        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
               PAUL NATHAN HENDERSON,
                 Defendant and Appellant.

                           S098318

               Riverside County Superior Court
                          INF027515



                        July 30, 2020

Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
                   PEOPLE v. HENDERSON
                             S098318


              Opinion of the Court by Corrigan, J.


      Defendant Paul Nathan Henderson was convicted of the
first degree murder of Reginald Baker, with special
circumstances of commission during a robbery and burglary and
an enhancement for personal use of a deadly weapon. He was
also convicted of attempted deliberate and premeditated murder
of Peggy Baker, assault with force likely to produce great bodily
injury, first degree robbery, first degree burglary, and other
related offenses.1 Defendant separately admitted several prior
convictions.2 The jury returned a verdict of death, and the court
imposed that sentence along with a separate term of life with
the possibility of parole for the attempted murder and a
determinate term of 15 years on the remaining counts and
enhancements. This appeal is automatic.
     We conclude that defendant’s statements were improperly
admitted in light of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) and Edwards v. Arizona (1981) 451 U.S. 477
(Edwards). Reasonable doubt exists whether the jury would

1
       Penal Code sections 187, 190.2, subdivision (a)(17)(A) and
(G), 12022, subdivision (b), 187, 664, 245, subdivision (a)(1), 211,
459; Vehicle Code section 10851, subdivision (a).
       All subsequent undesignated statutory references are to
the Penal Code. To avoid potential confusion, we refer to the
Bakers by their first names.
2
       Sections 667, subdivisions (c) and (e), 1170.12, subdivision
(c), 667.5, subdivisions (a) and (b).


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                   Opinion of the Court by Corrigan, J.


have found him guilty had his statements been excluded.
Accordingly, we reverse the judgment in its entirety and remand
the case for further proceedings.
                         I. BACKGROUND
     A. Guilt Phase
         1.   Prosecution
     Viewed in the light most favorable to the judgment, the
evidence presented at trial, including defendant’s statements,
was as follows.
              a.   The Charged Crimes
     Late in the evening on June 22, 1997, 71-year-old Reginald
and his wife Peggy were watching television in their Cathedral
City mobile home. Defendant entered and said, “ ‘Don’t yell or
scream and no one will get hurt.’ ” He held a knife to Reginald’s
throat, demanded the car keys, and bound the victims. Peggy
pleaded that he remove Reginald’s gag, fearing he would be
unable to breathe and suffer a heart attack. Defendant refused
and ordered Peggy to put a gag in her mouth.
      Defendant took the victims’ “bingo money” from a can on
the dresser, looked through Peggy’s costume jewelry, and asked
if they had any guns. Peggy said that they did not and asked:
“ ‘Why are you doing this? We don’t have anything.’ ” Defendant
left Reginald kneeling on the floor and moved Peggy into the
bathroom. He rummaged around the home, went out to the
victims’ car, then returned. Peggy asked to leave the bathroom
to check on her husband. Defendant put his arm around her
neck in a “strangle hold” and covered her nose with his hand.
When Peggy struggled to break free, defendant “tried to crack”
her neck. He struck her on the head, knocking her to the
ground. Peggy lay still; when defendant lifted her arm, she let

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it hang limply. He covered Peggy with a sheet and left in the
Bakers’ car, a maroon 1992 Chevrolet.
      Peggy went to Reginald, who appeared dead. Unable to
call 911 because defendant had disabled the telephone wires,
Peggy went to the home of neighbor Morton Schuman. She was
so badly injured that Schuman did not recognize the “grotesque
figure” in front of him. Peggy was treated for a broken nose and
multiple facial contusions.
      Responding officers found Reginald’s body in the
ransacked residence. There were two steak knives in the
bedroom. Reginald’s neck bore a four-inch cut about one-third
of an inch deep. The wound did not sever any major veins or
arteries. An autopsy revealed that Reginald’s severe heart
disease, exacerbated by the stress of the attack, resulted in
cardiac arrest.
            b.   Events Leading to Defendant’s Arrest
      Just after midnight on the night of the murder, Latesha
Wasson and Dana Flowers were sitting in a car in Indio when
defendant pulled up alongside them driving a large “burgundy”
car. Defendant said the car belonged to a woman who employed
his mother. Around 9:00 the next morning, a deputy sheriff
patrolling in Desert Hot Springs spotted an African-American
man driving a maroon Chevrolet similar to the Bakers’ stolen
car. The driver sped up, turned a corner, and spun out, hitting
a street sign. The deputy approached with his gun drawn, but
the driver fled on foot. The deputy was unable to identify the
driver from a photographic lineup containing defendant’s
picture. The abandoned car belonged to the Bakers.
    Later that afternoon defendant appeared at the house of
Tamara Elam and Michael White. While defendant waited for


