People v. Barrera

Full title: THE PEOPLE, Plaintiff and Respondent, v. ROGELIO BARRERA, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Dec 18, 2019

No. F076511 (Cal. Ct. App. Dec. 18, 2019)

Opinion

F076511

12-18-2019

THE PEOPLE, Plaintiff and Respondent, v. ROGELIO BARRERA, Defendant and Appellant.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF320165)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Rogelio Barrera rented a room and lived on the same property as Pedro Mateo. One night, defendant and Mateo drank beer, smoked methamphetamine, and argued. Defendant pulled a knife and stabbed Mateo 12 times in the face, chest, and back. Mateo died almost instantly. The property owner and her daughter confronted defendant, who was covered with blood. Defendant repeatedly said that he had stabbed the victim. During a postarrest interview with a detective, defendant said he thought Mateo was going to punch him, so he decided to stab him first, but he did not want to kill him.

Defendant was charged with murder. Defendant was interviewed twice after he was arrested. He later moved to exclude his postarrest statements from the first and second interviews and claimed he did not knowingly, intelligently, and voluntarily waive his constitutional rights. The court denied the motion.

At trial, the prosecution argued defendant committed first degree premeditated murder. The defense argued defendant used lawful self-defense and was not guilty, or alternatively was only guilty of voluntary manslaughter based on imperfect self-defense. The jury found defendant not guilty of first degree murder, and guilty of second degree murder as a lesser included offense with a deadly weapon enhancement. He was sentenced to an aggregate term of 16 years to life in prison.

On appeal, defendant renews the issues he raised before the superior court. He contends his first postarrest interview should have been excluded because he did not knowingly, intelligently, and voluntarily waive his constitutional rights after being advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant argues his second postarrest interview also should have been excluded because it was tainted by the alleged Miranda violation in the first interview. Defendant also contends the court should have granted his motion to continue the hearing on his motion to exclude his statements and the jury trial because of the belated discovery of the videotape of the first postarrest interview.

Defendant raises additional issues on appeal to argue both his first and second postarrest interviews should have been excluded, but he did not raise these issues before the superior court: that one of the Miranda advisements prior to the first interview was defective and incorrect, the detective's decision to conduct the first interview was coercive, and defendant's statements were involuntary. Defendant argues these errors also required exclusion of his second postarrest interview.

In addition, defendant requests the matter be remanded for the superior court to conduct a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) because he was 24 years old when he committed the offense. Defendant also states that the court must correct the calculation of his actual days of custodial credits.

We affirm defendant's murder conviction and the deadly weapon enhancement but remand the matter for a Franklin hearing and for the court to address his custodial credits.

PART I

THE HOMICIDE

Manuela Fuentes lived in a four-bedroom house in Cutler. She had several tenants who rented and lived in the extra bedrooms in her house and a trailer in her backyard.

On June 27, 2015, Ms. Fuentes's tenants included defendant, who rented a bedroom inside the house, and Pedro Mateo, who rented the backyard trailer. Defendant and Mateo had been living there for a few months. Ms. Fuentes never noticed any problems between them.

On that day, Ms. Fuentes saw defendant sitting in her kitchen and listening to music. She also saw defendant and Mateo talking together. They were not fighting or arguing, and everything seemed okay between them.

Later in the afternoon, Ms. Fuentes was in the kitchen of her house. She made a plate of food and took it to the backyard for "Lazaro," another person who lived on the property. Ms. Fuentes testified everything was fine and there were no problems.

Sometime before 6:30 p.m., Ms. Fuentes's adult daughter arrived at the house and joined Ms. Fuentes in the kitchen. Ms. Fuentes testified "someone" ran into the kitchen and told her "something's happening in the trailer and they stabbed Pedro [Mateo]."

Ms. Fuentes ran to the backyard and saw Mateo fall to the ground, with blood coming out of his mouth. Defendant was standing there.

Defendant went into the house. Ms. Fuentes's daughter saw him covered "with a lot of blood and everything on [his] hands and clothes" and his shirt. Defendant did not say anything. He looked "all in shock, like with a lot of blood and everything."

Ms. Fuentes found defendant in the living room of her house. Defendant was wearing pants but had taken off his shirt. Defendant appeared anxious and did not look like he normally did. Defendant kept saying, "over and over and over" that " 'I killed him. I killed him.' "

Ms. Fuentes's daughter was scared when she saw defendant covered in blood. She asked what he had done and told defendant that she did not want any problems for her mother, and she was going to call the police. Defendant did not respond. Ms. Fuentes's daughter called the 911 and told defendant to stay there until officers arrived.

Ms. Fuentes and her daughter testified it took a long time for officers to arrive. When they finally got there, defendant was hiding under Ms. Fuentes's bed and his feet were sticking out. The investigation

Detective Rodriguez of the Tulare County Sheriff's Department arrived at Ms. Fuentes's house with other deputies. The deputies had difficulty finding the residence because they were given the wrong address and arrived about 15 minutes after they received the dispatch.

The deputies found Mateo lying in the backyard, about 10 yards away from the trailer's door. Mateo was pronounced dead at the scene.

There was a large amount of dried blood on Mateo's chest. A "military survival-type knife" was on the ground near his feet. The knife had a four-inch blade and a three-inch handle. The blade was sharp and smooth on one side and serrated on the other. There was blood toward the hilt of the knife. Mateo's shirt was bloody and partially ripped off his body. He was not wearing shoes.

There were puncture wounds in the center of Mateo's chest, his throat, shoulder, and near his ear. His left eye and lips were split open and bloody. Arrest of defendant

Ms. Fuentes and her daughter told the deputies that defendant was hiding under a bed in the house. The deputies went into the bedroom and ordered defendant to surrender. Deputy Saliem testified defendant failed to respond or comply with their orders. Saliem testified defendant was "just laying there" under the bed and not moving. The deputies pulled defendant from under the bed and he was arrested. Defendant did not struggle, and he could have been asleep. Saliem testified defendant "eventually woke up" and he was "groggy," but he got up on his own power and walked out of the house without any assistance.

Defendant had a laceration on the web of his thumb and index finger of his right hand. He was wearing jeans but no shirt or shoes. There were blood stains on the front and bottom of his jeans. The cuffs on the right leg appeared to be soaked in blood. Defendant's bloody shirt was found under the mattress of the bed where defendant had been hiding. The trailer

The investigators determined the trailer in the backyard was the crime scene. There was a substantial amount of blood inside the trailer on the floor, and "you [could] tell someone was in there and kind of skated or walked through." There were "shoe tracks" inside the trailer, along with "a bloody footprint, partial bloody footprint ..., blood drops, a smudge, blood smudge" on the floor.

There were blood spatter marks "through the whole trailer," blood drops and bloodstains on the wall, and a substantial amount of blood in the trailer's kitchenette area. The dinette table was flipped over and "off to the side, possibly as a result of some altercation ...." There was blood on a chair cushion at the table.

There were bloodstains on the trailer's metal doorframe. A bloody shoeprint was on the outside doorstep leading from the trailer to the backyard. There were more bloody shoeprints outside the trailer that led to the trash can next to Ms. Fuentes's house. There were no shoeprints that led away from the can. A bloody pair of tennis shoes was found in the trash can.

The bloody shoe impressions in and outside the trailer were "very similar" and appeared to match the tread patterns on the bloody shoes found in the trash can. Mateo's fatal wounds

The pathologist testified Mateo had been stabbed 12 times, mostly on the front left side of his body. There were stab wounds on Mateo's left eye above the eyebrow, left upper chest, the left neck area, left ear, and two in the chest. Mateo had a large wound to the right upper back behind the shoulder, that had a distinctive ripping that "generally means that it was not a direct stab, that is in and out, but rather there was some cutting action by the blade." At least three of the wounds were in his back.

Most of the victim's stab wounds were superficial and only penetrated about three-quarters of an inch into his body. However, there were also deeper wounds into his body that were fatal. A stab wound to the left side of his neck penetrated approximately five inches and lacerated a major blood vessel causing a moderate amount of hemorrhaging. A wound to the left chest penetrated to a depth of approximately six inches, entered the heart, and caused a large laceration in the left ventricle. This wound was "definitely fatal" because it resulted in massive hemorrhaging of approximately 1.5 liters of blood into the left chest. The wound to the right upper back penetrated about five inches, caused a small laceration to the upper lobe of the left lung, and produced additional hemorrhaging into the chest.

Mateo also had multiple cuts on his face, a laceration or slicing wound from his mouth to the bottom of his chin, and trauma to the skin of the left lower face.

The official cause of the victim's death was "exsanguination o[r] bleeding to death due to multiple sharp force trauma injuries" from the deep wounds. The perpetrator had to use significant force to stab the victim in the back so that the knife went into the lung. He also needed to use the same amount of force to stab the front of the victim's chest so the knife went into the victim's heart, since the knife penetrated through multiple layers of skin, dermis, fat, muscle, and bone. Blood test results

A blood test showed Mateo's blood-alcohol level was 0.09 percent at the time of death, slightly above the legal intoxication standard. Mateo's blood had a methamphetamine concentration of 751 nanograms per milliliter, and a confirmed active metabolite amphetamine at 75 nanograms per million. This indicated Mateo had "significant" levels of methamphetamine in his system and was under the influence of the drug at the time of his death.

Defendant's blood sample was taken from him about four hours after he stabbed Mateo. His blood-alcohol level was also 0.09 percent, slightly above the legal limit. His blood-alcohol level would have been higher if tested four or five hours earlier. Defendant had a methamphetamine concentration of 82 nanograms per milliliter, which was "significantly less" than the victim.

