Filed 8/13/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S191747
           v.                        )
                                     )                      Ct.App. 4/3 G041831
JOSE SAUCEDA-CONTRERAS,              )
                                     )                        Orange County
           Defendant and Appellant.  )                    Super. Ct. No. 07NF0170
____________________________________)


        Defendant Jose Sauceda-Contreras was arrested on suspicion of murdering
his former girlfriend, Martha Mendoza, after he was found burning her body in a
large metal trash can in his backyard. He was transported to the police station, and
with the assistance of an officer interpreting for him in Spanish, was apprised that
he had a right to remain silent, that anything he said could be used against him in a
court of law, that he had a right to the assistance of counsel during the interview,
and that if he wanted a lawyer and could not afford one, counsel would be
appointed for him at no cost. (Miranda v. Arizona (1966) 384 U.S. 436
(Miranda).) Defendant clearly indicated that he understood each of those rights.
When then asked, “Having in mind these rights that I just read, the detective
would like to know if he can speak with you right now,” defendant responded, “If
you can bring me a lawyer, that way I[,] I with who . . . that way I can tell you
everything that I know and everything that I need to tell you and someone to
represent me.”



                                          1
       Seeking clarification, the officer asked defendant, “Okay, perhaps you
didn‟t understand your rights. . . . [W]hat the detective wants to know right now is
if you‟re willing to speak to him right now without a lawyer present?” Defendant
responded, “Oh, okay that‟s fine.” The officer told defendant, “The decision is
yours,” to which he replied, “Yes.” The officer again asked, “It‟s fine?”
Defendant replied, “A huh, it‟s fine.” The officer inquired a final time, “Do you
want to speak to him right now?” Defendant responded, “Yes.” Defendant went
on to give a lengthy statement, portions of which were admitted into evidence at
trial. The jury convicted him of first degree murder.
       This court has recognized that “ „when a suspect under interrogation makes
an ambiguous statement that could be construed as an invocation of his or her
Miranda rights, “the interrogators may clarify the suspect‟s comprehension of, and
desire to invoke or waive, the Miranda rights.” ‟ ” (People v. Williams (2010) 49
Cal.4th 405, 428, and cases cited (Williams).) The question in this case is whether
defendant‟s response — “If you can bring me a lawyer, that way I[,] I with who
. . . that way I can tell you everything that I know and everything that I need to tell
you and someone to represent me” — was sufficiently ambiguous to justify the
officer in seeking to clarify whether he was attempting to invoke his right to
counsel, or whether he was desirous of waiving his Miranda rights and speaking
with the detective “right now,” without an attorney present.
       As we shall explain, defendant‟s reply to the officer‟s inquiry was
sufficiently ambiguous to justify her seeking further clarification of his intent,
consistent with our holding in Williams, supra, 49 Cal.4th at page 428. The
followup questions were not coercive, and preceded any substantive interrogation
of defendant. Under the totality of the circumstances, defendant‟s responses made
clear he was willing to speak with the detective at that time without an attorney
present. The record further supports the trial court‟s finding that his waiver of

                                           2
Miranda rights was voluntary, knowing and intelligent. Because the majority of
the Court of Appeal reached a contrary conclusion, its judgment will be reversed.
                   FACTUAL AND PROCEDURAL BACKGROUND
       a. The discovery of Martha Mendoza’s body.
       On the morning of January 10, 2007, Alondra Gutierrez and her husband
Pascuel Rodriguez were in the backyard of their Anaheim residence when they
smelled the odor of burning hair and flesh. Gutierrez climbed a swing set ladder,
looked over the back fence, and saw smoke rising from the house directly behind
hers. She and Rodriguez saw a large metal trash can on a concrete patio with what
looked like a black ball protruding from it and flames and smoke shooting up from
the can. A man standing next to the can was pouring liquid from a large container
onto the fire, which made the flames rise higher. Gutierrez saw the man bend
something that looked like an arm back down into the can. A mattress (later
discovered to be a box spring) was propped against a wall on one side of the can; a
large hot tub cover was on the other side. Gutierrez and her husband called 911 to
report the fire on the property behind their house.
       On the previous afternoon, Gutierrez had overheard a man and woman at
the same house arguing with one another. She heard the woman say something to
the effect that if he did not have money to give her, he should let her go get the
money herself. Gutierrez then heard what sounded like a person hitting a wall,
followed by the sound of a woman weeping for several minutes. Rodriguez also
heard the man and woman arguing and calling each other bad names. When
Gutierrez was later interviewed by the police, she told them she had heard the
woman, who was speaking in Spanish, say, “ „Fucker, if you don‟t want me to go
out, if you don‟t want me to go out, you go and bring me that money to pay.‟ ”
       When the firetruck arrived Rodriguez directed it to the house behind his
residence, then climbed the ladder in his backyard to see what was happening. As

