Filed 12/29/15 P. v. Oseguera CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067522
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM009323)
                   v.

ARMANDO OSEGUERA,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti, Judge.
         Quin Denvir for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant Armando Oseguera was charged with assault resulting in the death of a
child under the age of eight (Pen. Code, § 273ab1 [count 1]), felony child abuse (§ 273a,
subd. (a) [count 2]), and willful infliction of corporal injury upon a cohabitant (§ 273.5,
subd. (a) [count 3]). In connection with count 2, the information alleged he personally
inflicted great bodily injury upon a child under the age of five in the commission of a
felony. (§ 12022.7, subd. (d).) Following trial, the jury found defendant guilty as
charged on counts 1 and 2 and convicted him of the lesser included offense of battery
(§ 243, subd. (e)(1)) on count 3. It also found true the special allegation on count 2.
       Defendant subsequently filed a motion for a new trial on the grounds of ineffective
assistance of counsel. He claimed, inter alia, his trial attorney should have moved to
suppress various post-polygraph statements to law enforcement because they were
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After a
hearing on the matter, the trial court denied the motion. Defendant was sentenced to 25
years to life on count 1 and one year on count 3, to be served consecutively. He received
1,266 days of presentence custody credit.2
       On appeal, defendant once again contends his trial attorney’s failure to file a
suppression motion constituted ineffective assistance of counsel.3 He does not contest


1      Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
2      The trial court struck punishment on count 2 because the offense underlying
count 2 “is a lesser and necessarily included crime” of the offense underlying count 1.
The court also pointed out the determinate sentence on count 3 “ha[d] been completed.”
3       Alternatively, defendant asks us to directly address his Miranda claims outside the
context of the ineffective-assistance-of-counsel claim. We cannot do this because no
proper objection was raised below. “The general rule is that a defendant must make a
specific objection on Miranda grounds at the trial level in order to raise a Miranda claim
on appeal.” (People v. Milner (1988) 45 Cal.3d 227, 236.) “[U]nless a defendant asserts
in the trial court a specific ground for suppression of his or her statements to police under
Miranda, that ground is forfeited on appeal ….” (People v. Polk (2010) 190 Cal.App.4th
1183, 1194.)


                                             2.
his conviction on count 3. For the reasons set forth in this opinion, we reverse the trial
court’s ruling denying defendant’s new trial motion and the judgment on counts 1 and 2.
                                  STATEMENT OF FACTS
I.     Prosecution evidence.
       Jennifer Karroll lived with her infant son Landon Skinner4 in an apartment in
Atwater. In February 2007, she started dating defendant. Shortly thereafter, he moved
in.
       Karroll worked a rotating shift schedule for a cheese manufacturer in Hilmar.
Normally, her parents—who resided in Atwater—babysat Landon5 while she was on
duty. Although defendant was unemployed, he babysat the child only two or three times.
On one such occasion in April 2007, defendant phoned Karroll and told her Landon fell
off the bathroom counter. She came home and observed bruises on her son’s face that
resembled a handprint. Karroll never witnessed defendant hurting or reacting violently
toward Landon, but did see the pair “wrestling” and “roughhousing.”6 In addition,
beginning in March or April 2007, Landon seemed to be afraid of defendant and “didn’t
really seem like he wanted to be around him.”
       Karroll kept in touch with Darin Skinner—Landon’s biological father—to
preserve the paternal bond, which upset defendant. On July 19, 2007, the day before
Karroll’s birthday, Darin visited the apartment. The following night, defendant and
Karroll argued and defendant shoved her.7

4      Landon was born on March 28, 2006. (See fn. 5, post.)
5       To avoid confusion, we identify individuals who share the same surname by their
first names. No disrespect is intended.
6      Karroll testified defendant would “lay on Landon a little bit,” but the horseplay
escalated to the point she became “scared” and “told him to stop it.”
7      At trial, Karroll recounted various altercations with defendant. On April 16, 2010,
he struck her face at least twice and destroyed her cellular phone. On another occasion,
defendant “slammed [Karroll’s head] against the floor three times.”


                                             3.
       On the night of July 22, 2007, defendant, Karroll, and Landon ate dinner with
Karroll’s parents at a restaurant in Merced. Afterward, they briefly stopped at Karroll’s
parents’ house before going back to the apartment. That night, Landon acted “like a
regular little one-and-a-half-year-old” boy. He was “[h]appy,” “[o]utgoing,” and “[f]un.”
The next morning, however, Landon vomited twice. Karroll, who had a lunch
engagement with her father and had originally planned to bring Landon, decided to leave
her son in defendant’s care. When she returned an hour later, she saw a pallid Landon
lying lethargically in his playpen. Defendant then left the apartment for “a couple of
hours” “[t]o turn in some job applications.” After he returned, he and Karroll moved
Landon to the bedroom and watched a movie in the living room. Following the movie,
Karroll checked on Landon and noticed he had vomited again. He was listless, sweaty,
and “white as a ghost” and his stomach “felt hard.” Landon could neither eat crackers
nor drink fluids. At or around 10:00 p.m., Karroll phoned her mother and told her about
Landon’s condition. Meanwhile, defendant advised her to take the child to the hospital.
Karroll’s mother dropped by, examined her grandson, and instructed Karroll to call 911.
Before the ambulance arrived, Landon stopped breathing.
       Landon died at the hospital on July 24, 2007, at 1:45 a.m. Dr. Robert Lawrence, a
contracted pathologist at the Merced County Coroner’s Office, conducted an autopsy at
10:00 a.m. He found “severe abdominal injuries from blunt force trauma,” namely a
transected jejunum and a lacerated mesentery, and attributed Landon’s death to the
ensuing “shock and hemorrhage.” Lawrence opined the “pattern of the injuries” “was
consistent with inflicted trauma” “greater than … can [be] explain[ed] by any kind of a
normal fall of a child around the house.” For instance, “a child falling against … a corner
of a crib” could not sustain such damage. Lawrence estimated the “blows to the
abdomen” occurred “four to six hours before death, possibly longer.” He ruled Landon’s
death a homicide.