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White to come home, he and Elam watched a news report about
a local police chase. Defendant admitted he was involved in the
incident.
      In late June 1997, Gregory Clayton and defendant met at
a homeless center in Los Angeles. Clayton testified that
defendant said several times he had killed someone. He
admitted entering a trailer home, cutting a man’s throat,
beating his wife, and taking the victims’ maroon Chevrolet. But,
according to Clayton, defendant also said that two trained
killers committed the crimes while he waited outside. Clayton,
who had been a police informant in the past, reported
defendant’s admissions, describing him and giving his name as
“Caylin Hawk.” Police told Clayton the description he gave did
not fit the person wanted for the crimes. Clayton tried to get
more details from defendant and then contacted the FBI, Crime
Stoppers, a radio station, and a television outlet. He inquired
about the facts of the crimes, the description of the perpetrator,
and whether there was a reward. After defendant’s arrest,
Clayton received a $1,000 reward.
      No fingerprint or biological evidence connected defendant
to the murder scene or stolen car.
             c.   Defendant’s Statements to Police
       Defendant ultimately admitted the Baker crimes. He
initially claimed that he had used drugs that night and could
not remember what happened. He recalled seeing Reginald’s
bloodied body and Peggy lying on the floor. He admitted that he
was the only one at the house.
      He eventually gave more details. He had jumped a fence
into the trailer park and tried to steal a car, but could not start



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                 Opinion of the Court by Corrigan, J.


it.3 He saw the Bakers watching television, entered the home,
and said he was there to rob them. Peggy cried and said her
husband had a heart condition.
      He ordered both victims into the bedroom and bound
them. Defendant took a small amount of money and tried to
steal the television, but it was too heavy. It appeared to him
that Reginald was having a heart attack. Finding that Reginald
was not breathing, he covered him with a sheet. He did not
remember cutting Reginald’s throat. Defendant saw blood on
Peggy’s face but could not remember beating her. He did recall
seeing blood on his own gloved hands. Peggy appeared to be
dead, so he covered her with a sheet and fled in their car.
      Defendant could not explain why he had harmed the
victims and insisted that it was not like him to be violent. He
expressed remorse and confirmed that he acted alone.
             d. Peggy’s Description of Her Assailant
      During the assault Peggy got a clear look at the attacker’s
face. That night, Peggy told an officer that he had very pale,
light skin, no facial hair, and no glasses. The next morning she
wrote the following description: Black male, in his twenties,
around five feet 10 inches tall, and clean shaven. On June 25,
1997, Peggy viewed a photographic lineup that did not include
defendant. The person in position four most resembled her
assailant, but was not him. On June 26, 1997, Peggy saw a
second photographic lineup with defendant’s photograph in
position five. She excluded the first five people as her attacker.
The man in position six bore the closest resemblance, but her


3
      The ignition switch on another car in the trailer park had
been tampered with, but the car was not stolen.


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                 Opinion of the Court by Corrigan, J.


assailant had lighter skin and no facial hair. At the preliminary
hearing, Peggy testified that the intruder was “Caucasian,” but
later described him as African American. She did not identify
defendant at the hearing. She explained that her memory was
poor due to chemotherapy treatments. Peggy died before trial.
A videotape of her preliminary hearing testimony was played for
the jury.
         2. Defense Case
      Defendant testified on his own behalf in narrative form.4
He claimed that two other men, Knuck and Leon, were the
killers. He had joined the two, believing they were going to a
party. They drove to the trailer park where Knuck entered one
of the homes. As Leon urged defendant to help him steal a car,
Knuck approached and asked both men to help steal some
property. Defendant refused and said he wanted to leave.
Knuck and Leon reentered the mobile home and defendant
heard them hitting someone whose voice sounded like a
woman’s. Knuck and Leon emerged and stole the Bakers’ car.
Defendant drove away in the car they had all arrived in.
      The three spent the rest of the evening together. Knuck
and Leon admitted what they had done in the mobile home.
Knuck said Reginald escaped his bonds so Knuck beat him. The
next day defendant asked to borrow the Bakers’ car. He
encountered a police officer but evaded detection and drove in
the other direction. Based on Knuck and Leon’s story, defendant
thought they had only committed auto theft and assault. He
saw no news coverage and decided to “be cool” and “keep [his]


4
     See People v. Guzman (1988) 45 Cal.3d 915, 941–946;
People v. Johnson (1998) 62 Cal.App.4th 608, 629–630.


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                     PEOPLE v. HENDERSON
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mouth shut.” Two days later he went to Los Angeles and met
Clayton. By this time he had learned that Reginald was dead.
He told Clayton about the crimes, but not that he had committed
them.
     Defendant admitted that he had been convicted of robbery,
several auto thefts, and being a felon in possession of a firearm.
He had been released from prison just two weeks before the
murder. He acknowledged telling Detective Wolford that he was
responsible for the Baker crimes, and agreed he did not mention
Knuck. At trial he refused to reveal Knuck’s last name.
      A photograph taken one week before the crimes showed
defendant with a mustache and goatee. Latesha Wasson
recalled defendant had the same facial hair on the night of the
murder, and Clayton confirmed that defendant wore a mustache
and possibly a goatee when they met in late June 1997.
     B. Penalty Phase
         1.   Prosecution
     The prosecution introduced evidence of defendant’s other
crimes. In January 1993, he stole a car and robbed a bank in
Rancho Mirage. A month later he stole a Mercedes at gunpoint.
      The prosecution also introduced evidence that, between
1990 and 2000, defendant was involved in four fistfights with
other inmates while incarcerated. In 1992, defendant lunged at
a prison doctor and required restraint.
      Reginald and Peggy’s son, Duane Baker, testified about
the impact of the crimes. Reginald married Peggy when Duane
was five years old. He was a wonderful husband, father, and
grandfather, who was active in the community and volunteered
at the fire department.