                                          3
the firemen approached the neighbor‟s house, Rodriguez saw the man tending the
fire put the “mattress” on top of the burning can.
       City of Anaheim Firefighters Kevin Harris and Andy Ingram arrived at 940
North Winter Street with their firetruck lights and siren activated. They walked
past a car parked on the driveway at the side of the house, through an open gate to
the backyard, where they encountered defendant. Harris asked defendant if there
was a fire; defendant replied no. Harris could see a trash can on the patio with
smoke coming from it. When Harris asked defendant what was burning,
defendant responded, “Nothing. No problem. No problem, sir.”
       Harris and Ingram smelled gasoline and saw a mattress or box spring
leaning over the smoking trash can. When they tried to approach the can,
defendant held up his arms and physically blocked them. From his location Harris
could see flames still flickering inside the can. The firefighters called for police
assistance and walked back towards their firetruck. Defendant followed them, and
speaking in broken English, claimed he was cooking a pig in the backyard for a
large party he was planning. When police arrived, Harris and Ingram returned to
the backyard patio, moved the box spring off the can and found a charred towel
draped over the top with a human skull and burnt body underneath it. Defendant
was placed under arrest.
       b. Physical evidence at the crime scene.
       Anaheim police forensic specialist Terri Powers-Raulston found the badly
burned body of a woman, later identified as defendant‟s former girlfriend, Martha
Mendoza, in the trash can. The victim‟s head extended above the top rim of the
can, and a brick was propping the body away from one side of it.
       The interior of defendant‟s house was processed for evidence, with
principal focus on a bedroom with a sliding glass door and a bathroom directly
across the hall from that room. The bedroom was in disarray; the drapes covering

                                          4
the sliding glass door had been tied in a knot, the mattress was partially off the box
spring, and all of the sheets and blankets had been stripped from the bed. The
knob of the door to the bathroom directly across the hall was in the unlocked
position. There was no evidence of the bathroom door having been forced or pried
open. The shower curtain was extended across the bathtub. The bathtub spout
was loose in its wall fitting. A red stain was visible on the bathroom floor. Swabs
for DNA testing were collected from various places in the bathroom.
       The clothing defendant was wearing that day was logged into evidence,
including a belt from his jeans that showed visible wear near the buckle and a
visible indentation or crease approximately 11 inches from the buckle. Swabs
were taken from the inside of each of three equal sections of the length of the belt.
Photographs of defendant as he appeared that day documented injuries to the
upper left side of his head, as well as to his nose, upper lip, neck, chest, and left
and right hands.
       Analysis of the swab from the floor of the bathroom tested positive for
blood, with Mendoza being a major contributor to the mixed sample of DNA on
that swab. A possible explanation for the mixed DNA sample could be other
people having walked barefoot on the floor. Five of six swabs collected from the
area around the bathtub contained a mixture of DNA profiles; defendant was a
contributor to one of the swabs, Mendoza was a possible contributor to another.
       The swab from the inside of the first segment of defendant‟s belt closest to
the buckle revealed Mendoza as the major DNA contributor and defendant as a
minor contributor. A mixed sample of DNA from the last third of the belt (the end
farthest from the buckle) revealed both defendant and Mendoza as contributors. A
sample of defendant‟s blood drawn shortly after his arrest was negative for drugs
and alcohol.



                                           5
       c. Autopsy results.
       Dr. Anthony Juguilon, a board-certified forensic pathologist, conducted the
autopsy on the body of Martha Mendoza the day after it was discovered. The
body was difficult to identify as that of a female through external examination
alone. Nearly all of the victim‟s skin had been burned away, with “thermal
injuries” extending down to the muscles and bone. The bones of the right hand, as
well as the “vast majority” of the scalp and skin on the head had been incinerated.
While burning generally made it more difficult to pinpoint a cause of death, Dr.
Juguilon concluded with “a fair degree of confidence” that Mendoza was dead
before her body was burned. No stab or gunshot wounds were observed on the
body, nor was there any evidence of blunt force trauma. Dr. Juguilon was unable
to determine whether hanging or strangulation was the cause of death because
most of the tissue relevant to the inquiry had been burned away. He could not
look for petechial hemorrhages in the eyes because the eyes had also been severely
damaged by the fire. Neither suicidal hanging or ligature strangulation could be
ruled out as a cause of death. The hyoid bone and thyroid cartilage were
undamaged; a broken hyoid bone or damage to the thyroid cartilage are commonly
seen in manual strangulations, but not in ligature strangulations or hanging.
Blood samples collected from the victim‟s heart had sustained too much thermal
damage to permit accurate testing. Tissue samples from her brain and liver tested
positive for methamphetamine and amphetamine. While the levels of these drugs
were elevated, the tissues had been sufficiently altered by the fire to alter the drug
test results. Although the amount of methamphetamine detected in the brain and
liver could have proved fatal, because the thermal damage dramatically altered the
toxicology results, it was impossible to determine the actual level of
methamphetamine in Mendoza‟s body prior to death.
       Due to the extensive thermal damage caused by the burning of the body,
Dr. Juguilon could not establish the exact manner or cause of the victim‟s death,
which was listed as “undetermined.”



