Filed 11/12/15

                              CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----




THE PEOPLE,

                 Plaintiff and Respondent,                      C071432

        v.                                              (Super. Ct. No. 10F02227)

GERARDO VILLASENOR,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County,
Roland L. Candee, Judge. Affirmed.

      Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell,
Assistant Attorneys General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy
Attorneys General, for Plaintiff and Respondent.




                                              1
       Defendant Gerardo Villasenor, a Sureño gang member, shot two rival Norteño
gang members on two separate occasions. He was 17 years old at the time of the
shootings. With respect to the first shooting, defendant was charged with one count of
attempted murder (Count One) and one count of shooting at an occupied motor vehicle
(Count Two). With respect to the second shooting, he was charged with one count of
attempted murder (Count Four) and one count of shooting from a motor vehicle at
another person outside that vehicle (Count Five).1 Each count alleged a gang
enhancement; with the exception of Count Two, each count also alleged defendant
personally and intentionally discharged a firearm causing great bodily injury. After the
trial court severed trial on the counts relating to the first shooting (first trial) from trial on
the counts relating to the second shooting (second trial), separate juries found defendant
guilty of each crime and found each enhancement allegation to be true. Defendant was
sentenced to serve an aggregate indeterminate prison term of 50 years to life, plus an
aggregate determinate prison term of 24 years, eight months.
       On appeal, defendant contends the trial court prejudicially erred and violated his
federal constitutional rights by admitting into evidence statements defendant made to
police after he invoked his right to remain silent. Specifically, defendant argues he
clearly and unequivocally invoked his right to remain silent during his interrogation by
telling the interrogating officer―13 times in the span of 14 minutes―to take him home,



1       Count Three involved the first shooting and was alleged solely against a co-
defendant, Kristen Clancy. This count charged Clancy, the driver of the car used during
the first shooting, with being an accessory after the fact. She pleaded guilty to this charge
and the prosecutor dismissed Counts One and Two as to her. Defendant’s older brother,
Benjamin Villasenor, also a Sureño gang member, was also charged in Counts One and
Two. Because he and defendant have the same last name, we refer to him as Benjamin.
The case against Benjamin was dismissed for lack of evidence after he presented his
defense case.


                                                2
and during this period of time further told the officer to call his parents so they could pick
him up. He also argues the interrogating officer’s refusal to honor his invocation of the
right to remain silent rendered the remainder of his statements involuntary.
       We agree defendant invoked his right to remain silent. Because the interrogation
should have stopped when this occurred, but did not, the admission of defendant’s
subsequent statements violated his rights under Miranda v. Arizona (1966) 384 U.S. 436
[16 L.Ed.2d 694] (Miranda). However, we also conclude the trial court’s error in
admitting these statements was harmless beyond a reasonable doubt. We reject
defendant’s related claim that statements made after he invoked his right to remain silent
were involuntary under the totality of the circumstances.
       Defendant also asserts the trial court prejudicially erred and violated his state and
federal constitutional rights in the second trial by denying his request for a removal order
for a proposed defense witness, who was an inmate in an out-of-county prison at the time
of trial, thereby preventing him from calling a necessary and material witness, the
evidence is insufficient to support his convictions, and a clerical error in the abstract of
judgment must be corrected. We disagree with the first two contentions. Because
defendant’s showing of necessity and materiality was lacking, the trial court neither
abused its discretion nor violated defendant’s constitutional rights by denying his request
to remove this particular inmate from prison. The evidence was also more than sufficient
to support defendant’s convictions and the enhancement findings with respect to each
shooting. We do, however, agree the abstract of judgment must be corrected. We
therefore order correction of the abstract of judgment and affirm the judgment.
                                           FACTS
       We recite the facts in the light most favorable to the judgment, drawing all
reasonable inferences in support thereof. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)




                                              3
However, because we conclude there was a Miranda violation, we omit from our factual
recitation any statements defendant made to police after he invoked his right to remain
silent.
                                     The First Shooting
          Armando Lopez was a member of the Norteño criminal street gang and routinely
wore red to signify his membership in the gang. During the early morning hours of
January 24, 2010, he and three of his roommates left a party and returned to their house
on Kesner Avenue in North Sacramento, near Del Paso Heights. One of the roommates
drove another roommate’s car to and from the party. On the way home, they stopped to
pick up some fast food. Each of the roommates had been drinking. Lopez appeared to be
the most intoxicated. When the other roommates got out of the car to bring the food into
the house, he stayed in the back seat “mumbling.” His roommates decided to leave him
there while they went inside to eat. A short time later, Lopez managed to get out of the
car. But instead of coming inside the house, he walked over to his car, which was also
parked on the street in front of the house, and got into the driver’s seat.
          As Lopez was changing cars, a group of Sureños was driving through the
neighborhood. Raquel Benavidez, seated in the back seat behind the driver, testified the
driver was Kristen Clancy (who went by the nickname “Huera”), defendant (who went by
the nickname “Lalo”) was seated in the front passenger seat, defendant’s older brother
Benjamin (who went by the nickname “Playboy”) was seated in the back seat behind
defendant, and Gisela Chaveste (who went by the nickname “Bubbles”) was seated in the
middle of the back seat. According to Benavidez, when they passed a Mexican man
sitting in a car on the side of the street, either defendant or his brother told Clancy to stop
the car, which she did. Defendant and his brother got out of the car and walked over to
the man. Defendant asked: “Do you bang? Where are you from?” Benavidez




                                               4
understood these questions to be a gang-related challenge. Defendant then reached into
the car and lifted up the man’s shirt. Seeing a red belt, defendant said, “he’s a Norteño,”
pulled out a handgun, and shot him twice. Defendant and his brother then got back in
Clancy’s car and the group drove away as defendant said: “I hope he dies.” Benavidez’s
testimony was largely consistent with prior statements she made in March 2010 to a
school counselor and to a police lieutenant who was called by the counselor.
       The man defendant shot was Lopez. One of the bullets passed through the back of
Lopez’s neck and then struck the passenger side door, where it remained until recovered
by police. The other bullet struck Lopez in the shoulder, shattered his clavicle, fractured
one of his ribs, and then lodged near his vertebral column, where it remained at the time
of trial. His roommates heard the gunshots, came outside to investigate, and found Lopez
sitting in his car, bleeding from his neck and shoulder. One of Lopez’s roommates asked
him what happened, but he “wasn’t really making any sense.” Another roommate called
911. Police were the first to arrive at the scene. One of the responding officers, who
stayed with Lopez until emergency medical personnel arrived, asked him if he knew who
shot him. Lopez said he did not. A short time later, Lopez was transported to University
of California at Davis Medical Center. He survived his encounter with defendant.
       Three days later, a detective with the Sacramento Police Department spoke with
Lopez at the hospital. Lopez admitted to being a Norteño and confirmed he was wearing
a red belt the night he was shot. Thereafter, in April 2010, after Benavidez provided her
statement regarding the shooting, the detective again contacted Lopez and showed him
several photographic lineups, one of which included defendant and another included
Benjamin. Lopez did not positively identify anyone in the lineups. However, according
to the detective, he became emotional and seemed on the verge of crying when he looked
at the lineup containing defendant’s photograph.




                                             5
       As mentioned, defendant’s brother Benjamin was originally charged with
attempted murder and shooting at an occupied motor vehicle. He testified in his own
defense, denying he was involved in the shooting. According to Benjamin, he and
defendant went to a party on West Silver Eagle Road, also in North Sacramento, but
closer to the Norwood neighborhood. Around midnight, defendant left the party with an
undisclosed friend. Benjamin stayed behind with one of his friends (who went by the
nickname “Peewee”) to steal cars from around the neighborhood and bring them back to
the house. He did so to impress “some guys” at the party who were studying to become
automotive technicians at a local technical institute. Other than four or five short trips to
steal cars, Benjamin stayed at the party until around 4:00 a.m., at which point he left the
party with Peewee. Benjamin denied seeing his brother, Clancy, Benavidez, or Chaveste
during the early morning hours of January 24 and further denied being in Clancy’s car.
This portion of Benjamin’s testimony was corroborated by evidence he wore an ankle
monitor at the time of the shooting that did not register his presence at the crime scene.
This testimony was also corroborated by stolen car reports.
       During cross-examination, after a break in the proceedings, Benjamin stated he
remembered defendant briefly coming back to the party with “a group of friends” around
2:00 a.m. According to Benjamin, there were “no females” in this group. Benjamin
admitted calling defendant at 3:37 a.m., which was right around the time Lopez was shot.
As he explained the reason for the call, someone had taken one of the cars he had
previously stolen that night, and he called his brother to ask if someone in defendant’s
group had done so. Benjamin also admitted defendant called him a short time later,
claiming defendant told him “not to go out because there was a lot of cops.” Cell phone
records confirmed these calls were made, and placed defendant’s cell phone in the area of
the shooting at 3:37 a.m. Benjamin testified defendant later admitted shooting a Norteño




