Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01200
RAYE, P.J.In this case a 14-year-old assassin was employed by a husband to dispose of an unwanted wife. However, the case is not about the 14 year old who shot and killed Si Saeturn and her fetus, or her husband Nai Saechao, but about the husband’s pregnant girlfriend, defendant Mimi Le, and his friend, defendant Lo Fou Saephanh, both of whom denied knowing that Nai was planning to have his wife murdered.
Since several parties share the same or similar surnames, we shall refer to all parties by their first name for clarity and ease of reference. No disrespect is intended.
Defendant Le challenges the sufficiency of the evidence that she was part of a criminal conspiracy, jury instructions that were given and ones that were not, the admissibility of a photograph of the fetus, the effectiveness of her lawyer, and the constitutionality of her sentence of life without the possibility of parole. Finding no merit to any of her contentions, we affirm the judgment entered on her conviction.
Defendant Saephanh challenges the admissibility of the incriminating statements he gave during two interrogations. He asserts they were obtained in violation of his right to counsel and were the product of coercion. We reject those arguments and his additional argument that the court improperly imposed a parole revocation fine. We also affirm the judgment entered on his conviction.
FACTS
The facts surrounding the shooting are undisputed. Neither Nai nor Mimi was present. Nai had recruited his cousin, Khae Saephanh, to kill his wife Si. On December 29, 2005, Khae, Lo, and the 14-year-old shooter (Xeng Saetern) drove to Si’s place of employment and waited until she got off work. The young marksman walked down to her car and shot her in the head and abdomen at close range while the other two waited in the car. Si and her four-month-old fetus both died at the scene. Nai Saechao pled guilty to murder and was sentenced to life in prison without the possibility of parole. He testified on behalf of the defense. After entering into a plea agreement for a four-year prison term, Khae’s brother, Cheng Saephanh, testified for the prosecution.
Mimi testified at trial; Lo did not. We will begin with the story Mimi told the jury. Because Lo’s appeal turns solely on the admissibility of the incriminating statements he made during two interviews, we will address his defense in that context.
In January 2005 Mimi, a recently divorced young mother of two, sought a casual sexual relationship with her coworker Nai. In June she had her IUD removed with the doctor’s assurance she had a six-month period during which she would not become pregnant. She discovered that she was pregnant with Nai’s baby the following month. She testified she did not love Nai, never intended to marry him, and only hoped he would support his baby. The love letters Mimi wrote to Nai in jail, she insisted, were a lie and a ruse to prevent him from committing suicide and to make him feel better. After Nai told his wife Si about his affair, he asked Mimi to get an abortion, a request she deeply resented, and the two parted for a couple of months before restarting their dalliance. Mimi complained that Si called her a “bitch” and a “whore, ” criticized her for having sex with a married man, and called her frequently on her cell phone.
Mimi insisted she knew nothing of Nai’s plan to murder his wife. She admitted she asked her brother for a gun, but if she said it was for Nai’s wife, she was only joking. She explained she needed a gun because her ex-husband had been threatening her. She denied asking her ex-husband, his cousin, or a friend for a gun. She eventually admitted buying bullets at Nai’s request, but she testified he did not tell her what they were for and she dutifully performed errands for him whenever he asked. Had she known Nai was planning a murder, she assured the jury, she would have called the authorities.
Nai and Si lived together as husband and wife in a common law marriage. They had a daughter, Jessica, who was 10 years old at the time of her mother’s murder.
Needless to say, the prosecution presented a very different portrait of Mimi to the jury. The prosecution rejected the notion that Mimi had a casual, fleeting relationship with Nai, demurring to him whenever asked to run his errands and oblivious to the fact he was plotting to have his wife murdered. The evidence the prosecution presented was indeed compelling.
The news of Mimi’s pregnancy in the summer of 2005 appears to have triggered the tragedy that followed six months later. Si, distraught that her husband was going to have a child by another woman, favored an abortion; as did Nai. Mimi refused to abort. She was angry Nai would ask her to abort and disappointed that he did not attend doctor appointments with her. She called Si at least 85 times. There were no calls from Si’s phone to Mimi’s. Two of the text messages sent from Mimi’s phone to Si’s said, “[I]t’s a girl.” By October she and Nai were asking relatives, friends, and coworkers for a gun.