                                            4.
       In addition, Lawrence “could tell that there were some recent, but not fresh,
[abdominal] injuries,” observing “an inflammatory response where [Landon’s] body was
trying … to heal … and clear things up.” Specifically, “there were … at least two other
episodes of [nonfatal] trauma ….” The first was “one to three days old” and the other
was “at least a week or two” old and “could have been three or four weeks” old.
       Subsequently, two other pathologists—Drs. Ann Bucholtz and Terri Haddix—
reviewed Lawrence’s report. Bucholtz agreed the cause of death was “blunt force trauma
to the abdomen” and the “pattern of injuries” implicated homicide. Haddix opined
Landon could have sustained his injuries up to 12 to 14 hours before his death, citing the
degree of inflammation. She otherwise concurred with the findings.
       Defendant was initially interviewed on July 24, 2007, by Detective Armando
Echevarria of the Atwater Police Department. He told Echevarria “nothing at all had
happened” the night before Landon’s death and Landon had been “fine” the next
morning. Defendant denied ever seeing him “fall[] out of the crib or drop[] or anything
like that.” In a second interview on August 23, 2007, Echevarria disclosed the results of
Landon’s autopsy. Defendant maintained nothing unusual occurred.
       On April 27, 2010, Echevarria and Detective Alex Barba of the Merced County
Sheriff’s Department alternately interviewed defendant at the police station.8 Barba
inquired about Landon’s fall in April 2007. Defendant detailed:

       “I had [Landon] … on the sink part, you know … [¶] … [¶] … ‘cause I
       was taking off his clothes … [¶] … [¶] … [S]o I was taking off his clothes
       to give a bath and stuff … and, … usually we’ll give him toys or anything
       like that …. [¶] … [¶] … [W]hen I turned around, he was already … going
       forward …. [H]e hit the ground, you know, I’m not gonna lie about that
       …. [¶] … [¶] … He did hit the ground and so I felt bad, so I picked him
       up, was like, hey you okay, you know …. [¶] … Are you alright dude and
       … you know … he seemed fine and so I was sitting right there and I put

8       The jury either listened to audio-only recordings or watched video recordings of
the interview segments admitted into evidence.


                                            5.
         him … in the tub, that was it, you know, … he seemed fine, you know, he
         did hit his eye …. [¶] … [¶] … And I felt bad. You know, and I told
         [Karroll] right away when she got home, you know this happened, you
         know, and … she was like that’s fine, you know, it’s okay. You know,
         nothing happened.”9
Barba challenged this narrative. Based on his experience as a criminal investigator in
child abuse cases and photographs of Landon’s bruises after the April 2007 incident, he
suggested the infant “did not fall from that damn sink” but was slapped in the face
instead. Defendant insisted he did know how Landon sustained the facial bruises.10
         Echevarria asked whether “anything else … happened other than what [defendant
previously stated].” Defendant presented a different version of what transpired the night
of July 22, 2007:

         “[T]hat night[,] I woke up. He was crying. I picked him up, came outside,
         … read to him, ‘cause [Karroll] was sleeping still…. [¶] … [¶] … I took
         him in the room and everything. And I had his blanket and stuff, … he had
         a blue blanket. And … when I tried to move the blanket, and I tried to
         move, you know, because he had his bottle, too, and he was holding it, and
         so I tried to grab his arm, and he slid…. [¶] … [¶] … He fell … on the
         edge [of the crib]. But … he seemed fine…. I was, like, okay, ‘cause he’s
         still drinking his bottle. He … didn’t really cry or anything, so that’s all. I
         didn’t hit him. I didn’t hit him, you know. I didn’t do anything like that. I
         haven’t hit him. You know, but I didn’t think nothin’ was gonna happen.
         You know? [¶] … [¶]

         “… [L]ike the next day when he was, you know, getting sick, I was just,
         like, okay. I thought it was ‘cause it was somethin’ else. [¶] … [¶] … I
         thought it was like a … fever or something. [¶] … [¶] … And that was
         it.… [A]fter … I seen him get worse, I told [Karroll], you know, take him
         to the hospital to find out what it is.”11


9        Defendant offered these statements before a polygraph examination. (See at p. 10,
post.)
10    This exchange between defendant and Barba occurred after a polygraph
examination but before a Miranda warning. (See at pp. 10-11, 14-15, post.)
11    Defendant offered these statements after a polygraph examination but before a
Miranda warning. (See at pp. 10, 13, 14-15, post.)


                                               6.
Defendant later reiterated:

         “[H]e just fell on me, he just fell on me, man, he just fell on me. [¶] … [¶]
         … I remember I walked in, I was reaching him around, he turned on me,
         you know, ‘cause I didn’t have balance or anything and have a good grip on
         him. We went forward and he hit [the crib]. [¶] … [¶] … I was walking
         with him, right, and I had the blanket … in the arm and everything …. [¶]
         … [¶] … Okay, he was holding the bottle, and … I was walking over there,
         and when I was walkin’, … trying to get the blanket, … when I was pulling
         it, you know, … I lost my grip and … he was falling, because I still had the
         blanket or whatever, and I pulled him … and he went forward, and that’s
         when … [he] hit … the edge [of the crib].”12
II.      Defense evidence.
         Defendant testified on his own behalf. Sometime in April 2007, he babysat
Landon while Karroll was at work. He placed the infant on top of the bathroom counter
to more easily remove his clothes in preparation for a bath. When defendant turned
around to grab some bath toys, Landon fell.13 Defendant immediately phoned Karroll
and apprised her of what had happened. The following day, Landon had a bruise on his
cheek.
         On the night of July 22, 2007, defendant and Karroll put Landon to bed. Later that
night, as Karroll continued to sleep, defendant heard the child “whining.” He wrapped
Landon in a blanket, brought him to the kitchen, gave him a bottle of milk, and headed
back to the bedroom. Defendant recalled:

         “I remember the blanket was kind of dragging, so I went to grab it, and at
         the same time, I was already inside his room, and at the same time, when I
         went to grab it, he turned around on me, and for me not losing his grip, you
         know, I went forward, and that’s when he hit the side of the crib. [¶] … [¶]
         … Almost towards the edge … of the crib. [¶] … [¶] … I remember it was
         towards his chest area. [¶] … [¶]

12       Defendant offered these statements after a Miranda warning. (See at pp. 14-15,
post.)
13     Defendant testified Landon “hit the ground,” but he also “caught [Landon] at the
same time.”


