant answered, “Well I don’t, I don’t
know” and then dropped the matter to explain that he and Laura had had to deal with a
“crazy” individual. So within moments of his request for counsel, defendant became
unsure whether he wanted counsel or not.



                                              15
       Contrary to what the trial court thought and what the People argue on appeal,
however, we cannot look to defendant’s “I don’t know” statement or the rest of the
interrogation to determine his initial level of equivocation. Smith v. Illinois (1984) 469
U.S. 91 (per curiam) rejected this approach. “The courts below were able to construe
Smith’s request for counsel as ‘ambiguous’ only by looking to Smith’s subsequent
responses to continued police questioning and by concluding that, ‘considered in total,’
Smith’s ‘statements’ were equivocal. [Citations.] This line of analysis is unprecedented
and untenable. . . . ‘[A] statement either is such an assertion [of the right to counsel] or it
is not.’ [Citation.] Where nothing about the request for counsel or the circumstances
leading up to the request would render it ambiguous, all questioning must cease. In these
circumstances, an accused’s subsequent statements are relevant only to the question
whether the accused waived the right he had invoked. Invocation and waiver are entirely
distinct inquiries, and the two must not be blurred by merging them together.” (Id. at pp.
97-98, fn. omitted; see People v. Sauceda-Contreras, supra, 55 Cal.4th at p. 221,
emphasis added [“Under the totality of the circumstances, we conclude defendant’s
waiver of his Miranda rights, including his right to counsel, was voluntary, knowing and
intelligent.”].)2
       On the question of ambiguity and equivocation, Smith v. Illinois, supra, 469 U.S.
91, could not have been clearer about the required procedure: “We hold . . . that . . . an
accused’s postrequest responses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request itself.” (Id. at p. 100.) Unlike the
test courts may apply in determining whether a suspect waived his Miranda rights, no




       2In addition, as we explain post, pages 18-19, waiver could not be conditioned on
continued pressure by the detectives after defendant stated that he wanted counsel.



                                              16
totality of the circumstances test applies if a suspect’s initial expression of a desire for
counsel is unequivocal.3
       We are thus required, on independent review of the trial court’s determination and
notwithstanding that we may accord weight to a trial court’s determination under this
standard of review, to find differently from the court below and conclude that it violated
defendant’s Miranda rights. There are times in which the law creates bright-line rules
that we must follow. One such rule is that, as stated, “if the suspect invokes the right to
counsel at any time, the police must immediately cease questioning him until an attorney
is present.” (Davis, supra, 512 U.S. at p. 462, italics added.) Immediately means just
that—without attempts, however naturally human, to ask the suspect further what he or
she means.
       Such bright-line rules—as we describe below, the United States Supreme Court
uses this adjective in discussing this precise issue—may seem to elevate form over
substance, but there are sometimes reasons for doing just that, and in this case the reason


       3 In People v. Crittenden (1994) 9 Cal.4th 83, the court commented on the state of
“the entire record,” including events following an initial question the suspect asked about
counsel, but only after determining that the initial utterance was equivocal. (Id. at p. 130;
see also People v. Bacon, supra, 50 Cal.4th at pp. 1105-1107 [accepting the defendant’s
invitation to review all of the circumstances of the interrogation] & id. at p. 1107
[considering “the totality of this exchange” to “conclude that defendant’s reference to an
attorney was equivocal or ambiguous”].)
        Mindful of our obligation to follow the holdings of our Supreme Court (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we would note that the
statement in Crittenden was a dictum that followed the court’s conclusion that the
defendant’s initial utterance regarding counsel was ambiguous—“defendant did not
unequivocally state that he wanted an attorney, but simply asked a question.”
(Crittenden, supra, 9 Cal.4th at p. 130; see id. at pp. 123, 124).) In these circumstances,
Auto Equity is not binding. (Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th
61, 67-68.) In People v. Bacon, supra, 50 Cal.4th 1082, the defendant invited the court to
consider all of the circumstances of his interrogation, so the issue we address here was
not squarely before the court for its consideration.