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                     PEOPLE v. HENDERSON
                 Opinion of the Court by Corrigan, J.


       After Reginald’s death, Peggy was frightened to stay home
alone, worried that defendant would return to kill her. She lived
with Duane for several weeks while he had her home cleaned
and improved its security. She returned home after defendant’s
arrest.     Lonely without Reginald, she lost interest in
volunteering, bingo, and her music group. Peggy was diagnosed
with cancer sometime in late 1998 or early 1999. She had a
difficult time dealing with her diagnosis without Reginald’s
support.     Duane and his children also missed Reginald,
particularly his smile. According to Duane, Reginald “was a
pretty happy guy most of the time and just that was a comfort.”
         2.   Defense
     Defendant represented himself at the penalty phase and
presented no evidence.
                        II. DISCUSSION
     Defendant correctly argues that his statements were
taken in violation of the Fifth Amendment right to counsel
(Miranda, supra, 384 U.S. 436; Edwards, supra, 451 U.S. 477)
because his unequivocal request for counsel was not honored.
     A. Background
      Defendant was arrested in the early morning of July 5,
1997. About five hours later, Detective Wolford and Officer
Herrera of the Cathedral City Police Department interviewed
him. Defendant was read his Miranda rights and waived them
both orally and in writing. The officers said they were
investigating crimes committed against the Bakers at The
Canyon trailer park on June 22, 1997 and asked what he was
doing that evening. Defendant was reluctant to disclose his
whereabouts. After a series of questions, defendant admitted



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being in Cathedral City. When asked if he went to the trailer
park, the following exchange occurred:
       “[Defendant:] Uhm, there’s some things that I, uhm, want
uh . . .
       “Det. Wolford: Did you go into the trailer park, that night?
       “[Defendant:] [Want,] uh, want to, speak to an attorney
first, because I, I take responsibility for me, but there’s other
people that . . .
       “Officer Herrera: What do you . . .
       “[Defendant:] . . . I need to find out . . .
       “Officer Herrera: Paul.
       “[Defendant:] . . . I need to find out.
       “Officer Herrera: Paul, what do you accept responsibility
for?
       “[Defendant:] (No response)
     “Officer Herrera: Do you accept responsibility for what
happened inside that trailer park? Is that what you[’re] talking
about? Do you accept responsibility . . .
       “[Defendant:] I never
      “Officer Herrera: You[’re] going to accept responsibility
for what happened to that man? And that woman? We just
talked about that, we just talked about that okay?
       “[Defendant:] We just talked about.
       “Officer Herrera: Then let’s just talk about that, okay? We
ain’t gonna talk about nothing else, but just that. That’s the
only thing that affects you, that’s all we can talk about. This
ain’t easy and we know this isn’t gonna be easy for you but, not
everything, not every question here is going to be something

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                     PEOPLE v. HENDERSON
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that you want to be asked, okay? And they’re not going to be
easy but this is what we got to do.”5
      The officers asked defendant several more times how he
took responsibility. They urged him to help himself and to think
about his family. They asked if the victims had angered him.
They observed, “You are not taking any responsibility by saying
you’re taking responsibility, that doesn’t do nothing. It doesn’t
do nothing man, you gotta tell us what happened.” Eventually
defendant admitted to committing the crimes, as recounted
above.
      Defendant unsuccessfully moved to exclude his
statements from evidence at the preliminary hearing and in a
section 995 motion. His renewed motion was denied at trial.
The trial court found that defendant validly waived his Miranda
rights and did not invoke his right to counsel later in the
interview. It explained: “It may be also that [defendant] might
have wanted an attorney before he said anything further to
Detective Wolford and [Officer] Herrera, but that is not clear
that that was his position. It may also have been that he simply
wanted to talk to an attorney about the issue of incriminating
others at some point in time before he would answer any such of
those questions. [¶] The bottom line to the court is that there
are several reasonable interpretations that can be placed on Mr.


5
      The next line of the transcript reflects Detective Wolford
saying: “Still want, help yourself, help, you gotta help yourself
Paul.” Our independent review of the audio recording raises a
question whether the words “Still want” were in fact spoken by
defendant, rather than Wolford. But because the audiotape is
of poor quality, and the issue was not litigated by the parties
below, we will rely on the transcript as accepted by the trial
court. (People v. Molano (2019) 7 Cal.5th 620, 659.)