                                              7.
               “… He cried a little bit, you know, whined, and I was holding him to
       see if he was, once again, fine, and he didn’t make any noises after that or
       anything like that, so I gave him his bottle, and he grabbed it, started
       drinking it so I thought he was fine, and I laid him down…. [H]e didn’t do
       anything else after that.”
Defendant did not tell Karroll about this incident because Landon “seemed fine.” He did
not tell Echevarria about this incident prior to the April 27, 2010, interview because it did
not involve “someone hitting [Landon’s]” midsection. Defendant denied deliberately
harming the child.
       On the morning of July 23, 2007, Landon appeared normal. Later, as defendant
was “getting him ready,” he vomited. Consequently, Karroll left Landon at home with
defendant while she stepped out for approximately an hour. While she was gone, the
child did not throw up. At some point after Karroll returned, defendant left the apartment
for approximately two hours to submit job applications. Landon’s condition
progressively worsened throughout the day and into the evening. Defendant believed
Landon had either a flu or a fever and was stunned by his death.
       Eight character witnesses testified defendant was a truthful and nonviolent person.
Regarding his interactions with children, they testified he was friendly, playful, gentle,
and caring.
                                       DISCUSSION14




14     Defendant filed two separate applications for leave to file supplemental briefing
regarding two new authorities—People v. Morales (July 14, 2015, D067411), review
denied and opinion ordered not published October 28, 2015, S228782, and Reyes v. Lewis
(9th Cir. 2015) 798 F.3d 815 [confession should be suppressed when police officers
deliberately employ a two-step interrogation technique (question and get answers, then
give warnings, then repeat the question to get answers already provided) and not take
appropriate curative measures]—“should the Court find it helpful.” Given our
disposition, we find supplemental briefing unnecessary.


                                             8.
I.       Defendant’s new trial motion should have been granted.
         a. Background.
                i. The April 27, 2010, polygraph examinations and interviews.
         After reviewing Bucholtz’s and Haddix’s opinions (ante, at p. 5), Echevarria
wanted polygraph examinations performed on defendant and Karroll. On the morning of
April 27, 2010, Karroll visited the police station, where she consented to and underwent
testing. When asked whether she believed someone had been involved in Landon’s
death, she replied in the affirmative and identified defendant. Barba, the examiner,
concluded Karroll was not culpable. Upon Echevarria’s request, Karroll waited in the
lobby.
         Around 1:00 p.m., Echevarria and Detective Adolfo Lomeli met defendant at his
and Karroll’s apartment in Merced. They asked him to accompany them to the police
station for another interview on the subject of Landon’s death. Defendant “immediately
agreed” and expressed his “willing[ness] to do anything or speak with anyone in order to
resolve the matter.” He inquired about Karroll’s whereabouts and learned she was still at
the station and would remain there in the event a follow-up interview with her was
necessary. Upon arrival, Echevarria informed defendant about “new developments as to
what caused [Landon]’s death” and asked him to undergo a polygraph examination.
Defendant “immediately stated that he would.”
         At 1:58 p.m., defendant entered a small examination room and sat in a corner
behind a table. Barba joined him shortly thereafter. The detective spoke about his
background as a criminal investigator in child abuse cases and a polygraph examiner.
While he acknowledged “nothing’s 100 percent,” Barba asserted the accuracy of a lie
detector test “[i]s in the high 90’s.” He told defendant:

         “[B]y the time that we get done I … will guarantee you that … you and I
         are gonna know what happened. You and I are gonna know whether you
         did this or whether somebody else did it, you know?”



                                             9.
Barba asked about Landon’s fall in April 2007 and defendant gave his account. (Ante, at
pp. 5-6.) Next, Barba presented a consent form, which read, inter alia:

            “I do hereby voluntarily, without duress, coercion, promise of
      reward or immunity, submit to a polygraph (‘lie detector’) examination,
      having had said technique explained to my satisfaction ….

             “It has been explained to me that anything I say during this
      examination, including the pre-test interview and post-test interview, except
      that which is mandated as reportable by peace officers, is confidential and
      will not be released to anyone without my knowledge and consent.”
Defendant signed the form.
      At 2:22 p.m., Barba attached the machine’s sensors to defendant’s body.
Following calibration, the polygraph examination commenced and lasted for roughly 30
minutes. When asked multiple times whether he injured Landon and caused his death in
July 2007, defendant consistently replied, “No.” At 2:54 p.m., Barba left the room and
informed Echevarria defendant had failed the test. Echevarria instructed Barba to
question defendant further.
      At 2:56 p.m., Barba returned to the examination room, sat beside defendant, and
placed his feet on the table.15 He remarked:

      “You … caused the injuries … to this kid…. Okay? … I have no doubts
      that that’s what happened, … and the only question that I have [for] you is
      why and how it happened. Let me tell you something right now. Let me
      tell you everything that we know, as of right now, okay? I know … that
      you used to … play … rough with him …. [¶] … [¶] … You used to
      wrestle with him. Okay, he’s a … little guy. You’re a big dude. [¶] … [¶]
      … Listen to me. Look at me, when I talk to you, okay ….”
Next, Barba explained the results of defendant’s polygraph examination:

      “I compare[d] these questions, which is, in July of 2007[, ‘D]id you injure
      Landon, causing his death,[’] okay? I compare … your answers … to an
      answer that I don’t care about…. Well … the innocent person is not gonna
      react to [‘D]id you cause the injuries to Landon[’] …. [¶] … [¶] … Okay?

15    The video footage showed defendant was boxed in by Barba and the table.


                                           10.
      There’s just no way. It just doesn’t happen. And … I gave you three tests
      … and on all three tests … you showed … deception…. [¶] … [¶] …
      [T]he probability of this is greater than 99 percent. It cannot get any higher
      than this. Okay?”
Barba challenged defendant’s account of the April 2007 incident. Defendant denied any
wrongdoing. (Ante, at p. 6.)
      Barba revealed Karroll passed her polygraph examination. He also disclosed new
information “that [Landon’s] … injuries were caused between Sunday night … and
Monday.” Barba articulated:

      “Now, something happened between Sunday night and Monday to where
      this little guy got injured. There’s no question about that. You know,
      we’re gonna be able to show that … a … medical professional … came up
      with these … opinions and these facts, and the baby was under your care
      …. [¶] … [¶] … [S]omething did happen, because the kid’s not gonna get
      injured just on its own …. [¶] … [¶] … And I’m telling you right now ….
      [¶] … [¶] … [t]hat I’ve done 400 to 500 of these polygraphs, and I have no
      doubts that this happened. [¶] … [¶] … [S]omething traumatic happened
      because of his injuries. All right?… [A]ccording to the medical person,
      either the baby was punched or kicked in the stomach …. [¶] … [¶]