                                          6
       d. Defendant’s videotaped police interview and statement.
       Anaheim Police Officer Lisa Trapp, who was fluent in English and
Spanish, acted as a translator for defendant and Anaheim Police Detective Robert
Blazek during an interview commenced at 1:30 p.m. on January 10, 2007, shortly
following defendant‟s arrest. As set forth in greater detail below, defendant was
read his Miranda rights, and after Officer Trapp asked a followup question to
clarify whether he desired to waive his right to counsel at the interview, defendant
implicitly waived his rights and agreed to speak with Detective Blazek at that time
without an attorney present. Officer Trapp later reviewed the transcripts of the
interview, which included defendant‟s answers to questions in Spanish as well as
the English translations of his responses, and determined the transcripts accurately
reflected what was said at the interview.1
       Defendant told the officers he had lived at 940 North Winter Street for
about a year and a half. His brother, Jesus, owned the house and also lived there,
as did another brother, Pedro, and Pedro‟s family. Defendant was off from work
on the day of the murder; his brothers were at work and brother Pedro‟s children
were at school.
       Defendant related that the victim and her five children had lived with him
in Long Beach about eight years earlier. Mendoza would leave the children with
defendant while she visited with other men and used drugs. Sometime after he
ended his relationship with Mendoza, she lost custody of her children. Defendant
had not seen her for about a year and a half until she recently appeared at his
house, indicating she wanted to get back together with him because he had a house

1
        The interview was recorded in three segments. Copies of redacted versions
of the transcripts of the first and second segments were provided to the jurors, and
redacted video recordings of those portions of the interview were played in the
courtroom. The third segment of the lengthy interview (People‟s exhibit
No. 59-C) was not introduced into evidence.

                                          7
and money. Defendant declined. Although he loved Mendoza, he knew she could
never change her ways.
       Mendoza returned to defendant‟s house the day before her murder. They
argued that day, at which time Mendoza scratched him. Mendoza was acting
nervous, like she needed drugs. Defendant refused to give her any money and told
her to go to sleep. In the morning, Mendoza still seemed nervous, and defendant
again told her he would not give her any money because she would only use it to
buy drugs. Mendoza told defendant she had lost everything, including him and
her kids. She said no one loved her and that she did not want to be on the streets
anymore. Then Mendoza made defendant promise that when she died, he would
burn her body and keep her ashes with him and take care of the ashes as if she was
still living. Defendant told her she was crazy and began gathering his clothes and
bedding to take to the laundry. When he realized he had not seen Mendoza for a
while, he began looking for her, and found her lying dead in the tub of the
bathroom directly across the hall from his bedroom. He thought about calling the
police, but then remembered her words, so he burned her body, according to her
wishes, so he would never leave her or forget her.
       Defendant went on to state that no one else in the house knew Mendoza
was there because he had his own room and the bathroom he used was right across
the hall. Crystal methamphetamine was Mendoza‟s drug of choice, but she did not
use any drugs while at defendant‟s house because he would not let her. They went
to bed about 9:00 p.m., awoke around 8:00 a.m. the next morning, and could hear
the others in the house getting ready to leave. Mendoza was acting nervous again
and left the bedroom. Defendant thought she was going to take a shower, since
she was naked. He was concerned about Mendoza stealing things because she had
stolen things from him in the past. When he finally went looking for her, the
bathroom door was open a little bit, but he did not see her at first. Then he saw

                                         8
her lying in the bathtub and she was not breathing. He started hitting and shaking
her, but “she was really like, cold, cold, cold.” Defendant estimated she had been
out of his sight for an hour and a half before he found her.
       At that point in the interview, defendant stated he knew who Mendoza
bought drugs from and suggested to the officers that he could help them “bring in
someone that‟s big.”
       Detective Blazek asked defendant how he had gotten the visible scratches
on his body. Defendant replied that Mendoza had scratched him when they argued
the previous day over his refusal to give her money. His brothers were home at
the time, but they did not know Mendoza was there because he told her to be quiet,
and because televisions were on in the house, or music playing, most of the time.
       Defendant at first told the officers there were no medications in the
bathroom and he did not know how Mendoza had killed herself. He said he saw
white bubbles coming from her mouth and stated she was very cold. Defendant
said he loved Mendoza very much and he had no one else other than her because
his brothers had their own problems. After he found her in the tub, he started
yelling at her to wake up. He took her out of the tub and hugged her. Then he
started talking to her, telling her, “You‟re not going to go anywhere or do bad
things. You‟re going to be here with me.”
       Defendant stated he took Mendoza‟s body outside “right away.” He put
wood in the bottom of the metal can and put her body in the can. He poured
gasoline over the body and ignited the fire with a match. When Mendoza‟s body
started to burn, he changed his mind and tried to pull her out, but “that‟s when it
got really big.” When he heard the sirens he knew the police were coming, so he
tried to conceal her burning body with a box spring that had been in the backyard.
Defendant admitted he lied to the firefighters when he told them he was cooking a
pig.