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                     PEOPLE v. HENDERSON
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Henderson’s statement about an attorney, and that choice of
reasonable interpretation suggests to me that his comment was
not at all unambiguous or unequivocal as defined in the Davis
[v. United States (1994) 512 U.S. 452] case.” The court further
concluded that “I infer from the totality of circumstances in this
transcript that the police did believe Mr. Henderson’s reluctance
centered around incriminating others, and I further find that it
was reasonable for them to believe that.”
     B. Invocation of the Right to Counsel
     Defendant does not challenge his initial Miranda waiver.
He contends, however, that the officers violated Edwards,
supra, 451 U.S. 477, by continuing to question him after he
invoked his right to counsel.
      A defendant who has waived his Miranda rights may
reinvoke them during the interrogation. If he clearly and
unequivocally does so, police must stop questioning. (Edwards,
supra, 451 U.S. at pp. 478–479, 482, 485; Miranda, supra, 384
U.S. at pp. 473–474.) Once a suspect has invoked his right to
counsel, police may not resume questioning until counsel is
provided or the suspect himself reinitiates contact. (Edwards,
at pp. 484–485; accord, People v. Gamache (2010) 48 Cal.4th 347,
384.) “Edwards set forth a ‘bright-line rule’ that all questioning
must cease after an accused requests counsel. [Citation.] In the
absence of such a bright-line prohibition, the authorities
through ‘badger[ing]’ or ‘overreaching’ — explicit or subtle,
deliberate or unintentional — might otherwise wear down the
accused and persuade him to incriminate himself
notwithstanding his earlier request for counsel’s assistance.”
(Smith v. Illinois (1984) 469 U.S. 91, 98.)




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                      PEOPLE v. HENDERSON
                  Opinion of the Court by Corrigan, J.


       “In order to invoke the Fifth Amendment privilege after it
has been waived, and in order to halt police questioning after it
has begun, the suspect ‘must unambiguously’ assert his right to
silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535,
quoting Davis v. United States, supra, 512 U.S. at p. 459.)
Ambiguous or equivocal references to an attorney are not
sufficient. (Davis, at pp. 459, 461–462.) The suspect must
express his desire for counsel with sufficient clarity “that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” (Id. at p. 459.)
“[T]his is an objective inquiry.” (Ibid.) “[A]fter a suspect makes
a valid waiver of the Miranda rights, the need for effective law
enforcement weighs in favor of a bright-line rule that allows
officers to continue questioning unless the suspect clearly
invokes the right to counsel or right to silence.” (People v. Nelson
(2012) 53 Cal.4th 367, 377.)
      On review, “ ‘we accept the trial court’s determination of
disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were
obtained in violation of Miranda.’ ” (People v. Gonzales (2012)
54 Cal.4th 1234, 1269; accord, People v. Gonzalez (2005) 34
Cal.4th 1111, 1125.) Here, the facts are undisputed. The
question is whether they established that defendant clearly
invoked his right to an attorney.
      Various cases have held that a suspect’s use of equivocal
words or phrases does not constitute a clear request for counsel’s
assistance. (See, e.g., Davis v. United States, supra, 512 U.S. at
p. 462 [“ ‘Maybe I should talk to a lawyer’ ”]; People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 219 [“ ‘If you can bring me a
lawyer’ ”]; People v. Bacon (2010) 50 Cal.4th 1082, 1105 [“ ‘I
think it’d probably be a good idea for me to get an attorney’ ”];

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                      PEOPLE v. HENDERSON
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cf. People v. Stitely, supra, 35 Cal.4th at p. 535 [“ ‘I think it’s
about time for me to stop talking’ ”].) Defendant used no such
equivocal language here. He clearly stated, “[I] want to, speak
to an attorney first,” and twice emphasized, “I need to find out.”
He tried to speak further, but Officer Herrera spoke over him.
       The People argue that defendant’s comment, “because I, I
take responsibility for me, but there’s other people that . . . ,”
rendered his invocation ambiguous. They urge a reasonable
officer could understand defendant’s reference to taking
responsibility as an indication that he was willing to continue
speaking to the officers about his own liability notwithstanding
his request for counsel. To support this view, the People look to
the content of the statement itself and the comments leading up
to it. They urge that the invocation question must be evaluated
in light of the context in which the statements were made.
      “In certain situations, words that would be plain if taken
literally actually may be equivocal under an objective standard,
in the sense that in context it would not be clear to the
reasonable listener what the defendant intends.” (People v.
Williams (2010) 49 Cal.4th 405, 429 [discussing initial waiver of
the right to counsel]; cf. Smith v. Illinois, supra, 469 U.S. at p. 98
[“Where nothing about the request for counsel or the
circumstances leading up to the request would render it
ambiguous, all questioning must cease”].)
       Although context is relevant, the People’s interpretation
of this record is untenable. Defendant clearly said he wanted to
talk to a lawyer. Although not required, he went on to explain
why he wanted counsel. Further, his explanation did not create
an ambiguity. There is nothing inconsistent or ambiguous about
wanting to speak to an attorney before taking responsibility,