      “… Something happened between you and him when you were taking care
      of the little guy. There’s just no doubt. Okay? Now, if you’re gonna sit
      here and tell me that nothing happened, well, I’m not gonna accept that. [¶]
      … [¶] … And nobody in their right mind is gonna accept that, because a
      15-[month]-old … kid, you know, doesn’t die like that. You know what I
      mean? [¶] … [¶] … All we can say is the machine’s saying this, the
      medical examiner’s saying this, he was under your care, and if that’s how
      you wanna end it, and you wanna leave it like that, that’s up to you. I know
      that you know what happened. I told you that before you took the
      polygraph that I would know and you would know after taking the
      polygraph. I have no doubt …, I’d put my paycheck on this. Okay? But
      something happened.”
Again, defendant denied any wrongdoing.
      Barba left the room at 3:09 p.m. A minute later, Echevarria entered, sat beside
defendant, and resumed the interview. The detective commented:

      “The problem is this, okay? Landon died. All right? And he didn’t die a
      slow, peaceful death. Okay? He didn’t just close his eyes and go to sleep.

                                           11.
      All right? The death that he … suffered, or the death … that happened to
      him, he suffered. All right? And he, it wasn’t something that, you know, it
      was just a … moment of pain or something like this. This went on for
      several hours. Okay? And the reason why it took me so long to be able to
      come back and talk to you guys is because I needed to, to make certain of
      what my suspicio[n]s were, and what was going on. All right? And I was
      able to do that. And I was able to get confirmation through a pathologist
      and … to review the records, review the autopsy, you know…. [Karroll]
      had her appointment with me at ten o’clock in the morning, and she’s been
      here since right before I went to go pick you up. And that interview … was
      very extensive; as well as the examination that she underwent. All right?…
      [¶] … [¶] … [W]e’re trying to figure out what happened. Okay? I know
      that [something] happened there at the house.”

When defendant swore he “never touched [Landon],” Echevarria responded:

      “Listen to me…. All right? The cause of his death was … somebody
      striking him so hard that the inside of his gut, the inside of … his organs,
      struck the back of his spinal cord, and that’s what severed the artery, and
      that’s what made him bleed to death. He bled to death. Now, was this
      something that happened intentionally because you lost your temper? [¶]
      … [¶]

      “… For three years you’ve been living with this.… [L]et’s stop with you
      having to deal with this, and let’s get it out, let’s get it over with, and let’s
      get the ability to be able to move on. Not just for [Landon’s] sake, but for
      your sake as well …, too. That’s a heavy burden that you have to carry
      with you. [¶] … [¶] … Get that burden off your back, get that burden off
      your shoulders, and do the right thing, and tell me exactly what happened
      that day …. [T]hat’s the only way that we’re gonna able to go ahead and
      move on. Not just for him, not just for his parents, not just for his mother,
      but for yourself. You gotta start thinking about it this way. It’s tough.
      Okay, tell me what happened.”

Defendant still denied injuring Landon. Echevarria continued:

      “Okay. Something happened here. All right? The force that … this little
      boy suffered right there on his tummy, all right, was so severe …. [¶] …
      [¶] … [h]is insides ruptured. [¶] … [¶] … [W]as this an accident? Or was
      this something that you just … intentionally went and did? [¶] … [¶] …
      Or … is this … [the] result of an argument that … was going on? Or the
      lack of sleep? Or the frustration that, you know, you can’t get a job?...
      You hadn’t been able to get employment.… [Y]ou’re having to rely … on
      [Karroll]. I’m sure her parents probably think, oh, that guy’s, you know,


                                             12.
       nothing, but a deadbeat, you know, … and he’s living off of her … skirt
       tails. And that’s what’s been … going on here. All right?… [A]s a man,
       … that plays heavy on one…. [¶] … [¶]

       “… [Y]ou took a polygraph examination on your own free will. [¶] … [¶]
       … And … what that did …. [i]s it went to … corroborate and to solidify …
       my suspicions. All right? Now, the problem … that we’re [hav]ing here
       right now is: … what actually happened that day or that night. Okay?
       Because I can recite for you word for word the last 72 hours of Landon’s
       life; exactly what he did, what he ate, where he was at, and who he was
       with. All right? The medical report indicates that …. [t]he injuries were
       within hours of his death. [¶] … [¶]

       “… I know that he was in your and [Karroll]’s care … between 9:00 and
       9:30 p.m., Sunday, until 9:00 to 9:30 p.m., Monday. When … the
       ambulance showed up, and when they took him to the hospital, he died
       before he even made it to the hospital. He was with nobody else…. You’re
       in a position right now … to be able to go ahead and get this burden off of
       you…. All right? You can still put yourself in that position.”
Finally, defendant offered a new account of what had transpired the night before
Landon’s death. (Ante, at pp. 6-7.) He admitted he “should have said something” earlier
but was “scared.” Defendant maintained he never hit Landon.
       When asked whether he wanted to speak with Karroll, defendant replied in the
affirmative. Echevarria exited the examination room at 3:39 p.m. A minute later, Barba
entered. As he was detaching the sensors from defendant’s body, he remarked, “[Y]ou
know that something more traumatic had to have happened, right? You know that,
right?” Defendant denied striking Landon. Barba exited the room at 3:42 p.m. Before
he left, he advised defendant to “be honest with [Karroll].”
       Approximately 10 minutes later, Echevarria and Barba escorted Karroll into the
examination room. After the detectives left the couple by themselves, Karroll asked
defendant what had happened the night before Landon’s death. He answered:

       “The last night, or whatever, when [we] went from your parents …. You
       know? Remember how we laid him down, and he had that … little bassinet
       thing where he [laid] and stuff, ‘cause that’s where he was playing at when
       we were bringing him out? Um, later on that night …, he was crying or


                                            13.
         whatever. Well, uh, remember how he used to whine for just a bottle? And
         you were sleeping, and I went in there, and I got him out of the crib, and I
         took him in the kitchen to make him a bottle. And when I went back, you
         know, I was telling them that he … fell right … on the edge of the crib.
         Because, you know, I was … I didn’t mean to. I didn’t … do it on purpose.
         You know, you … I didn’t mean to. [¶] … [¶]

         “… Honestly, I didn’t think it was because of that. And the reason why I
         didn’t tell you is because I was afraid. You know?”
When questioned about Landon’s facial bruises following the April 2007 incident,
defendant insisted he did not hit Landon. Defendant did not make any new admissions.
As a result, Echevarria—who had been observing the conversation—returned to the room
at 4:03 p.m. Karroll left a minute later.
         At 4:07 p.m., Echevarria informed defendant he was under arrest and asked him to
undergo a second polygraph examination to validate his account of what had transpired
the night of July 22, 2007. Defendant replied, “Ah, I don’t know what else to do ….” At
4:09 p.m., Echevarria recited the Miranda warning.16 The following exchange took
place:

         “ECHEVARRIA:        …. Do you understand each of these rights I explained
                             to you?