The DNA tests showed that Mateo was a major contributor to the blood found at the crime scene. Defendant's blood was on Mateo's shirt.

PART II

DEFENDANT'S POSTARREST STATEMENTS

After he was arrested, defendant was interviewed twice by Detective Zamora.

Prior to trial, defendant moved to exclude his statements from both interviews, and argued his waiver of constitutional rights before his first interview was not knowing, intelligent and voluntary, and tainted his waiver at the second interview. In issue I, post, we address defendant's motion to exclude his statements and the court's finding that the statements were admissible. On appeal, defendant renews the arguments he made to the superior court, and also raises additional issues that he did not assert during his motion to exclude. We address those claims in issues II through V, post.

However, we now turn to defendant's postarrest statements that were admitted at trial. The first interview

At 9:27 p.m. on June 27, 2015, a few hours after the stabbing, Detective Zamora interviewed defendant in a room at the Culter-Orosi substation. Defendant was under arrest. Zamora was fluent in Spanish, and he conducted the entire interview in Spanish. The interview was recorded on both audio and video.¹

1 At trial, Detective Zamora testified the interview began at 9:27 p.m. The transcript erroneously states the interview started at 10:27 p.m., mostly likely because that was the time stamp on the video.

At trial, the video was shown to the jury. By agreement of the parties, the jury received a redacted transcript that contained an English translation of the interview.²

2 As we will discuss in issue I, post, defendant moved to exclude the entirety of his postarrest statements. At the hearing on the motion, the trial court watched the video before it held the statements were admissible. The video was introduced into evidence at trial and played for the jury, and it is part of the appellate record before this court. We have watched the entirety of the video and will include our observations along with the transcript.

Zamora calls out to defendant

The video begins by showing defendant sitting on a chair in front of a table in the interview room. Defendant was not wearing a shirt. His hands were restrained behind his back with handcuffs. Defendant was bent over in his chair, and his head was face-down on the table.

Detective Zamora entered the interview room, placed his portfolio on the table, and apparently closed the door. Defendant's head remained on the table. Zamora called out to defendant but mistakenly used the name "Rigoberto" instead of defendant's true first name of "Rogelio." Defendant did not respond. Zamora lightly tapped defendant's shoulder and continued to call him, Rigoberto.³

3 At the pretrial hearing on defendant's motion to exclude his statements, the prosecutor stated that the transcript erroneously stated that Detective Zamora called out to defendant using his true first name of Rogelio. The prosecutor said he would ask Zamora to testify at trial that he mistakenly called defendant Rigoberto and the transcript had corrected his error.

After a few seconds, defendant sat up in his chair and looked at Zamora. Zamora asked defendant, "Are you awake? How are you?" Defendant replied, "Fine, fine."

"Det. Zamora: I'm Detective Zamora. Do you know who I am?

"[Defendant]: Yes.

"Det. Zamora: Yes? Who am I?

"[Defendant]: Detective Zamora.

"Det. Zamora: Okay, at least you remember something; right? I am going to talk with you...."

Detective Zamora asked defendant for his full name, birthdate, his parents' names, where he was from, how long he had been in the United States, and what city he lived in. Defendant was responsive, looked at Zamora, and answered all the questions without hesitation. Defendant either said "yes" or nodded his head up and down to indicate "yes."

Defendant said he was born in 1991 (24 years old) and had been in the United States for six years. He spent most of his time working in Cutler but had once picked cherries in Stockton. Zamora said he had once picked cherries in Stockton.

Based on our review of the video, defendant looked directly at Zamora and was attentive.

Miranda advisements ⁴

4 Defendant's primary issue on appeal is that he did not give knowing, intelligent, and voluntary waivers of his constitutional rights based on this sequence from the first interview.

Detective Zamora next advised defendant of the Miranda warnings by reading all the advisements from a card in one full paragraph:

"As you are here detained, there are some things I have to do. Let me read you something.

"Let's see. You have the right to remain silent. Anything you say can be used and will be used against you in front of a jury. You have the right to talk to a lawyer and ask him to be present while you are being interrogated. If you can't afford a lawyer, one will be named to represent you before you get questioned. You can choose when to exercise your rights by not answering any question or making any statements."

As Detective Zamora read the advisements, defendant looked directly at him. After he finished, Zamora asked, "Did you understand what I just read to you?" Defendant looked at Zamora and did not respond in any way. Zamora was still holding the card and asked, "Is it a little bit confusing?" Defendant replied, "[L]et me see, read it."

"Det. Zamora: What I am going to do is read it to you one by one, and if you understand tell me, and if you don't tell me you don't so I can explain it to you."

Defendant nodded his head up and down to signify yes. Detective Zamora asked if he understood Spanish well, and defendant said yes.

"Det. Zamora: Did you go to school in Mexico?

"[Defendant]: Yes.

"Det. Zamora: Until what grade?

"[Defendant]: I only did primary school.

"Det. Zamora: Primary is the equivalent to high school, so until 15 or 14 years old; right?

"[Defendant]: Yes."

Detective Zamora then read each advisement separately. He looked down to read each advisement from the card, and then looked up at defendant to ask if he understood that particular advisement:

"Det. Zamora: So you have the right to remain silent. [¶] Do you understand?"

Defendant nodded his head up and down to signify yes. Zamora asked defendant, "Yes or no?" Defendant replied, "Yes," and again nodded his head up and down.

"Det. Zamora: Okay. Anything you can say can be used and will be used against you in front of a jury." (Italics added.)⁵

Zamora looked directly at defendant and asked, "Do you understand?" Defendant looked at Zamora and nodded his head up and down to signify yes.

"Det. Zamora: You have right to speak to a lawyer and ask him to be present while you are being questioned. [¶] Do understand? Yes?"

Defendant nodded his head up and down, and then said, "Yes."

"Det. Zamora: If you can't afford a lawyer, one will be named to represent you, before you are being questioned if you ask for it."

Defendant nodded his head up and down to signify yes. Zamora asked, "Do you understand?" Defendant said, "Uh-huh."

"Det. Zamora: You can choose when to exercise your rights by not answering to any questions or making any statements. [¶] Do you understand?"

Defendant looked at Zamora and nodded his head up and down to indicate yes.

"Det. Zamora: "Okay. Now that I read your rights to you, do you want to talk to me about why you are here? You know why you are here, right? [Defendant nods head.] Do you want to speak with me so we can clarify what is happening and what happened? [Defendant nods head.] Like - are you saying that you want to speak with me, then?

"[Defendant]: Yes."

5 As we will discuss in issue III, post, defendant argues that Detective Zamora gave defective advisements by saying that the evidence could be used against him "in front of a jury," instead of saying "in court."

Defendant's account of the homicide

Detective Zamora asked defendant open-ended questions about his living arrangements. Defendant was completely alert and engaged as Zamora asked him the questions. Defendant said he had been renting a room at Ms. Fuentes's house for around a year, and some friends "from my village" also lived there. He paid $160 per month. There were two other tenants in the house, and some "young guys" named Francisco and Palomilla lived in the back.

Defendant said he drank five beers that day. Detective Zamora asked defendant if he knew what happened. Defendant said yes. Zamora asked him to tell the truth about what happened. Defendant said he did not "remember very well." Zamora asked defendant to tell him whatever he remembered.

Defendant became more subdued and spoke in a very quiet voice, and said, "The truth is that I stabbed a guy." Detective Zamora asked why he stabbed him. Defendant replied, "I was drunk."

Detective Zamora asked defendant what kind of knife he used. Defendant tried to gesture with his hands behind his back, and said it was "[a]bout this big" and "it had like a comb." Zamora asked defendant if he had ever seen such a knife in a movie. Defendant replied, "Like Rambo's knife," and it was black with metallic "serrated teeth." Defendant had the knife in his right pocket.

Detective Zamora asked defendant what happened to his shirt. Defendant said he took it off and left it in the bedroom.

Detective Zamora asked defendant to start from the beginning. Defendant gave a narrative answer and said he was in the backyard with Freddy Ramirez, Francisco Avila, and Lazaro Ponce. Pedro Mateo, the victim, was also there. Another man named Palomilla was also present, but he had just been there for one day, and defendant did not know his full name. They all lived at Ms. Fuentes's house.

Defendant said he had only known Pedro (referring to the victim) for about six months and did not know his last name. When asked how they got along, defendant said, "Fine. We got along well. Sometimes it was bad" because of "the alcohol."

Detective Zamora asked defendant if he was sick, taking medication or was an alcoholic. Defendant said no.

Defendant said they were all drinking beer in the backyard. Defendant and Mateo sat in the trailer's living room while the other men stayed outside in the backyard. Mateo had a crystal pipe. Detective Zamora asked if he was smoking methamphetamine. Defendant paused, and Zamora encouraged him to tell the truth. Defendant said they were both smoking.

Defendant said that when he was smoking, Mateo told him, " 'The police is coming' or something like that, saying lies or something like that, saying lies or something like that. I told him, 'Nobody is coming.' " Mateo again said the police were coming through the alley, "like playing around." Defendant again said no one was coming, "and I told him, 'Why do you always lie?' And then we started arguing." They were both sitting down at table in the trailer while they were smoking and arguing.

Defendant said Mateo "wanted to hit me" with his fist "and then everything was easy to me---" Defendant said he stood up and Mateo remained seated. Defendant said he hit Mateo, drew his knife, and stabbed him in the body while Mateo was still sitting down.

Detective Zamora asked defendant how many times he stabbed Mateo. Defendant said he did not count but there were several, "like two times" or "like four."