                                              6
after leaving the party. As he recalled the admission, “he told me he shot a buster up
close.” The word “buster” is a derogatory term used by Sureños to disrespect Norteños.
This testimony was corroborated by a prior consistent statement Benjamin made the same
day. In response to a text message from Peewee asking, “What did [defendant] say about
yesterday,” Benjamin responded: “He told me he [shot] a buster up close.”
       Thus, while Benjamin’s testimony was inconsistent with that of Benavidez, at
least as to his involvement in the shooting, it also served to corroborate her identification
of defendant as the shooter by providing defendant’s admission to “shoot[ing] a buster up
close.” However, Benavidez’s testimony was also inconsistent with that of Chaveste,
who denied seeing a shooting while in Clancy’s car and further denied ever hanging out
with both defendant and Benjamin at the same time. She did admit to being in a car with
Clancy and defendant, and possibly other people, but testified this was “probably before
January,” although she denied remembering “anything about that day.” She also
admitted telling police in a March 2010 interview that the car ride happened “two months
prior,” which would place the ride in January; and while she denied witnessing a shooting
during that interview as well, she told police defendant was carrying a black semi-
automatic handgun in the car.
       Based on the foregoing, defendant was convicted of attempted murder and
shooting at an occupied motor vehicle, with various gang and firearm enhancement
allegations found to be true.
                                   The Second Shooting
       Juan Alvarado was also a member of the Norteño criminal street gang. On the
morning of April 3, 2010, Alvarado was walking to his father’s house in North
Sacramento for breakfast. He had spent the previous night with his girlfriend at her
house. His route took him north on Taft Street. After passing an elementary school, he




                                              7
turned right onto his father’s street, Berggren Way. As he did so, a group of Sureños
approached in a car heading south on Taft. The car turned left on Berggren and stopped
next to Alvarado. Defendant, seated in the front passenger seat, pulled out a handgun and
fired three or four rounds, one of which hit Alvarado in the abdomen. The bullet passed
through his liver and gallbladder, and lodged in one of his kidneys. Despite the gunshot
wound, Alvarado managed to run to a nearby house, which was divided into a duplex,
where he climbed over a fence enclosing one of the duplex’s backyards. He then kicked
his way through a fence dividing that backyard from the other duplex’s backyard and
knocked at that duplex’s back door until the resident came out and called 911.
      Narciso Guzman (who went by the nickname “Cube”) was in the car at the time of
the shooting. He testified the driver was Ramon Bravo (who went by the nickname
“Charlie Brown”), defendant was seated in the front passenger seat, Wilberto Padilla
(who went by the nickname “Willie”) was seated in the back seat behind Bravo, and
Guzman was seated in the back seat behind defendant. After picking up some beer at a
liquor store, the group was heading south on Taft when Guzman saw a “random guy”
walking up the street. Guzman did not “see no red on him,” but believed him to be a
Norteño because of the way Bravo immediately made a left turn to pull up next to him
and the “dead silent” tension in the car. After a brief moment in which defendant and
Guzman were “staring down” the man on the street, defendant pulled out a handgun and
“started shooting.” Defendant fired three or four rounds, during which, at least from
Guzman’s perspective, the man simply “disappeared.” Bravo then made a u-turn and
headed back the way they came. Around this time, defendant revealed: “I went to
school with that dude.”
      Police responded to the backyard Alvarado broke into during his escape from the
gunfire. He told one of the responding officers the car that pulled up was a gold




                                            8
Oldsmobile. Bravo drove a white Oldsmobile Alero. Alvarado also told the officer there
were five Sureños in the car, but he could not identify any of them. Later, after he was
transported to the hospital, Alvarado provided a more detailed statement to a detective
with the Sacramento Police Department, during which he stated he recognized the
shooter because he “went to junior high” with either the shooter or the shooter’s older
brother, who had the nickname “Playboy or Grumpy.” Alvarado suspected he was shot
by the younger brother because he had previously been in a fight with the older brother.
Alvarado later positively identified defendant in a photographic lineup, stating he was
“almost positive” defendant was the person who shot him, but also informed the detective
he would not “point the finger” at defendant in “open court.”
       True to his word, Alvarado did not identify defendant as the shooter at trial,
claiming he did not remember who shot him. However, he did not recant his prior
identification. When asked whether he identified defendant in the lineup because he
believed defendant was the one who shot him, Alvarado answered: “Obviously, at the
time, yeah, when I remembered.” In response to the same question, worded slightly
differently, Alvarado answered: “Obviously, obviously. Don’t take a damn rocket
scientist.”
       Based on the foregoing, defendant was convicted of attempted murder and
shooting from a motor vehicle at another person outside that vehicle, with various gang
and firearm enhancement allegations found to be true.
                                      DISCUSSION
                                             I
                        Invocation of the Right to Remain Silent
       Defendant contends the trial court prejudicially erred and violated his federal
constitutional rights by admitting into evidence statements defendant made to police after




                                             9
he invoked his right to remain silent. We agree there was a Miranda violation, but
conclude beyond a reasonable doubt the error in admitting post-invocation statements
made by defendant was harmless.
                                            A.
                                 Additional Background
       Four days after the second shooting, defendant was taken into custody and advised
of his Miranda rights. Defendant indicated he understood these rights. He was then
transported to the police station, where he was interviewed by Detective John Sample
about 45 minutes after the advisement.
       The interview began at 2:15 p.m. Detective Sample asked defendant about his
family, gang affiliation, criminal record, and drug use. He then asked defendant for his
cell phone number. Defendant said he did not remember the number and no longer had a
cell phone because he left it in his pants when they were put in the washing machine.
The detective also asked defendant about problems he was having with Norteños, leading
defendant to reveal an incident in which shots were fired at his parents’ house. The
detective then said he was going to get his case file so they could discuss “some things
that have been happenin[g].” Defendant asked: “When can I go home?” The detective
answered: “We gotta finish, uh, havin our conversation. Okay?” Defendant asked:
“Then I can go home?” The detective responded by asking whether defendant had
“something goin on,” to which defendant answered: “I want to go to sleep.” The
detective responded: “Well, you can catch up on your nap as soon as we’re done. Since
you don’t have a job yet.” After a brief conversation about where defendant had applied
for work, the detective left the room to get his case file. He was out of the room for about
20 minutes, most of which defendant spent fidgeting, with periodic yawns, eye rubbing,
and placing his head on the table.




                                            10
       The interview resumed at about 3:40 p.m. with Detective Sample challenging
defendant’s claim that his cell phone had been put through the wash. Defendant admitted
he was lying about that and said he did so to find out whether the detective “would know
if [he] was tellin the truth or not.” The detective then asked defendant about various gang
associates, including his brother Benjamin. At this point, about 15 minutes after the
interview resumed, defendant asked: “Well, can we just stop and I can go home? Cause
I ain’t arrested.” The detective answered: “We -- we gotta go through this whole thing.”
Defendant responded: “No, we don’t.” The detective then said, “I have to ask these
questions, partner,” to which defendant replied: “You have to, but I don’t have to
answer em cause I’m tired of all this. You already know who these people are.” The
questioning then shifted to girls who associated with defendant’s subset of the Sureño
gang, i.e., Howe Park, including Clancy and Chaveste. A short time later, the detective
asked defendant when he was last with both Clancy and Chaveste. Defendant said he had
not seen Clancy and Chaveste together since before January.
       Detective Sample then turned his focus to the second shooting, asking defendant
about the previous Friday night, which was the night before Alvarado was shot.
Defendant claimed he went over to a girl’s apartment for a “kick back” around midnight.
He went to the apartment with four Sureño members or associates, who went by the
nicknames Slowbrain, Smiley, Pirata, and Peewee. Clancy showed up sometime later
and then left again with “a couple people” defendant did not know. Defendant stayed
until around 8:00 a.m. Saturday and then walked to his cousin’s apartment. Later in the
day, Clancy stopped by the cousin’s apartment and took defendant home. After
extracting this information, the detective asked defendant about “the shooting.”
Defendant responded: “Oh, I heard about a shooting.” He then explained he heard “a
fuckin loud ass gunshot” when he was inside the girl’s apartment; he did not know where




                                            11
the shot came from, nor did he know what time it was when he heard the shot.
Defendant’s story about Clancy leaving the party then changed slightly. Instead of
defendant not knowing who left with her, he now claimed it was Peewee and Smiley who
did so. They left around 5:00 a.m. Pirata left the party much earlier. Defendant also
added that Slowbrain accompanied him on his walk to his cousin’s apartment at 8:00 a.m.
      Later in the interview, Detective Sample began questioning defendant about the
first shooting. Defendant said he did not “know about any shooting” and further denied
Clancy or Chaveste ever saw him with a gun. He then claimed to have seen Chaveste on
only two occasions, neither of which was in January. Defendant also denied possessing
any guns at any time since January. He then asked when he would be able to leave. The
detective answered: “I just got a couple more questions.” A short time later, defendant
asked to use the restroom, which he was allowed to do. The detective then left him alone
in the interview room for another 23 minutes, during which defendant again alternated
between fidgeting, yawning, rubbing his eyes, and putting his head down on the table.
The interview resumed at about 5:45 p.m. A short time into the resumed interview, the
detective asked whether defendant was near Kesner Avenue and Norwood Avenue on
January 24. Defendant initially denied being in that area. He then said he was at a
birthday party for a friend (who went by the nickname “Creeper”) in that area, but did not
remember the date of the party. When the detective confronted defendant with phone
records placing his cell phone in the area, defendant responded: “We was over there by
the party.” According to defendant, he went to the party with Peewee and Peewee’s
brother (who went by the nickname “Flacco”) and heard gunshots as they were leaving
the party sometime after midnight. Defendant also claimed to have “seen a car take off”
that he believed to be a small Honda, but did not remember the color “because it was
nighttime.”




