Filed 1/30/17
                CERTIFIED FOR PUBLICATION

     COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE


THE PEOPLE,                          B270653

       Plaintiff and Respondent,     (Los Angeles County
                                     Super. Ct. No.
       v.                            PA082907)

ARMANDO BICHARA,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Hilleri G. Merritt, Judge. Affirmed in part,
reversed in part, and remanded.
      Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.



                    _________________________
     This case concerns the impact of defendant Armando
Bichara‘s recorded confession to murder on his convictions for
murder and kidnapping. Defendant initially waived his right to
remain silent under Miranda,1 but invoked the right prior to
confessing to the murder, unambiguously stating to the
interrogating officers, ―I refuse to talk to you guys.‖ Defense
counsel forfeited defendant‘s challenge to admission of the
confession on this ground by failing to specifically and timely
object at trial. We hold that counsel‘s inaction resulted in a
prejudicial denial of effective assistance of counsel as to the
murder conviction, as the prosecutor relied upon the confession
heavily in her arguments to the jury. Defendant, however, was
not prejudiced with respect to the kidnapping conviction.
Evidence of that offense consisted of the victim‘s testimony,
surveillance video capturing the crime, and corroborating
testimony from two independent witnesses. Defendant did not
mention the kidnapping in his confession, nor did the prosecutor
rely on it when arguing the kidnapping charge. We therefore
reverse the murder conviction, affirm the kidnapping conviction,
and remand to the trial court to permit the People the option of
retrial on the murder charge.




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



                                2
                    PROCEDURAL HISTORY

          Defendant was convicted by jury in count 1 of the first
degree murder of Maria Ontiveros (Pen. Code, § 187),2 and in
count 3 of kidnapping Guadalupe Montellano (§ 207, subd. (a)).
Defendant was found not guilty in count 2 of dissuading a
witness. (§ 136.1, subd. (b)(1).)
       The trial court sentenced defendant to an indeterminate
prison term of 100 years to life, plus a determinate term of 6
years, calculated as follows: 25 years to life for the murder
conviction, which was tripled pursuant to the three strikes law
(§ 1170.12, subd. (c)(2)(A)(i)); 25 years to life for the kidnapping
conviction pursuant to the three strikes law (§ 1170.12, subd.
(c)(2)(A)(ii)); a 5-year term for one of the prior convictions (§ 667,
subd. (a)(1));3 and an additional 1-year term based on the jury‘s
finding defendant personally used a dangerous and deadly
weapon, the knife, in murdering Ontiveros (§ 12022, subd. (b)(1)).




      2Statutory references are to the Penal Code unless
otherwise stated.
      3 Although defendant suffered two prior robbery convictions
for purposes of the three strikes law, the convictions were not
brought and tried separately, and therefore counted as only one
prior conviction under section 667, subdivision (a).



                                   3
            FACTS AND TRIAL PROCEEDINGS

A. The Charged Offenses

      Defendant and Montellano were asleep in her car on the
afternoon of January 28, 2015, when Montellano‘s longtime
friend Ontiveros called Montellano and asked for a ride.
Montellano and defendant were homeless and living in her car at
the time. Montellano drove to pick up Ontiveros, who sat in the
back seat of Montellano‘s car. Defendant was in the front
passenger seat.
      Defendant and Montellano had been using drugs—
methamphetamine and PCP—that day.4 After Montellano
picked up Ontiveros, defendant and Ontiveros smoked
methamphetamine. Montellano was driving on the highway
when defendant asked her to pull into a gas station so he could
use the restroom. Montellano later joined defendant in the gas
station restroom where she found him ―already, like, kind of
 . . . trippin‘‖ and exhibiting signs of ―paranoia.‖ She asked
defendant to ―pack [her] a bowl‖ of methamphetamine, but
defendant ―never did because he was already, like paranoid.‖
According to Montellano, defendant would hallucinate when he
took drugs and was ―tripping.‖ He had been acting in a similar
manner for days, insisting Montellano was holding his family
hostage in Las Vegas during times he was under the influence.


     4 Montellano said she and defendant used drugs every day
during the eight months they had been seeing each other.
Montellano used PCP and methamphetamine, and drank alcohol.
Defendant used heroin and methamphetamine.



                                4
       Defendant and Montellano returned to the car. Montellano
resumed driving. Defendant was in the front passenger seat, and
Ontiveros remained in back, texting on her phone. As
Montellano was driving, she noticed defendant looking back and
forth ―a couple of times‖ between her and Ontiveros and thought
to herself, ―there he goes again tripping.‖ Montellano felt that
defendant was giving off an ―ugly vibe‖ as though he might ―snap
or something.‖ Defendant had displayed the same look several
days before when he struck her in the face, knocking out her
front teeth.
       Montellano noticed defendant had a long kitchen knife in
his lap. She asked him why he was ―flossing that shit,‖ meaning
why did ―he have [the knife] out.‖ Defendant did not answer.
Shortly thereafter, Montellano heard Ontiveros make a loud
noise that sounded like ―Ah.‖ Montellano looked in the rear view
mirror and saw Ontiveros turning purple, apparently unable to
breathe. She also saw defendant ―going back to his seat‖ from
Ontiveros‘s direction, with the knife in his hand. Montellano felt
something wet on her hands and in her hair, and realized it was
blood. Ontiveros‘s last words were, ―Why me? I never did
anything to you.‖
       Montellano said to defendant, ―What the fuck is wrong with
you, fool? That was my friend.‖ Defendant responded that
Ontiveros was ―one of them.‖ He told Montellano she was ―next,‖
which Montellano took to mean he was ―going to come after me.‖
Defendant took Montellano‘s hand to try to calm her down and
said he loved her, but he also said she was holding his family
hostage in Las Vegas. Montellano told defendant if he loved her,
he should give her the knife. Defendant repeated he loved her.




                                5
Montellano took the knife from him, wrapped it in a bandana or
rag, and placed it under her seat.
      Montellano pulled into an alleyway between a 7-Eleven and
a car wash in Pacoima, exited the car, and ran to a bus stop while
crying, intending to ask someone for help. Defendant followed,
continuing to insist Ontiveros was ―one of them‖ and trying to
kiss Montellano on the cheek. Eventually, defendant began
―pulling [her], telling [her] to stop,‖ and he threatened to harm
her son, at which point she returned to the car with defendant.
As Montellano got into the front passenger seat, she saw
defendant pull Ontiveros from the back seat and leave her body
on the ground.
      A video camera in the area captured footage, but no audio,
of portions of what took place after Montellano parked her white
car in the alley. As narrated by Montellano while testifying,5 the
video depicts her driving her car into the alley, with defendant in
the passenger seat. Montellano explained that the video shows
her getting out of the car while defendant was talking to her.
Montellano is seen exiting from the driver‘s side door and
reaching down for her cell phone, as defendant leaves the car
through the passenger door. As defendant walks around the
front of the car, the video shows Montellano walking to the rear
of the vehicle, away from defendant, heading in the direction of a
bus stop behind the car and on the street. Montellano is seen
walking quickly toward the adjacent street, still moving away
from defendant, as defendant reverses course and walks back
past the passenger side of car, now heading in the same direction
Montellano is moving. Montellano testified that defendant was

      5   We have independently reviewed the video recording.



                                 6
telling her ―to come here,‖ but she was confused and did not know
what to do. She did not want to get back in the car ―[b]ecause my
friend was in the back seat, dead.‖
       Defendant and Montellano moved out of view of the camera
for approximately one minute, while they were at the area of the
bus stop. Montellano testified that during this time period
defendant was trying to calm her down by telling her he loved her
and trying to kiss her on the cheek. A man was standing by them
watching while they were at the bus stop. They are next depicted
on the video adjacent to Montellano‘s vehicle, engaged in a
physical struggle lasting approximately ten seconds. Montellano
testified that defendant was pulling her, but she did not want to
go back to the car. Defendant continued to insist that she leave
with him. The video depicts Montellano pulling away from
defendant as he grabs onto her. Montellano escapes defendant‘s
grasp and moves quickly back toward the street, with defendant
following her.
       Defendant and Montellano again move toward the bus stop
by the street, where physical movement can be seen, although it
is not clear what is taking place. Montellano testified that
defendant continued to tell her to leave with him, but she
refused. Defendant tried to calm her down by kissing her on the
cheek and holding her hands. Defendant spoke in a regular tone
of voice, calling her ―babe.‖
       Over a minute later defendant and Montellano reappear in
the video. They walk toward the car together, side by side, with
their bodies in contact. Montellano testified that defendant was
holding her left arm at this point, a description not inconsistent
with the video. Montellano testified that she entered the
passenger side of the vehicle, as shown in the video, while