Defendant said Mateo left the trailer and went outside. Defendant followed Mateo and stabbed him three times in the back. The other men ran to defend Mateo and stop defendant, but they were not successful. Defendant did not try to stab the other men. Mateo fell to the ground.

Defendant said that after Mateo fell, he went inside Ms. Fuentes's house and told her, "I killed him." Defendant said he felt desperate. He hid under the bed because he was drunk.

Detective Zamora asked defendant why he stabbed Mateo if he just wanted a fist fight, and whether defendant wanted to kill Mateo. Defendant said he did not want to kill Mateo but "the truth is that he is a person who loves to fight ...." Zamora asked defendant why he did not tell Mateo that he was going to leave him alone and go back into the house. Defendant replied, "Because I was drunk. I don't know. It was easy for me." Zamora asked what was easy. Defendant did not answer but said they were both drunk.

Detective Zamora again asked what he was thinking when he drew the knife. Defendant said, "It came to my mind, something like that. I saw he was going to hit me so it was easy for me." Defendant said Mateo was "going to hit me," but Mateo did not actually hit him.

Detective Zamora asked defendant if he felt remorseful for taking the man's life and killing him, and if he knew where the man's family was. Defendant did not respond. He looked down at the table and then looked up at Zamora. Defendant said Mateo had an older sister who occasionally visited, but he did not know where she lived.

Defendant then bent down and placed his head face down on the table, as he looked when Detective Zamora initially entered the room. Zamora told defendant to wait awhile and he would return. Zamora left the room. The camera continued to run, and defendant remained in that same position.

Detective Zamora returns to the interview room

After about nine minutes, Detective Zamora returned to the room. As he opened the door, defendant sat up and raised his head from the table. Zamora asked defendant if he thought about what he said. Zamora told defendant he looked "a little bit remorseful for what happened." Defendant nodded his head up and down, and said, "Of course I do."

"Det. Zamora: Then what you were saying is that you both were [in] the trailer. None of the other persons that you told me were [in] the trailer. Were they all outside? Do you want to tell me something else before I go?"

Defendant shook his head from side to side and said, "No"

Detective Zamora said he appreciated that defendant had told the truth, but that he had to pay the price for what he did. Zamora told defendant that someone would come in and take blood from him, and another person would take a few photographs.

Detective Zamora asked defendant if he was cut or wounded during the incident. Defendant nodded yes. He moved both his arms behind his back to his right side. Defendant raised the fingers on his right hand to indicate he was cut there. Zamora asked if that was "from holding the knife." Defendant nodded his head up and down to indicate yes.

Detective Zamora's trial testimony about the first interview

At trial, Detective Zamora testified that when he initially entered the room to begin the first interview, defendant's head was on the table and he appeared to be asleep, but "after everything, I think he was just emotionally withdrawn."

Detective Zamora testified that during the first interview, defendant indicated he understood his questions by saying "yes" most of the time, but sometimes he nodded his head up and down to indicate "yes."

Detective Zamora testified defendant said he used his right hand to stab the victim. The stab wounds on the front of the victim's body were primarily on his left side, and the wounds in the victim's back were on his right side, which would be consistent with being stabbed by someone who was right-handed.

Detective Zamora testified that at the end of the first interview, defendant showed him a cut on the webbing of his right hand and said it was from holding the knife. Zamora had seen similar injuries in other stabbing cases. Defendant's second interview

At trial, Detective Zamora testified that a few days after defendant was arrested, he met with defendant in the jail and conducted another recorded interview.⁶ Zamora testified he again advised defendant of the Miranda warnings and defendant agreed to speak with him.⁷

6 At trial, Zamora did not specify the date of the second interview. Defendant's motion to exclude his postarrest statements stated that the second interview occurred on June 29, 2015, which was two days after the homicide.

7 As we will discuss below, during the pretrial hearing on defendant's motion to exclude his statements, he asked the court to watch the video of his first interview and argued his Miranda waiver was not knowing, intelligent, and voluntary. Defendant did not introduce the video, audio, or a transcript of the second interview at the hearing. Instead, defendant's motion asserted his second statement was inadmissible because it was purportedly "tainted" by defendant's allegedly invalid Miranda waiver from the first interview. The court denied defendant's motion and found he validly waived his constitutional rights at the first interview; the court did not address the second interview.
At trial, the People played the video of defendant's first interview to the jury and provided the jurors with transcripts. As for the second interview, Detective Zamora testified about defendant's statements. Neither the People nor the defense played the recording of the second interview for the jury or passed out a transcript.

Detective Zamora testified that during the second interview, he asked defendant to clarify where he was sitting in the trailer with Mateo. Defendant said they were sitting at opposite ends of a table. Defendant's back was to the door. Mateo was sitting in front of defendant and was further away from the door.

Detective Zamora also asked defendant to clarify how much he had been drinking before the homicide. Defendant said he drank five 24-ounce cans of beer and smoked methamphetamine.

Defendant said he kept stabbing Mateo as Mateo tried to get out of the trailer. He thought the entire incident lasted 20 minutes. After it was over, defendant went into the house and told Ms. Fuentes "not to call the cops."

Detective Zamora asked defendant about the bloody shoes that were found in the trash can. Defendant said the shoes belonged to him, but he denied throwing them in the trash.

At trial, Detective Zamora testified that during both interviews, he did not have any problems communicating with defendant, and defendant did not refuse to answer any questions.

DEFENSE THEORY

Defendant did not testify and did not call any witnesses.

After the People rested, defendant moved for acquittal and argued there was no evidence of intent or premeditation. The court denied the motion.

In both his opening statement and closing argument, defense counsel asserted that defendant and Mateo got drunk and high in the small trailer, Mateo made a move toward defendant, defendant felt threatened and under attack, and he believed Mateo was going to hit him. Mateo acted in provocation and forced defendant to defend himself. Defendant instantly reacted in self-defense without thinking about it because he feared for his life. Counsel argued defendant was still drunk when he was interviewed after the stabbing. Counsel asserted defendant did not intend to kill Mateo, did not have time to weigh the considerations, and he did not commit the act with premeditation or deliberation.

Defense counsel argued the People failed to prove defendant was guilty of either first or second degree murder. If the jury found he acted in perfect self-defense, he was not guilty of any charge. Counsel argued if the jury found he acted in imperfect self-defense, he was only guilty of manslaughter. Instructions

Defendant was charged with count 1, murder of Mateo (Pen. Code, § 187, subd. (a)),⁸ with the special allegation that he personally used a deadly and dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)).

8 All further statutory references are to the Penal Code unless otherwise stated.

The jury was instructed on first degree murder and premeditation, second degree murder, and express and implied malice. It was also instructed on voluntary manslaughter as a lesser included offense based on heat of passion and imperfect self-defense; and mutual combat and lawful self-defense as a complete defense.

The jury was further instructed that it could only consider evidence of defendant's voluntary intoxication to decide "whether the defendant acted with intent to kill or the defendant acted with deliberation and premeditation." Conviction and sentence

On August 4, 2017, the jury found defendant not guilty of first degree murder but guilty of the lesser included offense of second degree murder (§§ 187, subd. (a), 189). The jury found the section 12022, subdivision (b)(1) deadly weapon enhancement true.

On September 1, 2017, the court sentenced defendant to 15 years to life for count 1, second degree murder, plus one year for the deadly weapon enhancement, for an aggregate term of 16 years to life.

As to restitution, defense counsel said that Mateo's family had requested an additional $1,100 in funeral expenses, above that already paid by the victim's compensation board. Counsel said he explained this request to defendant, and defendant would stipulate to that amount. The prosecutor concurred.

The court imposed a restitution fine of $4,800 (§ 1202.4, subd. (b)) and suspended the parole revocation fine. The court also imposed a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373), consistent with the amounts recommended in the probation report.

The court ordered defendant to pay restitution of $5,000 to the Victims Compensation Claims Board, with interest to accrue at 10 percent, based on an amount already paid to the victim's family for funeral expenses. (§ 1202.4, subd. (f)(3)(G).)

The court ordered restitution of $1,150 paid directly to the victim's sister for additional funeral expenses. The court ordered further restitution to remain open for the victims, identified as Mateo and his sister, and also for the Victims Compensation Claims Board (§ 1202.4, subd. (f)(2)).

At the end of the hearing, defendant personally stated his apologies to the victim's family and the court.

On October 25, 2017, defendant filed a timely notice of appeal.

DISCUSSION

I. Defendant's Motion to Exclude his Postarrest Statements

The majority of defendant's appellate issues address the court's denial of his motion to exclude his two postarrest statements. On appeal, defendant renews the arguments he made below, that defendant's waivers of his constitutional rights at his first interview were not knowing, intelligent, and voluntary, and his second postarrest interview was tainted by that allegedly invalid waiver.

However, defendant also raises several arguments that he never made before the superior court about the first interview - that he received defective advisements prior to the first and second interviews, the detective's decision to conduct the first interview was coercive, and all his postarrest statements were involuntary.

We are thus compelled to review the entirety of defendant's motion to suppress, the court's hearing on the motion, the parties' arguments, and the court's denial of the motion. We will then address defendant's claims that all his postarrest statements should have been excluded.

A. Defendant's Motion to Exclude

The People filed a trial brief and moved to admit all of defendant's postarrest statements.

Defendant filed a trial brief that raised several evidentiary issues. The brief also contained a motion to exclude all of the statements he made to Detective Zamora during his two postarrest interviews, conducted on June 27 and 29, 2015.

Defendant argued he did not voluntarily waiver his constitutional rights before the first interview because when Detective Zamora initially entered the interview room, "he found the Defendant asleep or at least he appeared to be asleep." When Zamora read the Miranda advisements, defendant "did not seem to understand," and Zamora had to repeat them. Defendant said he had limited education, and the toxicology reports showed he had alcohol and methamphetamine in his blood at the time of the interview.