                                           12
       Detective Sample then returned to the second shooting and told defendant to be
honest about what happened. Defendant responded: “Just, uh, I don’t know the driver,
but I guess they were goin to someone’s house to go pick some -- some shit up cause they
want to smoke crystal and they were going to someone’s house and the phones was there,
so I gave em mine and shit. And then they took -- I heard -- they told me they took -- that
they used a gun and shit, that they didn’t tell me what -- um, what happened or anything.”
Defendant then clarified the “they” to whom he was referring were at his cousin’s
apartment when he and Slowbrain arrived that morning. According to defendant, after
they left with his cell phone to “pick up crystal,” they returned to the apartment and said
they shot “some buster.”
       A short time later, Detective Sample told defendant he already knew the truth
about both shootings because there was “lots of evidence left behind.” He elaborated:
“There’s witnesses over here on [January] 24th at Norwood and Kesner, there’s
witnesses. There’s physical evidence. There’s a bullet at this house -- in -- I mean in this
car. There’s a bullet in this guy. And this guy lived. This Northerner, he lived. So I
already talked [to] this guy and his homeys over on Kesner. In April, on April 3rd, over
on Taft, over by that school, just down from that school over there, this Northerner, he
lived too and he has good eyesight and a good memory. . . . I know for a fact that you
have history with this guy that got shot over on Taft. I know for a fact you have history
with him. I showed you his picture before, right? Where do you know him from? Cause
I know.” Defendant then admitted knowing Alvarado from school, but claimed he had
not seen him in a long time.
       At this point in the interview, roughly four hours after it began, several exchanges
between defendant and Detective Sample form the basis of defendant’s claim that he
invoked his right to remain silent. The exchanges are the following.




                                             13
       “[Detective Sample]: My patience is gettin thinner and thinner down the road and
there’s only one truth that’s gonna tell you what actually happened in this situation,
okay? You got your house shot, right?
       “[Defendant]: Yeah
       “[Detective Sample]: I understand that 100-percent. Your mom and dad have
been shot at by Northerners. I understand that 100-percent. I arrested that dude. Cause I
don’t want him to ever do that again. I need you to tell me what happened over on Taft
cause I do not want the whole shit load of people to end up gettin in trouble for
something. What happened?
       “[Defendant]: I don’t know.
       “[Detective Sample]: You don’t know.
       “[Defendant]: Just take my ass home. I told you everything you wanted to hear.
       “[Detective Sample]: No, I didn’t hear anything that I wanted to hear so far.
You’ve given me several different versions --
       “[Defendant]: You asked me all your questions, now take me home.
       “[Detective Sample]: I didn’t ask -- ask you all my questions. Look at this folder
right here, partner. [¶] . . . We’re talking about one thing right now.
       “[Defendant]: I’ll be here for fuckin weeks for all that fuckin thing.
       “[Detective Sample]: No, you’re gonna tell me the truth and we’ll be outta here.
       “[Defendant]: Well, I could be outta here right now. I just need my phone.
       “[Detective Sample]: You need to tell me the truth. Somebody picked you out.
       “[Defendant]: Okay, like I said --
       “[Detective Sample]: I know for a fact your phone was --
       “[Defendant]: I -- I can walk outta here right now. I ain’t arrested and detained.
       “[Detective Sample]: You know, you -- you got some, uh, some nerve.




                                             14
       “[Defendant]: Well, I’m just sayin. I --
       “[Detective Sample]: You got some nerve. You’re --
       “[Defendant]: Gimme my phone.” (Italics added.)
       As defendant demanded his phone, he reached across the table to take it, knocking
some of Detective Sample’s papers on the ground in the process. He then picked the
papers up as the detective told him, “don’t be reachin across my table because you’re a
17 year old” and “[y]ou know you’re on probation, right?” The interview resumed.
       A short time later, the following exchange occurred.
       “[Detective Sample]: You wanna go home, right?
       “[Defendant]: Yeah.
       “[Detective Sample]: You want somethin, I want somethin. I want the truth. I
want the truth of what happened out there and I know it’s hard for you to tell me.
       “[Defendant]: I told you I don’t wanna be no fuckin snitch.
       “[Detective Sample]: I’m not askin you to be a snitch. I’m askin you to tell me
what happened. You need to explain to me how your cell phone magically appears right
here. And you didn’t give your phone to nobody, partner.
       “[Defendant]: Okay. Just take me home.” (Italics added.)
       The interview continued. Three questions later, in response to which defendant
denied shooting anyone, he repeated: “So take me home.” And again: “Just take me
home.” (Italics added.) Then, three times, defendant told Detective Sample to call his
parents to pick him up. After the detective deflected each demand, defendant said: “Let
me see my phone. I’ll call em right now.” The detective responded: “I already told you
we’ll take care of it. I’m runnin this interview right now. You’re not.”
       A few questions later, the following exchange occurred:
       “[Detective Sample]: Well, what happened?




                                            15
      “[Defendant]: I didn’t shoot nobody so just take me home.
      “[Detective Sample]: Okay. You were there.
      “[Defendant]: I know my rights.
      “[Detective Sample]: I know your rights, too, partner.
      “[Defendant]: Okay. So take me home, then.
      “[Detective Sample]: We’re not goin home. We’re talking right now.” (Italics
added.)
      At this point, defendant told Detective Sample they could “talk some other day,”
to which the detective responded, “You’re gonna tell me today what happened and
why you were out there,” and reminded defendant he was on probation and needed to
“walk a very thin line.” Two questions later, defendant repeated: “Take me home.”
And again: “Just take me home.” When Detective Sample responded, “I already heard
that, partner,” defendant said: “Then why ain’t you doin it? Call my parents.” Two
questions later, defendant again repeated: “Just take me home.” And another time:
“Take me home.” Defendant again asked the detective to call his parents. When the
detective said, “that’ll happen later,” defendant responded: “Just take me home then.”
(Italics added.) Detective Sample deflected this demand with: “Do you understand
what I’m talking about here?” and, “We’re talking about an attempt murder charge.
Do you think you’re just gonna go home without answerin this question? We’re gonna
talk about why somebody picked your photo outta being out at this scene where this
guy got shot.”
      A short time later, defendant asked the detective: “How long can you hold me
here for?” The detective answered: “As long as I need to. A detention can last 48 hours.
I don’t wanna wait 48 hours.” Three questions later, defendant said: “Just wait the 48
hours so I can go home.” After asking the detective for the time, defendant said: “Let’s




                                           16
just start the wait then.” Three questions later, defendant repeated: “Let’s just wait the
48 hours so I can go home.” In response, the detective asked: “Why won’t you just tell
me what you were doin on Taft?” When defendant answered, “I ain’t no snitch,” the
detective responded: “I didn’t ask you to snitch anything. I didn’t ask you to throw any
names, nothing like that.” The detective continued asking what defendant was doing on
Taft, adding: “Just answer that. You want this to be finished. My last question, you
answer it.” Defendant responded: “And then I can -- then it’s done.” The detective
answered: “Last question. Answer it.” Defendant clarified: “Then I go home.” When
defendant did not answer the question to the detective’s satisfaction, there was another
question, prompting defendant to respond: “Fuck it, man. Just take me home, fuck. Let’s
just wait the 48 hours so I can go home.” (Italics added.) In response to this―the
thirteenth time defendant demanded to be taken home―the detective said he also wanted
to leave. Defendant responded: “Then I -- if I answer this question, it’s another one and
another one, then another one.” The detective promised: “That’s the last question I will
ask you. I just want you to tell me the truth.” Defendant eventually answered that he left
with the people who were at his cousin’s apartment “to go fuckin get some crystal.”
       That was not Detective Sample’s last question. During the remainder of the
interview, defendant admitted to going to Bill’s Liquor the morning of the second
shooting, the same liquor store Guzman would later testify where he went with
defendant, Bravo, and Padilla to buy beer before defendant shot Alvarado. According to
defendant, however, he went to the liquor store with one of his cousin’s friends (who
went by “Charlie”) and Charlie’s friend (who went by the nickname “Rana”), whom they
picked up before going to the liquor store. When they approached Alvarado on their way
back from the liquor store, defendant recognized him, and realized Alvarado also
recognized defendant. Then, someone in the car―defendant did not see who―fired