                                          9
        Defendant denied hitting or choking Mendoza. After Detective Blazek told
him the neighbors had heard him arguing with Mendoza the day before, defendant
said it was “hardly anything.” Detective Blazek pressed him on the point,
suggesting it was more than that because the neighbors heard Mendoza yelling and
screaming. Defendant said he used to live with Mendoza and knew how loudly
she could yell and scream. He denied yelling at her during the argument, claiming
he only told her to shut up and that he was not going to give her any money. He
denied hitting Mendoza during the argument. Compared to other arguments he
had with her in the past, he considered the argument of the prior day “a small
one.”
        When asked why he had waited an hour and a half before looking for
Mendoza if he was concerned about her stealing from him, defendant replied that
he had looked for her earlier and thought she had just left. When asked why he
had not called 911 upon finding her in the bathtub, defendant stated, “She told me
not to do it.” He also stated he was afraid of going to jail because Mendoza had
died in his house, and he felt if he called the police they would believe him
responsible for her death. That was why he decided to do what she had asked. He
just wanted to keep Mendoza‟s ashes, and did not know there were places where
bodies could be cremated and the ashes returned.
        After the detective suggested to defendant that much of his story did not
make sense, he suddenly stated Mendoza had killed herself with the same belt he
was wearing, because he had “scorned her real badly,” and that was “the real
truth.” He stated he had yelled and sworn at Mendoza the previous day for selling
her body on the streets of Long Beach, which was what the neighbors had heard.
He was angry with Mendoza, said terrible things about her, called her trash, told
her she was a drug addict who had ruined his and his family‟s lives, and told her to



                                         10
leave. Still, defendant and Mendoza wound up having sexual intercourse that
night.
         In the morning, another argument started when Mendoza said she wanted to
move in and live with defendant. He told her no because she would never change
and he could not even leave her in his room because he knew she would steal
something. In reply, Mendoza called defendant a “wetback,” telling him that if he
did not get back together with her she would make a call and have him and his
whole family deported, and that she was “going to sour [his] life until [he lost]
everything.” Defendant told her how terrible she had been to him and how he felt
about her; when he turned around she had left the room. He heard her crying in
the bathroom and just let her cry. A lot of time passed during which he did not
hear anything from the bathroom. He knocked on the locked bathroom door, went
outside and knocked on the window, then went back inside and managed to pry
open the bathroom door with the tip of a key, whereupon he discovered Mendoza
had choked herself to death with his belt. When asked to describe exactly how
Mendoza had hanged herself, defendant said she was lying in the tub, with his belt
wrapped around her neck and looped over the lower spout, and she was holding
the long end of the belt in her hands.2

2
        Other evidence introduced at trial included the testimony of Maria
Rodriguez, the victim‟s sister. Rodriguez testified that defendant and Mendoza
had been in a dating relationship with each other for six or seven years, and, at one
point, had lived together in Long Beach. Rodriguez had heard defendant threaten
Mendoza on more than one occasion. Mendoza had not lived with defendant
during approximately the last nine months of her life. Once, when Rodriguez‟s
daughter graduated from California State University at Fullerton, they stayed out
late at a family gathering, and Mendoza decided to spend the night at Rodriguez‟s
apartment. Defendant came to the apartment late that night and kept knocking on
the door. Mendoza got up and went out to speak to him. They argued, and
defendant told Mendoza he would beat her up if she did not leave with him. The
next morning they discovered defendant had spent the night on the stairs leading
to Rodriguez‟s apartment. On another occasion, when defendant and Mendoza