Defendant was "tired, uneducated and intoxicated," so it was "highly likely" that he was "unable to give a knowing, voluntary and intelligent waiver of his right to remain silent" and he "did not understand the nature of the waiver he was asked to give" at the first interview. The detective was "aware of each of the three factors limiting [defendant's] ability to give a knowing, intelligent and voluntary waiver" of his constitutional rights.

"When law enforcement questioned [defendant] in an effort to obtain a confession or admission from him while being aware of his fatigue, lack of education and intoxication, law enforcement exploited his physical and mental impairments."

Defendant's motion further argued his statements from his second postarrest interview on June 29, 2015, should also be suppressed because they were "the product of the tainted waiver" that defendant gave in the first interview.

Defendant's motion did not assert that Detective Zamora gave defective advisements or that all his postarrest statements were involuntary.

B. Hearing on Defendant's Motion

On August 1, 2017, the court convened defendant's first day of trial. The jury was selected, and the court then turned to the parties' trial briefs on various evidentiary issues.⁹

9 As we discuss in issue VI, post, defense counsel had received an audio recording and a transcript of the first interview prior to the hearing. When the hearing on the motion began, the court and the parties discussed the People's determination that a video also existed of the first interview that corresponded to the audio recording, and that it had been turned over to the defense that morning. Defendant did not argue that the People had intentionally failed to disclose the video. However, defense counsel moved to continue the hearing and the trial for more time to review the video. The court denied the motion to continue. On appeal, defendant contends the court's denial of his continuance motion was an abuse of discretion.

The court addressed the merits of defendant's motion to exclude his postarrest statements from the first and second interviews. Neither the People nor the defense called any witnesses, and defendant did not testify. The court and the parties watched the video and reviewed the transcript, and then the parties argued about whether defendant's waiver was knowing, voluntary, and intelligent for the first interview.

Defense counsel argued that defendant's ability to give a knowing, intelligent, and voluntary waiver was undermined because he was not very well educated, his blood-alcohol level was 0.09 percent, and he was still drunk during the interview.¹⁰

10 Defense counsel stipulated to the toxicology results at the hearing.

The court asked defense counsel if he had consulted with an expert about whether defendant was still intoxicated at the time of the interview. Counsel said yes. However, counsel did not call a witness on that subject.

Defense counsel argued that defendant was questioned under difficult circumstances since his hands were restrained behind his back, his shoulders were slumped forward, he was tired, and it appeared Detective Zamora woke him up at the beginning of the interview. Counsel argued the circumstances, including defendant's low level of education and intoxication, established that his waiver of his constitutional rights was not knowing, voluntary, and intelligent.

The prosecutor replied that defendant's voluntary ingestion of beer before the homicide should not negate the voluntariness of his waiver. In addition, a defendant's blood-alcohol level, sleep deprivation, or poor education were not mental impediments and did not negate voluntariness based on the entirety of the circumstances.

The prosecutor argued the video showed that when Detective Zamora initially read the entirety of the Miranda warnings to him, defendant showed confusion. Zamora immediately realized defendant did not understand. When Zamora separately read each advisement, defendant responded to each separate advisement and either nodded yes or said he understood, and his waiver was voluntary.

C. The Court's Denial of Defendant's Motion to Exclude his Statements

The trial court denied defendant's motion to exclude his postarrest statements. The court found defendant's waivers prior to the first interview were knowing, intelligent, and voluntary, based on its observations of the video and review of the transcript:

"It does appear from the totality of circumstances, including questions that he was asked following his Miranda advisement that he did go to school. He did [sic], quote/unquote, 'primary school.' And his primary is equivalent to high school. So until 15 or 14 years old; right? And [defendant] answers, 'Yes.'

"So it's not like he didn't have any type of education. He's answering the questions appropriately. And I don't see anything here that would indicate less than a knowing and intelligent and voluntary waiver of your constitutional rights. As counsel pointed out, the officer first advised him of his rights under Miranda in one full paragraph. And then he asked him, 'Do you understand what I just read to you? Is it a little bit confusing?' And [defendant] apparently answered, 'Let me see. Read it.'

"Then the officer, which was the right thing to do, broke it down in the sentences as to each right that he was giving up. So I think there was a knowing and intelligent and voluntary waiver. I think it was an appropriate admonition and an appropriate acknowledgement. So I would allow any statement of [defendant]."¹¹ (Italics added.)

11 On the following day, the prosecutor advised the court and defense counsel that the video had been edited to correspond to the redacted audio version and the translated transcript, and omitted references to subjects as agreed to by the parties. As noted above, the video was played for the jury and it received the translated transcript.

The court did not address the admissibility of defendant's statements from his second interview, presumably because defendant's arguments about the second interview were entirely based on whether his statements from the first interview were admissible.

II. Defendant Knowingly Waived his Rights Prior to the First Interview

On appeal, defendant renews the argument he raised in his motion to exclude his statements from the first interview: He did not knowingly, intelligently, and voluntarily waive his constitutional rights prior to the first interview because he appeared to be suffering from "sleep deprivation," he was not "conscious" when Detective Zamora entered the room to begin the interview, he did not respond when Zamora called out to him, he was still intoxicated at the time based on the toxicology results, he had little education, and he had a blank look on his face when he allegedly waived his rights which showed he did not "quite grasp" what was going on.

A. The Miranda Advisements and Waivers

Miranda requires that a custodial suspect must be warned prior to interrogation that he "has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444.) A Miranda waiver need not be explicit but may be implied from the words and actions of the defendant. (North Carolina v. Butler (1979) 441 U.S. 369, 373-376; People v. Whitson (1998) 17 Cal.4th 229, 246-250.)

A Miranda waiver must be knowing, intelligent, and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573; North Carolina v. Butler, supra, 441 U.S. at p. 373; People v. Cruz (2008) 44 Cal.4th 636, 668.) This inquiry "has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Combs (2004) 34 Cal.4th 821, 845.)

Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. (North Carolina v. Butler, supra, 441 U.S. at pp. 374-375.) "All that is required is that the defendant comprehend 'all of the information that the police are required to convey' by Miranda. [Citation.] 'Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.' [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 987, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

The prosecution has the burden of demonstrating a valid waiver by a preponderance of the evidence. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169; People v. Clark, supra, 5 Cal.4th at p. 987, fn. 12; People v. Linton (2013) 56 Cal.4th 1146, 1171; People v. Williams (2010) 49 Cal.4th 405, 425; People v. Smithson (2000) 79 Cal.App.4th 480, 498-499.) We accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence, but independently review the determination that a defendant's waiver of Miranda rights was knowing, intelligent, and voluntary. (People v. Williams, supra, 49 Cal.4th at p. 425; People v. Whitson, supra, 17 Cal.4th at p. 248; People v. Marshall (1990) 50 Cal.3d 907, 925.)

B. Analysis

Defendant asserts that while he verbally waived his rights, that waiver was not knowing, intelligent, and voluntary based on his physical and mental status prior to the first interview: The toxicology results showed he was legally intoxicated and methamphetamine was in his system; he was not wearing a shirt; his arms were restrained behind his back with handcuffs; and he was either sleeping or passed out when Detective Zamora entered the interview room to begin the interrogation.

The California Supreme Court has "repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where ... there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him. [Citation.]" (People v. Clark, supra, 5 Cal.4th at p. 988.) "The fact an interviewee is under the influence of alcohol or drugs is a significant factor. However, it is not, standing alone, a sufficient indicator of involuntariness." (People v. Perdomo (2007) 147 Cal.App.4th 605, 617, fn. omitted.) Similarly, a suspect's low intelligent and possible mental health issues, standing alone, do not render his waiver of Miranda rights involuntary. (People v. Kelly (1990) 51 Cal.3d 931, 951.)

In People v. Jackson (1989) 49 Cal.3d 1170 (Jackson), the court held the defendant validly waived his constitutional rights under the following circumstances. An officer tried to take the defendant into custody. The defendant violently resisted and took possession of the officer's shotgun from the patrol car. The defendant shot and killed the officer and then attempted to shoot the backup officers. A police dog was released in an attempt to subdue him. The defendant hit the police dog with the shotgun, but the wounded dog continued to charge, and it attacked the defendant. The defendant was finally taken into custody after another violent physical confrontation with the arresting officers. The defendant was taken to the jail but transferred to the county hospital when he became unresponsive. He tested positive for amphetamines, cocaine, and PCP. A few hours later, he was still in this hospital and showed the first signs of verbal responsiveness. He was questioned at that time for identification purposes by the officer who was assigned to guard him. Two detectives later interviewed the defendant at the hospital's jail ward. The defendant's arms and legs were tied down to the hospital bed and he was extensively bandaged. The detectives advised him of the Miranda warnings. He agreed to talk and said he did not want an attorney; he gave a statement. The defendant moved to suppress these statements and claimed his waivers of his constitutional rights were invalid because of his physical and mental conditions after the confrontation with the officers and the dog, and his prior ingestion of drugs. (Id. at pp. 1181-1186.)

Jackson rejected the defendant's claim that his waivers were invalid:

"The claim of incapacity or incompetence is premised on defendant's physical and mental condition because of the confrontation with the officers and police dog and due to the ingestion of drugs. However, there is nothing in the record to indicate that defendant did not understand [the detective's advisements]. Defendant's physical circumstances - the fact that he was in restraints and bandaged - apparently did not prevent him from participating in short, lucid interviews (10 or 12 minutes in each instance) during which he attempted to 'cover himself,' indicating (falsely) where he had received his wounds and where he had learned of the killing of the officer. [The detective] testified that defendant's responses seemed normal and that he ... did inquire whether defendant had been medicated. The cold record supports a finding of voluntariness.