         “[DEFENDANT]: Yes. [¶] … [¶]

         “ECHEVARRIA:        Okay, having these rights in mind do you wish to
                             continue to talk to me?

         “[DEFENDANT]: Um, what else can I say?...

         “ECHEVARRIA:        Well, … it’s just a yes or no question, … as far as you
                             wanting to continue talking to me. Do you want to
                             continue talking with me, or not?

         “[DEFENDANT]: Uh, I’d like you know, to talk to someone, you know?

         “ECHEVARRIA:        Okay. [¶] … [¶]


16       In the video footage, Echevarria erroneously mentioned the time was 3:47 p.m.


                                             14.
       “[DEFENDANT]: I’m just a little scared, you know?”
Questioning resumed at 4:11 p.m. after Echevarria gave defendant a bottle of water.
Defendant reiterated his account of what had occurred on the night of July 22, 2007, and
used a doll to mimic his actions that night.17 (Ante, at p. 7.)
       At or around 4:45 p.m., defendant began to hyperventilate. He then complained of
nausea and numbness of the hands and arms. The interview was terminated and
emergency medical services were summoned to the scene.
               ii. The new trial motion.
       Defendant’s post-trial attorney Jem Martin filed a motion for a new trial on
February 22, 2013. The motion alleged, inter alia, defendant’s trial attorney rendered
ineffective assistance of counsel by not attempting to suppress defendant’s post-
polygraph statements.
       At an April 15, 2013, motion hearing, defendant’s trial attorney was called to the
witness stand. Martin elicited the following testimony on direct and redirect
examination:

              “Q. I assume that you also felt like [defendant]’s statement to the
       police after the polygraph test was especially harmful to the defense?

               “A.    Yes, it was. That was the worst piece of evidence against
       him.

             “Q. And what efforts did you make to exclude or attempt to
       exclude that evidence?

              “A. Well, everything leading up to and after the polygraph, as far
       as I can tell, none of that really came in, but the statement, I believe, after
       the police informed him he failed the polygraph, I recall they read him his
       Miranda rights at that point. I might be mistaken, but that’s what I recall,
       and then the statements that he did make were all made after he had been
       Mirandized.


17    Throughout the post-Miranda interview, Barba intermittently entered the room,
expressed skepticism with regard to defendant’s account, and exited.


                                             15.
      “Q. But those exact same statements were made before he had
been Mirandized as well?

        “A.   Maybe they were, but I’m just going by my recollection.

        “Q. Okay. But it wouldn’t surprise you if the police reports in
this case indicate that the entire post-Miranda statement had been given to
the police pre-Miranda?

        “A.   There was—I believe there was something to that effect,
yeah.

       “Q. Okay. And this—as you recall, this statement was in the
police station; correct?

        “A.   Yes.

      “Q. Okay. And … you didn’t think there was any grounds for
attempting to exclude that statement?

        “A.   Not at that point, no.

        “Q.   In hindsight do you think that there might have been?

        “A. I would have to review the file in order to make that decision.
That is something I would not overlook, and so it would be my practice to
consider excluding statements for Miranda violations and to do motions to
that effect if necessary. I did not in this case so there must have been a
legal basis not to do it. There must have been case law that supported the
prosecution, and that’s why I chose not to do it. That would have been my
custom and practice.

        “Q.   But you don’t have a specific memory of that happening in
this case?

        “A.   No.

        “Q.   It’s just your custom and practice?

        “A.   Yes. [¶] … [¶]

       “Q. … [I]n your opinion, he wasn’t free to leave … when the
police had found he was deceptive on the polygraph and came back to
confront him with that; is that correct?




                                       16.
             “A. I would agree with that, that at that point, the police were
      certainly not going to let him leave. [¶] … [¶]

             “Q. Just briefly, … what are the two criteria for Miranda
      violation? I mean, in-custody interrogation?

             “A.    Yes.

            “Q. Okay. You already testified that … in your opinion,
      [defendant] was in custody, wasn’t free to leave; is that correct?

             “A. After the police told him he failed the polygraph, I believe at
      that point—well, whether or not he’s in custody goes to the state of mind of
      the suspect. It’s not whether the police have him and believe he’s in
      custody or not.

             “Q.    Right.

            “A. And so—but at that point, the argument could be made that a
      reasonable person would feel that they were in custody, yes.

             “Q. Okay. And you—I assume that you certainly believe that the
      police, armed with this information from the polygraph, were intending to
      and actually did interrogate [defendant]; correct?

             “A.    Yes.

             “Q. All right. So he’s not free to leave and he’s being
      interrogated by the police. [¶] Would you agree with that?

             “A.    Yes.

            “Q. Okay. So you didn’t think that warranted a motion in limine
      or some sort of attack on that statement?

             “A. Again, I don’t have all of the evidence—I don’t have the file
      in front of me, all right?

             “Q.    … [I]s it possible that’s just one you missed?

             “A.    It’s possible.” (Italics added.)
The deputy district attorney elicited the following testimony on cross-examination:




                                            17.
       “Q. What about your standard of practice in analyzing Miranda
issues and the potential of excluding somebody’s statement to the police?
Could you just talk about your standard custom and practice[?] [¶] … [¶]

        “A. Well, I’m aware of the case law with Miranda. It’s
something I would like to keep up with and it’s something I look at in every
case that I read that’s assigned to me that—where statements, admissions,
are an issue, and determine if there is, in fact, grounds for … excluding the
statement based on Miranda and how that would impact the defense. [¶]
And in this case, as I said, if I felt there was grounds to have statements—
harmful statements excluded, I would have … made efforts to do so.”
(Italics added.)
On May 1, 2013, the court issued its ruling:

“I presided over the trial. I’ve watched the trial, and I know that there is a
wide range of what attorneys can do. As an attorney for 30 years and
watching attorneys as a judge, I know that there are many different levels of
skill, and that’s not the requirement. It’s not that [defendant] received the
best representation that he could have received but that he received
adequate representation that does not fall below the standard of care, and
that at the end of the day he, essentially, received a fair trial, and that’s
what I’m focusing on. [¶] … [¶]

       “… In determining whether [defense counsel] failed to act in a
manner expected of a reasonable attorney, … I have reviewed and
considered the April 27th, 2010, videos of the polygraphs and interviews of
… defendant and … Karroll; the written transcripts that were provided; the
police supplemental report; the written authorities submitted by both
parties; the testimony of [defense counsel] on April 17th, 2013….