                                7
defendant walked to the driver side and waited for her to get in
the car. Although the view is partially blocked by a pillar,
defendant is seen on the video removing something from the car.
Montellano explained that defendant ―pulled my friend out‖ and
―drove away.‖ As the car drives off, a portion of what appears to
be a body is on the ground, next to where the driver side of the
car had been located.
       Montellano‘s description of what took place near the bus
stop was corroborated by two witnesses—Duly Baro and Manuel
Diaz. Baro was at the bus stop adjacent to where Montellano had
parked. She saw a bald Hispanic man arguing with a hysterical
Hispanic woman near the 7-Eleven. Baro feared the man would
put his hands on the woman. A white Nissan was parked in the
area. She told the police that the man called the woman ―babe.‖
Diaz was also by the bus stop. He saw a man and a woman
walking in his direction. The woman appeared to be ―trying to
get away.‖ The man spoke in a soft voice to the woman. She
tried to make a phone call, but was prevented from doing so by
the man. The woman said, ―No. No.‖ The couple returned to the
white car and left. Diaz saw a woman on the ground.
       After dumping Ontiveros‘s body, defendant drove to a gas
station and got out of the car. Montellano called her mother but
had no voice and was ―crying and crying.‖ Montellano‘s sister got
on the phone, and Montellano told her that her ―friend had got
stabbed in the back seat of my car.‖ She did not say who
committed the stabbing.
       Montellano and defendant walked away from the car at the
gas station. Defendant used heroin while Montellano drank rum
and cried. She then ran from defendant and hid. She called her
teenage daughter and told her she loved her. Montellano noticed



                                8
her car was gone. She called defendant and asked him to pick
her up.6 After they had been driving awhile, defendant stopped
at a drugstore and told Montellano to check the trunk for a body.
She told him he was ―tripping‖ and nobody was in the trunk but
got out of the vehicle to look, at which point defendant drove
away and left her. Montellano hitchhiked back to Los Angeles
where she told two friends what had happened and confirmed her
son was safe. She went to the police the next day.
      An autopsy revealed that Ontiveros died from a stab wound
to the chest, nearly six inches deep. The wound was consistent
with the kitchen knife recovered from under the driver‘s seat in
Montellano‘s car. The knife was not wrapped in a bandana or
other fabric when recovered from the vehicle. The medical
examiner estimated Ontiveros died 30 to 90 seconds after being
stabbed. Defendant‘s fingerprints and DNA were on the knife,
but no blood was found on it. There was no way to determine
when defendant left his fingerprints or DNA on the knife. DNA
belonging to an unidentifiable person other than defendant was
also found on the knife.7


      6Montellano testified she called defendant at that point in
time because she ―thought he was going to go and get my son.‖
      7 The  amount of DNA recovered from the knife was
approximately 15 percent of the police department‘s ideal target
sample. The criminalist who testified for the prosecution opined
the sample taken was sufficient to ―produce[ ] a usable profile‖
and estimated that the profile matched to defendant was
statistically distinct to a measurement of one in 300 million
unrelated people. The defense expert testified that the small
DNA sample size, combined with the presence of more than one
person‘s DNA, raised a probability of interpretative error that


                                9
B. Defendant’s Post-Arrest Statements and Their
Introduction into Evidence

     1. The interrogation

        On January 29, 2015, at the direction of law enforcement,
Montellano texted defendant and told him to meet her at a Little
Caesars pizza shop close to her family‘s home. When he arrived,
defendant was arrested by waiting police.
        Detectives Mario Santana and Daniel Robinson
interviewed defendant at around 3:00 p.m. on January 30.
Detective Santana read defendant his Miranda rights, which
defendant said he understood. Detective Santana told defendant
they had video of him pulling a girl who had been stabbed to
death out of a car in Pacoima. Defendant denied doing any such
thing and said he was not there. About nine minutes into the
conversation, defendant told Detective Santana he felt ―kind of
like I‘m detoxing. You know? And I can‘t really talk. I just need
to -- I just want to lay down for a little bit. You know?‖
Defendant added, ―Maybe later on, we could talk about it?‖
Detective Santana told defendant they could ―come back later‖
but defendant did not appear to be high. After defendant
continued to state he wanted to ―lay down,‖ Detective Santana
stopped the interview, telling defendant ―[m]aybe we‘ll come back
tomorrow or the next day.‖
        Detectives Santana and Robinson returned to interview
defendant the following day, at approximately 6:15 p.m.


rendered the conclusion defendant‘s DNA was on the knife
unreliable.



                               10
Defendant told the detectives he felt worse than the day before.
Detective Santana believed defendant did not look ill and did not
appear to be under the influence or going through withdrawal.
As he later said during his trial testimony, Detective Santana
believed defendant ―just -- he didn‘t want to be interviewed. That
was the fact, that he didn‘t want to be interviewed.‖
       Detective Santana asked defendant if he remembered they
had read him his Miranda rights the day before. Defendant said
he remembered. The detectives told defendant they had given
him a day to rest, that jail personnel indicated he was fine in
terms of eating, sleeping, and healthwise, and they had returned
to give him an opportunity to tell his side of the story. Detective
Santana told defendant ―we had the incident on video. You were
in the car, you got out of the car, you pulled somebody out of the
car, then you got in the driver seat, and then you drove away.‖
       As he had done the day before, defendant insisted he had
not done what the detectives were accusing him of (―I didn‘t do
that,‖ and, ―I didn‘t stab her‖). Defendant suggested the
detectives should instead talk to the person who lured him to the
location of his arrest (―Ask her,‖ i.e., Montellano). When asked if
he had anything to say in his defense, defendant responded,
―Yeah. That, man, you know, I‘m just really sorry, you know, for
what happened.‖ Defendant told the detectives he ―[didn‘t] feel
comfortable talking about it‖ and that he was ―just not in the
right position right now. I‘m coming down. Like, my nerves are
all messed up. You guys are hitting me with these questions and
everything.‖ The detectives told defendant his feelings were
normal under the circumstances but if he did not tell his side of
the story, someone else would. Detective Robinson then asked




                                11
defendant how he ended up pulling a dead girl from a car.
Defendant said he ―[didn‘t] even know what to say.‖
       At this point, approximately 10 minutes into the interview,
the following exchange took place:
       ―[Defendant]: Can I just go lay down?
       ―Detective Robinson: Well --
       ―[Defendant]: I just want to go lay down.
       ―Detective Santana: No. No. I -- I think we kind of need to
talk about this. Okay.
       ―[Defendant]: I don‘t really want to talk about it right now.
I want to just lay down.
       ―Detective Santana: Okay.
       ―[Defendant]: (Inaudible)
       ―Detective Santana: Well, here‘s the thing is that you did
that yesterday. Okay. We -- we -- we --
       ―[Defendant]: But I really do. I‘m still detoxing. I‘m not
lying to you.
       ―Detective Santana: I‘m not saying you‘re lying.
       ―[Defendant]: I did it for a long time. You know?
       ―Detective Santana: Okay. Okay. But look.
       ―[Defendant]: No. I‘m cool. I don‘t want to talk about this.
I want to go lay down.
       ―Detective Santana: All right. You know what? Let me
explain something, what‘s gonna happen. Okay, what‘s gonna
happen is that you‘re gonna go to court on Monday. Okay.
You‘re gonna get a lawyer. And the lawyer is gonna want to
somehow -- and you‘re gonna talk to your lawyer. And he‘s gonna
say, ‗Hey.‘ You know, ‗What happened?‘ And you‘re gonna have
to trust somebody to tell the truth.