"Insofar as defendant is claiming that he was incapacitated to waive his rights because of his ingestion of PCP and other drugs, he also cannot prevail. '[The] mere fact of voluntary consumption of alcohol does not establish an impairment of capacity,' and ... the evidence showed that defendant was able to comprehend and answer all the questions that were posed to him. [Citations.]" (Jackson, supra, 49 Cal.3d at p. 1189.)

In People v. Loftis (1984) 157 Cal.App.3d 229 (Loftis), the defendant argued his waiver of Miranda rights and subsequent statements were involuntary because the interviewing officer testified that the defendant was under the influence of PCP. The defendant initially paused for a long time when he heard the questions and slurred his answers, but his answers were rational and directed to the questions. (Id. at p. 236.)

Loftis held that "where the suspect has voluntarily ingested alcohol or a controlled substance at some point in time preceding arrest and, taking into account all of the surrounding circumstances, the evidence shows that a defendant understood and was able to intelligently respond to police questioning, the reviewing court will find a knowing and intelligent waiver .... [Citations.]" (Loftis, supra, 157 Cal.App.3d at pp. 235-236.) The "critical question" is whether "the accused's abilities to reason, comprehend, or resist were so disabled that he was incapable of free, rational choice." Loftis held the totality of the circumstances established his waiver was knowing and intelligent. (Id. at p. 236.)

As in Jackson and Loftis, defendant's waivers prior to the first interview in this case were knowing, intelligent, and voluntary. Defendant had just been arrested for a violent and brutal stabbing and, as in Jackson, the decision to restrain him was not inappropriate under the circumstances and did not invalidate his waivers. He was not wearing a shirt because he admitted that he removed and tried to hide his bloody clothing after he stabbed Mateo. Defendant said he drank beer and smoked methamphetamine with Mateo prior to the homicide.

When Detective Zamora initially read the advisements to defendant in one full paragraph, defendant looked confused and Zamora immediately realized that defendant did not understand what he was trying to convey. Zamora questioned defendant about his education and ensured he understood his Spanish statements. Zamora then read each advisement separately, asked defendant if he understood that particular advisement, and did not continue until defendant responded to the question. He did not push or hound defendant to answer in the affirmative. Based on our review of the video, defendant looked directly at Zamora as he read each right, and immediately responded by either nodding his head up and down to signify "yes," and/or verbally responding in the affirmative. Zamora gave him the opportunity to say that he was confused or did not understand. In contrast to the initial advisement, defendant did not indicate or show any confusion when Zamora read each individual right to him.

More importantly, the video shows that defendant was completely attentive as Detective Zamora read each specific advisement and defendant said he understood and waived that right. Defendant may have been sleeping before Zamora entered the room and began the interrogation, but once Zamora roused him, defendant was alert, looked directly at Zamora, answered his questions either verbally or through his head gestures, indicated when he did not understand a question or statement, and gave a clear narrative about what happened. Defendant never appeared that he was about to pass out, and only put his head back on the table when Zamora finished asking questions, near the end of the interview.

We find defendant's waiver of his constitutional rights was knowing, intelligent, and voluntary under the facts and circumstances of this case. The court's factual findings about defendant's condition are supported by substantial evidence, there is no evidence that his voluntary ingestion and possible intoxication invalidated his waivers, and he appeared alert and responsive during the advisement, waivers, and when he gave narrative responses about how he stabbed the victim. III. The Validity of the Miranda Advisements Prior to the First Interview

When Detective Zamora separately read each Miranda advisement to defendant, he stated: "Anything you can say can be used and will be used against you in front of a jury." (Italics added.)

For the first time, defendant argues his waivers were invalid prior to the first interview because Detective Zamora gave a defective and incomplete Miranda advisement. Defendant asserts Zamora's use of the phrase "in front of a jury" was too "narrow," defendant would not have understood that his statements could be used against him in all judicial or adversarial proceedings, there was no evidence defendant knew what a "jury" was or the "role it played in the American system," and Zamora should have given the broader warning that his statements could be used against him "in court." Defendant argues the "narrow" advisement rendered his waiver invalid "standing alone."

A. Forfeiture

Defendant concedes that his motion to exclude the statements from his first interview did not assert that Zamora gave a defective Miranda advisement, and that he is raising this issue for the first time in this appeal. Defendant asserts he did not forfeit appellate review of this issue because it is "inextricably intertwined" with his claim that his waivers were not knowing, intelligent, and voluntary since he was not properly advised of his essential rights, and the video and transcript clearly show the advisement was too "narrow."

"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. [Citations.]" (People v. Milner (1988) 45 Cal.3d 227, 236, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; see also People v. Linton, supra, 56 Cal.4th at p. 1170; People v. Guerra (2006) 37 Cal.4th 1067, 1094.) "[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, even if the defendant asserted other arguments under the same decision. [Citations.]" (People v. Polk (2010) 190 Cal.App.4th 1183, 1194.) " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731; People v. Saunders (1993) 5 Cal.4th 580, 590.)

Defendant's motion and argument were limited to whether his waivers were knowing, intelligent, and voluntary based on his alleged physical and mental conditions at the beginning of the first interview. He never challenged the validity of the actual Miranda advisements or argued they were somehow defective or incomplete. "Because [he] did not raise the issue of the substantive adequacy of the Miranda warnings in the trial court, defendant has forfeited that issue on appeal." (People v. Polk, supra, 190 Cal.App.4th at p. 1194.)

B. Ineffective Assistance

As an alternative argument, defendant asserts any forfeiture of appellate review resulted because his trial attorney was prejudicially ineffective for failure to object and preserve the issue for further review. (See, e.g., People v. Jackson, supra, 49 Cal.3d at p. 1188)

"In order to demonstrate ineffective assistance, a defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel's performance or lack thereof. 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. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 214-215.)

C. Validity of Advisements

Miranda held that a suspect "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479, italics added.)

"We have never insisted that Miranda warnings be given in the exact form described in that decision." (Duckworth v. Eagan (1989) 492 U.S. 195, 202, fn. omitted.) "As the high court has observed, the Miranda warnings are 'prophylactic' [citation] and need not be presented in any particular formulation or 'talismanic incantation.' [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 236-237.) "Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda.' [Citation.]" (Duckworth v. Eagan, supra, 492 U.S. at p. 203.)

In People v. Samayoa (1997) 15 Cal.4th 795 (Samayoa), the defendant moved to suppress statements he made in multiple interviews, partially based on the argument that the officer never advised him that his statements could be used against him "in court." At the hearing on the motion, the interrogating officer testified about his first interview with the defendant, but the officer "did not specify in his testimony that during the course of the Miranda warning he advised defendant that defendant's statements could be used against him 'in court.' " (Samayoa, supra, at p. 813, fn. 2.) As the first interview continued, the officer took notes and when the defendant made inculpatory statements, the officer asked if he could tape-record the interview. The defendant refused to let the officer use the tape recorder but continued to answer questions as another officer took notes. (Id. at p. 814.) At the hearing on the defendant's motion, the transcript of the tape recording of a second interview with the defendant was introduced, "at which the [same] officer read to defendant his Miranda rights from the same admonition card, [and] reflect[ed] that [the officer] specifically advised defendant on this occasion that his statements could be used against him 'in court.' Additionally, at the preliminary hearing, [the same officer] testified that he included the words 'in court' when he read the Miranda rights to defendant from the card." (Id. at p. 813, fn. 2.)

Samayoa rejected the defendant's argument that his refusal to allow the officer to tape-record his first interview amounted to an invocation of his right to silence. "[D]efendant's 'no tape recording' remark, following an explicit waiver of his Miranda rights, and immediately followed by his incriminating admissions that conspicuously were transcribed by [an officer], was not inconsistent with a willingness to discuss the case freely and completely." (Samayoa, supra, 15 Cal.4th at p. 830.)

Samayoa also rejected the defendant's alternate argument, "that even if he purported to waive his Miranda rights, the circumstance that he was not advised specifically that his statements could be used against him 'in court,' in conjunction with his refusal to be tape-recorded, establishes that his waiver of Miranda rights was not knowing or voluntary, because he 'believed he was speaking off the record by not having the interrogation tape recorded.' " (Samayoa, supra, 15 Cal.4th at p. 830, italics added.)

"The trial court made no specific finding as to whether during the officers' first interview of defendant, Officer Jordan included the words 'in

court' when he advised defendant that his statements could be used against him. Instead, the trial court determined that the alleged omission had no significance, in light of the circumstances that defendant otherwise was fully informed of his rights and expressly acknowledged that he understood them, was told the statements could and would be used against him, was an ex-felon who would have been familiar with the Miranda admonitions from his previous criminal involvement, and was aware of Officer Padillo's conspicuous, detailed notetaking, which would enable the officers to reconstruct defendant's statements and use them against him in a future criminal proceeding.

"On the basis of the trial court's findings, which are substantially supported by the record, we conclude the trial court reasonably determined that defendant's explicit waiver of his Miranda rights was knowing and voluntary, and not the result of a misconception that his statements were off the record. Accordingly, the trial court did not err in denying defendant's motions to suppress his confessions on the ground of a Miranda violation." (Id. at p. 831, italics added.)