       “The law is clear that … defendant … has a burden of proving
ineffective assistance of counsel here. Defendant must show by a
preponderance of the evidence that [defense counsel]’s representation fell
below the objective standard of reasonableness and that [defense counsel]’s
deficient performance, in fact, prejudiced … defendant.

       “… From the evidentiary facts that have been presented to me, I find
that … defendant received a fair trial and that … defendant has not
established that [defense counsel] failed to act in a manner expected of a
reasonably competent attorney or that he should have made a motion to
suppress the incriminating statements.




                                     18.
               “The record shows [defense counsel]’s reasons for not making these
      motions; that is, the facts [and] the law, in his opinion, did not support
      granting the motion and his trial strategy which required … defendant to
      testify.

             “Even assuming a motion to suppress should have been made, …
      defendant has not proved that it’s reasonably probable that a determination
      more favorable to [him] would have … resulted. [¶] In order to prevail on
      this motion, … defendant would need to show that the motion was
      reasonably probable to be granted and that an acquittal reasonably was
      probable to have occurred without the incriminating statements. [¶] … [¶]

              “Based upon … factual findings,[18] my legal conclusion [is] that a
      competent attorney could reasonably conclude that a motion to suppress
      was without merit …. [T]he Court relies upon the authorities that state that
      the defendant was not in custody for purposes of Miranda rights after he
      was told he failed the polygraph test, specifically the case of People v.
      Rich[ (]1988[)] 45 Cal.3d 1036[, ]1077, in which the Supreme Court noted
      that a post-polygraph examination conducted at the police station is not
      ‘tantamount to a custodial interrogation.’

              “I also look at the totality of the circumstances … before [defendant]
      was told that he was formally arrested.… [T]he Court must look at the
      totality of the circumstances where there is no formal arrest and determine
      whether a reasonable person would feel he or she is not free to leave and

18     The trial court made the following factual findings, inter alia: “defendant
voluntarily submitted to a polygraph [examination]”; “defendant signed a written
consent”; “defendant … had no difficulty understanding questions, responding or
expressing himself during the interviews”; “no promises or threats were made to …
defendant”; “at no time was … defendant physically restrained”; “[t]here were no
handcuffs”; “at no time was there any show of force displayed by any officer”;
“defendant never asked to terminate the discussion”; “defendant never stated he wanted
to leave”; “defendant never attempted to leave”; “defendant’s incriminating statement
was voluntary”; “defendant agreed to meet with [Karroll] so he could explain and talk to
her”; “[Karroll] and … defendant met alone in the interview room”; “[t]hereafter,
Detective Echevarria advised … defendant he was under arrest, and the Miranda rights
were read”; “defendant advised he understood his rights and that he would like to talk to
someone because, ‘I’m just a little scared’”; “defendant post-Miranda voluntarily
continued to explain how the ‘accident’ occurred”; “defendant voluntarily demonstrated
with a doll how the injury occurred”; and “no further questioning or interrogation or
interviewing regarding the incident with Landon took place after [defendant’s] severe
episode of stress occurred.” (Italics added.)


                                           19.
       cease questioning. The Court does not find that he was in custody under
       that standard as well …. Therefore, the motion is denied.” (Underlining
       omitted & italics added.)
II.    Standard of review.
       We review a trial court’s ruling on a new trial motion for abuse of discretion.
(People v. Thompson (2010) 49 Cal.4th 79, 140.) “The abuse of discretion standard is
not a unified standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial court’s findings of fact are reviewed for substantial
evidence, its conclusions of law are reviewed de novo, and its application of the law to
the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711-712, fns. omitted.)
       First, “‘[w]e accept the trial court’s credibility determinations and findings on
questions of historical fact if supported by substantial evidence.’ [Citation.]” (People v.
Verdugo (2010) 50 Cal.4th 263, 308.) “‘Substantial evidence’ means that evidence
which, when viewed in light of the entire record, is of solid probative value, maintains its
credibility[,] and inspires confidence that the ultimate fact it addresses has been justly
determined.” (People v. Conner (1983) 34 Cal.3d 141, 149.)
       Second, a trial court’s discretion “‘must be exercised within the confines of the
applicable legal principles.’” (People v. Tran (2013) 215 Cal.App.4th 1207, 1218;
accord, People v. Beaty (2010) 181 Cal.App.4th 644, 652.) In other words, “[t]he trial
court does not have discretion to depart from legal standards.” (People v. Neely (1999)
70 Cal.App.4th 767, 776.)
       Finally, “‘“[a] trial court’s ruling on a motion for new trial is so completely within
that court’s discretion that a reviewing court will not disturb the ruling absent a manifest
and unmistakable abuse of that discretion.”’ [Citations.]” (People v. Thompson, supra,
49 Cal.4th at p. 140.) “Although this standard of review is deferential, ‘it is not empty
…. [I]t asks in substance whether the ruling in question “falls outside the bounds of
reason” under the applicable law and the relevant facts [citations].’ [Citation.]” (People


                                              20.
v. Andrade (2000) 79 Cal.App.4th 651, 659 (Andrade); see People v. Tran, supra, 215
Cal.App.4th at p. 1218 [“‘“Action that transgresses the confines of the applicable
principles of law is outside the scope of discretion and we call such action an ‘abuse’ of
discretion.”’”].) “The appellant has the burden to demonstrate that the trial court’s
decision was ‘irrational or arbitrary,’ or that it was not ‘“grounded in reasoned judgment
and guided by legal principles and policies appropriate to the particular matter at issue.”
[Citation.]’ [Citations.]” (Andrade, supra, at p. 659.)