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and defendant made clear that he wanted to speak to an
attorney “first.” One can take responsibility in ways other than
giving an uncounseled confession to the police.
       Circumstances preceding the invocation provide context
that undermines the People’s argument. Defendant was
extremely hesitant to answer the officers’ questions. Asked if he
remembered what he was doing on the night of the murder, he
gave no response. Asked who he was with that night, he was
reluctant to say. Asked again if he remembered what he was
doing, defendant said “I remember something, (Inaudible), but
before I answer the question about (Inaudible) I’m not sure.”
When asked if he was concerned about implicating another
person and if he was interested in learning about what others
had said to the police, defendant said, “I don’t know, I’m
contemplating, I don’t want to (sigh).” Encouraged to disclose
his state of mind that night, he did not respond. When officers
asked if he was in Cathedral City, defendant initially did not
answer, but ultimately said, “Yes.” He did not respond when
asked if he had walked to the trailer park. Officer Herrera told
defendant, “This ain’t easy,” and Detective Wolford urged him
to “[c]ome on.” Still, defendant did not respond. After Officer
Herrera cautioned defendant about “try[ing] to think one step
ahead of us,” defendant invoked his right to counsel and twice
insisted, “I need to find out.” Speaking over him, Officer Herrera
again asked what he took responsibility for. Defendant was
initially silent, and then said, “I never.” This context does not
bear out the People’s argument that a reasonable officer could
believe defendant was willing to continue the interview
notwithstanding his request for counsel.
      To be clear, after being admonished and waiving their
rights, suspects may give halting or reluctant answers. They

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may give responses that the questioners suspect are false.
Officers are permitted to encourage a subject to talk and to
challenge statements as untrue. What they cannot do is brush
aside a clear invocation.
       The People’s attempt to contextualize defendant’s words is
further undermined by the fact that defendant was precluded
from fully articulating his request for counsel because Officer
Herrera repeatedly spoke over him. The People argue that
defendant and the officer each talked over the other. Certainly,
that dynamic can take place during a contentious interrogation,
but it is not what happened here. When Detective Wolford
asked if he had been to the trailer park, defendant directly said
he wanted to speak to an attorney first and began to elaborate
on that request. Then Officer Herrera intervened, repeatedly
asking what he took responsibility for. Officer Herrera’s
comments notwithstanding, defendant twice emphasized, “I
need to find out,” further conveying he wished to speak with
counsel before answering any questions. “ ‘No authority, and no
logic, permits the interrogator to proceed . . . on his own terms
and as if the defendant had requested nothing, in the hope that
the defendant might be induced to say something casting
retrospective doubt on his initial statement that he wished to
speak through an attorney or not at all.’ ” (Smith v. Illinois,
supra, 469 U.S. at p. 99.) Fairly read, defendant’s request for
counsel was clear and unequivocal.
      The circumstances differ from those addressed in People v.
Flores (2020) 9 Cal.5th 371, on which the People rely. Flores
was advised of his Miranda rights and participated in a lengthy
interview about homicides committed in San Bernardino
County. The following day, Lieutenant Kusch of the Los Angeles
Police Department approached Flores to speak about a different

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                      PEOPLE v. HENDERSON
                  Opinion of the Court by Corrigan, J.


homicide committed in Los Angeles County. Kusch restated the
Miranda rights, and Flores indicated that he understood them.
(Id. at p. 415.) Kusch then said, “ ‘Basically what I’d like to do
is talk about the the [sic] case that we investigated that we got
called out on back on November 17th, 2000. Uh I’ll tell you how
we got called out on it in a minute but uh do you want to take a
few minutes to talk a little bit about that?’ ” (Ibid.) Flores
responded “ ‘No’ ” or “ ‘Nah.’ ” (Ibid.) Kusch attempted to clarify
Flores’s response by explaining that he wanted to give Flores
some details about the investigation and get some background
information from him. Kusch emphasized three times that
Flores was not required to answer any questions. He then asked
“ ‘Do you want to take a few minutes and talk to me about that
stuff?’ ” to which Flores replied, “ ‘Oh yeah, well whatever.’ ” (Id.
at p. 416.) The interview continued, and eventually Flores
admitted to killing the victim.
       We held that Flores’s “No” response was equivocal because
it could have been understood either as an invocation of his
rights or merely a negative response to Kusch’s offer to explain
how the investigation started. (People v. Flores, supra, 9 Cal.5th
at p. 419.) We noted that “the clarity of a suspect’s answer may
depend in part on the clarity of the officer’s question.” (Ibid.)
Because Kusch’s question was imprecise and poorly framed, the
defendant’s answer “could have meant either, ‘No, I do not want
to talk to you at all,’ or ‘No, I do not want to hear about how the
police got called out.’ ” (Ibid.) Flores may have been focused on
the latter subject because his own mother had provided
information that helped lead the police to him. (Id. at pp. 419–
420.) Flores smiled and gave a short laugh when he said, “No.”
The dissonance between his demeanor, his cooperation the
previous day in another homicide investigation, and his “No”