D. Analysis

Defense counsel was not ineffective for failing to challenge the validity of the Miranda advisement. Detective Zamora's advisement that defendant's statements could be used against him "in front of a jury" instead of "in court" had "no significance" because defendant was otherwise fully informed of his rights and expressly acknowledged he understood them and was specifically told his statements "could and would be used against him." (Samayoa, supra, 15 Cal.4th at p. 831.) Indeed, Miranda summarized its holding as follows: "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444, italics added.) Thus, the warnings given to defendant "reasonably conveyed" his essential Miranda rights.

IV. Voluntariness of Defendant's Statements from the First Interview

Defendant raises another challenge to the admission of his statements from the first interview that he did not raise in his motion before the superior court.

Defendant asserts his waivers and statements at the first interview should have been excluded as involuntary because Detective Zamora engaged in coercive activity simply by deciding to conduct the first interview, since he allegedly knew defendant was in "no condition to voluntarily relinquish" his constitutional rights because he was asleep or passed out, his head was on the table, he was not wearing a shirt, his hands were restrained behind his back, and he did not respond to Zamora's initial statements.

Defendant asserts that Zamora "must have known" from his interactions with defendant that he was "a young, unsophisticated laborer who did not speak English" and would have difficulty understanding his rights even if completely alert, so that his decision to conduct the interview, obtain his waivers and ask questions was coercive.

A. Forfeiture/Ineffective Assistance

Defendant concedes that in his motion to exclude, he did not specifically argue that Detective Zamora's decision to conduct the first interview was coercive and/or his statements to Zamora were involuntary.

"A defendant ordinarily forfeits elements of a voluntariness claim that were not raised below. [Citations.]" (People v. Williams, supra, 49 Cal.4th at p. 435; People v. Ray (1996) 13 Cal.4th 313, 338-339.) Similarly, a defendant's failure to object on a coercion theory forfeits such a claim on appeal. (People v. Kennedy (2005) 36 Cal.4th 595, 611-612, overruled on other grounds in People v. Williams, supra, at pp. 458-459.) By failing to raise these issues, "the parties had no incentive to fully litigate this theory ... and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings." (People v. Ray, supra, 13 Cal.4th at p. 339.)

We note that defendant's motion to exclude asserted that "[w]hen law enforcement questioned [defendant] in an effort to obtain a confession or admission from him while being aware of his fatigue, lack of education and intoxication, law enforcement exploited his physical and mental impairments." At the hearing on the motion, defendant limited his arguments to the claim that his statements from the first interview had to be excluded because his waivers were not knowing, intelligent and voluntary; he never raised coercion or voluntariness as a reason to exclude his statements. However, it appears that defendant raised a coercion argument in his motion and preserved the issue for appellate review.

Defendant further argues his coercion and voluntariness issues are preserved for appellate review because these questions are "closely intertwined" with whether his waivers were valid. This argument is based on People v. Markham (1989) 49 Cal.3d 63, where the defendant argued at trial that his Miranda waiver was not knowing, intelligent, or voluntary because he was intoxicated. On appeal, he renewed that claim and raised the new argument that his subsequent statements were involuntary for the same reason. Markham decided to address the new argument because "such a claim would be inextricably intertwined" with his trial contention that his waiver was also involuntary because of his intoxication. (People v. Markham, at p. 67, fn. 3.)

As an alternative argument, defendant again raises ineffective assistance of counsel as the reason for the forfeiture and argues the failure of counsel to object was prejudicial because his statements in the first interview were not voluntary.

B. Voluntariness

"Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial. [Citations.] ' "A statement is involuntary if it is not the product of ' "a rational intellect and free will." ' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' " ' [Citations.]" (People v. Linton, supra, 56 Cal.4th at p. 1176.)

" 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked. [Citation.]' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 347; People v. Linton, supra, 56 Cal.4th at p. 1176.) "A confession is not rendered involuntary by coercive police activity that is not the 'motivating cause' of the defendant's confession. [Citation.]" (People v. Linton, supra, at p. 1176.)

In evaluating the voluntariness of a statement, "[r]elevant considerations are ' "the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." ' [Citation.]" (People v. Williams, supra, 49 Cal.4th at p. 436.)

" 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' [Citation.] 'Whether a confession was voluntary depends upon the totality of the circumstances.' [Citations.] 'On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence.' [Citation.] 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. [Citation.]" (People v. Linton, supra, 56 Cal.4th at pp. 1176-1177.)

C. Analysis

The record refutes any claim that Detective Zamora exploited any aspect of defendant's physical or mental condition when he decided to conduct the first interview. (See, e.g., People v. Smith (2007) 40 Cal.4th 483, 502.) Just as a defendant's voluntary intoxication does not invalidate a waiver, the defendant's "[i]ntoxication alone does not render a confession involuntary. [Citation.]" (People v. Debouver (2016) 1 Cal.App.5th 972, 978; People v. Hendricks (1987) 43 Cal.3d 584, 591.)

We similarly reject the argument that Detective Zamora engaged in coercive activity by conducting the first interview. It was not unreasonable to restrain defendant given the violent nature of the homicide for which he had just been arrested. The video and transcript demonstrate that Zamora did not conduct the interview until he was sure that defendant was completely alert, understood what he was saying, and was able to communicate with him. Zamora realized defendant was initially confused when he read the entirety of the Miranda advisements, and instead carefully read each advisement separately and did not continue until he gave defendant the opportunity to indicate if understood and waived that right. During the entirety of the interview, defendant was engaged, answered Zamora's questions, and provided detailed narrative answers in response to Zamora's open-ended questions about how and why he stabbed the victim. Defendant did not put his head back down on the table until the conclusion of the interview, when Zamora asked whether he felt any remorse for killing the victim. Such conduct raised the inference that defendant's similar posture at the beginning of the interview may have also been related to his reaction to what he had just done.

The Preliminary Hearing Transcript

In raising the coercion argument, defendant partially relies on portions of the preliminary hearing transcript that allegedly support his claim that Detective Zamora took advantage of defendant's youth, limited education, status as a farm laborer, and emotional condition when he decided to conduct the first interview. Defendant asserts that even though the court did not address the preliminary hearing transcript in the hearing on his motion to exclude, his motion was still partially based on the preliminary hearing transcript and may also be relied on to advance his coercion argument on appeal.¹²

12 Defendant's motion to exclude his first and second postarrest statements was included in his trial brief that also raised several other evidentiary issues. Defendant's brief stated these motions would be based on "any attached files and records, any other evidence or argument presented during the hearing on this matter, and all materials on file at the time of the hearing upon this matter." The trial brief declared its statement of "alleged facts" was based on the reporter's transcript of the preliminary hearing, "the contents of which are hereby incorporated by reference."
At the hearing on the motion to exclude his statements, however, the court and the attorneys were initially going to focus on the audio record of the interview; after the prosecutor realized there was also a videotape, the court and the parties addressed the admissibility of defendant's statements based on their review of the videotape and the translated transcript.

Defendant points to Detective Zamora's testimony at the preliminary hearing, that he personally interviewed Lenor Baptista, Ms. Fuentes, and her daughter at the scene, and asserts that Zamora "therefore knew [defendant] rented a modest room in a modest house ... and must have learned or inferred that he was a recent immigrant from Mexico who was working as a farm laborer."

Assuming without deciding that the preliminary hearing transcript may be reviewed, it does not support defendant's specific claims about Detective Zamora's knowledge of defendant's life and circumstances. Indeed, there was far more to the preliminary hearing transcript than Zamora's statement that he interviewed the three women at the crime scene.

The first witnesses at the preliminary hearing were Ms. Fuentes and her daughter, who testified about the events at the time of the homicide, consistent with their subsequent trial testimony. Ms. Fuentes further testified that as to defendant and another tenant, she "had nothing bad to say about them. They were good persons. I don't know. I just don't know what happened." She used to talk with defendant and give him advice when "he was acting badly."

Lenor Baptista testified at the preliminary hearing that she was at Ms. Fuentes's house on the day of the homicide but did not see the stabbing. Ms. Fuentes told her that someone had been killed, and she saw the victim lying on the ground. She recognized the victim as the man who lived in the trailer. She recognized defendant in the courtroom as another man who lived on the property. Ms. Baptista did not testify at trial.

Detective Zamora testified that when he arrived at the scene, there were only three people at the house: Ms. Fuentes, her daughter, and Ms. Baptista. The other tenants were not at the house. Zamora took statements from Ms. Baptista and Ms. Fuentes, but he did not speak to her daughter. He determined that none of the women saw the stabbing.

More importantly, Detective Zamora testified that the statements he obtained from Ms. Baptista and Ms. Fuentes were consistent with their testimony at the preliminary hearing. Ms. Fuentes additionally told him that defendant was laughing when he said he stabbed Mateo. Ms. Fuentes and her daughter participated in field identifications and said defendant was the person who lived at the house and said he stabbed Mateo.

There is no evidence that Detective Zamora obtained any personal or background information about defendant when he spoke to the three women at the scene, as posited by defendant.¹³

13 Also, at the preliminary hearing, Detective Zamora testified that sometime after the homicide, he contacted Lazaro Moreno and Francisco Avila and interviewed them about the homicide. Moreno said he was in the backyard and the trailer's door was open. Moreno looked in the trailer, and saw defendant and Mateo wrestling, and then he saw defendant stab Mateo. Moreno said he and his cousin pushed defendant and tried to intervene, "but it was already too late," and they knew the victim was dying. Moreno said defendant went into the house, and Moreno followed him inside and told Ms. Fuentes that Mateo had been stabbed. Zamora asked Moreno about defendant's demeanor "when he drinks and that kind of stuff." Moreno said defendant "actually lost a lot of friends because ... he's an aggressive drinker and has had problems in the past due to them drinking." Avila said he heard Mateo screaming from inside the trailer. Avila went to check, looked inside the trailer, and saw defendant stabbing Mateo.