                                              17
is to provide clarity to law enforcement interrogators regarding how they are to proceed.
“[O]nce ‘an accused has invoked his right to have counsel present during custodial
interrogation . . . [he] is not subject to further interrogation by the authorities until
counsel has been made available,’ unless he initiates the contact.” (Montejo v. Louisiana
(2009) 556 U.S. 778, 787, quoting Edwards v. Arizona, supra, 451 U.S. at pp. 484-485.)
If a suspect has fallen short of invoking his right to counsel and made only “a statement
concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement,
the police are not required to end the interrogation, [citation], or ask questions to clarify
whether the accused wants to invoke his or her Miranda rights.” (Berghuis v. Thompkins,
supra, 560 U.S. at p. __ [130 S.Ct. at pp. 2259-2260].) But if the answer is unambiguous,
as defendant’s answer here was, “The Edwards rule is ‘designed to prevent police from
badgering a defendant into waiving his previously asserted Miranda rights.’ ” (Montejo,
supra, 556 U.S. at p. 787.) “[T]his court has praised Edwards precisely because it
provides ‘ “clear and unequivocal” guidelines to the law enforcement profession,’
[citation]. Our cases make clear which sorts of statements trigger its protections, [Davis,
supra, 512 U.S. at p. 459], and once triggered, the rule operates as a bright line.” (Id. at
pp. 796-797.) Davis said, in turn, “The Edwards rule—questioning must cease if the
suspect asks for a lawyer—provides a bright line that can be applied by officers in the
real world of investigation and interrogation without unduly hampering the gathering of
information. But if we were to require questioning to cease if a suspect makes a
statement that might be a request for an attorney, this clarity and ease of application
would be lost. Police officers would be forced to make difficult judgment calls about
whether the suspect in fact wants a lawyer even though he has not said so, with the threat
of suppression if they guess wrong. We therefore hold that, after a knowing and
voluntary waiver of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an attorney.” (Davis, supra, at
p. 461.)

                                               18
       IV.     Prejudice
       When we conclude that a Miranda–Edwards violation has occurred, we review it
for prejudice under the standard of Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Davis (2009) 46 Cal.4th 539, 598.)
       This is, as defendant observes, an exacting standard. “The State bears the burden
of proving that an error passes muster under [the Chapman] standard” of prejudice.
(Brecht v. Abrahamson (1993) 507 U.S. 619, 630.) Under Chapman, it is not enough to
determine that “ ‘in a trial that occurred without the error, a guilty verdict would surely
have been rendered . . . .’ ” (People v. Quartermain (1997) 16 Cal.4th 600, 621.) Rather,
the state must show “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained” (Chapman v. California, supra, 386 U.S. at p. 24).
“ ‘To say that an error did not contribute to the ensuing verdict is . . . to find that error
unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and
whether the error might have tainted its decision. That is to say, the issue is ‘whether the
. . . verdict actually rendered in this trial was surely unattributable to the error.’ ” (People
v. Neal (2003) 31 Cal.4th 63, 86.)
       Reviewing for prejudice under the foregoing standards, we find the admission of
the interrogation not to have prejudiced defendant. The jury rejected a prosecution
charge that defendant committed first degree murder and convicted him of second degree
murder. The portion of the interrogation following the detectives’ disregard for
defendant’s first request for counsel offered only a vague and amorphous tableau in
which defendant and the drunk, addled, aggressive, and vulgar Heath had a confrontation,
one sufficiently serious for defendant to be worried about penal consequences. At the
same time, defendant characterized his role as one of “trying to diffuse [sic: defuse] the
situation.” In sum, given all the evidence that defendant killed Heath in defendant’s car,
including defendant’s own testimony at trial about the killing, the interrogation recording