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response was potentially confusing. (Id. at p. 420.) Given all of
these circumstances, we concluded that Kusch properly asked a
neutral follow-up question to clarify Flores’s intent. (Id. at
pp. 418–421, 424.)
      Here, Detective Wolford’s question prompting defendant’s
invocation was neither imprecise nor poorly framed. He asked
directly, “Did you go into the trailer park, that night?” In
response, defendant said that he wanted to speak to an attorney
first. Nothing in the preinvocation context dilutes the plain
import of defendant’s request for counsel. Instead of honoring
his unambiguous request, the officers repeatedly asked
defendant what he took responsibility for and said, “[L]et’s just
talk about that, okay?” emphasizing “this is what we got to do.”
Certainly, context matters, but it cannot be used to cast a clear
invocation in a different light. In an interrogation officers
frequently control the narrative. They may do so, among other
reasons, to keep the statement focused and coherent. But they
may not use otherwise legitimate control to obfuscate a suspect’s
attempt to invoke his rights.
      The trial court concluded that a reasonable officer could
understand defendant’s reference to “other people” as a limited
invocation of the right to counsel only as to those questions that
could potentially implicate others. Upon independent review,
the conclusion does not withstand scrutiny.
      Courts have recognized that an invocation can be limited
to certain situations or topics. In Connecticut v. Barrett (1987)
479 U.S. 523, for example, the defendant said that he was
willing to speak to police about a sexual assault but would not
give a written statement unless his attorney was present. (Id.
at pp. 525–526.) The high court found the statement admissible,


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


reasoning: “Barrett’s limited requests for counsel . . . were
accompanied by affirmative announcements of his willingness
to speak with the authorities. The fact that officials took the
opportunity provided by Barrett to obtain an oral confession is
quite consistent with the Fifth Amendment. Miranda gives the
defendant a right to choose between speech and silence, and
Barrett chose to speak.” (Id. at p. 529.) The court rejected the
view that defendant had requested an attorney for all purposes
as contrary to the “ordinary meaning” of his words. (Id. at
p. 530.)
      In People v. Martinez (2010) 47 Cal.4th 911, the defendant
said, “ ‘I think I should talk to a lawyer before I decide to take a
polygraph.’ ” (Id. at p. 952, italics added.) We found that
statement conditional. The italicized phrase supported the
conclusion that “defendant only wanted the assistance of
counsel if he was taking a polygraph exam.” (Ibid.) Because no
polygraph exam was administered, the detectives were not
obligated to seek clarification either then or at a second
interview the following morning. (Ibid.; accord, People v.
Gonzalez, supra, 34 Cal.4th at p. 1126 [defendant’s statement
that “he wanted a lawyer if he was going to be charged” was
conditional].)
      In People v. Michaels (2002) 28 Cal.4th 486, the defendant
waived his Miranda rights and the detectives asked him
“ ‘what’s your side of the story? What happened?’ ” (Id. at
p. 509.) The defendant responded, “ ‘I don’t know if I should
without an attorney.’ ” (Ibid., italics omitted.) The detective
then emphasized that “ ‘[i]f there’s any time that we ask you a
question that you don’t want to answer, you can stop at any
time,’ ” to which the defendant replied, “ ‘Okay, that one.’ ”
(Ibid, some italics omitted.) We held that the defendant’s

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


statement implied “a refusal to answer a particular question . .
. . Defendant did not assert a right to refuse to answer any
questions, ask that the questioning come to a halt, or request
counsel. Instead, he was showing that he knew he could refuse
to answer any or all questions and would exercise this right on
a question-by-question basis.” (Id. at p. 510; accord, People v.
Silva (1988) 45 Cal.3d 604, 629–630 [“A defendant may indicate
an unwillingness to discuss certain subjects without
manifesting a desire to terminate ‘an interrogation already in
progress’ ”].)
       Defendant’s statement, “because I, I take responsibility for
me, but there’s other people that . . . ,” cannot reasonably be
construed as a limited invocation of the right to counsel only as
to those questions implicating others. Defendant was not
referring to certain topics he wished to avoid, but rather to the
reason he wanted counsel’s advice. Of course, defendant was not
required to explain or justify his request for counsel. The choice
is his alone and for reasons of his own. To the extent he did try
to explain, his concern about the liability of others did not
necessarily preclude a concern about his own liability. On the
contrary, the actions and intentions of accomplices may bear
heavily on a defendant’s guilt of the crimes.
      It is true defendant said that he wanted to “speak to an
attorney first.” (Italics added.) But the reference to “first” is
most fairly understood to mean before making a statement. This
comment is different from that in Martinez, where the
defendant indicated he wanted to speak to a lawyer “ ‘before I
decide to take a polygraph.’ ” (People v. Martinez, supra, 47
Cal.4th at p. 952, second italics added.)