                                             17
three shots, after which they made a u-turn and left the area. Defendant believed the
shooter to be Rana. With respect to the first shooting, defendant claimed his brother
Benjamin was also in the car with Peewee and Flacco when they heard gunshots.
According to defendant, Peewee drove, Flacco was seated in the front passenger seat, and
defendant and Benjamin were seated in the back seat. Defendant then acknowledged
getting out of the car and going over to a man’s car before the shooting. As he explained,
the man appeared to be either drunk or dead, so he went over to investigate. When
defendant got to the man’s car, someone in Peewee’s car asked whether he was “a buster”
because “they were gonna call the ambulance” unless he was a Norteño, in which case
they would “just leave him there.” According to defendant, the man did not appear to be
a gang member. At this point, defendant got back in Peewee’s car, informed his
companions of his observations, and they drove away. They heard the gunshots as they
left. Defendant also claimed the car he saw take off after the shots were fired was “big”
and “dark gray,” contradicting the statement he made earlier in the interrogation that the
car was small and he did not remember the color. The interview ended at 7:15 p.m., five
hours after it began.
       Prior to the start of the first trial, defense counsel requested a hearing under
Evidence Code section 402 to determine the admissibility of defendant’s statement to
Detective Sample under Miranda. After hearing testimony from the detective who
advised defendant of his Miranda rights prior to the interview, viewing the video and
reading the transcript of the interview, and entertaining the arguments of counsel, the trial
court ruled defendant validly waived his Miranda rights at the start of the interview and
did not clearly and unequivocally invoke his right to remain silent at any point during the
interview. With respect to invocation, the trial court found defendant’s repeated demands
to be taken home and for Detective Sample to call his parents so they could pick him up




                                              18
to be “objectively ambiguous because they were limited to his concern of being labeled a
snitch.” The trial court further found there was no coercion by Detective Sample in his
questioning of defendant.
                                              B.
                         Governing Law and Standard of Review
       “Under California law, issues relating to the suppression of statements made
during a custodial interrogation must be reviewed under federal constitutional standards.”
(People v. Nelson (2012) 53 Cal.4th 367, 374 (Nelson).)
       “The basic rule of [Miranda], and its progeny, is familiar: Under the Fifth
Amendment to the federal Constitution, as applied to the states through the Fourteenth
Amendment, ‘[n]o person . . . shall be compelled in any criminal case to be a witness
against himself [or herself] . . . .’ [Citation.] ‘In order to combat [the] pressures [of
custodial interrogation] and to permit a full opportunity to exercise the privilege against
self-incrimination, the accused must be adequately and effectively apprised of his [or her]
rights’ to remain silent and to have the assistance of counsel. [Citation.] ‘[I]f the accused
indicates in any manner that he [or she] wishes to remain silent or to consult an attorney,
interrogation must cease, and any statement obtained from him [or her] during
interrogation thereafter may not be admitted against him [or her] at his [or her] trial’
[citation], at least during the prosecution’s case-in-chief [citations].” (People v. Lessie
(2010) 47 Cal.4th 1152, 1162, italics added.) It is the prosecution’s burden to prove, by a
preponderance of the evidence, the accused’s rights under Miranda were not violated.
(Lego v. Twomey (1972) 404 U.S. 477, 489 [30 L.Ed.2d 618, 627]; People v. Sapp (2003)
31 Cal.4th 240, 267; People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
       Here, defendant does not dispute he was adequately and effectively apprised of his
Miranda rights prior to the interrogation or challenge the trial court’s ruling he validly




                                              19
waived those rights by talking to Detective Sample. “The problem came,” defendant
argues, “when [he] attempted to assert those rights.” Issues of post-waiver invocation are
governed by Davis v. United States (1994) 512 U.S. 452 [129 L.Ed.2d 362] (Davis) and
Berghuis v. Thompkins (2010) 560 U.S. 370 [176 L.Ed.2d 1098] (Berghuis).
       Davis, supra, 512 U.S. 452, involved post-waiver invocation of the Miranda right
to counsel. There, the United States Supreme Court explained: “If the suspect
effectively waives his [or her] right to counsel after receiving the Miranda warnings, law
enforcement officers are free to question him [or her]. [Citation.] But if a suspect
requests counsel at any time during the interview, he [or she] is not subject to further
questioning until a lawyer has been made available or the suspect himself [or herself]
reinitiates conversation. [Citation.]” (Id. at p. 458, citing Edwards v. Arizona (1981) 451
U.S. 477, 484-485 [68 L.Ed.2d 378].) This rule, the court explained, is not itself
compelled by the Constitution, but instead is a prophylactic measure “‘designed to
prevent police from badgering a defendant into waiving his [or her] previously asserted
Miranda rights.’” (Davis, supra, 512 U.S. at p. 458, quoting Michigan v. Harvey (1990)
494 U.S. 344, 350 [115 L.Ed.2d 293].) With respect to what constitutes a request for
counsel triggering the prophylactic rule of Edwards, the Davis court explained, “this is an
objective inquiry,” and held “the suspect . . . 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.” (Davis, supra, 512 U.S.
at p. 459.) Conversely, “if a suspect makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel, our precedents do
not require the cessation of questioning.” (Ibid.) The court further “decline[d] to adopt a
rule requiring officers to ask clarifying questions. If the suspect’s statement is not an




                                              20
unambiguous or unequivocal request for counsel, the officers have no obligation to stop
questioning him [or her].” (Id. at pp. 461–462.)
       In Berghuis, supra, 560 U.S. 370, the United States Supreme Court held the Davis
standard for determining whether a suspect has invoked his or her Miranda right to
counsel also applies to determining whether a suspect has invoked the related right to
remain silent, explaining “there is no principled reason to adopt different standards” for
the two inquiries. (Id. at p. 381.) Rather, the court found “good reason to require an
accused who wants to invoke his or her right to remain silent to do so unambiguously,”
explaining: “A requirement of an unambiguous invocation of Miranda rights results in
an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to
officers’ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act,
omission, or statement could require police to end the interrogation, police would be
required to make difficult decisions about an accused’s unclear intent and face the
consequence of suppression ‘if they guess wrong.’ [Citation.] Suppression of a
voluntary confession in these circumstances would place a significant burden on society’s
interest in prosecuting criminal activity. [Citations.]” (Id. at pp. 381-382.) Applying the
Davis standard to the facts of the case, the court held the defendant, who was “‘[l]argely’
silent” during the roughly three-hour interrogation (id. at p. 375), did not unambiguously
invoke his right to remain silent, explaining: “Thompkins did not say that he wanted to
remain silent or that he did not want to talk with the police. Had he made either of these
simple, unambiguous statements, he would have invoked his ‘“right to cut off
questioning.”’” (Id. at p. 382, citing Michigan v. Mosley (1975) 423 U.S. 96, 103 [46
L.Ed.2d 313] (Mosley).)
       The California Supreme Court has held the same objective standard for
determining whether an adult suspect has invoked his or her Miranda rights also applies




                                              21
to juvenile suspects. (Nelson, supra, 53 Cal.4th at pp. 378-380.) Thus, “once a juvenile
suspect has made a valid waiver of the Miranda rights, any subsequent assertion of the
right to counsel or right to silence during questioning must be articulated sufficiently
clearly that a reasonable police officer in the circumstances would understand the
statement to be an invocation of such rights.” (Id. at pp. 379-380.)
       “In reviewing Miranda issues on appeal, we accept the trial court’s resolution of
disputed facts and inferences as well as its evaluations of credibility if substantially
supported, but independently determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained.” (People v. Smith (2007)
40 Cal.4th 483, 502.) Here, resolution of defendant’s Miranda claim does not turn on
disputed facts resolved by the trial court. The interrogation was videotaped. We have
reviewed the video. There is no factual dispute over what questions were asked by
Detective Sample, what answers were given by defendant, whether defendant demanded
to be taken home and have his parents called to pick him up, how many times he made
these demands, or the context in which they were made. Thus, we must independently
determine whether a reasonable police officer in Detective Sample’s position would have
understood defendant’s repeated demands to be taken home and to have his parents called
to pick him up to be an unequivocal and unambiguous assertion of his right to refuse to
answer further questions.
                                              C.
                      Defendant Invoked His Right to Remain Silent
       We conclude defendant invoked his right to remain silent. In Mosley, supra, 423
U.S. 96, the United States Supreme Court explained the Miranda right of silence is a
“‘right to cut off questioning.’ [Citation.] Through the exercise of [this] option to
terminate questioning, [the suspect] can control the time at which questioning occurs, the