                                               19
yielded nothing particularly inculpatory beyond a hazy description of what might be
some form of unlawful homicide, but not one that would necessarily constitute murder.
As we explain below, it could have been voluntary or involuntary manslaughter.
       Indeed, it was defendant’s own testimony that established that he committed the
second degree murder of Heath. The jury was instructed on two theories of second
degree murder, a crime that requires a finding of malice aforethought. It was directed to
consider express malice and implied malice. It was not required to decide unanimously
the type of malice aforethought that formed the basis for each juror’s second degree
murder finding. (People v. Brown (1995) 35 Cal.App.4th 708, 710, 713-715.) We do not
know the basis for the verdict, but either express or implied malice suffices to validate it.
       Express malice is defined as killing with the intent to kill. Malice is implied when
the evidence of intent to kill is lacking but there is evidence that the actor committed an
extremely dangerous act while remaining indifferent to the lethal consequences, i.e.,
“when the killing is proximately caused by ‘ “an act, the natural consequences of which
are dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard for
life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 152.) Gripping a loaded gun with
one’s finger on the trigger and holding it against the head of someone while gripping the
other side of the victim’s head with one’s other hand is ample evidence of murder
committed with implied malice. There was substantial evidence that defendant acted
with malice aforethought, either express or implied but necessarily one or the other.
       To be sure, defendant’s testimony persuaded the trial court to instruct on the
defenses of imperfect and perfect self-defense. The former is a “judicially developed
theory” (People v. Rios (2000) 23 Cal.4th 450, 465) that negates malice aforethought
when the killer harbors “an actual but unreasonable belief in the need to defend oneself or
others from imminent peril to life or great bodily injury.” (In re Lucero (2011) 200
Cal.App.4th 38, 42, fn. 3.) The latter—when such action is based on an objectively

                                             20
reasonable belief—is a complete defense to crime. (People v. Battle (2011) 198
Cal.App.4th 50, 72.) As for involuntary manslaughter, performing “an act with criminal
negligence supplies the criminal intent for involuntary manslaughter . . . .” (People v.
Butler (2010) 187 Cal.App.4th 998, 1008) even if the act is lawful (ibid.). The jury was
instructed on these possibilities and rejected them, despite the fact that the part of the
interrogation that followed defendant’s first Miranda–Edwards request for counsel
suggested the commission of either a manslaughter or no criminal offense. In other
words, admission of the portion of the interrogation which defendant sought to have
suppressed benefited him by providing the jury with a reason to find that he committed
the lesser offense of manslaughter, if any criminal offense at all. But to repeat, it was
defendant’s own testimony at trial that pointed inescapably toward express or implied
malice murder, which is what the jury found. Therefore, the jury’s verdict was
unattributable to the playing of the recording of defendant’s interrogation by the
detectives.4


       4  At oral argument and in his reply brief, defendant argued that the prosecutor was
able to invoke discrepancies between his statements to detectives and his testimony
before the jury to make him out as a liar. The gravamen of the prosecutor’s argument,
however, was that “in the intervening almost two year period, he’s had time to think up
his story. . . . And he’s had a lot of time to think of the details of that story and what facts
would potentially constitute a defense to murder.”
        As we have explained, defendant’s statements to the detectives was not
particularly inculpatory beyond suggesting that he committed some form of unlawful
homicide, not necessarily murder, whereas his testimony established that he committed
second degree murder. The prosecutor’s statement during argument that defendant “did
not tell [the detectives] one thing,” “[n]ot even a little thing that would constitute a
defense to the charge of murder,” was inaccurate, and we must presume that the jury paid
attention to the evidence and discounted this inaccurate argument. Moreover, the
prosecutor conceded later on during closing argument that “[m]ost of what he told the
detectives, almost all of what he, frankly, told the detectives related to what happened at
the house,” as opposed to in the car afterward. “And it was consistent for the most part
with his testimony in court.” The prosecutor’s closing argument does not detract from
                                                                                     (continued)


                                              21
                                    DISPOSITION
      The judgment is affirmed.




                                         _______________________________
                                                    Márquez, J.




WE CONCUR:




______________________________
 Premo, Acting P. J.




______________________________
 Mihara, J.




our conclusion that the trial court’s erroneous ruling was harmless under Chapman v.
California, supra, 386 U.S. 18.



                                           22