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


      The trial court here looked to “the totality of
circumstances in this transcript” to conclude that the officers
reasonably believed defendant’s reluctance to speak centered
around incriminating others. The court observed, for example,
that several times before the invocation, the officers assured
defendant that they were not seeking to implicate others. It
inferred from this discussion that defendant’s reluctance to
speak without an attorney likewise centered around this topic.
Notably, however, the question that immediately preceded
defendant’s invocation centered on his actions: “Did you go into
the trailer park, that night?”         Although the topic of
incriminating others had been raised earlier in the interview, it
was repeatedly interjected by the officers, not defendant.6 The

6
      For example, at the outset of the interview, Officer
Herrera said, “Remember what you were doing when it got
dark? [Where you were at?] Now, let me, let me, ahead of time
I’m going to say this okay? Uhm, I’m not trying to fuck anybody
else over here, okay we[’re] not trying to, you know, incriminate
anybody else . . . .” Detective Wolford then asked defendant if
he was at someone’s house that night. When defendant
indicated he did not want to say, Officer Herrera responded,
“You don’t want to get, you think that you can get incriminated
or get somebody else all caught up in this mess or something or
what? You don’t want to drop no names, or you just, you don’t
remember?       Huh?”     Defendant responded, “I remember
something, but . . . it’s (Inaudible) I remember something,
(Inaudible), but before I answer the question about (Inaudible)
I’m not sure.” Detective Wolford then asked, “[Y]ou were at
somebody’s house that you don’t want to disclose, that night?”
Defendant replied that he was with someone he respected and
that he did not want her to be in trouble. The officers then asked
defendant, “You don’t want to talk about that person, is that
what you’re talking about? . . . Or do you want [to] know if she
said something to us?” Defendant responded, “I don’t know, I’m



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


discussion therefore sheds little light on how to objectively
construe defendant’s invocation. If anything, his request for
counsel in the face of the officers’ repeated assurances that they
would not question him about others’ involvement suggests an
invocation beyond that limited topic.
       The court also observed that, after the invocation,
defendant asked to use the restroom. Following an eight-minute
break, he continued to speak with officers, prompting the court
to infer that he did so freely. But this approach has been
criticized by the high court: “The courts below were able to
construe [the defendant’s] request for counsel as ‘ambiguous’
only by looking to [his] subsequent responses to continued police
questioning and by concluding that, ‘considered in total,’ [the
defendant’s] ‘statements’ were equivocal. [Citations]. This line
of analysis is unprecedented and untenable. As Justice Simon
emphasized below, ‘[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



contemplating, I don’t want to (sigh).” Officer Herrera replied,
“This isn’t helping trying to think one step ahead of us here,
okay? We’re not trying to involve anybody else, drag anybody
else down with you, or anything like that, okay?” He explained,
“[W]e know when it happened, we wanted to know what
happened before then, the state of mind was what was going on
with you, okay? That’s what you said you were going to talk to
us about, all right?”


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


by merging them together.” (Smith v. Illinois, supra, 469 U.S.
at pp. 97–98, fn. omitted.) “Our decision is a narrow one. . . .
We hold only that, under the clear logical force of settled
precedent, an accused’s postrequest responses to further
interrogation may not be used to cast retrospective doubt on the
clarity of the initial request itself. Such subsequent statements
are relevant only to the distinct question of waiver.” (Id. at pp.
99–100.)
       Under Edwards, the officers were required to stop the
interrogation once defendant unequivocally requested counsel.
(Edwards, supra, 451 U.S. at pp. 484–485.) They did not do so.
Defendant’s postassertion statements in response to the
officers’s continued questioning did not amount to a valid waiver
of the right to counsel he had invoked. (Id. at p. 487.)
Accordingly, his statements were inadmissible as substantive
evidence at trial. (Ibid; accord, Maryland v. Shatzer (2010) 559
U.S. 98, 111, fn. 7; Montejo v. Louisiana (2009) 556 U.S. 778,
787; McNeil v. Wisconsin (1991) 501 U.S. 171, 177; Arizona v.
Roberson (1988) 486 U.S. 675, 681–682.)
     C. Prejudice
      The erroneous admission of statements obtained in
violation of the Fifth Amendment is reviewed under the
Chapman standard (Chapman v. California (1967) 386 U.S. 18,
24). (People v. Elizalde (2015) 61 Cal.4th 523, 542.) That test
requires the People “to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”
(Chapman, at p. 24.) The standard is satisfied only if “[t]here is
no reasonable possibility that the verdict would have been more
favorable to defendant had [the] statements not been admitted.”
(People v. Bradford (1997) 15 Cal.4th 1229, 1314.) Because



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


confessions “ ‘[a]lmost invariably’ will provide persuasive
evidence of a defendant’s guilt . . . , the improper admission of a
confession is much more likely to affect the outcome of a trial
than are other categories of evidence, and thus is much more
likely to be prejudicial under the traditional harmless-error
standard.” (People v. Cahill (1993) 5 Cal.4th 478, 503 (Cahill).)
      Defendant’s admissions were the “centerpiece of the
prosecution’s case,” offered to prove he was the assailant.
(Cahill, supra, 5 Cal.4th at p. 505.) Peggy could not identify her
attacker. Her descriptions of the perpetrator were internally
inconsistent and differed from defendant in significant details.
Nor could Deputy Elders identify defendant as the driver who
evaded pursuit the morning after the murder. No fingerprint or
biological evidence linked defendant to either the Bakers’ car or
residence. No property belonging to them was found in his
possession.
      Wasson saw defendant in a car similar to the Bakers’ just
after midnight on the night of the crimes. And Elam testified
that defendant said he was involved in a police pursuit the next
day. This testimony had some tendency to connect defendant to
the Bakers’ stolen car. But his connection to the crimes
committed at the Bakers’ home was attenuated.
      Clayton testified that defendant confessed to him, but his
account was open to substantial attack. At one point he said
defendant admitted to acting alone. But he also claimed that
defendant told him the victims were dignitaries who were killed
by two professional hit men and that Reginald had been stabbed
repeatedly. According to Clayton, defendant described the
victims as prominent citizens with assets he could use to pay off
a debt to the two men. These claimed admissions were