                                12
       ―Okay. You need somebody to tell your side of the story.
And you‘re gonna go ahead and tell a lawyer, ‗This is what
happened,‘ and this and that, and you‘re gonna tell them how
you‘re feeling and what the deal is. And he‘s gonna say, ‗Okay.
Well‘ --
       ―[Defendant]: What‘s today? Sunday?
       ―Detective Santana: Today‘s Saturday.
       ―[Defendant]: Saturday?
       ―Detective Santana: We‘re not coming back tomorrow.
       ―Detective Robinson: No. This is it. We‘re done. We don‘t
want to play any games. We just want to get your side of the
story. We‘ve given you the opportunity. This ceases now.
       ―You‘ve had over 24 hours to chill out and relax. We left.
We let you [get] some food. Let you get some sleep. We‘ve been
checking on you to make sure you‘re good all day long, man. All
day long. [¶] . . . [¶] . . . [¶] . . . [¶]
       ―[Defendant]: I just want to go lay down real quick. I feel
dizzy right now. I feel all messed up.
       ―Detective Santana: Okay. You know what? I‘m dizzy, too.
All right. And I don‘t feel good. All right. But I‘m here because
you asked me to come back. All right. Yesterday, you asked us to
come back today. And you know what?
       ―[Defendant]: I just don‘t feel good, man. I want to go lay
down.[8]
     ―Detective Santana: Sit down.
     ―[Defendant]: (Inaudible)
     ―Detective Robinson: Sit down.


      8 Detective   Santana testified defendant quickly stood up at
this point.



                                  13
        ―[Defendant]: I want to go lay down.
        ―Detective Santana: You know what? You need to sit
down.
       ―[Defendant]: I want to go lay down. I‘m trying to tell you
guys I feel dizzy, man. I have cancer. I have cancer, sir.
       ―Detective Santana: Sit down. Hey, look.
       ―[Defendant]: Fuck, man.
       ―Detective Santana: Armando, you‘re going through a lot in
life. Okay.
       ―[Defendant]: Can I just go lay down, sir? Please? Please?
Please? I have cancer, man. I feel bad. I just want to relax.
       ―Detective Santana: You feel bad? What about this person
that is dead?
       ―[Defendant]: Damn, man. You guys -- seriously?
       ―Detective Santana: Seriously.
       ―[Defendant]: Can I go lay down, sir? Please? I refuse to
talk to you guys. There. That’s my side of the story. Can I just go
lay down, sir? Please?
       ―Detective Santana: Look it, I know you killed her.
       ―[Defendant]: There. Now can I go lay down, sir? Please?
       ―[Detective Santana]: And you -- you just cold-bloodedly
kill her?
       ―[Defendant]: I didn‘t cold-bloodedly kill nobody, man. I‘m
trying to just-- just relax right now. You keep bugging me with
these questions. You know?
       ―Detective Santana: Yeah. Yeah. These questions --
        ―[Defendant]: Can I go fucking lay down, please?[9]



        9A
         loud noise can be heard on the audio recording at this
point. Detective Santana testified defendant slammed both his


                                 14
       ―Detective Santana: You want to get (Inaudible)
       ―[Defendant]: Well, whatever, then, man. I just want to go
lay down.
       ―Detective Santana: All right.
       ―[Defendant]: I just want to lay down. That‘s it.
       ―Detective Santana: Huh?
       ―[Defendant]: I just want to lay down, sir. That‘s all I want
to do.‖ (Italics added.)
       After this colloquy, the detectives resumed telling
defendant they were giving him the opportunity to explain what
happened. About three and a half minutes later, defendant said
he ―thought my family was being kidnapped.‖ He spoke of people
following him and his girlfriend, and feeling as though his family
and his girlfriend and her family were all in danger. Defendant
said people had been following them on the night of Ontiveros‘s
death and indicated that Ontiveros ―had [both him and
Montellano] in the car‖ and ―was telling us to go to a certain
place,‖ which ―panicked‖ defendant. He said he looked at
Montellano, saw ―tears in her eyes‖ and ―felt like she was in
danger.‖ ―So that‘s when I did that to protect her,‖ defendant
said. The detectives confirmed he was sitting in the passenger
seat, Montellano was driving, and Ontiveros was in the backseat.
Defendant then told the detectives he wanted to talk about it

hands on the table and then ―immediately stood up and was very
aggressive,‖ in a stance to fight with his hands ―clenched.‖ He
was facing the detectives ―and then he turned and he started
facing the doorway to exit the room.‖ At that point, Detective
Santana stood too because he ―thought we were going to get in an
altercation, or he was going to try to exit the room, which he can‘t
do, because when we take him into that room to be interviewed,
there‘s no one on the floor for him to take him back to his cell.‖


                                15
later and resumed asking to lie down. After about another
minute or two, the detectives agreed to end the interview.

      2. The introduction of the statements into evidence

        During a pretrial hearing, the prosecutor represented that
she did not intend to admit defendant‘s statements unless he
chose to testify. Close to the end of her case-in-chief, the
prosecutor stated she had changed her mind. She provided
unredacted copies of the transcript and audio recording to the
court for review, stating that defense counsel already had the
material, and she was uncertain whether there would be an
objection to its admission. Defense counsel responded, ―Of course
there will be an objection.‖ Counsel stated that he objected ―[t]o
all of it, any of it, the left side, right side, both sides. Miranda,
hearsay‖ and prejudice.
        The trial court inquired whether defense counsel was
familiar with the recordings. Counsel said he ―read the
transcript, et cetera,‖ but he did not have his copy with him. The
prosecutor said she had emailed the transcript to defense
counsel, and offered to let him use an extra copy in her
possession. Defense counsel replied, ―I do have them, but I didn‘t
bring them to court right now.‖ Counsel explained that he
―thought we were going to handle it tomorrow morning. That‘s
why I didn‘t bring it with me.‖ The court asked counsel which
portions of the transcript were at issue:
        ―The Court: . . . I imagine that, if anything, it is going to be
admitted, it would be from Miranda on? [¶] Thoughts, [Defense
counsel]?
        ―[Defense counsel]: What page now?



                                  16
       ―The Court: Well, Miranda was given, I think I said page
15, line 15, by Detective Santana. [¶] . . . Tentatively, I would
say in the first [transcript], post-Miranda everything comes in.
But I don‘t think there‘s any reason for the pre-things to come
in.‖
       The parties then addressed the transcript of defendant‘s
initial interview. The court expressed concern about references
to defendant‘s drug use and gang tattoo and moniker, which the
prosecutor agreed could be redacted. The court stated that, other
than the ―gang stuff‖ everything in the first interview ―seem[ed]
pretty palpable.‖ The prosecutor responded that the references
defendant made to his cancer should be redacted as irrelevant.
The court replied that the statements were relevant to
defendant‘s state of mind, and defense counsel agreed, asserting
that he thought ―all the things that go to his state of mind at that
time should come in.‖ The court admitted the cancer references
―under the doctrine of completion.‖
       The parties then discussed proposed redactions of the
transcript of the second police interview. The court suggested
redacting a portion of the statement discussing gangs. The
prosecutor agreed. Defense counsel expressed concern about
redacting the gang discussion, stating, ―There might be
something about that that is useful. I wouldn‘t want to tilt my
hat to show my closing arguments.‖ The court concluded that the
discussion should be redacted because Montellano had already
testified and had been admonished not to mention anything
gang-related. Defense counsel relented. The court then ordered
redacted two more passages regarding gang affiliation and
defendant‘s parole status, and all discussion that occurred prior




                                17
to the Miranda warning. The prosecutor presented defense
counsel with the redacted transcripts for review the next day.
       The following day, defense counsel inquired as to whether
certain portions of the transcript that occurred before police gave
defendant the Miranda warning could be admitted:
       ―The Court: Here‘s the problem: it either comes in, or it
doesn‘t come in. . . . So I‘m not going to let you cross[-examine]
on things that came in before [the Miranda warning] because
they have already been excluded by your motion yesterday, which
I granted.
       ―[Defense counsel]: Well, we excluded particular types of
statements regarding gangs, and stuff like this. It wasn‘t
necessarily that I moved to exclude what came before that
[Miranda] statement, per se.
       ―The Court: What is it you want in particular from that
pre-Miranda portion?
       ―[Defense counsel]: There‘s no particular statement, per se.
It‘s just there‘s a lot of -- my client expressing his not feeling well.
       ―The Court: He does that throughout after the Miranda is
given as well. I think at this point it would just be cumulative.
       ―[Defense counsel]: What if I establish the fact that it was
conversation, not going into any of the content?
       ―The Court: What is the relevance of that?
       ―[Defense counsel]: Because there was conversation, it was
heated, and at some points maybe a little intimidating, maybe
not. But there‘s a dynamic that is not present in the --
       ―The Court: That would be more of a 402 ruling for me to
determine whether the Miranda was given, the waiver was given
by your client without coercion. That‘s an issue for me, not the
jury.