                                              22
subjects discussed, and the duration of the interrogation. The requirement that law
enforcement authorities must respect a person’s exercise of that option counteracts the
coercive pressures of the custodial setting.” (Mosley at pp. 103-104.) In Berghuis, supra,
560 U.S. 370, as mentioned, the United States Supreme Court provided two examples of
“simple, unambiguous statements” sufficient to invoke this right, i.e., “[I] want[] to
remain silent” and “[I do] not want to talk.” (Id. at p. 382.)
       In People v. Martinez (2010) 47 Cal.4th 911 (Martinez), the California Supreme
Court held the statement, “‘That’s all I can tell you’” (id. at p. 949) was not an
unambiguous statement invoking that defendant’s right to terminate questioning. (Id. at
p. 946.) Relying on In re Joe R. (1980) 27 Cal.3d 496, in which the court concluded,
based on the context of that interrogation, that the “defendant’s use of the phrase ‘That’s
all I have to say’ was not an attempt to end the interrogation and that ‘[i]t was not
unreasonable for the [trial] court to endorse the prosecutor’s inference that what [the]
defendant was saying was, That’s my story, and I’ll stick with it,’” the court in Martinez
explained: “In the present case, we agree with the trial court’s conclusion, supported by
[the interrogating officer’s] testimony, that he believed [the] defendant was telling him
‘[t]hat’s all the information he had for me.’” (Martinez, supra, 47 Cal.4th at pp. 949-
950.) Thus, statements that can be reasonably construed to mean, “That’s my story and
I’m sticking to it” or “I don’t know what else to tell you” are not unambiguous statements
a reasonable officer would know to be an invocation of a defendant’s right to end the
interrogation.
       Similarly, in People v. Williams (2010) 49 Cal.4th 405 (Williams), our Supreme
Court viewed the defendant’s statement, “‘I don’t want to talk about it,’” in context and
concluded it was not “an unambiguous invocation of the right to remain silent,” citing a
number of cases standing for the proposition that “‘[a] defendant has not invoked his or




                                             23
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.’” (Id. at pp. 433-434, quoting People v.
Rundle (2008) 43 Cal.4th 76, 115, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Thomas (2012) 211 Cal.App.4th
987, 1006 [viewed in the context of a number of “expressions of frustration,” the
defendant’s single statement, “‘I ain’t talking no more and we can leave it at that,’” could
be viewed as “another expression of momentary frustration and, at most, was an
ambiguous invocation of the right to remain silent”].)
       People v. Jennings (1988) 46 Cal.3d 963 (Jennings) is another case in which
context made the difference between invocation and non-invocation. There, the suspect
said to one of three interrogating officers: “‘I’ll tell you something right now. You’re
scaring the living shit out of me. I’m not going to talk. You have got the shit scared out
of me,’ and ‘I’m not saying shit to you no more, man. You, nothing personal man, but I
don’t like you. You’re scaring the living shit out of me. . . . That’s it. I shut up.’” (Id. at
p. 977.) Our Supreme Court held these statements, viewed in context, did not amount to
an unambiguous invocation of the right to end the interrogation, explaining: “Were we to
base our decision solely on the reporter’s transcript of those portions of the interview on
which appellant relies, his claim that he invoked his right to silence would appear
meritorious. On a review of the full tape and consideration in context of the words on
which defendant relies a different picture emerges. That part of the first interview at
which defendant claims he asserted his rights involved a few moments when defendant
lost his temper and expressed anger toward Officer Cromwell who was then questioning
him about his whereabouts on the Monday following the murder.” (Id. at p. 978.) The
court noted, however, that another officer, Officer Maich, whom the defendant “had




                                              24
earlier indicated that he trusted [and] whom he had known for many years,” was also
present at the time; a third officer, Officer Rose, “for whom [the defendant] had been a
narcotics informant,” was also involved in the interrogation, although apparently not
present at the time the purported invocation occurred. (Ibid.) The court concluded:
“When defendant made the statements he claims were an invocation of his rights he was
addressing Cromwell. Viewing the tape, observing defendant’s demeanor before, during,
and after the statements, and considering the context in which defendant made the
statements on which he relies here, we conclude that the statements reflect only
momentary frustration and animosity toward Cromwell.” (Id. at pp. 978-979, italics
added.) Therefore, the trial court reasonably concluded the “defendant was refusing to
talk further with Cromwell whom he did not like or trust, as opposed to Maich or Rose,
and that he was not invoking his right against self-incrimination when he made these
statements.” (Id. at p. 979, italics added.) The court further noted the trial court ruled the
defendant successfully invoked his right to end the interrogation the following day when
he said to Officer Maich, “I don’t want to talk no more.” (Id. at p. 977, fn. 5.)
       Based on the foregoing authorities, the Attorney General frames the issue as
whether “[a] reasonable officer in the circumstances could view [defendant’s repeated
demands to be taken home and to have his parents called to pick him up] as expressions
of frustration with Detective Sample’s refusal to believe [defendant] did not have
anything to do with the two shootings.” This is not the test. Whether defendant was
frustrated with Detective Sample or not, if he unambiguously demanded that the
interrogation end, the detective was required to end the interrogation. The point of the
above-described cases is that a seemingly unambiguous statement may be ambiguous
when viewed in context, particularly where the interrogating officer could reasonably
construe the statement as one of passing or momentary frustration, or simply a denial of




                                             25
guilt, rather than a demand to end the interrogation. Thus, the question we must answer
is whether defendant’s repeated demands to be taken home and to have his parents called
to pick him up, viewed together and in context, amount to an unambiguous assertion of
the right to end the interrogation, or whether a reasonable officer in the circumstances
could construe them to be expressions of passing or momentary frustration, or a short-
hand way of indicating defendant was sticking to his story.
       In answering this question, we find Christopher v. Florida (11th Cir. 1987) 824
F.2d 836 (Christopher) to be instructive.2 There, the defendant stated during his
interrogation: “ ‘Then I got nothing else to say. If you’re accusing me of murder, then
take me down there.’ ” The latter sentence was an apparent reference to being taken to
jail. After one of the interrogating officers reminded the defendant, “‘I told you awhile
ago you were being charged with both murders,’” the defendant stated: “ ‘Okay then. I
got nothing else to say.’ ” At this point, a second officer asked: “ ‘You mean it’s all
right as long as we accuse you of one?’ ” The first officer then added: “ ‘But all of a
sudden when you’re accused of two, you don’t―’ ” The defendant interrupted with, “
‘I’m not saying that’ ” and acknowledged he knew he was being accused of two murders,
to which the second officer responded: “ ‘Yeah. You―you should know.’ ” The
defendant then said: “ ‘Okay then. What’s the need of me saying anything then.’ ” The
officers continued the interrogation. (Christopher, supra, 824 F.2d at p. 840.) The
United States Court of Appeals for the Eleventh Circuit held “there can be no doubt that
the officers violated [the defendant’s] right to cut off questioning” by continuing the
interrogation “despite [his] repeated invocations of his right of silence.” (Id. at pp. 840-



2      While “we are not bound by the decisions of the lower federal courts even on
federal questions[,] . . . they are persuasive and entitled to great weight.” (People v.
Bradley (1969) 1 Cal.3d 80, 86.)


                                             26
841.) After declining to determine whether, as Florida argued, the defendant’s first
assertion of his right to end the interrogation was equivocal because it was conditioned on
whether or not the officers were accusing him of murder (id. at p. 841 and fn. 14), the
court held the defendant’s subsequent statement, “ ‘Okay then. I got nothing else to
say[,]’ . . . considered in the totality of the circumstances, cannot be viewed as anything
other than an unequivocal invocation of his right to remain silent.” (Id. at p. 842.) The
court also rejected Florida’s argument there was no clear invocation of the right to end
the interrogation because the defendant continued to answer questions, explaining: “[A]
suspect’s claim that the police violated his [or her] right to silence by failing to
immediately terminate the interrogation is not negated by the fact that the suspect
answered additional questions after the police failed to scrupulously honor his [or her]
request to end the questioning. [Citations.] ‘[A]n accused’s post-request responses to
further interrogation may not be used to cast retrospective doubt on the clarity of the
initial request itself.’” (Id. at p. 841, quoting Smith v. Illinois (1984) 469 U.S. 91, 100
[83 L.Ed.2d 488].)
       Here, defendant told Detective Sample to take him home 13 times within a matter
of 14 minutes. During this short span of time, he also tried to take his cell phone from
the detective to call his parents to pick him up. When this did not work, he repeatedly
told the detective to call his parents. At one point, defendant even tied his demands to be
taken home and to have his parents called to his “rights,” saying, “I know my rights,”
prompting the detective to respond, “I know your rights, too, partner,” and to which
defendant replied: “So take me home then.” The only right defendant could possibly
have been referring to is his right to end the interrogation. Also within this 14-minute
span of time, defendant asked how long he could be held without charges being filed and
then asked―three times―to wait out the 48 hours so he could then go home. We