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


inconsistent with the facts of the crimes. Clayton’s credibility
was further undermined by his lengthy criminal record, his
inquiry to law enforcement officers and reporters about the facts
of the crime, and his motivation to secure a reward.
       After defendant’s interview, an officer was standing in an
open doorway of the interrogation room. He testified he
overheard defendant tell his aunt, “Yes, I’m sorry. I didn’t mean
to kill him.” (Italics added.) But that evidence was disputed.
Defendant’s aunt, with whom he was speaking, denied under
oath that defendant made such a statement. On the audiotape
of the conversation defendant is heard sobbing, and the tape is
of such poor quality that the italicized words are unintelligible.
The recording failed to resolve the dispute and, without his
confession, it may have caused the jury to doubt the officer’s
ability to discern defendant’s words.7
      In Cahill, supra, 5 Cal.4th 478, we acknowledged that
erroneous admission of a confession “might be found harmless,
for example, (1) when the defendant was apprehended by the
police in the course of committing the crime, (2) when there are


7
      Defendant’s own testimony at trial placed him at the
scene, although he maintained that two other men, “Knuck and
Leon,” committed the crimes.         On cross-examination he
confirmed that he had answered affirmatively when his aunt
asked him if he had “murder[ed] that man” and that he told her,
“I didn’t mean to kill him. I didn’t mean to kill him. I’m so
sorry.” Defendant argues that his testimony should not be
considered in evaluating prejudice because his decision to testify
flowed from the erroneous introduction of his pretrial
statements. The People do not dispute this point in their
briefing, nor do they rely on defendant’s testimony to establish
that the error was harmless beyond a reasonable doubt.
Accordingly, we will discount that evidence as well.


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


numerous, disinterested reliable eyewitnesses to the crime
whose testimony is confirmed by a wealth of uncontroverted
physical evidence, or (3) in a case in which the prosecution
introduced, in addition to the confession, a videotape of the
commission of the crime . . . .” (Id. at p. 505.) Certainly, Cahill’s
list of examples is not intended to be exhaustive. But it does
exemplify the kind of strong evidence required to satisfy the
Chapman standard.
        Such compelling evidence is absent here. Instead, this
case is arguably weaker than that in People v. Neal (2003) 31
Cal.4th 63, where we reversed a conviction due to the erroneous
admission of the defendant’s confessions. In that case, the
victim, Collins, was strangled in the home he shared with Neal.
After the murder, Neal left in Collins’s car. A note, purportedly
written by the victim’s foster son, took responsibility for the
killing. (Id. at pp. 69–70.) A documents expert opined, however,
that the note was in Neal’s handwriting. (Id. at p. 87.) After his
arrest, Neal confessed to killing Collins. (Id. at pp. 74–76.) At
trial, he testified that he strangled Collins after Collins tried to
forcibly sodomize him. (Id. at p. 71.) We concluded that the
erroneous admission of Neal’s confessions was not harmless
beyond a reasonable doubt, even though other evidence pointing
to Neal was sufficient to support the jury’s verdict. (Id. at p. 87.)
We explained: “[T]he confessions, with their detail and general
consistency with each other and with extrinsic facts, functioned
as the veritable ‘centerpiece of the prosecution’s case in support
of . . . conviction.’ ” (Ibid., quoting Cahill, supra, 5 Cal.4th at
p. 505.)
     The same is true here. Without defendant’s statements,
the case rested primarily on defendant’s connection to the
Bakers’ car and on the testimony of Clayton, whose veracity was

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


susceptible to substantial attack. On this record, we cannot
conclude that erroneous admission of defendant’s statements
was harmless beyond a reasonable doubt as to any of the jury’s
findings.
                      III. DISPOSITION
      We reverse the judgment in its entirety and remand the
case to the trial court for further proceedings.


                                                   CORRIGAN, J.


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




                                26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Henderson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S098318
Date Filed: July 30, 2020
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Thomas N. Douglass, Jr.

__________________________________________________________________________________

Counsel:

Martin H. Dodd, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Ronald S. Matthias and Julie L. Garland, Assistant Attorneys General, Ronald
A. Jakob, Holly D. Wilkens, Robin Urbanski and Jennifer A. Jadovitz, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Martin H. Dodd
Futterman Dupree Dodd Croley Maier LLP
601 Montgomery Street, Suite 333
San Francisco, CA 94111
(415) 399-3840

Ronald A. Jakob
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9213