Detective Zamora testified he interviewed defendant after he was arrested, advised him of the Miranda warnings, and defendant waived his rights and answered questions. Zamora testified defendant was functioning and spoke in a normal manner. Defendant did not have any trouble conveying his thoughts or story.

As relevant to defendant's voluntariness arguments, Detective Zamora testified about defendant's status at the beginning of the interview:

"I don't know if he was ... playing possum to an extent, but ... when I first walked in the interview room, he did have his head down like I thought he was kind of like sleeping but, you know, after talking to him we did go into a quick preliminary history as to how long he's been in the United States. What does he do. Was he from Mexico and education wise, medication, doctor and he was able to prove all that information on the spot and didn't have to think about it or anything, so that's when he went into what happened." (Italics added.)

The preliminary hearing transcript does not support defendant's claim that Detective Zamora interviewed the witnesses at the murder scene and learned about defendant's living conditions, employment and education, which meant his decision to conduct the first interview was coercive; he intended to take advantage of defendant; and defendant's waivers and statements were involuntary. Indeed, Zamora's testimony at the preliminary hearing actually undermines defendant's arguments about his alleged intoxicated state, based on Zamora's belief that defendant may have been "playing possum" when his head was on the table at the beginning of the interview.

We conclude defendant's waivers and statements at the first interview were voluntary, they were not obtained as the result of coercive conduct, and counsel was not prejudicially ineffective for failing to raise voluntariness in his motion to exclude.

V. Admissibility of Defendant's Statements from the Second Interview

Defendant raises several arguments that his statements from the second interview should have been excluded. One argument is a renewed claim from his motion to exclude, that his allegedly involuntary waivers for the first interview tainted his waivers at the second interview. His other arguments are new contentions that he did not raise before the superior court and are being raised for the first time on appeal.

A. Background

As explained above, defendant's first interview occurred on June 27, 2015, when Detective Zamora interviewed him at the substation a few hours after the homicide. The interview was recorded by both audio and videotape, and a translated transcript was prepared.

Defendant's second postarrest interview occurred on June 29, 2015, when Zamora interviewed him in jail, and it was also recorded.

Defendant's pretrial motion to exclude was based on the allegedly invalid waivers he gave prior to the first interview. Defendant's motion further argued that those invalid waivers tainted his second postarrest interview, so that his subsequent statements should also be excluded.

At the hearing on the motion to exclude, the court and the parties focused on the video and transcript of the first interview. Neither the People nor defendant sought to introduce the video, audio, or transcript of the second interview. The court found defendant's waivers of his constitutional rights prior to the first interview were knowing, intelligent and voluntary. It did not specifically address the second interview but was not required to do so, since defendant's motion to exclude his later statements was exclusively based on the proposition that his waivers at the first interview were invalid.

At trial, the People introduced the video and transcript for defendant's first interview. As for the second interview, Detective Zamora briefly testified about defendant's statements; neither party sought to introduce the recording or transcript of the second interview.

B. Admissibility of Defendant's Second Postarrest Interview

On appeal, defendant renews the argument that he raised in his motion before the superior court, that his statements from the second interview should have been excluded because they were "tainted" by his allegedly invalid waivers during the first interview.

We have already found that defendant's waivers of his constitutional rights at the beginning of the first interview were knowing, intelligent, and voluntary. Since defendant's statements at the first interview were not obtained in violation of Miranda, we reject defendant's related claim that his waivers and statements at the second interview were the alleged tainted products of his initial invalid waiver. (See, e.g., People v. Samayoa, supra, 15 Cal.4th at p. 831.)

C. Advisements Prior to the Second Postarrest Interivew

As discussed in issue III, ante, defendant argues on appeal for the first time that Detective Zamora gave defective advisements of the Miranda warnings prior to the first postarrest interview. We have rejected this argument.

On appeal, defendant raises another issue for the first time - that Detective Zamora's advisements prior to the second postarrest interview were also defective. Defendant asserts the videotape of the first interview showed that Zamora read the advisements from a card, and that card contained the allegedly defective phrase that defendant's statements could be used against him in "in front of a jury" instead of "in court." Defendant reasons that when Zamora conducted the second postarrest interview in jail, he likely used the same advisement card and again read the same allegedly incorrect statement that defendant's statements could be used against him "in front of a jury" instead of "in court."

Defendant argues "[t]here is no indication that the new Miranda warnings" that Detective Zamora gave prior to the second interview "did not contain the same defect as the first." Defendant declares it may be "inferred" that Zamora "used the same card with the same defective admonition" for both the first and second interviews and "the People cannot meet their burden of proving otherwise."

Defendant did not raise this argument before the superior court, which would have placed the burden on the People to prove that Detective Zamora's advisements were not defective prior to the second interview, and thus given the People the opportunity to introduce the recording and/or transcript of the second interview or call Zamora to testify at the hearing. Instead, defendant's motion was exclusively limited to the argument that his allegedly invalid waivers at the first interview tainted his waivers at the second interview. Once the People met the burden of proof as to the first interview, it was not required to address an issue that had not been raised.

Based on his failure to raise these issues, defendant has forfeited appellate review of the claim. We further note that at trial, Detective Zamora testified he advised defendant about the Miranda warnings and obtained his waivers prior to the second interview. Defendant did not seek to introduce the transcript or recording to refute Zamora's trial testimony in any way.

Even if we were to consider an ineffective assistance claim, we have already found that Detective Zamora's advisements prior to the first interview - that defendant's statements could be used against him "in front of a jury" - were not defective. If Zamora read the same advisements prior to the second interview, we would reach the same conclusion.

D. Involuntary Statements/Coercion

Also, for the first time, defendant argues on appeal that his statements from the second interview should have been excluded for the separate reason that they were "tainted" by Detective Zamora's alleged act of "overreaching" when he decided to conduct the first interview, because that decision was coercive based on defendant's alleged physical and mental conditions. In the alternative, defendant requests remand for a new hearing for the parties "to develop the record of the circumstances of the second interrogation."

"[A]dmissions made pursuant to full Miranda waivers may not be suppressed because of prior Miranda violations unless the later admissions were in fact involuntary. [Citation.] (People v. Samayoa, supra, 15 Cal.4th at p. 831.)

As with defendant's other issues, we have found that Detective Zamora's decision to conduct the first interview was not coercive and defendant's statements were not involuntary. There is no reason to remand based on defendant's belated attempt to link his second interview to the first interview without any supporting evidence.

Since defendant did not raise these issues before the superior court, the People did not have the burden to prove defendant's statements from the second interview were otherwise admissible. Defendant failed to introduce the recording or transcript of the second interview at either the hearing or trial, and the record before this court discloses no basis on which to conclude that defendant's Miranda waivers and statements at the second interview were not knowingly and voluntarily given. (People v. Samayoa, supra, 15 Cal.4th at p. 831.)¹⁴

14 As a separate issue, defendant contends the court's allegedly erroneous decisions to admit all his postarrest statements, and counsel's failures to make certain objections to the first and second interviews, were prejudicial for various reasons, particularly that defendant might have testified at trial to his side of the story if he did not face impeachment with his prior statements. We decline to address these arguments since we have found defendant's first and second statements were properly admitted, and counsel was not ineffective for failing to raise various objections on the record before this court.

VI. Denial of Defendant's Motion to Continue

Prior to trial, the People provided discovery of the audio and transcript of defendant's first interview. On the first day of trial, the People discovered for the first time that there was also a videotape of the first interview and immediately provided it to defense counsel shortly before the court held the hearing on his motion to exclude his postarrest statements and proceed with trial.

Defendant argues that the court abused its discretion when it denied his motion to continue the hearing and his trial because of the People's belated discovery of the video for his first interview. Defendant argues that even though defense counsel had relied on the audio and transcript to file his motion to exclude, counsel needed additional time to consult with experts and review the videotape's portrayal of defendant's demeanor, conduct and interactions with Detective Zamora, and such evidence would have undermined defendant's verbal waiver of his rights and whether his statements were voluntary.

Defendant asserts the court improperly directed counsel to call defendant to testify at the evidentiary hearing, and defendant's testimony would not have been sufficient without an expert's supporting opinion.

A. Defendant's Motion

As set forth above, defendant filed a trial brief to exclude evidence, including a motion to exclude both of his postarrest interviews. In his motion, defendant argued the People could not meet its burden of proving defendant's waivers at the first interview were valid because "[w]hen Detective Zamora entered the room to interrogate [defendant], he found the Defendant asleep or at least he appeared to be asleep." Defendant argued that since "he was tired, uneducated and intoxicated it is highly likely that [defendant] did not understand the nature of the waiver he was asked to give." Defendant further argued that when Zamora questioned defendant "while being aware of his fatigue, lack of education and intoxication," he "exploited" defendant's "physical and mental impairments."

B. The First Day of Trial

On August 1, 2017, the court convened the first day of trial. The court and parties selected the jury during the morning session. In the afternoon, the court conducted a hearing on the parties' trial briefs and defendant's motion to exclude his statements.

At that hearing, Mr. Westphal, defense counsel, immediately advised the court that he had already received an audio disc of defendant's first interview. However, he had just learned there was a video of defendant's first interview and received it from the prosecutor. He asked the court to watch the video because it gave a more accurate and nuanced depiction of what happened during that interview.