                                              27
conclude a reasonable officer in Detective Sample’s position would have understood
defendant’s repeated demands to be taken home, to have his parents called to pick him
up, and to wait out the 48 hours, to be an unambiguous invocation of his right to end the
interrogation. Indeed, the detective acknowledged as much when he said―after
defendant’s twelfth demand to be taken home: “You want this to be finished. My last
question, you answer it.” Defendant responded: “And then I can -- then it’s done” and,
“Then I go home.” (Italics added.) This exchange makes crystal clear Detective Sample
knew what defendant meant by “take me home.” He meant to invoke his right to end the
interrogation. While we also acknowledge the standard is not what defendant actually
meant, or even what the detective actually understood him to mean, but what “‘a
reasonable police officer in the circumstances would understand the statement’” to mean
(Nelson, supra, 53 Cal.4th at p. 376; id. at p. 378), any reasonable officer faced with so
many demands to be taken home by a juvenile suspect, in such a short period of time, and
coupled with defendant’s other demands, would have understood defendant to be
invoking his right to end the interrogation.
       Nor can defendant’s repeated demands be construed as “‘expressions of passing
frustration’” (Williams, supra, 49 Cal.4th at p. 433) or indications he was sticking to his
story (see Martinez, supra, 47 Cal.4th at pp. 949-950), rather than demands to end the
interrogation. Having reviewed the video of defendant’s interrogation, we conclude his
demeanor changed dramatically when confronted with the evidence against him. This
change was not one of momentary frustration or impatience with a detective who did not
believe his version of events. Instead, defendant’s demeanor became that of a young man
who had decided to end the interrogation. As in Christopher, supra, 824 F.2d 836, where
that defendant’s second statement, “ ‘Okay then. I got nothing else to say,’ ” qualified as
an unequivocal invocation of the right to end the interrogation, we conclude that at least




                                               28
by defendant’s third demand to be taken home, “Okay. Just take me home,” a reasonable
officer would have understood defendant to be demanding the same thing. At that point,
Detective Sample should have scrupulously honored defendant’s invocation of his right
to end the interrogation. However, when the detective did not do so, defendant repeated
this demand 10 more times. Because the interrogation continued despite defendant’s
repeated unambiguous demands for it to end, his Miranda right to cut off questioning was
violated.
       Nevertheless, relying primarily on Moore v. Dugger (11th Cir. 1988) 856 F.2d 129
(Moore) and Mueller v. Angelone (4th Cir. 1999) 181 F.3d 557, the Attorney General
asserts defendant did not unambiguously invoke his right to end the interrogation. Such
reliance is misplaced. In Moore, the same federal circuit court that decided Christopher,
supra, 824 F.2d 836 held the following question, asked by the defendant during
interrogation, did not clearly and unambiguously invoke his right to cut off questioning:
“‘When will you all let me go home?’” (Moore, supra, 856 F.2d at p. 134, fn. 1.)
Distinguishing this question from the statements made by the defendant in Christopher,
the court explained: “We are not persuaded that this statement evidences a refusal to
talk further. This request for information about when, in the future, [the defendant]
would be allowed to leave differs markedly from the statements in Christopher which
we held were attempts to cut off questioning, but which were not honored by police.”
(Moore at p. 134.) Here, toward the start of the interrogation, defendant asked Detective
Sample: “When can I go home?” However, there is no claim this question was an
assertion of defendant’s right to end the interrogation. Moore simply does not address
whether a juvenile defendant’s subsequent and repeated demands to be taken home are
analogous to the statements at issue in Christopher. As we have explained, we conclude
they are.




                                            29
       In Mueller, supra, 181 F.3d 557, the defendant claimed “he repeatedly invoked his
right to remain silent . . . by demanding that he be taken to jail.” (Id. at p. 575.) The
United States Court of Appeals for the Fourth Circuit agreed with the Virginia Supreme
Court’s conclusion the defendant’s demands “were ‘simply impatient gestures and that
they did not constitute an invocation of his right to terminate the interrogation.’” (Id. at
pp. 575-576, quoting Mueller v. Commonwealth (1992) 422 S.E.2d 380, 387, overruled
on another ground in Morrisette v. Warden of Sussex I State Prison (2005) 613 S.E.2d
551, 562.) Summarizing the state court’s reasoning, the Fourth Circuit explained the
defendant “continued to talk to the investigators after each such statement; when asked
whether he would rather talk to other officers [the defendant] replied, ‘I’ve been talking
to you guys for four months. I’ve established a pretty good relationship with you guys;’
he had demonstrated on two previous occasions with these same officers that he clearly
knew how to stop an interrogation when he so desired.” (Mueller, supra, 181 F.3d at p.
576.) Neither the Fourth Circuit’s opinion, nor the state court’s opinion reveals how
many times the defendant demanded to be taken to jail, or what his demeanor was when
he made the demands.
       Here, we have 13 demands to be taken home during the span of 14 minutes, one of
which was tied to defendant’s “rights.” As we have explained, by the third such
demand―and certainly by the thirteenth―no reasonable officer would have believed
them to be “‘simply impatient gestures.’” (Mueller, supra, 181 F.3d at p. 576.) We also
know nothing about the demeanor of the defendant in Mueller. As previously explained,
having reviewed the video of defendant’s interrogation, we conclude his demeanor was
not that of impatience or passing frustration, but rather determination to end the
interrogation. Also unlike Mueller, there is no evidence in this case that defendant, on a
previous occasion, more clearly stated a desire to end an interrogation. Finally, unlike




                                             30
the Fourth Circuit, we do not consider the fact defendant continued answering questions
between his 13 demands to be taken home, or that he continued to do so after it became
clear Detective Sample was refusing to end the interrogation. “[A]n accused’s
postrequest responses to further interrogation may not be used to cast retrospective doubt
on the clarity of the initial request itself.” (Smith v. Illinois, supra, 469 U.S. at p. 100;
Christopher, supra, 824 F.2d at p. 841.)
       Nor are we persuaded by the Attorney General’s reliance on our Supreme Court’s
decision in Nelson, supra, 53 Cal.4th 367. There, about three and a half hours into an
interrogation, after the interrogating officers asked the juvenile defendant if he wanted to
take a polygraph test, the defendant asked to call his mother “to ‘let her know what’s
happening’ and also to ‘talk to her about it’ and ‘see what [he] should do.’ . . . He also
made additional requests to call his mother and was permitted several times to try to
reach her.” (Id. at pp. 372-373.) After holding the same standard applicable to an adult
defendant’s assertion of Miranda rights also applies to a juvenile defendant’s assertion of
those rights (Nelson at pp. 378-380), the court concluded a reasonable officer in the
circumstances would not have viewed any of the defendant’s requests to call his mother
as an unambiguous assertion of the right to counsel or the right to end the interrogation.
(Id. at p. 382.) The court explained, “when asked the reason for the call, [the defendant]
offered no indication that he wanted an attorney or that he did not want to talk further.
Instead, he specifically stated he wanted to let his mother ‘know what’s happening’ and
to ask her what he should do because he was being accused of murder.” (Ibid.) The
court also concluded a subsequent statement made by the defendant, i.e., that “he wanted
the investigators to leave him alone because . . . they were ‘getting on [him] for
something [he] didn’t do’” (id. at p. 373), was not an unambiguous assertion of the right
to end the interrogation, explaining: “A reasonable officer in the circumstances could




                                               31
view that statement as an expression of frustration with the investigators’ repeated refusal
to accept his denial of guilt for the murder.” (Id. at p. 383, citing Williams, supra, 49
Cal.4th at p. 433 and Jennings, supra, 46 Cal.3d at pp. 977-978.)
       Here, defendant did not ask to call his parents to let them know what was going
on. Instead, he specifically told Detective Sample to call his parents so they could pick
him up and take him home. Thus, defendant’s demands to have his parents called are
properly viewed as further demands to be taken home, which we have already concluded
a reasonable officer would have understood to be an unambiguous demand to end the
interrogation. Moreover, unlike the single “‘leave me alone’” statement at issue in
Nelson (id. at p. 383), here, defendant made over a dozen demands to be taken home. No
reasonable police officer would have viewed so many demands to be taken home as
“‘merely expressions of passing frustration or animosity.’” (Williams, supra, 49 Cal.4th
at p. 433.)
       For the foregoing reasons, we conclude defendant’s Miranda right to end the
interrogation was violated in this case.
                                              D.
                                           Prejudice
       We turn now to the question of prejudice. The erroneous admission of statements
obtained in violation of Miranda is reviewed for prejudice pursuant to Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705], under which we inquire whether the
error may be deemed harmless beyond a reasonable doubt. (Arizona v. Fulminante
(1991) 499 U.S. 279, 310 [113 L.Ed.2d 302]; People v. Cunningham (2001) 25 Cal.4th
926, 994.) Under this standard, the evidence that remains after defendant’s post-
invocation statements are excluded must not only be sufficient to support the verdict, but