                                          11
       e. Proceedings on defendant’s motion to exclude his statement as
          violative of Miranda.
       After the jurors were selected and sworn, but before the evidentiary phase
of trial commenced, trial counsel made an oral motion to exclude from evidence
defendant‟s statements furnished during the interview. Counsel argued to the
court that defendant, by his words, had clearly indicated he wanted the police to
bring him an attorney to represent him. Counsel argued further that the first clause
of Officer Trapp‟s response to defendant — “Okay, perhaps you didn‟t understand
your rights” — was “clearly designed to overcome the decision that was made by
Mr. Sauceda.” Counsel also argued that defendant‟s “education,” and the fact that
a second language was being used, were additional factors bearing on the question
whether his words were intended to invoke his right to counsel at the interview.
       The People submitted the matter on the video recording and the transcript
of defendant‟s interview with the police. The trial court stated it had watched the
video, “was able to view the defendant in his interactions with the interpreting
officer and the detective,” and found the recording of the interview and the written
transcript “pretty much matched up.” The court ruled that defendant had been
appropriately given a Miranda warning and knowingly and intelligently waived
his rights. The video recording of a portion of the interview was admitted into
evidence at trial. The jury convicted defendant of first degree murder, and he was
sentenced to state prison for a term of 25 years to life.
       In an unpublished opinion, a majority of the Court of Appeal, with one
justice dissenting (Aronson, J.), reversed defendant‟s conviction of first degree
murder. The Court of Appeal concluded that “[a]fter being advised it was his right
to have a lawyer present during the interrogation, [defendant] essentially

were at Rodriguez‟s apartment in March of 2006, defendant told Rodriguez “he
would not leave [Mendoza] alone, and that he would rather see her dead than lose
her.”

                                          12
responded — bring me a lawyer and I will talk.” The court reasoned, “At this
point, Trapp should have terminated the interrogation, but she ignored
[defendant‟s] response and continued the interview, and intentionally or not,
confused [defendant] about the nature of his constitutional rights. After
[defendant] unequivocally invoked his right to counsel, Trapp stated, „Okay,
perhaps you didn‟t understand your rights.‟ [Defendant] clearly understood his
right to counsel and invoked it. His straightforward and clear response did not
require clarification. [¶] It is true police may seek clarification of a suspect‟s
ambiguous response to a Miranda admonition. But the response must be
equivocal and ambiguous. If the suspect‟s response is unequivocal and
unambiguous, the interrogation must stop. Police may not seek clarification of a
suspect‟s response in an attempt to change the suspect‟s mind after an invocation
of Miranda rights. [Citation.] Nor may police continue with the interrogation in
an attempt to confuse a suspect about the nature of his constitutional rights.”
       The dissenting justice disagreed with the majority‟s conclusions, reasoning,
“Here, the officer was entitled to follow up with [defendant] because, objectively,
his statement called for a response. In asking, „If you can bring me a lawyer . . . ,‟
[defendant] asked the officer a question. (Italics added.) Indeed, [defendant]
asked the officer two questions. He asked whether a lawyer could be brought to
him, and he impliedly also asked whether one could be provided right now, given
the officer had asked him if the detective „can speak with you right now?‟ . . .
The majority concludes the officer should have terminated the interview without
answering [defendant‟s] questions but, objectively, those questions called for a
response.” The dissent observed further, “True, the officer did not respond
expressly that she could neither provide an attorney, nor provide one right away.
But the answer was implicit in the officer‟s reiteration that „what the detective



                                          13
wants to know right now is if you‟re willing to speak to him right now without a
lawyer present?‟ ”
       We granted the People‟s petition for review.
                                    DISCUSSION
       “As a prophylactic safeguard to protect a suspect‟s Fifth Amendment
privilege against self-incrimination, the United States Supreme Court, in Miranda,
required law enforcement agencies to advise a suspect, before any custodial law
enforcement questioning, that „he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence
of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.‟ (Miranda, supra, 384 U.S. 436,
479; see Connecticut v. Barrett (1987) 479 U.S. 532, 528.)” (People v. Martinez
(2010) 47 Cal.4th 911, 947 (Martinez).)
       At the commencement of defendant‟s interview shortly after his arrest,
Officer Trapp, who was fluent in English and Spanish and acting as a translator for
defendant and Detective Blazek, read defendant his Miranda rights and the
following colloquy ensued:
       “[Officer Trapp]:     You have the right to remain silent. Do you
understand?
       “[Defendant]:         A huh, [y]es.
       “[Officer Trapp]:     Whatever you say can be used against you in a court of
law. Do you understand?
       “[Defendant]:         Yes.
       “[Officer Trapp]:     You have the right to have a lawyer present before and
during this interrogation. Do you understand?
       “[Defendant]:         Yes[,] I understand.



                                          14
       “[Officer Trapp]:     If you would like a lawyer but you cannot afford one,
one can be appointed to you for free before the interrogation if you wish. Do you
understand?
       “[Defendant]:         Yes[,] I understand.
       “[Officer Trapp]:     Having in mind these rights that I just read, the
detective would like to know if he can speak with you right now?
       “[Defendant]:         If you can bring me a lawyer, that way I[,] I with who
. . . that way I can tell you everything that I know and everything that I need to tell
you and someone to represent me.
       “[Officer Trapp]:     Okay, perhaps you didn‟t understand your rights. Um
. . . what the detective wants to know right now is if you‟re willing to speak to him
right now without a lawyer present?
       “[Defendant]:         Oh, okay that‟s fine.
       “[Officer Trapp]:     The decision is yours.
       “[Defendant]:         Yes.
       “[Officer Trapp]:     It‟s fine?
       “[Defendant]:         A huh, it‟s fine.
       “[Officer Trapp]:     Do you want to speak to him right now?
       “[Defendant]:         Yes.”
       Defendant contends his response to the question whether he would be
willing to speak with Detective Blazek “right now” constituted an unambiguous
and unequivocal invocation of his right to counsel,3 requiring all further