III.   Analysis.
       “A new trial may be granted where the trial court finds that the defendant received
ineffective assistance of counsel.” (Andrade, supra, 79 Cal.App.4th at p. 659.) “To
prevail on this ground, a defendant must show both that his counsel’s performance was
deficient when measured against the standard of a reasonably competent attorney and that
counsel’s deficient performance resulted in prejudice to defendant in the sense that it ‘so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.’” (Id. at pp. 659-660, quoting Strickland v.
Washington (1984) 466 U.S. 668, 686; see People v. Wharton (1991) 53 Cal.3d 522, 575
[“Prejudice is shown when 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.’”].)
       After considering defendant’s trial attorney’s testimony at the April 15, 2013,
motion hearing, the video footage of the April 27, 2010, polygraph examinations and
interviews, and pertinent transcripts and police reports, the trial court concluded the trial
attorney’s decision not to move to suppress defendant’s post-polygraph statements was
rational. Notably, the court found defendant was “not in custody for purposes of
Miranda” at the time.



                                             21.
       By contrast, we believe the totality of the circumstances clearly established
defendant was in police custody during the post-polygraph, pre-Miranda interview.
“Miranda … and its progeny protect the [Fifth Amendment’s] privilege against self-
incrimination by precluding suspects from being subjected to custodial interrogation
unless and until they have knowingly and voluntarily waived their rights to remain silent,
to have an attorney present, and, if indigent, to have counsel appointed.” (People v.
Gamache (2010) 48 Cal.4th 347, 384.) “‘In applying Miranda … one normally begins
by asking whether custodial interrogation has taken place.’” (People v. Ochoa (1998) 19
Cal.4th 353, 401.) “‘Absent “custodial interrogation,” Miranda simply does not come
into play.’ [Citation.]” (Ibid.)
       “An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ‘a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.’ [Citation.]” (People v. Moore (2011) 51
Cal.4th 386, 394-395.) “Whether a person is in custody is an objective test; the pertinent
question being whether the person was formally arrested or subject to a restraint on
freedom of movement of the degree associated with a formal arrest.” (People v. Linton
(2013) 56 Cal.4th 1146, 1167.) “‘[C]ustody must be determined based on how a
reasonable person in the suspect’s situation would perceive his circumstances.’
[Citation.]” (Ibid.) “The totality of the circumstances surrounding an incident must be
considered as a whole” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403), including
“[(1)] whether contact with law enforcement was initiated by the police or the person
interrogated, and if by the police, whether the person voluntarily agreed to an interview;
[(2)] whether the express purpose of the interview was to question the person as a witness
or a suspect; [(3)] where the interview took place; [(4)] whether police informed the
person that he or she was under arrest or in custody; [(5)] whether they informed the
person that he or she was free to terminate the interview and leave at any time and/or
whether the person’s conduct indicated an awareness of such freedom; [(6)] whether

                                            22.
there were restrictions on the person’s freedom of movement during the interview; [(7)]
how long the interrogation lasted; [(8)] how many police officers participated; [(9)]
whether they dominated and controlled the course of the interrogation; [(10)] whether
they manifested a belief that the person was culpable and they had evidence to prove it;
[(11)] whether the police were aggressive, confrontational, and/or accusatory; [(12)]
whether the police used interrogation techniques to pressure the suspect; and [(13)]
whether the person was arrested at the end of the interrogation” (People v. Aguilera
(1996) 51 Cal.App.4th 1151, 1162 (Aguilera)). “[N]o one factor is controlling ….”
(People v. Pilster, supra, at p. 1403.) “Rather, we look at the interplay and combined
effect of all the circumstances to determine whether on balance they created a coercive
atmosphere such that a reasonable person would have experienced a restraint tantamount
to an arrest.” (Aguilera, supra, at p. 1162.)
       Here, we reviewed the video footage of the April 27, 2010, polygraph
examinations and interviews and observed multiple indicia of custodial interrogation after
defendant completed and failed the polygraph examination. (See People v. Linton, supra,
56 Cal.4th at p. 1177 [“The facts surrounding an admission or confession are undisputed
to the extent the interview is tape-recorded, making the issue subject to our independent
review.”].) Barba, who was instructed by Echevarria to continue questioning defendant,
did not recite the Miranda warning. Instead, he sat beside defendant and propped his feet
on the table. Given where the men were seated and where the table was situated,
defendant was cornered. In addition, he was still connected to the polygraph machine.
Once in position, Barba—in a confrontational tone—revealed the results of the lie
detector test and persistently accused defendant of causing Landon’s death. He
commented on the “greater than 99 percent” accuracy of the polygraph examination; his
experience administering “400 to 500” such tests; autopsy findings confirming trauma-
induced abdominal injuries; accompanying medical opinion deducing these injuries were
inflicted sometime between the night of July 22, 2007, and July 23, 2007; and the fact

                                                23.
Landon had been under defendant’s care during this period. When defendant denied any
wrongdoing, Barba asserted he knew what actually happened and was “not gonna accept
that.”
         Approximately 15 minutes later, Echevarria swapped places with Barba and
continued the interrogation. He did not recite the Miranda warning. Speaking in a tone
that was less antagonistic than Barba’s, Echevarria graphically described the autopsy
findings, discussed defendant’s and Karroll’s respective test results, and highlighted the
fact Landon was under defendant’s care and “nobody else[’s]” between the night of
July 22, 2007, and July 23, 2007. He speculated defendant could have injured Landon
due to domestic troubles with Karroll and her parents or the frustration of being
unemployed. Echevarria also appealed to defendant’s conscience: he advised him to “do
the right thing,” divulge “exactly what happened that day,” and “[g]et that burden off
[his] back.” Ultimately, defendant succumbed to the detectives’ interrogation techniques
and offered a new account of what had transpired the night before Landon’s death. In our
view, the “interplay and combined effect of all the circumstances … created a coercive
atmosphere such that a reasonable person would have experienced a restraint tantamount
to an arrest.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) Hence, a Miranda
advisement should have been given.
         The Attorney General argues defendant’s subsequent “spontaneous” remarks to
Karroll would offset any error in admitting his post-polygraph, pre-Miranda statements.
(See ante, at pp. 13-14.) We beg to differ. “Interrogation includes both express
questioning and ‘words or actions … the police should know are reasonably likely to
elicit an incriminating response from the suspect.’ [Citation.]” (People v. Enraca (2012)
53 Cal.4th 735, 752.) “Interrogation thus refers to questioning initiated by the police or
its functional equivalent” (People v. Thornton (2007) 41 Cal.4th 391, 432), the latter of
which “involves police-initiated deceptive techniques designed to persuade or coerce a
criminal defendant into making inculpatory statements” (ibid.). The record indicates the