                                  18
        ―I don‘t think -- yesterday I asked if you wanted everything
pre-Miranda to be excluded. You indicated you did. So now you
want to talk about well, before Miranda, warnings were given.
That somehow makes it seem like there was something wrong
being done. That‘s my call, not their call.
        ―So Miranda issues are a question of law. It‘s a
foundational issue. I have seen nothing -- I haven‘t heard the
audio, but I wasn‘t asked to hear the audio before. So that‘s a
ruling for me, not the jury.‖
        The prosecutor represented that she had listened to the
audio recording and that ―it seemed very conversational.‖ She
stated that if the pre-Miranda transcript was admitted she
should be allowed ―to ask about statements that were pre-
Miranda, and the audio should come in its entirety, and if
defendant mentions it while he is on the stand, I‘m going into it,
all of it.‖
        Defense counsel did not respond.
        The court concluded: ―Fair enough. Either it comes in or it
doesn‘t. You asked yesterday it didn‘t. I ruled in your favor.
[The prosecutor] redacted the CD and the transcripts in
accordance with that, and I see no reason you should be able to go
in to anything pre-Miranda. [¶] So that‘s the ruling.‖
        On the same day, following the first portion of her
examination of Detective Santana, the prosecutor moved to have
the transcripts and audio recordings of defendant‘s interviews
with police admitted into evidence. The court asked if there were
any objections and defense counsel responded there were not. He
clarified, ―I should say there‘s [sic] no objections. Whatever
objections I’ve made, I’m now withdrawing.‖ (Emphasis added.)
During Detective Santana‘s testimony, the prosecutor played the



                                19
redacted audio recording of defendant‘s post-arrest interviews,
including the incriminating admissions defendant made after
defendant told the detectives he refused to talk to them.

C. The Parties’ Closing Arguments to the Jury

      1. The prosecutor’s argument

       The prosecutor argued defendant was guilty of first degree
murder. She relied principally on Montellano‘s testimony, but
also highlighted defendant‘s post-arrest admissions (including his
statement that he ―did that‖ to protect Montellano) and argued
his statements were ―very similar to what [Montellano] says he
said to her.‖ On the kidnapping charge, the prosecutor again
relied on Montellano‘s testimony, but also methodically went
through the surveillance video footage depicting defendant
pulling Montellano back to her car, corroborated by the testimony
of the two bystander witnesses near the bus stop. The
prosecutor‘s argument did not suggest defendant had confessed to
the kidnapping. Her argument on the kidnapping charge made
no reference to defendant‘s statements during interrogation.

      2. Defense counsel’s argument

      Defense counsel attacked Montellano‘s credibility in his
argument to the jury. He emphasized Montellano admitted using
PCP on the day in question, she had prior felony convictions
(including a conviction for robbery), and she testified at trial in a
manner inconsistent with her preliminary hearing testimony. By




                                 20
calling into question Montellano‘s credibility, the defense sought
to mount a two-part challenge to the evidence.
      First, the defense argued there was insufficient evidence
for the jury to conclude defendant was even present in the car
with Montellano or that he was the man depicted in the video
surveillance footage. Instead, the defense suggested the other
man involved could have been her ex-boyfriend going by the
name of ―Trigger‖ who she had mentioned in a letter written to
defendant.10
       Second, assuming the jury believed defendant was the man
in the car with Montellano, the defense argued there was still
insufficient evidence to prove defendant was the one who stabbed
Ontiveros. Defense counsel argued: ―[A] person has just been
stabbed in her car, and she‘s there. She‘s -- she has a motive to
lie. You know she also has a history of violence. Is it possible
that she had an altercation with her friend? Is it possible that
none of the imagery in your minds from the description
rendered . . . largely through the district attorney‘s own voice -- is
it possible that that‘s just not how it happened? It‘s essentially
possible anything could have happened in that car and Ms.
Montellano is not a reliable enough witness to hang a conviction
on. [¶] She has a motive to lie. She has her own criminal




      10 The record is devoid of substantive evidence of any
involvement of the person identified as ―Trigger‖ in the charged
offenses. Defendant‘s statements pre-invocation of his right to
remain silent show his own presence at the scene, as he directed
the detectives to ask the other person who was there, meaning
Montellano, what had happened.



                                 21
exposure in that situation. And she has time to fabricate her
story before speaking to the police.‖

      3. The prosecutor’s rebuttal argument

      The prosecutor relied upon defendant‘s post-arrest
statement to contradict the suggestion defendant may not have
been the person to stab Ontiveros. The prosecutor replayed the
audio recording of the interrogation and argued it demonstrated
defendant ―self-corroborat[ed]‖ Montellano and required the
jurors to ―disbelieve your own ears when you[ ] listen to that
audio‖ if they were to accept the defense theory and conclude
there was a reasonable doubt as to whether defendant was the
person who killed Ontiveros. No mention was made of defendant
making an admission or confession to the kidnapping.

                         DISCUSSION

      Defendant contends in his opening brief that the trial court
committed reversible error by (1) admitting into evidence his
inculpatory statements to police detectives in violation of
Miranda; (2) instructing the jury that defendant‘s voluntary
intoxication could be considered only on the question of whether
he harbored an intent to kill, and not as to whether he acted with
premeditation and deliberation as required to support a first
degree murder conviction; and (3) the abstract of judgment
incorrectly states defendant must pay $457 in attorney fees
pursuant to section 987.8.
      The Attorney General responded to the first contention by
arguing defendant forfeited the Miranda contention by failing to



                                22
make a specific objection in the trial court. She also argued there
was no Miranda violation, and that any error was harmless
beyond a reasonable doubt. In his reply brief, defendant argued
the Miranda invocation issue was not forfeited, but if so, trial
counsel was constitutionally ineffective in failing to make an
express objection that defendant invoked his right to remain
silent prior to confessing to the murder. Because the Attorney
General did not have an opportunity to address the claim of
ineffective assistance of trial counsel, we provided her an
opportunity to brief the issue by letter.
       As explained below, defendant‘s contention that his
confession followed an invocation of his Miranda right to remain
silent is forfeited due to the absence of a timely and specific
objection, as well as defense counsel‘s subsequent withdrawal of
all objections to the prosecution evidence. Defendant‘s secondary
position—that trial counsel was ineffective in failing to make an
objection to preserve the Miranda invocation issue for appeal—is
meritorious. Defendant has established prejudice and reversal is
required of the conviction for first degree murder. Defendant has
not, however, established prejudice as to his conviction of
kidnapping in count 3, which we affirm.
       Because we reverse the murder conviction, defendant‘s
claim of instructional error on the murder charge is moot and
need not be discussed. The written order that defendant pay
$457 in attorney fees is also reversed, because as argued by
defendant and conceded by the Attorney General, that order was
not part of the oral pronouncement of judgment. (People v. Farell
(2002) 28 Cal.4th 381, 384, fn. 2.)




                                23
A. The Right to Remain Silent under Miranda

       To protect a suspect‘s Fifth Amendment privilege against
self-incrimination, Miranda requires that, before custodial
interrogation, law enforcement agencies must advise a suspect of
the right to remain silent, that any statement made can be used
against him or her in a court of law, that the suspect has the
right to the presence of an attorney, and that if he or she cannot
afford an attorney, one will be appointed prior to any questioning
if requested. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085–
1086; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 215.)
Interrogation must cease if, at any point, the suspect
unambiguously invokes the right to remain silent.11 (Berghuis v.
Thompkins (2010) 560 U.S. 370, 381–382 (Berghuis); People v.
Lessie (2010) 47 Cal.4th 1152, 1162; People v. Stitely (2005) 35
Cal.4th 514, 535.) ―A statement obtained in violation of a
suspect‘s Miranda rights may not be admitted to establish guilt
in a criminal case.‖ (People v. Jackson (2016) 1 Cal.5th 269, 339
(Jackson).)




      11 Law  enforcement officers are not required to ask
clarifying questions or to cease questioning altogether in
response to a suspect‘s ambiguous or equivocal statement
regarding the desire to remain silent. (People v. Martinez (2010)
47 Cal.4th 911, 947–948; accord, Berghuis, supra, 560 U.S. 370,
381; People v. Bacon (2010) 50 Cal.4th 1082, 1107–1108, fn. 5.)