3
       “The right to counsel for purposes of custodial interrogation implicates the
Fifth Amendment privilege against self-incrimination, and must be distinguished
from the Sixth Amendment right to counsel, which attaches upon the initiation of
formal criminal proceedings. (U.S. Const., 5th & 6th Amends.; see People v.
Gonzalez (2005) 34 Cal.4th 1111, 1123 . . . [discussing McNeil v. Wisconsin

                                          15
questioning to cease. The People counter that defendant‟s response was
sufficiently ambiguous and equivocal to justify Officer Trapp in seeking
clarification of defendant‟s actual intent, and that his subsequent responses to the
officer‟s followup questions confirmed his willingness to waive his Miranda rights
and be interviewed “right now without a lawyer present.”
       The basic principles governing defendant‟s claim are settled. “In reviewing
defendant‟s claim that his Miranda rights were violated, we must accept the trial
court‟s resolution of disputed facts and inferences, as well as its evaluation of the
credibility of witnesses where supported by substantial evidence. (People v.
Whitson (1998) 17 Cal.4th 229, 248 (Whitson); People v. Wash (1993) 6 Cal.4th
215, 235-236.) Miranda makes clear that in order for defendant‟s statements to be
admissible against him, he must have knowingly and intelligently waived his
rights to remain silent, and to the presence and assistance of counsel. [Citation.]”
(People v. Cruz (2008) 44 Cal.4th 636, 667 (Cruz).)
       In Williams, supra, 49 Cal.4th 405, we specifically addressed the question
whether police may seek clarification when a suspect makes an ambiguous or
equivocal request for the assistance of counsel at the initial stage of an
interrogation, prior to any waiver of Miranda rights, as occurred here. We noted,
“This court has recognized that „when a suspect under interrogation makes an
ambiguous statement that could be construed as an invocation of his or her
Miranda rights, “the interrogators may clarify the suspect‟s comprehension of, and
desire to invoke or waive, the Miranda rights.” ‟ (People v. Farnam (2002) 28
Cal.4th 107, 181, italics added [analyzing the defendant‟s preadmonition
statements in which he announced he would not answer questions]; see People v.
Johnson (1993) 6 Cal.4th 1, 25] [analyzing the defendant‟s statement „ “no tape

(1991) 501 U.S. 171, 177-178].)” (People v. Nelson (2012) 53 Cal.4th 367, 371,
fn. 1.)

                                          16
recording, I don‟t want to incriminate myself,” ‟ made at the outset of an
interview, prior to a Miranda advisement]; People v. Clark (1993) 5 Cal.4th 950,
991 [officers properly responded to assertedly ambiguous statements during
admonition, with comments calling for clarification], disapproved on another
ground in People v. Doolin[ (2009)] 45 Cal.4th [390] 421, fn. 22; U.S. v.
Rodriguez (9th Cir. 2008) 518 F.3d 1072, 1080 [distinguishing pre- and
postwaiver assertion of rights and, in the instance of initial waivers at the
commencement of interrogation, concluding that officers should clarify
ambiguous statements made by the defendant]; 2 LaFave et al., Criminal
Procedure (3d ed. 2007) § 6.9(g), p. 865.)” (Williams, supra, 49 Cal.4th at
p. 428.)
       Williams explains why the standard for assessing an ambiguous invocation
of the right to counsel is an objective one that asks what a reasonable officer
would have understood the nature of the suspect‟s request to be under all the
circumstances. “Whereas the question whether a waiver is knowing and voluntary
is directed at an evaluation of the defendant‟s state of mind, the question of
ambiguity in an asserted invocation must include a consideration of the
communicative aspect of the invocation—what would a listener understand to be
the defendant‟s meaning. The high court has explained—in the context of a
postwaiver invocation—that this is an objective inquiry, identifying as ambiguous
or equivocal those responses that „a reasonable officer in light of the
circumstances would have understood [to signify] only that the suspect might be
invoking the right to counsel.‟ (Davis v. United States, supra, 512 U.S. at p. 459,
relying upon Connecticut v. Barrett (1987) 479 U.S. 523, 529 [a decision
analyzing a response to an initial admonition]; see also People v. Gonzalez[,
supra, 34 Cal.4th at p.] 1124 . . . .) This objective inquiry is consistent with our
prior decisions rendered in the context of analyzing whether an assertion of rights