Mr. Davis, the prosecutor, stated he had previously given defense counsel the audio of defendant's first interview, along with a transcript that translated the Spanish conversation into English. Mr. Davis did not know the video existed until that day, and immediately gave it to defense counsel that morning. Mr. Davis said he had intended to use the audio and not the video at trial. Mr. Davis explained that if defendant's statements at the first interview were admissible, then part of the video had to be redacted to exclude references about a prior stabbing, as already done with the audio and the translated transcript.

Defense counsel agreed that the reference to a prior stabbing in the video had to be redacted if the court found defendant's statements were admissible and the video was played to the jury.

C. Defendant's Motion for a Continuance

Defense counsel then moved to continue the hearing and trial because of the late discovery of the video of the first interview and its content. Counsel did not allege that the People intentionally delayed providing the video to the defense. However, counsel stated he had just watched part of the video that morning and learned that defendant was not wearing a shirt. He believed the video showed defendant was in a "stress position" because his hands were restrained with handcuffs behind his back, he was shirtless, and he was hunched over the table in the interview room. Defense counsel argued:

"Given those new facts that came to light with the video today, I think there is potentially more work to be done in exploring the voluntariness of the confession, and based on what we see physically in the video, as well as when [defendant] is sort of nodding along to the Miranda advisements as it's read to him. There may be some cultural factors at work there that he's just sort of going along with the authority figure rather than truly understanding that.

"And so those issues were brought to light today by the late discovery of that video. So on those grounds, I'm moving to continue the trial for that further work, the grounds that essentially ineffective assistance of counsel as well as due process for my client."

D. The Court's Denial of the Continuance

Prior to watching the video to address defendant's motion, the court denied defendant's motion to continue the hearing and trial.

"I don't need to continue the matter. The video I haven't seen yet, that I'm going to look at right now in a moment, speaks for itself. I mean, he can testify at this in limine motion as to why he felt, if he did feel, coerced or whatever. But I don't see the need for a continuance to consult with an expert on these issues."

Thereafter, the court conducted the hearing on the admissibility of defendant's statements, and whether his waiver of rights was knowing, voluntary, and intelligent. As set forth in issue I, ante, the court and the parties watched the video and followed along with the translated transcript. Neither party called any witnesses, and defendant did not testify at the hearing. The court heard arguments from the parties, and then found defendant's waivers prior to the first interview were knowing, intelligent, and voluntary.

E. The Court's Discretion

"[T]he trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citations.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 1013, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)

The trial court's denial of a motion for continuance is reviewed for abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) In doing so, we accord substantial deference to the court's determination of the issue. (People v. Howard (1992) 1 Cal.4th 1132, 1172.)

F. Analysis

The court did not abuse its discretion when it denied defendant's motion to continue the hearing and the trial.

Defendant's motion to exclude was prepared based on the audio recording and the transcript of the first interview, before counsel knew about or watched the video. In that motion, defendant argued his waivers in the first interview were invalid because "[w]hen Detective Zamora entered the room to interrogate [defendant], he found the Defendant asleep or at least he appeared to be asleep," defendant was "tired, uneducated and intoxicated," and based on these circumstances it was "highly likely that [defendant] did not understand the nature of the waiver he was asked to give." Counsel was also aware of the toxicology results and stipulated to the report, to support his argument that defendant was still intoxicated at the time of the first interview.

When counsel requested the continuance, he said the video revealed "new facts" and there was "potentially more work to be done" about whether his confession was voluntary and moved to continue the trial "for that further work."

However, it appears counsel was aware of nearly every circumstance depicted in the video except that defendant was not wearing a shirt and his hands were restrained behind his back. As we have already explained, it was not unreasonable for defendant to be restrained given the brutal stabbing he had just committed. In addition, defendant was not wearing a shirt because he had apparently taken off the bloody clothing shortly after he committed the homicide; the investigating officers found it under the mattress where he had been hiding, a fact that might have been mentioned in an investigative report. The transcript of the first interview also raised the inference that defendant may not have verbally responded to some of Detective Zamora's questions, because Zamora had to ask him to verbally respond yes or no.

Defendant's motion to exclude addressed nearly every issue that was raised by the videotape. In addition, if counsel had discussed the first interview with defendant, he could have told counsel that his hands were restrained behind his back and he was not wearing a shirt.

In requesting a continuance, counsel argued there was "potentially more work to be done" and moved to continue the trial "for that further work." Counsel did not specify the possible length of the continuance, particularly since the jury had already been selected and the trial was about to start, or whether the issue could be addressed while the People began presenting evidence.

When the court denied the continuance, it did not limit defense counsel to only arguing the issues that he had already raised in his motion. Nevertheless, counsel did not rely on the video to argue that the entirety of defendant's statements at the first interview were involuntary because of how he was depicted in the video.

Finally, it was not unreasonable for the court to suggest that counsel could call defendant to testify at the hearing for the limited purpose of whether he understood his rights when Detective Zamora read the advisement. Defendant's hearing testimony would have been limited to that single issue and could not have been used against him in the People's case-in-chief on the issue of guilt, unless he testified at trial and gave inconsistent statements. (See, e.g., People v. Beyah (2009) 170 Cal.App.4th 1241, 1251; People v. Spence (2012) 212 Cal.App.4th 478, 495-496.) If defendant testified at the hearing about his mental and physical condition at the time of the second interview, such testimony would not have been admissible if defendant testified at trial about what happened during the homicide. VII. Remand to Make a Record for an Eventual Franklin Hearing

Defendant contends, and the People concede, that the matter must be remanded to the superior court for defendant to make a record under section 3051 and Franklin.

Section 3051, subdivision (a)(1) states that "any prisoner who was 25 years of age or younger ... at the time of his or her controlling offense" shall be provided "[a] youth offender parole hearing by the Board of Parole Hearings ... for the purpose of reviewing the [prisoner's] parole suitability ...." At this hearing, the Board "shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)

Franklin held the youth offender parole hearing statutes "contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime ... may submit statements for review by the board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away. [Citation.] In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing growth and maturity 'shall take into consideration ... any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased maturity' implies the availability of information about the offender when he was a juvenile. [Citation.]" (Franklin, supra, 63 Cal.4th at pp. 283-284.)

Since it was not clear whether the offender in Franklin "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing," the court "remand[ed] the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.)

Franklin held that at such a hearing, the offender "may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law' [citation]." (Franklin, supra, 63 Cal.4th at p. 284.)

Defendant was 24 years old when he murdered Mateo. He was convicted of second degree murder and sentenced to 15 years to life, plus one year for the deadly weapon enhancement. As a result, he is eligible for a parole hearing during his 20th year of incarceration, and the matter must be remanded for defendant to make a record as contemplated by section 3051 and Franklin. (§ 3051, subd. (b)(2).)

VIII. Credits for Actual Days in Custody

Defendant asserts the court should have calculated his actual days in custody beginning on June 27, 2015, when he was arrested and questioned at the substation. Defendant argues the court miscalculated his actual days in custody by instead beginning on June 28, 2015, when he was apparently "booked" into jail.

The People reply the court's calculation was correct because actual time credits begin on the day that a defendant is in actual "custody," and he was not in "custody" and booked until the day after he was arrested.

A. Section 2900.5

The calculation of credit for actual time served commences on the day a defendant is booked into custody. (§ 2900.5, subd. (a); People v. Macklem (2007) 149 Cal.App.4th 674, 702; People v. Ravaux (2006) 142 Cal.App.4th 914, 919-920.) "[A] defendant is not in custody within the meaning of section 2900.5 prior to being processed into a jail or similar custodial situation as described in section 2900.5, subdivision (a)." (People v. Ravaux, supra, at p. 919.) An interpretation that grants custody credit "beginning at the time of arrest, does not further the purposes for which section 2900.5 was adopted. The statute addresses a ' "dual legislative purpose of 'eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts' [citation] and equalizing the actual time served in custody for given offenses. [Citation.]" ' [Citations.] ... Being arrested and detained by the police, though certainly onerous, is not incarceration until the subject has been booked into jail." (Id. at p. 920.)

B. The Appellate Record

The trial evidence showed that defendant stabbed Mateo on June 27, 2015, and was arrested around 6:30 p.m. Detective Zamora interviewed defendant at the substation at 9:27 p.m. on the same day. At the conclusion of the interview, Zamora advised defendant that other people were going to come into the interview room and take photographs and a blood sample from him.

In his appellate brief, defendant states the first interview was approximately 30 minutes. Our review of the video shows that the first interview lasted just under 35 minutes, which means that it ended around 10:00 p.m.

The probation report prepared for the sentencing hearing stated that defendant had been in custody at "TCJ," presumably the Tulare County Jail, since June 28, 2015 (the day after his arrest), and that he had served 797 actual days in custody. The report further stated defendant was not entitled to any presentence credits because he had been convicted of murder.

At the sentencing hearing, the court followed the probation report and stated defendant had credit for 797 actual days in custody. Defendant did not object.

C. Analysis

Both defendant and the People agree that custody credits are calculated based on the booking date. However, defendant asserts the actual credits should be calculated from June 27, 2015, the day of his arrest and interview, and not on June 28, 2015. The People contend it is more likely he was booked June 28, 2015, since at the conclusion of his postarrest interview, Detective Zamora advised defendant that they were going to take photographs of him and also obtain a blood sample.

Since the matter is already being remanded for a Franklin hearing, the trial court may address the factual issue of whether defendant was booked into custody on June 27 or 28, 2015, for calculating his actual credits.

DISPOSITION

Defendant's conviction and the deadly weapon enhancement, and the sentences imposed therein, are affirmed.

The matter is remanded for defendant to make a record as contemplated by Franklin and section 3051, and for the court to make factual findings, if necessary, as to the calculation of defendant's actual days in custody.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.