                                24
B. Forfeiture

       Citing People v. Rundle (2008) 43 Cal.4th 76 (Rundle)12 the
Attorney General argues that defense counsel‘s generic initial
reference to Miranda in his objection was not sufficiently specific
so as to preserve defendant‘s claim that he unambiguously
invoked his right to remain silent. The defendant in Rundle
argued on appeal that ―he invoked his right to remain silent . . .
when he told [officers] he wanted to stop the interview because he
had a headache and wished to return to his cell.‖ (Id. at p. 115.)
The Rundle court held that the invocation of rights issue was
forfeited, because Rundle ―never raised this claim in the trial
court. He filed only a generic written motion requesting the
suppression of all statements made to the authorities, without
any discussion of which particular grounds for suppression
existed; indeed, his attorney conceded after the first suppression
hearing that there was no basis to challenge the admission of the
statements made by defendant . . . on grounds of involuntariness,
and never mentioned an invocation of the right to silence. No
further testimony or argument regarding an invocation of the
right to remain silent during the interviews . . . was offered at the
second hearing, and the trial court made no finding regarding
whether defendant invoked his right to silence at the conclusion
of the first interview.‖ (Ibid.)
       Citing Evidence Code section 353, subdivision (a), and its
own jurisprudence, the Rundle court held that a judgment may
be reversed because of erroneous admission of evidence only if


      12Rundle was disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.



                                 25
there is a timely and specific objection. (Rundle, supra, 43
Cal.4th at p. 116.) A ―‗placeholder‘‖ objection, on general or
incorrect grounds, is not sufficient to preserve a specific issue.
(Ibid.) The ―entirely generic motion to exclude all of [Rundle‘s]
statements to law enforcement officers, coupled with the absence
of specific argument that defendant had invoked his right to
silence at the end of the first interview, failed to preserve this
claim for appeal. [Citation.]‖ (Ibid., fn. omitted.)
       Here, when advised the prosecutor had changed strategy
and would seek to introduce defendant‘s recorded statements in
her case-in-chief, defense counsel stated that he objected ―to all of
it, any of it, the left side, right side, both sides. Miranda,
hearsay‖ and prejudice, while never mentioning a claim that
defendant had invoked his right to remain silent. As to the
generic Miranda objection, the trial court reasonably focused on
whether defendant had been provided his Miranda rights, and
after determining he had, tentatively noted that ―post-Miranda
everything comes in.‖ Over the course of the two days, as the
parties discussed redactions to the statement and the scope of
cross-examination of the detective, defense counsel never once
mentioned that defendant invoked his right to remain silent.
And in the end, as the prosecutor moved to introduce exhibits,
including the audio recording of defendant‘s interview, defense
counsel responded, ―I should say there‘s no objections. Whatever
objections I’ve made, I’m now withdrawing.‖ (Emphasis added.)
       Although the prosecutor changed strategy late in the trial
when she decided to offer defendant‘s confession to murder
during her case-in-chief, this is not a case in which defense
counsel was taken by surprise and thereby relieved of the
obligation to make a specific and timely objection. (See In re



                                 26
Khonsavanh S. (1998) 67 Cal.App.4th 532, 537 [exercising
discretion to eschew forfeiture where defense counsel had little
time to react and was ―utterly surprised‖ by court‘s order]; see
also In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [citing In re
Khonsavanh S. with approval].) When the prosecutor announced
her new decision, the court immediately asked defense counsel if
he was familiar with the recordings. Counsel had ―read the
transcript, et cetera,‖ but he did not have his copy with him. The
prosecutor had emailed the transcript to defense counsel and
offered him an extra copy in her possession. Defense counsel
stated, ―I do have them, but I didn‘t bring them to court right
now,‖ because ―I thought we were going to handle it tomorrow
morning. That‘s why I didn‘t bring it with me.‖ Defense counsel
was aware of the issue, although perhaps mistaken about the
timing, but he had ample time to formulate an invocation of
rights objection during the ensuing discussion, which spilled over
to the following day. The failure to make a timely and specific
objection cannot be excused on the basis of surprise.
      Based on the holding in Rundle, we conclude that
defendant failed to make a specific and timely objection to
introduction of his recorded statement on the ground that he had
invoked his right to remain silent. Whatever objections had been
made were expressly withdrawn. The issue of whether defendant
invoked his right to remain silent was never tendered to the trial
court and, as in Rundle, ―the trial court made no finding
regarding whether defendant invoked his right to silence.‖
(Rundle, supra, 43 Cal.4th at p. 115.) The issue is forfeited.




                                27
C. Effective Assistance of Trial Counsel

       Defendant contends that counsel‘s failure to object based on
his clear invocation of the right to remain silent—―I refuse to talk
to you guys. There. That‘s my side of the story‖—resulted in a
denial of the effective assistance of counsel. We agree that
effective counsel would have made an objection and that there is
no imaginable tactical reason for failing to object, because there
is nothing favorable to defendant in his statement after he
invoked the right to remain silent, nor did counsel use the
statement to defendant‘s advantage in argument. Defendant
suffered prejudice as to the murder conviction in count 1, but not
as to the kidnapping conviction in count 3.

      1. The right to effective assistance of trial counsel

       A criminal defendant has the right to the effective
assistance of counsel. (Strickland v. Washington (1984) 466 U.S.
668, 686 (Strickland), citing McMann v. Richardson (1970) 397
U.S. 759, 771, fn. 14.) ―Counsel . . . can . . . deprive a defendant of
the right to effective assistance, simply by failing to render
‗adequate legal assistance.‘‖ (Strickland, supra, at p. 686, citing
Cuyler v. Sullivan (1980) 446 U.S. 335, 344.) The purpose of
effective assistance of counsel is ―to ensure a fair trial,‖ which is
judged by deciding ―whether counsel‘s conduct so undermined the
proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.‖ (Strickland, supra,
at p. 686.) The Miranda protection of a defendant‘s Fifth
Amendment privilege against self-incrimination ―safeguards ‗a
fundamental trial right.‘ [Citations.]‖ (Emphasis added.)



                                  28
(Withrow v. Williams (1993) 507 U.S. 680, 691; see also Arizona
v. Fulminante (1991) 499 U.S. 279, 310 [―The admission of an
involuntary confession is a ‗trial error,‘ similar in both degree and
kind to the erroneous admission of other types of evidence.‖].)
       ―A convicted defendant‘s claim that counsel‘s assistance
was so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must show
that counsel‘s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not
functioning as the ‗counsel‘ guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel‘s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.‖
(Strickland, supra, 466 U.S. at p. 687.)
       Where a claim of ineffective assistance is premised on the
failure to file a timely motion to suppress evidence, the defendant
must show (1) a failure to provide objectively reasonable
representation, (2) that the motion would have been meritorious,
and (3) ―that there is a reasonable probability that the verdict
would have been different absent the excludable evidence.‖
(Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [failure to file
motion to suppress evidence under the Fourth Amendment].)
―[T]he Strickland ‗reasonable probability‘ standard applies to the
evaluation of a Sixth Amendment claim of ineffective assistance
of counsel, even when defense counsel‘s alleged error involves the
failure to preserve the defendant‘s federal constitutional rights.



                                 29
(E.g., People v. Ledesma [(1987)] 43 Cal.3d [171,] 208–209, 217
[applying Strickland’s ‗reasonable probability‘ test for prejudice
to defense counsel‘s alleged deficiencies, including failure to
protect defendant‘s Fourth Amendment rights by filing
suppression motion directed to telephone call intercepted by
police after warrantless entry of defendant‘s residence]; In re
Avena (1996) 12 Cal.4th 694, 721–722, 731 [applying Strickland
standard to counsel‘s failure to object to defense counsel‘s waiver
of defendant‘s right not to appear before jury in jail clothes]; see
People v. Gonzalez (1998) 64 Cal.App.4th 432, 437 (opn. of
Johnson, J.).)‖ (People v. Mesa (2006) 144 Cal.App.4th 1000,
1008–1009.)

      2. Application of the first prong of Strickland

       To satisfy the first prong of Strickland in this case,
defendant must establish that his attorney‘s performance was
unreasonable ―under prevailing professional norms‖ (Strickland,
supra, 466 U.S. at p. 688) when counsel failed to pursue an
objection that defendant invoked his right to remain silent when
he told the detectives, ―I refuse to talk to you guys. There. That‘s
my side of the story.‖ Determination of whether counsel‘s
performance was inadequate under this standard requires
analysis of the admissibility of the confession. We conclude the
confession was inadmissible as a matter of law.
       ―‗Where, as was the case here, an interview is recorded, the
facts surrounding the admission or confession are undisputed and
we may apply independent review.‘ (People v. Duff (2014) 58
Cal.4th 527, 551.) We review issues concerning the suppression
of such statements under federal constitutional standards.