                                          17
at the initial admonition stage was ambiguous. (See People v. Farnam, supra, 28
Cal.4th at p. 181.) We note that a similar objective approach has been applied by
the United States Court of Appeals for the Ninth Circuit to identify ambiguity in a
defendant‟s response to a Miranda admonition; a response that is reasonably open
to more than one interpretation is ambiguous, and officers may seek clarification.
(U.S. v. Rodriguez, supra, 518 F.3d at p. 1080.)
       “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. In those
instances, the protective purpose of the Miranda rule is not impaired if the
authorities are permitted to pose a limited number of followup questions to render
more apparent the true intent of the defendant.” (Williams, supra, 49 Cal.4th at
pp. 427-429.)
       Assuming Officer Trapp was justified in seeking clarification of
defendant‟s response regarding his right to counsel at the interview, we must
further determine whether his subsequent responses to Officer Trapp‟s followup
questions constituted a valid waiver of his Miranda rights. “[A] suspect who
desires to waive his Miranda rights and submit to interrogation by law
enforcement authorities need not do so with any particular words or phrases. A
valid waiver need not be of predetermined form, but instead must reflect that the
suspect in fact knowingly and voluntarily waived the rights delineated in the
Miranda decision. (See North Carolina v. Butler (1979) 441 U.S. 369, 373.) We
have recognized that a valid waiver of Miranda rights may be express or implied.
(Whitson, supra, 17 Cal.4th at p. 246; see also People v. Cortes (1999) 71
Cal.App.4th 62, 69.) A suspect‟s expressed willingness to answer questions after
acknowledging an understanding of his or her Miranda rights has itself been held
sufficient to constitute an implied waiver of such rights. (People v. Medina (1995)

                                          18
11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.) In contrast, an
unambiguous request for counsel or refusal to talk bars further questioning.
(Davis v. United States (1994) 512 U.S. 452, 458-460.)” (Cruz, supra, 44 Cal.4th
at pp. 667-668.)
       Ultimately, the question becomes whether the Miranda waiver is shown by
a preponderance of the evidence to be voluntary, knowing and intelligent under
the totality of the circumstances surrounding the interrogation. (Williams, supra,
49 Cal.4th at p. 425; People v. Dykes (2009) 46 Cal.4th 731, 751 (Dykes); Cruz,
supra, 44 Cal.4th at p. 668.) The waiver must be “voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion,
or deception” (Moran v. Burbine (1986) 475 U.S. 412, 421), and knowing in the
sense that it was “made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” (Ibid.)
       Turning to the facts before us, we find Officer Trapp was justified in
seeking clarification of defendant‟s response to her question, “Having in mind
these [Miranda] rights that I just read, the detective would like to know if he can
speak with you right now?” Defendant‟s response, “If you can bring me a lawyer,
that way I[,] I with who . . . that way I can tell you everything that I know and
everything that I need to tell you and someone to represent me,” was not a clear
invocation of his right to counsel at the interview. Defendant‟s response to Officer
Trapp‟s question whether he wanted to speak with Detective Blazek “right now”
was conditional, ambiguous, and equivocal. It was conditional in that it began
with an inquiry as to whether a lawyer could be brought to defendant. By
responding “[i]f you can bring me a lawyer . . . ” (italics added), defendant was
expressly asking the officer whether a lawyer could be brought to him, and
impliedly asking whether one could be provided right now, given that the officer
had asked him if he would speak with Detective Blazek “right now.” It was

                                         19
equivocal in that defendant went on to plainly state his intent and desire to waive
his right to remain silent and “tell you everything that I know and everything that I
need to tell you,” but then ended his response ambiguously with the words “and
someone to represent me.” From an objective standpoint, a reasonable officer
under the circumstances would not have understood defendant‟s response to be a
clear and unequivocal request for counsel. For that reason, the officers were
justified in seeking to clarify defendant‟s intent. (Williams, supra, 49 Cal.4th at
p. 428, and authorities cited.)
       Once Officer Trapp sought clarification by stating to defendant, “Okay,
perhaps you didn‟t understand your rights,” immediately followed by her question,
“[W]hat the detective wants to know right now is if you’re willing to speak to him
right now without a lawyer present?” (italics added), defendant went on to make a
voluntary and knowing waiver of his Miranda rights.
       We reject defendant‟s assertion that any implicit waiver of his Miranda
rights was involuntary because it was the product of intimidation or coercion. We
have reviewed the videotape of the colloquy. No coercive tactics were employed
in order to obtain defendant‟s waiver of his rights. Defendant does not appear to
have been under any undue pressure from the investigating officers such as might
have caused him to become unduly anxious or confused. The colloquy preceded
any substantive questioning of defendant by the officers. Once it was clarified for
defendant that he was being asked if he was willing to speak with the officers
“right now without a lawyer present,” he immediately responded, “Oh, okay that‟s
fine.” Officer Trapp then told defendant, “The decision is yours,” to which he
replied, “Yes.” She asked him, “It‟s fine?,” to which he replied, “A huh, it‟s fine.”
The officer asked defendant yet again, “Do you want to speak to [the detective]
right now?,” to which he responded, “Yes.”