                                              32
must overwhelmingly establish his or her guilt beyond a reasonable doubt. (Christopher,
supra, 824 F.2d at p. 846.) The evidence in this case satisfies this high standard.
       With respect to the first shooting, Benavidez, who was in the car when defendant
got out, walked over to Lopez’s car, and shot the intoxicated man twice at close range,
identified defendant as the shooter in court. Her testimony that defendant lifted up the
man’s shirt and said, “He’s a Norteño,” before firing two rounds into the man was
corroborated both by the medical evidence Lopez was shot twice, once in the neck and
once in the shoulder, and by Lopez’s statement at the hospital that he was a Norteño and
he was wearing a red belt at the time he was shot. While her testimony with respect to
who else was in the car, specifically defendant’s brother Benjamin and Chaveste, was
disputed by testimony from these witnesses and by evidence Benjamin’s ankle monitor
did not register his presence at the crime scene, Benjamin provided highly incriminating
evidence against his brother, i.e., defendant’s confession to having “shot a buster up
close” the night Lopez was shot. Thus, while Benjamin denied being in the car at the
time of the shooting, his testimony corroborated Benavidez’s identification of defendant
as the shooter by providing defendant’s own admission to “sh[ooting] a buster” that
night. Cell phone records also confirmed defendant’s presence in the area of the shooting
at the time Lopez was shot. We also note that while Lopez did not identify defendant as
the shooter, he became noticeably emotional when shown a photographic lineup
containing defendant’s picture.
       With respect to the second shooting, the evidence was even stronger. Alvarado, a
Norteño with whom defendant had problems in the past, identified defendant as the
shooter when shown a photographic lineup at the hospital. While he claimed at trial not
to remember who shot him, he previously warned police he would not “point the finger”
in “open court” and admitted he previously identified defendant because he believed




                                             33
defendant was the one who shot him. Moreover, Guzman, who was in the car at the time
of the shooting, did identify defendant as the shooter at trial.
       Defendant also made incriminating statements prior to his invocation. He
admitted to being a Sureño gang member, his parents were shot at by Norteños, he got
into fights with Norteños while incarcerated, and his house had recently been shot at.
While defendant claimed not to know who shot at the house, a reasonable inference is
that defendant at least suspected the rival gang was involved. These circumstances
provided defendant with a powerful motive to retaliate against Norteños. Defendant also
told Detective Sample he had his cell phone on him the morning of the second shooting
and he and the phone never left his cousin’s apartment, so there would be no reason the
phone would have pinged a cell tower near the scene of the shooting. Later, also before
defendant invoked his right to end the interrogation, he said he did not have his phone on
him the whole morning. Instead, defendant claimed he gave his phone to someone he did
not know, who was also at his cousin’s apartment. That person, according to defendant,
left in a car with others to pick up methamphetamine and returned a short time later.
Defendant claimed someone in the group admitted “they used a gun” and “got some
buster” while they were out. Defendant further admitted to knowing the second victim
from school despite the fact he previously denied knowing him. These lies were highly
incriminating.
       Setting aside the statements obtained in violation of Miranda, “overwhelming”
is an apt descriptor for the remaining evidence establishing defendant’s guilt for the
crimes charged and enhancements alleged with respect to each shooting. Moreover,
while “confessions carry ‘extreme probative weight,’ [and] the admission of an
unlawfully obtained confession rarely is ‘harmless error’” (Christopher, supra, 824 F.2d
at p. 846, italics added), here, defendant did not confess to either shooting. He made




                                              34
inconsistent statements, and placed himself at or near the scenes of the crimes yet
steadfastly denied his involvement. Without minimizing the damaging nature of the
statements defendant made after he invoked his right of silence, they would not have
carried the extreme probative weight of a confession.3 We therefore conclude the
erroneous admission of statements obtained in violation of Miranda was harmless
beyond a reasonable doubt.




3       Nor are we persuaded by defendant’s argument the jury in the second trial
deliberated over the span of four days and indicated they could not reach a unanimous
verdict. The record reveals the jury retired to the deliberation room shortly before the
lunch break on the first day of deliberations and heard playback of the victim’s interview
at the hospital during the afternoon. On the morning of the second day, the jury heard
readback of the victim’s cross-examination. That afternoon, the jury heard playback of
defendant’s interview with Detective Sample. That timeline does not leave much time
for actual deliberating during these two days. On the morning of the third day of
deliberations, the jury asked to review certain evidence and then asked the trial court
what the process was if they could not reach a unanimous verdict. The trial court
instructed the jury with CALCRIM No. 3551 and sent them back to the deliberation
room. After lunch, the jury asked the trial court to clarify the intent required for the
firearm enhancements, which the trial court did. They returned a unanimous verdict the
following day. This is not a case, like People v. McDonald (1984) 37 Cal.3d 351,
overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, in which the
evidence supporting the defendant’s guilt and that supporting his alibi defense was
“close,” and where the jury deliberated for “a total of 19 and a half hours over a period of
6 days,” amounting to “more than three and a half times longer than it took to put on the
entire prosecution and defense case.” (Id. at p. 376 & fn. 23.) Here, evidence of
defendant’s guilt was overwhelming. The length of the deliberations indicates the jury
took their job very seriously and spent considerable time reviewing the evidence, but
does not necessarily indicate they found the case to be close. Nor does the jury’s
question regarding the process to be followed if they could not reach a unanimous
verdict. Based on overwhelming evidence of guilt, the jury found defendant to be
guilty beyond a reasonable doubt. We conclude, by the same standard, the jury would
have so found even without the improper admission of defendant’s post-invocation
statements.


                                             35
                                              II
                                          Coercion
       In a related argument, defendant claims Detective Sample’s refusal to honor his
assertion of the right to remain silent amounted to coercion and rendered the remainder of
his statements involuntary. We disagree.
       “A criminal conviction may not be founded upon an involuntary confession.”
(Williams, supra, 49 Cal.4th at p. 436.) “A confession is involuntary if it is ‘not “‘the
product of a rational intellect and a free will’”’ [citation], such that the defendant’s ‘will
was overborne at the time he [or she] confessed.’ [Citation.] In assessing allegedly
coercive police tactics, ‘[t]he courts have prohibited only those psychological ploys
which, under all the circumstances, are so coercive that they tend to produce a statement
that is both involuntary and unreliable.’ [Citation.] Whether a statement is voluntary
depends upon the totality of the circumstances surrounding the interrogation. [Citation.]”
(People v. Smith, supra, 40 Cal.4th at p. 501.) “Relevant considerations are ‘“the crucial
element of police coercion [citation]; the length of the interrogation [citation]; its location
[citation]; its continuity” as well as “the defendant’s maturity [citation]; education
[citation]; physical condition [citation]; and mental health.”’ [Citation.]” (Williams,
supra, 49 Cal.4th at p. 436.)
       Here, reviewing the totality of the circumstances of the interrogation, we conclude
defendant’s will was not overborne by the continued questioning following his invocation
of the right to end the interrogation. We first note that, aside from the Miranda violation,
defendant does not assert any of Detective Sample’s actions were coercive in any way.
Assuming, without deciding, that a Miranda violation alone may rise to the level of
“coercive police tactics” in an appropriate case, in this case, the violation was not “‘so
coercive [as to] produce a statement that is both involuntary and unreliable.’” (People v.




                                              36
Smith, supra, 40 Cal.4th at p. 501.) Despite defendant’s young age, he “had experience
in the criminal justice system,” and despite evidence he was tired, he nevertheless
“effectively parried [Detective Sample’s] accusations and questions” throughout the
interrogation. (Williams, supra, 49 Cal.4th at p. 442.) Moreover, while the detective was
able to elicit some incriminating responses, i.e., admissions to being present during each
shooting, defendant never confessed to being the shooter, but instead “continued to deny
responsibility in the face of the [detective’s] assertions.” (Id. at p. 444.) These are not
the actions of someone whose will has been overborne.
       In any event, we have already concluded the trial court should have excluded
statements made after defendant invoked his right to end the interrogation. Even if we
were to conclude the same statements should have been excluded for the separate reason
that they were involuntarily made, the standard of prejudice is the same. (See People v.
Cahill (1993) 5 Cal.4th 478, 509-510.) Thus, for the reasons already expressed, we
would conclude the error was harmless beyond a reasonable doubt.
                                             III
                Denial of Defendant’s Request for Removal of a Prisoner
       Defendant further asserts the trial court prejudicially erred and violated his state
and federal constitutional rights by denying his request for the trial court to issue a
removal order for Wilberto Padilla, who was confined in a state prison outside
Sacramento County, and thereby preventing defendant from calling Padilla as a defense
witness in the second trial. Not so.
                                              A.
                                  Additional Background
       On April 26, 2012, during the second trial, defendant filed an ex parte request for
the trial court to issue a removal order for Padilla on the grounds he was “a necessary and




                                              37
material witness” in the case. Attached to the request was a declaration from defendant’s
attorney, which asserted Padilla’s testimony was necessary and material for the following
reasons:
       “a. At this stage in the evidence, [Alvarado] has testified that on April 3, 2010,
[defendant] was in the front passenger seat of a vehicle near Taft and Berggren Way in
Sacramento County. [Defendant] shot a firearm at, and hit, [Alvarado]. [Alvarado] has
testified he knows [defendant] from school and he knows [defendant’s] brother,
Benjamin . . . .
       “b. [Alvarado] was cross-examined as to his credibility and counsel believes that
[Alvarado’s] credibility has been sufficiently attacked to create a reasonable doubt in the
mind of the jurors. However, another witness, [Guzman], has presented a different attack
relating to his credibility.
       “c. [Guzman] has testified that on April [3, 2010], he was in the back passenger
seat of a vehicle driven by [Bravo]. Further, that [defendant] was in the front passenger
seat when [defendant] pointed a gun at [Alvarado] (referred to as ‘the Northerner’ during
direct examination) and shot him with a small caliber firearm.
       “d. [Padilla] would be expected to testify that he was sitting in the back seat on
the passenger side and that [defendant] was also seated in the back seat of the car.
       “e. If it can be suggested that [Guzman] was actually seated in the front passenger
seat and that was the area from which the shot came from, then this jury may not find true
the Penal Code section 12022.53 enhancement or that he is not guilty of a violation of
Penal Code section 664/187(a), attempted murder.”
       The trial court denied the request the same day, explaining it “would need
something more than just that person -- the attorney saying what they are hoping the
person might say.”