                                 30
(People v. Nelson (2012) 53 Cal.4th 367, 374.)‖ (Jackson, supra, 1
Cal.5th at p. 339; see Berghuis, supra, 560 U.S. at pp. 381–382;
People v. Tom (2014) 59 Cal.4th 1210, 1225 (Tom).) We consider
the full context of the interrogation and assess whether ―a
reasonable police officer in the circumstances would understand
the statement[s]‖ to be an unambiguous request to stop further
questioning. (Davis v. United States (1994) 512 U.S. 452, 459; see
also Berghuis, supra, at pp. 381–382; Tom, supra, at p. 1228.)
       At the beginning of the interrogation exchange defendant
told the detectives he ―[didn‘t] really want to talk about it right
now.‖ Shortly after that, defendant said, ―No. I‘m cool. I don‘t
want to talk about this. I want to go lay down.‖ These two
statements do not establish that defendant unambiguously
exercised his right to cut off further questioning. (See People v.
Williams (2010) 49 Cal.4th 405, 432–433 [accused‘s statement, ―‗I
don‘t want to talk about it,‘‖ is not an invocation of Miranda
rights but rather an expression of frustration that officers did not
accept his repeated assertions that he was not acquainted with
the victim]; People v. Jennings (1988) 46 Cal.3d 963, 977–978
[accused‘s statement, ―‗You‘re scaring the living shit out of me.
I‘m not going to talk,‘‖ not an invocation of right against self-
incrimination but rather an angry outburst]; compare Berghuis,
supra, 560 U.S. at p. 382 [if a defendant says ―he d[oes] not want
to talk with the police,‖ that ―simple, unambiguous statement[s]‖
would invoke the ―‗―right to cut off questioning‖‘‖].)
       After defendant twice told the detectives he did not want to
answer questions about what happened to Ontiveros, defendant
stood up to signify his desire to leave the interrogation room and
bring an end to the questioning. The detectives did not halt the
interrogation, but instead they resumed questioning after



                                31
ordering defendant to sit back down. Defendant made yet
another attempt to cease answering questions using explicit
terms: ―I refuse to talk to you guys. There. That‘s my side of the
story. Can I just go lay down, sir? Please?‖ A reasonable officer
under the circumstances would have understood this statement—
especially in context of defendant‘s prior expressions of a desire
not to talk and his repeated requests to leave the interrogation
room to go lie down—to be an invocation of his right to decline to
answer further questions and end the interview. (See Jackson,
supra, 1 Cal.5th at pp. 336, 339 [―‗Man just take me to jail man. I
don‘t wanna talk no more‘‖ invokes the right to remain silent].)13
      The interrogation that followed defendant‘s statement that
he refused to talk to the officers was a violation of Miranda.
Defendant‘s incriminating statements, which came only after the
detectives did not honor his invocation of his right to cut off
further questioning, should not have been admitted during the
prosecution‘s case at trial. (People v. Wash (1993) 6 Cal.4th 215,
238 [once a request to remain silent is made, ―it must be
‗scrupulously honored‘; the police may not attempt to circumvent
the suspect‘s decision ‗by refusing to discontinue the
interrogation upon request or by persisting in repeated efforts to
wear down his resistance]; (People v. Sims (1993) 5 Cal.4th 405,
440. [―Statements obtained in violation of Miranda are
inadmissible to establish guilt‖].)


      13  The Attorney General did not dispute in Jackson that
the defendant had invoked his right to remain silent through the
statement quoted above in the text. The issue decided on appeal
was whether the defendant later ―reinitiated contact with the
officers.‖ (Jackson, supra, 1 Cal.5th at p. 339.)



                                32
      Professional norms require competent counsel to object to a
confession obtained in violation of Miranda, unless there are
tactical reasons to admit the statement, a circumstance not
present in this case. Defendant has satisfied the first prong of
Strickland.

      3. Application of the second prong of Strickland

       ―Even if a defendant shows that particular errors of counsel
were unreasonable . . . the defendant must [also] show that they
actually had an adverse effect on the defense.‖ (Strickland,
supra, 466 U.S. at p. 693.) ―The defendant must show that there
is a reasonable probability that, but for counsel‘s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.‖ (Id. at p. 694.)
       We discuss the issue of prejudice separately as to the
murder and kidnapping convictions.

            a. Prejudice as to the murder conviction

      While the Attorney General makes a determined argument
on prejudice as to the murder, we are satisfied that defendant
has carried his burden of establishing a ―reasonable probability‖
under Strickland of a different result on the murder charge had
his confession been excluded. The prosecution‘s case was built on
Montellano‘s testimony that defendant stabbed Ontiveros, and
other evidence that points in that direction. While Montellano‘s
testimony certainly constitutes substantial evidence to support
the conviction of murder, her credibility was in dispute at trial.



                                33
Montellano was in the car at the time Ontiveros was killed, she
had prior felony convictions, there were some conflicts between
her trial testimony and her prior statements, and she was a
regular drug user who admitted ingesting PCP on the day
Ontiveros was killed. Her demeanor at trial made
communication difficult, to the point that the prosecutor felt
compelled to ask her why she would turn away from the jury and
―hunch over‖ while testifying, and why ―[t]here were several
times that before you answered a question, you would look over
in the direction of [defendant] and start to cry.‖14
       The prosecution made compelling use of defendant‘s post-
invocation confession during closing argument to counter the
defense efforts to sow reasonable doubt as to the murder.
Introduction of the confession played a significant role in
defendant‘s conviction. The prosecutor effectively argued that
defendant‘s confession corroborated Montellano‘s version of the
murder. As a general matter, confessions constitute compelling
proof of a defendant‘s guilt, and improper admission of a
confession in violation of Miranda is more likely to be prejudicial
than other evidentiary errors. (See People v. Cahill (1993) 5
Cal.4th 478, 503 (Cahill) [inadmissible confessions are more
likely to affect the outcome of a trial than are other categories of
evidence, as confessions invariably provide persuasive evidence of
a defendant‘s guilt and operate as an ―‗evidentiary bombshell
which shatters the defense‘‖].) Defendant‘s post-invocation
statements provided much-needed corroboration of Montellano‘s
testimony.


      14Montellano‘s answer to both of these questions was, ―I
don‘t know.‖



                                34
      Under these circumstances, we conclude counsel‘s failure to
object to defendant‘s confession on the ground it followed an
invocation of his Miranda rights was ―unreasonable‖ and the
error ―actually had an adverse effect on the defense.‖
(Strickland, supra, 466 U.S. at p. 693.) The conviction of murder
in count 1 must be reversed.

            b. Lack of prejudice as to the kidnapping conviction

      The circumstances pertaining to the kidnapping conviction
stand in sharp contrast to the murder charge.15 Our first
consideration is the fact that defendant‘s post-invocation
confession to the killing of Ontiveros makes no mention of any
aspect of the kidnapping. In other words, defendant seeks
reversal of the kidnapping count, but there is no inadmissible
statement relating to that offense.
       Second, defendant made statements prior to his invocation
of the right to remain silent, which show his consciousness of
guilt and corroborate portions of Montellano‘s testimony as to the


      15 The kidnapping occurred, according to the prosecutor,
when Montellano ―was at the bus stop and did not want to get
back in that car.‖ In a supplemental letter brief to the court,
defense counsel on appeal recognized that ―the prosecutor
specifically relied on the incident occurring when they exited the
vehicle in the alley near the bus stop/7-Eleven,‖ and the
―prosecutor relied upon the alleged threats made by [defendant]
to Montellano, as recounted in the testimony of Montellano.‖
The letter brief also recognizes ―the video does show the two
people in an apparent disagreement and physically struggling
with each other . . . .‖