                                         20
       Under these circumstances, it is clear Officer Trapp was not “badgering”
defendant into waiving his rights (Williams, supra, 49 Cal.4th at p. 429), but was
instead seeking confirmation that he understood the decision to proceed with the
interview without an attorney present was his alone, and that he in fact wished to
do so. We find the record establishes by a preponderance of the evidence that
defendant‟s waiver of his Miranda rights was freely and voluntarily given.
(Dykes, supra, 46 Cal.4th at p. 751.)
       We also find that defendant‟s waiver of rights, including his right to
counsel at the interview, was knowing and intelligent. The Court of Appeal
concluded Officer Trapp should have terminated the interview as soon as
defendant voiced his initial response implicating his right to counsel, and that by
failing to do so she “intentionally or not, confused [him] about the nature of his
constitutional rights.” We disagree.
       It is true that Officer Trapp‟s suggestion to defendant, “Okay, perhaps you
didn‟t understand your rights,” failed to address any uncertainty or confusion he
may have been harboring about whether counsel could be provided at that time.
Nor did the officer restate the right to counsel or confirm defendant‟s
understanding of that right (see People v. Johnson, supra, 6 Cal.4th at p. 27
[restating rights and obtaining waiver a “legitimate method” of clarifying
ambiguities]), or provide him with any relevant information that might have
helped him decide whether he might prefer to wait until an attorney could be
provided (see Williams, supra, 49 Cal.4th at p. 429 [suspect informed that counsel
could be provided on “Monday,” and that questioning would be postponed until




                                         21
that time if he chose to have appointed counsel present]), as would have been the
better practice.4
       On the other hand, Officer Trapp immediately followed her less than artful
statement, “Okay, perhaps you didn‟t understand your rights,” with the pointed
question, “[W]hat the detective wants to know right now is if you’re willing to
speak to him right now without a lawyer present?” (Italics added.) That inquiry
cut right to the core of the matter, making unmistakably clear to defendant that
what he was being asked was if he was willing to proceed with the interview
“right now without a lawyer present.” Officer Trapp had admonished defendant
moments earlier of each of his Miranda rights, and he had clearly responded that
he understood each of them. Once that question was put to defendant, he quickly
and decisively expressed his willingness to proceed with the interview without a
lawyer present, confirming for the officer several times that he wished to proceed
in that fashion and understood the choice was his. As previously noted, “[a]
suspect‟s expressed willingness to answer questions after acknowledging an
understanding of his or her Miranda rights has itself been held sufficient to
constitute an implied waiver of such rights. [Citations.]” (Cruz, supra, 44 Cal.4th
at pp. 667-668.) We find that defendant‟s waiver of his Miranda rights, including
his right to counsel, was “made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.”
(Moran v. Burbine, supra, 475 U.S. at p. 421.)

4
       It is, however, settled that “the authorities are not required to have an
attorney on call for the purpose of custodial interrogation. (People v. Smith (2007)
40 Cal.4th 483, 503; see also People v. Bradford (1997) 14 Cal.4th 1005, 1045-
1046.)” (Williams, supra, 49 Cal.4th at p. 429.) And the high court has repeatedly
cautioned, “[W]e have never read the Constitution to require that the police supply
a suspect with a flow of information to help him calibrate his self-interest in
deciding whether to speak or stand by his [Miranda] rights. [Citations.]” (Moran
v. Burbine, supra, 475 U.S. at p. 422.)

                                         22
       In sum, the record establishes that defendant wished to tell Detective
Blazek his side of the story, and having been read his Miranda rights by Officer
Trapp, and having indicated he understood them, was willing to proceed with the
interview “right now without a lawyer present.” Under the totality of the
circumstances, we conclude defendant‟s waiver of his Miranda rights, including
his right to counsel, was voluntary, knowing and intelligent. (Miranda, supra, 384
U.S. at p. 475.)5


                                   CONCLUSION
       The judgment of the Court of Appeal is reversed, and the matter remanded
to that court for further proceedings consistent with the views expressed herein.

                                                 BAXTER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




5
      Because we have found no Miranda violation, we have no occasion to
consider the People‟s harmless error argument.

                                         23
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sauceda-Contreras
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 2/16/11 - 4th Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S191747
Date Filed: August 13, 2012
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Richard F. Toohey

__________________________________________________________________________________

Counsel:

Diane Nichols, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Lynne G. McGinnis,
Steven T. Oetting and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Diane Nichols
P.O. Box 2194
Grass Valley, CA 95945-2194
(530) 477-8448

Marilyn L. George
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3038