                                             38
       On April 30, 2012, defendant filed a “supplement” to the request for the removal
order, attaching a police report summarizing Padilla’s statement to detectives. From
photographs, Padilla identified defendant as “Lalo,” someone he had known since middle
school. He also identified Bravo and Guzman as people he knew from “hanging out”
around Howe Avenue, but claimed he did not know their names. When shown a
surveillance video taken at Bill’s Liquor the morning of the shooting, Padilla identified
himself walking into the store with Bravo. He stated Bravo, Guzman, and defendant
picked him up at 7:10 a.m. near Howe Avenue and El Camino Avenue. According to
Padilla, he was sitting in the back seat with defendant. He did not remember who was
driving “because [he] was tired.” They then “went over to [defendant’s cousin’s] house
for a little while,” after which, they went to the liquor store and then took Padilla home.
When asked, “what happened that day,” Padilla stated he wanted to talk to his attorney
and the interrogation ended.
       The same day, the trial court treated the supplement to the initial ex parte
request for the removal order as a supplemental ex parte request for removal and denied
that request as well, explaining nothing in the supplement “chang[ed] the Court’s
analysis.”
                                               B.
                                           Analysis
       Penal Code section 2621 provides in relevant part: “When the testimony of a
material witness is required in a criminal action, before any court in this state, . . . and
such witness is a prisoner in a state prison, an order for the prisoner’s temporary removal
from such prison, and for the prisoner’s production before such court, . . . may be made
by the superior court of the county in which such action . . . is pending or by a judge
thereof; but in case the prison is out of the county in which the application is made, such




                                              39
order shall be made only upon the affidavit of the district attorney or of the defendant or
the defendant’s counsel, showing that the testimony is material and necessary; and even
then the granting of the order shall be in the discretion of said superior court or a judge
thereof.”4 (Italics added.)
       Under this provision, “an accused has a right to have a witness brought from a
state prison outside the county, provided a showing is made by affidavit to the
satisfaction of the court that the prisoner is a material and necessary witness; it rests
within the discretion of the court to determine whether the showing of materiality and
necessity is sufficient.” (People v. Davenport (1962) 210 Cal.App.2d 335, 339
(Davenport), disapproved on another point in People v. Hall (1980) 28 Cal.3d 143, 156,
fn. 8.)5
       Vesting such discretion in the trial court does not violate Article I, section 15, of
the California Constitution, which guarantees a defendant in a criminal case the right “to
compel attendance of witnesses on the defendant’s behalf.” (See People v. Putman
(1900) 129 Cal. 258, 261; Davenport, supra, 210 Cal.App.2d at p. 339.) Nor does it
violate the federal Constitution’s guarantee that a defendant in a criminal case has the
right “to have compulsory process for obtaining witnesses in his [or her] favor” (U.S.
Const., 6th Amend.), and which “is incorporated in the Due Process Clause of the
Fourteenth Amendment” (Washington v. Texas (1967) 388 U.S. 14, 17-18 [18 L.Ed.2d
1019]). (See United States v. Wilson (5th Cir. 1984) 732 F.2d 404, 412 [the matter is
addressed to the trial court’s discretion].)



4      Undesignated statutory references are to the Penal Code.
5      In turn, People v. Newman (1999) 21 Cal.4th 413, at page 422, footnote 6,
disavowed certain dictum contained in People v. Hall, supra, 28 Cal.3d 143, which was
also unrelated to section 2621.


                                               40
       In Davenport, supra, 210 Cal.App.2d 335, the Court of Appeal held the trial court
did not abuse its discretion in denying a request to remove a prisoner under section 2621
where the defendant stated the prisoner he sought to have produced (Luna) was “ ‘aware
of the particulars leading up to and culminating in [the defendant’s] arrest’ ” for
possession of a firearm by a convicted felon, was “ ‘an eye witness,’” and would “‘give
testimony on behalf of [the defendant].’ ” (Id. at p. 339.) The court explained: “There
was an insufficient showing that the testimony that Luna might give would be material or
necessary to the defense. There was no showing that there were any facts to be testified
to by Luna which would have aided the defense, nor a statement of any fact that would be
testified to by defendant or his witnesses to which Luna also could or would testify.
Although it was represented that Luna ‘was aware of the particulars’ and was ‘an eye
witness,’ there was no statement that he would testify that [the defendant] did not have in
his possession a deadly weapon as charged in the information. [¶] The facts of the
present case well illustrate the necessity for a satisfactory showing for the production of a
witness from a state prison. If Luna had been produced and had corroborated the
testimony of [the defendant] and [that of another eye witness, who each testified the
defendant had possession of the firearm, although they also noted he protested when
given the gun], it would only have added to the evidence of defendant’s guilt. The court
did not err in denying defendant’s motion.” (Id. at pp. 339-340.)
       Here, as in Davenport, the trial court did not abuse its discretion in determining
defendant’s showing of necessity and materiality was lacking. While the declaration of
defendant’s trial counsel stated Padilla would be expected to testify defendant was seated
in the back seat, thereby contradicting testimony from Alvarado and Guzman that
defendant was seated in the front passenger seat when he fired at Alvarado, this
expectation was based exclusively on Padilla’s brief statement to police, in which he




                                             41
described the positions of the car’s occupants at 7:10 a.m. when he was picked up near
Howe Avenue and El Camino Avenue. However, according to Padilla’s statement, they
then “went over to [defendant’s cousin’s] house for a little while,” after which, they went
to the liquor store and then took Padilla home. The interrogation then ended due to
Padilla invoking his right to counsel. Alvarado was shot sometime after they left the
liquor store. Padilla’s statement reveals nothing about their positions in the car at that
time. Thus, defendant’s trial counsel had no basis to assert Padilla would testify
defendant was seated in the back seat at the time of the shooting. Indeed, similar to the
situation in Davenport, if Padilla had been produced and had corroborated the testimony
of Guzman with respect to the occupants’ positions in the car at the time of the shooting,
“it would only have added to the evidence of defendant’s guilt.” (Davenport, supra, 210
Cal.App.2d at p. 340.) We similarly conclude the trial court in this case did not abuse its
discretion in denying defendant’s request to remove Padilla from prison under
section 2621.
                                             IV
                                Sufficiency of the Evidence
       We also reject defendant’s claim the evidence was insufficient to support his
convictions. Indeed, our conclusion the Miranda violation was harmless beyond a
reasonable doubt based on the strength of the remaining evidence against defendant
compels the further conclusion such evidence was sufficient to support his convictions
and the enhancement findings. (See Christopher, supra, 824 F.2d at p. 846 [to hold
Miranda violation harmless beyond a reasonable doubt, the evidence that remains after
the defendant’s post-invocation statements are excluded must not only be sufficient to
support the verdict, but must overwhelmingly establish his or her guilt beyond a
reasonable doubt].)




                                             42
                                              V
                          Correction of the Abstract of Judgment
       Finally, defendant seeks correction of a clerical error in the abstract of judgment.
The abstract of judgment describes Counts One and Four as, “Attempted murder, second
degree.” However, as defendant points out, and as the Attorney General properly
concedes, the crime of attempted murder is not divided into degrees. (People v. Favor
(2012) 54 Cal.4th 868, 876; People v. Douglas (1990) 220 Cal.App.3d 544, 549.)
Accordingly, we order the abstract of judgment corrected to describe these counts as
“attempted murder.”
                                       DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment deleting the description of Counts One and Four as “attempted
murder, second degree,” and replacing that description with “attempted murder.” The
trial court is further directed to forward a certified copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.



                                                   HOCH, J.


We concur:



MURRAY, Acting P. J.



DUARTE, J.




                                              43