                                            24.
detectives used Karroll to elicit incriminatory responses from defendant: (1) even though
Karroll passed the lie detector test, Echevarria asked her to stay at the police station until
defendant completed his; (2) Echevarria offered defendant the opportunity to speak to
Karroll; (3) Barba instructed defendant to “be honest with [Karroll]”; (4) Echevarria and
Barba escorted Karroll into the examination room, left her with defendant, and observed
the conversation while hidden from view; and (5) Echevarria only “interrupted the
conversation and asked Karroll to leave the room” when defendant “did not make any
further admissions ….”
       In view of Echevarria’s and Barba’s conduct, we also believe defendant’s post-
Miranda statements were inadmissible. “In midstream Miranda cases (where a defendant
is interviewed before and after the giving of Miranda warnings), a defendant’s
postwarning inculpatory statements are generally admissible if the prewarning statements
and the postwarning statements were voluntarily made.” (People v. Camino (2010) 188
Cal.App.4th 1359, 1363-1364, italics omitted, citing Oregon v. Elstad (1985) 470 U.S.
298, 318.) On the other hand, “‘a trial court must suppress postwarning confessions
obtained during a deliberate two-step interrogation where the midstream Miranda
warning—in light of the objective facts and circumstances—did not effectively apprise
the suspect of his rights…. [W]here law enforcement officers deliberately employ a two-
step interrogation to obtain a confession and where separations of time and circumstance
and additional curative warnings are absent or fail to apprise a reasonable person in the
suspect’s shoes of his rights, the trial court should suppress the confession.’” (People v.
Rios (2009) 179 Cal.App.4th 491, 504-505, quoting U.S. v. Williams (9th Cir. 2006) 435
F.3d 1148, 1157-1158 (Williams).)19


19     This “deliberate use” rule is taken from Justice Kennedy’s concurrence in
Missouri v. Seibert (2004) 542 U.S. 600, 618-622 (Seibert). “When a fragmented [United
States] Supreme Court issues an opinion which does not have the assent of five justices,
generally, the controlling holding is that of those who concurred in the judgment on the

                                             25.
       “[I]n determining whether the interrogator deliberately withheld the Miranda
warning, courts should consider whether objective evidence and any available subjective
evidence … support an inference that the two-step interrogation procedure was used to
undermine the Miranda warning.” (Williams, supra, 435 F.3d at p. 1158, fn. omitted.)
“Such objective evidence would include the timing, setting[,] and completeness of the
prewarning interrogation, the continuity of police personnel[,] and the overlapping
content of the pre- and postwarning statements.” (Id. at p. 1159.)
       “Once a law enforcement officer has detained a suspect and subjects him to
interrogation[,] … there is rarely, if ever, a legitimate reason to delay giving a Miranda
warning until after the suspect has confessed. Instead, the most plausible reason for the
delay is an illegitimate one, which is the interrogator’s desire to weaken the warning’s
effectiveness.” (Williams, supra, 435 F.3d at p. 1159, fn. omitted; see Seibert, supra, 542
U.S. at p. 613 (plur. opn. of Souter, J.) [“By any objective measure … it is likely that if
the interrogators employ the technique of withholding warnings until after interrogation
succeeds in eliciting a confession, the warnings will be ineffective in preparing the
suspect for successive interrogation, close in time and similar in content. After all, the
reason that question-first is catching on is as obvious as its manifest purpose, which is to
get a confession the suspect would not make if he understood his rights at the outset; the
sensible underlying assumption is that with one confession in hand before the warnings,
the interrogator can count on getting its duplicate, with trifling additional trouble.”]; id. at
p. 620 (conc. opn. of Kennedy, J.) [“As Justice Souter points out, the two-step technique
permits the accused to conclude that the right not to respond did not exist when the earlier
incriminating statements were made. The strategy is based on the assumption that




narrowest grounds.” (People v. Rios, supra, 179 Cal.App.4th at p. 504; accord, Marks v.
United States (1977) 430 U.S. 188, 193.)


                                              26.
Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory
statements have already been obtained.”].)
       Between 2:54 p.m. (when Barba informed Echevarria defendant failed the
polygraph examination) and 4:09 p.m. (when Echevarria finally advised defendant of his
Miranda rights), the detectives extensively interrogated defendant using various
techniques and obtained a pre-Miranda admission as to what had occurred the night of
July 22, 2007. During the post-Miranda interview, which lasted approximately 30
minutes, defendant basically repeated his account. “Because law enforcement officers
generally retain control over the timing of a Miranda warning and giving the warning to a
custodial suspect imposes only a minimal burden” (Williams, supra, 435 F.3d at p. 1160),
we find the detectives’ deferral of the warning until after defendant’s admission “supports
an inference of deliberateness” (ibid.). Moreover, substantial breaks in time between the
pre- and post-Miranda interviews and curative warnings20 were conspicuously absent.
       As we previously noted, to prevail on an ineffective-assistance-of-counsel claim, a
defendant must show both that his counsel’s performance was deficient and that the
deficient performance resulted in prejudice to defendant. (Andrade, supra, 79
Cal.App.4th at pp. 659-660.) “Prejudice is shown when there is a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” (People v. Wharton, supra, 53 Cal.3d at p. 575.) At oral argument, the
Attorney General conceded the admission of defendant’s post-polygraph statements was
prejudicial. We accept this concession.




20    A curative warning “should be designed to ensure that a reasonable person in the
suspect’s situation would understand the import and effect of the Miranda warning and
… waiver.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) One
example is “an additional warning that explains the likely inadmissibility of the
prewarning custodial statement ….” (Ibid.)


                                             27.
                                       DISPOSITION
       The judgment on counts 1 and 2 and the order appealed from are reversed. The
judgment on count 3 is affirmed.
       Upon issuance of the remittitur, the clerk of this court is directed to give the
required notice to the State Bar of California pursuant to Business and Professions Code
section 6086.7, subdivision (a)(2), and to defendant’s trial counsel pursuant to Business
and Professions Code section 6086.7, subdivision (b), and California Rules of Court,
rule 10.1017. (See In re Jones (1996) 13 Cal.4th 552, 589, fn. 9; In re Sixto (1989) 48
Cal.3d 1247, 1265, fn. 3; People v. Pangan (2013) 213 Cal.App.4th 574, 584, fn. 10.)



                                                                  _____________________
                                                                             DETJEN, J.
WE CONCUR:


 _____________________
 HILL, P.J.


 _____________________
 GOMES, J.




                                             28.