                                35
kidnapping. Before defendant invoked his right to remain silent,
detectives confronted him with the fact there is a video showing
defendant pulling Ontiveros‘s lifeless body from the car and
driving away. Despite irrefutable evidence to the contrary,
defendant denied his conduct as shown on the video and denied
he was even present at the scene. The contrary views expressed
by the dissent are incorrect. Defendant‘s denials demonstrate a
consciousness of guilt. (See People v. Green (1980) 27 Cal.3d 1,
40–41 [jury may infer consciousness of guilt where defendant‘s
statements to the police are inconsistent with the evidence
presented at trial].) Defendant also placed himself at the scene
by telling the detectives, prior to invoking the right to remain
silent, that they should talk to the other person who was there.
His false denial, and his admission to being present at the scene
of the kidnapping, indicate that Montellano‘s version of the
events at the time of the kidnapping are accurate.
       Third, the prosecutor‘s argument to the jury as to the
kidnapping charge made no mention of defendant‘s confession to
the murder. Instead, the prosecutor relied on Montellano‘s
testimony, which was corroborated by ―a videotape of the
commission of the crime‖ of kidnapping. (See People v. Neal
(2003) 31 Cal.4th 63, 86, citing Cahill, supra, 5 Cal.4th at p. 503
[a video recording of a crime could support a finding that
erroneous admission of a confession is harmless beyond a
reasonable doubt, a higher standard than applicable to a claim of
ineffective assistance of counsel].) The prosecutor played the
video recording for the jury during argument, highlighting how it
corroborated Montellano‘s testimony.
       The most powerful reason any error was harmless as to the
kidnapping is the video recording. The recording is consistent



                                36
with Montellano‘s testimony that she was trying to get away from
defendant, and that he physically coerced her to return to her car.
She is seen exiting her car and moving quickly away from
defendant, toward the street where the bus stop is located.
Although not entirely clear, there is some physical interaction
between Montellano and defendant before they move out of the
camera‘s view. About one minute later they reappear in the
video, slightly to the left and behind the car, engaging in a
physical struggle. The recording clearly shows Montellano
struggling to escape defendant‘s grip, as he tries to pull her to the
car. Montellano manages to break away from defendant, and
again moves quickly toward the street, away from the car, with
defendant in pursuit. Physical contact again appears to be
taking place by the street, although the recording is not clear
enough to determine exactly what is taking place. When they
appear again on the recording, they are side by side, with
physical contact taking place, which Montellano explained was
defendant grabbing her by the arm on the way back to the car.
Just as Montellano testified—and contrary to defendant‘s false
statement to the detectives prior to invoking his right to remain
silent—the video shows him dumping Ontiveros‘s lifeless body in
the alley. There is nothing on the video recording that is helpful
to defendant as to the kidnapping charge.
      Objectively viewed, the video demonstrates the veracity of
Montellano‘s testimony that she had no desire to return to a car
containing her deceased friend, and that she was forced to do so
physically by defendant and under the influence of his threat to
hurt her son. All defendant can muster to refute the video is
―pointing to flaws and inconsistencies in‖ Montellano‘s




                                 37
testimony,16 but ―the defense failed to rebut the foregoing
evidence or to raise any credible defenses‖ to the kidnapping
charge. (See People v. Johnson (1993) 6 Cal.4th 1, 32–33,
abrogated on other grounds by People v. Rogers (2006) 39 Cal.4th
826, 879–880.)
       We add to the compelling weight of the video recording the
corroborating testimony of Baro and Diaz, wholly independent
witnesses who described what occurred by the bus stop and in the
alley in terms consistent with Montellano‘s version of events.
Baro saw a hysterical woman—obviously Montellano—arguing
with a bald Hispanic man—obviously defendant. The argument
was sufficient that Baro feared the man would put his hands on
the woman, which is exactly what is shown on the recording.
Baro told the police that the man called the woman ―babe,‖ again
corroborating Montellano. Diaz was more explicit. He saw a
woman who appeared to be ―trying to get away.‖ Diaz also
testified that the man spoke in a soft voice to the woman. She
tried to make a phone call, but was prevented from doing so by
the man. The woman said, ―No. No.‖17
       The burden is on defendant to establish prejudice under the
second prong of Strickland. We are satisfied his confession to




      16Not surprisingly, defense counsel‘s argument to the jury
made no mention of the video recording, as there was nothing
favorable to defendant in it as to the kidnapping.

       The dissent, for reasons unexplained, fails to
      17
acknowledge the existence of this evidence.



                               38
murder did not result in an unreliable result at trial as to the
kidnapping. 18

                          DISPOSITION

       Defendant‘s conviction of murder is reversed. The
conviction of kidnapping is affirmed. The cause is remanded to
the trial court to allow the prosecution the opportunity to retry
the murder charge. When a new abstract of judgment is
prepared, the trial court is directed to delete the reference to
payment of $457 in attorney fees pursuant to Penal Code section
987.8.



            KRIEGLER, Acting P.J.

I concur:

            KUMAR, J.

      18 Our dissenting colleague does not acknowledge the
standard of review in the context of the claim of ineffective
assistance of counsel. The subjective standard of review adopted
by the dissent—―I cannot hold harmless the admission of the
incriminating statements‖—apparently shifts the burden on the
issue of prejudice to the prosecution, in conflict with decisions of
the United States and California Supreme Courts, which require
the defendant to show probability of a more favorable result.
      
       Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                 39
The People v. Armando Bichara
B270653


BAKER, J., Concurring in Part and Dissenting in Part



      The interrogation of defendant Armando Bichara presents
a textbook violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). Not only did the interviewing detectives refuse to
honor defendant‘s unambiguous invocation of his right to cut off
further questioning during the interrogation,1 the testimony of

1
       The majority opines that two statements defendant made
before telling the detectives ―I refuse to talk to you guys‖ do not
qualify as unambiguous invocations of the right to remain silent.
(Maj. Opn. at p. 31.) As is true in many instances where a court
expresses a view on a point not necessary to its decision, the
observation is inadvisable. There is binding and persuasive
authority that suggests otherwise. (See, e.g., Berghuis v.
Thompkins (2010) 560 U.S. 370, 382 [if a defendant says ―he
d[oes] not want to talk to the police,‖ that ―simple, unambiguous
statement‖ would invoke the right to cut off questioning]; People
v. Villasenor (2015) 242 Cal.App.4th 42, 65 [minor ―defendant‘s
repeated demands to be taken home, to have his parents called to
pick him up, and to wait out the 48 hours,‖ he could be held
before charges filed unambiguously invoked his right to end the
interrogation]; In re Z.A. (2012) 207 Cal.App.4th 1401, 1420-1421
[accused unambiguously invoked her right to remain silent by
saying she did not want to answer any more questions]; Jones v.
Harrington (9th Cir. 2016) 829 F.3d 1128, 1139-1140 [Court of
Appeal‘s determination that accused‘s statement, ―I don‘t want to
talk no more,‖ was an ambiguous invocation is contrary to and an
unreasonable application of Miranda].)
one of the detectives later at trial revealed a fundamental
misunderstanding or unawareness of what Miranda and its
progeny require.2 I therefore concur in the judgment that the
Miranda violation compels reversal of defendant‘s murder
conviction.
      I respectfully dissent, however, from the holding that the
admission of the incriminating statements obtained in violation
of Miranda did not prejudice the jury‘s finding that defendant
kidnapped his girlfriend Guadalupe Montellano. I will
summarize several reasons why; they involve my disagreement
with the majority about the relationship between the murder and
kidnapping charges, the mediocre quality of the video footage
introduced at trial, and the fact that the video does not, and
cannot, corroborate the key element of fear that Montellano
emphasized as the reason why, according to her, she got in the
car with defendant against her will.




2
       At trial, defense counsel cross-examined one of the two
interviewing detectives, asking whether he attempted to be ―the
more dominant person in the room‖ to ―maintain control of the
interrogation‖ when defendant stood up after telling the
detectives he refused to talk to them. The detective answered,
―No. What it is, the key here is that [defendant] wanted to end the
interview, and his way of ending the interview is exiting the
room.‖ (Emphasis added.) Questioned further, the detective
testified: ―So as far as the fact that he slammed his hands on the
table and stood up, I have to establish the ground rules that—not
that I‘m more intimidating or dominant, but the fact that I’m not
going to tolerate ending the interview before the interview is over.
So I have to stand my ground.‖ (Emphasis added.)



                                 2
                                  I
      It is true that defendant‘s statements obtained in violation
of Miranda included no specific admission to kidnapping
Montellano. But the murder and kidnapping charges that serve
as the basis for defendant‘s convictions, at least as presented by
the prosecution at trial, were so intertwined that a conviction on
the kidnapping charge makes little if any sense when divorced
from the murder charge.
      Montellano‘s claim to have witnessed defendant stab Maria
Ontiveros was the ostensible motive for why defendant, who was
Montellano‘s boyfriend and living with her in her car, would have
kidnapped her. At oral argument in this court, the People
conceded the point, agreeing that the prosecution‘s theory at trial
―was that the kidnapping was precipitated by the murder of
Ontiveros‖ and that ―the motive was that she would not go to the
police—so that‘s why he kidnapped her.‖ (Rec. of Oral Arg.,
November 2, 2016.) Because the Miranda-tainted statements
played a significant role in defendant‘s murder conviction, and
because the facts concerning the murder served as motive
evidence that must have informed the jury‘s guilty verdict on the
kidnapping charge, the conclusion we must draw is unavoidable:
the incriminating statements likewise played a significant role in
defendant‘s kidnapping conviction regardless of whether he was
questioned about kidnapping Montellano when interrogated by
the detectives. (People v. Moore (2016) 6 Cal.App.5th 73, 85 [―The
prosecution need not, as we know, prove motive. Nevertheless,
motive is relevant, and a strong motive provides powerful
evidence‖], citations omitted; see also People v. Cahill (1993) 5
Cal.4th 478, 503 [―[T]he improper admission of a confession is
much more likely to affect the outcome of a trial than are other



                                3
categories of evidence, and thus is much more likely to be
prejudicial . . .‖].)

                                   II
       During trial, the prosecution introduced surveillance video
footage that depicted, according to Montellano, her interactions
with defendant near a bus stop. Unfortunately, the video is
distant (meaning the camera is far from the events of interest),
jumpy, pixelated, and static (meaning there is only one camera
angle, and there are long stretches where no one is visible). The
majority makes a good faith effort to characterize the quality of
the video in a better light, but the overall state of the video
evidence, in my view, is best described by the concessions that
aspects of the footage are ―not entirely clear‖ and ―not clear
enough.‖3 (Maj. Opn. at p. 37.) Without a clearer depiction of
what transpired, the video evidence cannot be a powerful reason
why the Miranda violation did not prejudice the jury‘s
kidnapping verdict.
       Although I do not believe the majority opinion‘s narration
of the video is what the video shows when ―[o]bjectively viewed‖
(Maj. Opn. at p. 37), the opinion further reasons that defendant‘s
refusal to admit what the majority believes the video shows can



3
      The majority believes the video clearly shows defendant
and Montellano engaging in a physical struggle and Montellano
―struggling to escape defendant‘s grip[ ] as he tries to pull her to
the car.‖ The video does unquestionably depict some sort of brief
struggle between two people. But it is not clear who started the
struggle, what exactly transpired, or whether one of the
participants is attempting to pull the other to the car.



                                 4
be used as evidence of his consciousness of guilt. I would not
draw this conclusion, for both factual and legal reasons.
       Factually, the video is not ―irrefutable evidence‖ of
defendant pulling the victim‘s dead body out of the car (Maj. Opn.
at p. 36). The video by itself is not evidence of identity at all—
given the mediocre quality of the footage, it is impossible to
identify who is depicted in the video solely by viewing it. Nor do I
believe the video by itself shows someone pulling a dead body
from the car. The video does depict a person opening the rear
door of the car and appearing to reach inside (there is a pole
partially obstructing the view), but it is the testimony at trial—
not the video itself—that supplies the important details. I
accordingly believe there is no basis to conclude defendant‘s
refusal to admit certain facts when interrogated by the detectives
was tantamount to a denial of irrefutable video evidence. In fact,
the detectives never actually confronted defendant with the video
footage during the interrogation. For all defendant knew, the
detectives were bluffing and there was no video.
       Legally, I am concerned the ―consciousness of guilt‖ holding
in today‘s opinion is unsound and could be put to misuse in future
cases. I see no valid reason why a defendant‘s post-arrest refusal
to admit details of a crime (or perhaps a refusal to confess more
generally) is, without more, reason to infer the defendant is
conscious of his own guilt.4 A person subject to questioning who


      I have no quarrel with the proposition that a defendant
4


who affirmatively offers a highly implausible account of events
can be found to have exhibited a consciousness of guilt. That was
the scenario in the case of People v. Green (1980) 27 Cal.3d 1,
where the defendant ―recounted that at 5 p.m. on the day of the
murder he received a telephone call from Karen telling him she


                                 5
does so refuse undoubtedly hopes to avoid punishment, but a
desire to avoid punishment does not necessarily mean the person
believes himself to be guilty. In addition, the majority‘s rationale
has a ―heads I win, tails you lose‖ quality to it: if a defendant
concedes certain accusations of an interrogating officer are
correct, he has directly incriminated himself; if he denies the
accusations, according to the majority, he has shown himself to
be conscious of his guilt and indirectly incriminated himself—at
least if the evidence pertaining to the accusatory questions is
sufficiently irrefutable in the eyes of a court (or of a prosecutor
requesting a consciousness of guilt jury instruction at trial). I
believe this sort of reasoning expands the consciousness of guilt
doctrine beyond the circumstances in which it should apply. For
that reason and the factual reasons I have already described, I do
not believe the video evidence and/or a consciousness of guilt
inference are sufficient reasons to conclude the Miranda violation
did not prejudice the jury‘s kidnapping verdict.




needed transportation to the Stickey Wicket bar and that he sent
Dave Khan to pick her up for this purpose‖ even though the
record was ―replete with testimony by other witnesses relating
different versions of the critical events told to them by [the]
defendant‖ including ―the fabrication of an alibi.‖ (Id. at pp. 40-
41.) It is quite a different thing to hold, however, that a mere
denial of an officer‘s incriminating accusation during an
interrogation warrants a consciousness of guilt inference. All the
more so if the defendant, as here, is never actually confronted
with the evidence the officer cites when making the accusation.



                                 6
                                  III
       I will make a final point, which focuses on Montellano‘s
trial testimony about the charged kidnapping, specifically, the
portion of her testimony that supported the element of
kidnapping that requires proof she was unlawfully moved by the
use of physical force or fear. (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1368 [―‗Generally, to prove the crime of
[simple] kidnapping, the prosecution must prove three elements:
(1) a person was unlawfully moved by the use of physical force or
fear; (2) the movement was without the person‘s consent; and (3)
the movement of the person was for a substantial distance‘‖].)
Montellano emphasized it was fear induced by an asserted threat
from defendant that compelled her to leave with him, and the
video evidence does not corroborate this aspect of her testimony.
       Montellano testified as follows concerning the reason why
she felt compelled to accompany defendant in the car when
leaving the bus stop area:
              Q [by the prosecutor]: As you were trying to
       cry out for help and pointing to the car, what was
       [defendant] doing?
              A [by Montellano]: He was pulling me, telling
       me to stop.
              Q:    Did you end up going back to the car?
              A:    Yes.
              Q:    Why did you end up going back to the car?
              A:    Because that’s where he threatened me.
              Q:    What did he say that you found
       threatening? What was the threat?
              A:    That he was going to get my family.
              Q:    He said he was going to get your family?



                                7
             A:     My son.
             Q:     Specifically, your son?
             A:     Yes.
             Q:     Did you believe him?
             A:     Yes.
             Q:     Why did you believe him?
             A:     Because of everything that had
      happened.
             Q:     [¶] . . . [¶] What had happened that
      made you believe he could get your son, or that he
      would get your son?
             A:     Because of what he did to my friend.5
      (Emphasis added.)
While Montellano said defendant pulled her and grabbed her arm
at points during their interaction near the bus stop, she testified
it was defendant‘s threat to harm her son that compelled her to
return with him to the car and drive off. This testimony served
as the proof of the force or fear element of kidnapping.
       The threat Montellano claimed defendant made cannot be
heard on the video; the camera recorded no audio at all. That
means that on the key issue of whether Montellano was
unlawfully moved by fear, her testimony—impeachable for the
reasons identified by the majority ante at pages 33 to 34—was
largely if not entirely uncorroborated. Under the circumstances,
and with the other points I have already discussed in mind, I


      The latter part of this exchange again highlights the
5


interrelationship between the kidnapping charge and the murder
charge (see Part I, ante).




                                 8
cannot hold harmless the admission of the incriminating
statements the detectives obtained in violation of Miranda. In
my view, a new trial is required on both the murder charge and
the kidnapping charge.



                          BAKER, J.




                               9