Mimi asked her brother for a gun ostensibly because her ex-husband was threatening her. When her brother rejected her justification, she told him it was for “Nai’s wife.” When he asked her why Nai did not get a divorce, she explained there were cultural issues. Her ex-husband, his cousin, and a friend all testified she asked them for a gun in November and December. Darrell Emery testified she visited him twice in one week in November or December trying to get a gun from him. Mimi claimed all three were lying. She continued to allow her four year old and two year old to visit their dad in spite of her allegations that he was physically abusive, particularly when he was drunk.
On December 26, three days before the murder, Nai asked Mimi to purchase some bullets for him at Big 5; she did. But she lied to the investigators and said she had never purchased the bullets. She eventually admitted the purchase but insisted she had no idea Nai was going to use them to have his wife killed. Although she did not ask him why he needed the bullets, she believed he wanted them to help celebrate New Year’s Eve. It turned out the bullets she bought were the wrong size for the gun Nai had acquired.
Telephone contact between Mimi and Nai in the month of December was intense. Mimi called Nai 422 times. On the day of the murder, Mimi and Nai exchanged nine calls.
The phone calls continued after the murder and before Nai’s arrest. From December 30, 2005, through January 26, 2006, there were 367 calls from Mimi’s phone to Nai’s phone and 251 calls from Nai to Mimi.
Mimi’s love letters to Nai following the murder belied her testimony that she did not have a serious relationship with him and certainly never envisioned a future together. On February 15, 2006, she wrote: “You’ve made me so happy when you asked me to marry you. I keep thinking that you’re kidding about it. I think when we get out we’re going to change your mind.
“You know that after my first marriage I never wanted to get married again. But nobody has ever -- underlined -- love me -- loved me like you do. No one has ever showed me love like this. I’m so happy I have you [] in my life.
“When you get out I want to know if you would take guardianship over my kids. I told Alyssa you’re going to be her step-dad and she asked me if she could call you Daddy. I told her that it’s up to her -- whatever she feels.
“I love you so much. For the rest of my life I want to be there for you. I’m here for you because I owe you everything. If you hadn’t come in my life, I don’t know where I would be....”
On February 20 she continued with the same promises of unending love and devotion. She wrote, in part: “You are my heart, my soulmate, my one and only true love. You mean the whole world to me. I love you more than life itself. [¶]... [¶]
“If this takes one week, one month, one year or 20 years, I will always be by your side through thick and thin. With both of us we can make it through anything. Our love will get us through this.
“I miss you so much. But I know you and I will both come out of this a hundred times better than before. Nothing can stop our love. When you get out our family will be complete.... We will both work our ass off to get another house that is bigger and better. We’ll get new better cars. We’ll get everything we’ve ever wanted.
“But mostly important we will all have each other. The kids will all be happy and so will we. I love you so much. I will do anything you ask and much, much more. You can depend on me for whatever you need.”
Mimi reiterated the same themes again and again. On March 12, for example, she again proclaimed: “Hey, love, it’s me.
“Well, it’s almost midnight and I can’t go to sleep. I keep thinking about you how lucky me and the kids are to have you in our lives. You are the best Daddy, friend, lover, boyfriend, fiancé, future husband, and person that I have ever known. I grow more and more in love with you each and every day.”
At the same time Mimi was professing her love to Nai and envisioning their lives together in the future, she was spending his money, driving his truck, and gambling. Nai gave her a power of attorney but testified he did not know she was gambling with his savings.
The police found no evidence that Si was having an affair before she was killed.
There are no brother’s or sister’s keepers in this story. When Mimi’s brother, who himself was in jail at the time, heard about Si’s death, he contacted the authorities and told them he believed his sister might have something to do with the murder. He agreed to have a conversation with his sister taped.
Cheng Saephanh, Khae’s brother, testified pursuant to his plea agreement and incriminated not only his brother, but defendant Lo as well. Cheng testified that in the fall of 2005 Nai talked to Khae and Lo after Cheng refused to get Nai a gun. After Nai left, Lo told him that Nai wanted his wife killed. Lo had been smoking marijuana at the time. Cheng also testified that Nai told him his wife had been cheating on him, but he could not get a divorce because he would lose everything he had worked for.
Cheng was not present for the shooting, but he testified that Nai called him that day with information to give his brother, who did not have a cell phone, including the time Si got off work. Cheng returned the bullets Mimi had bought at Big 5 and gave Nai the cash a few hours before the shooting. He saw Lo, Khae, and Nai drive away in Nai’s car. Nai testified they drove to River City Gun Exchange.
Lo gave statements to the police on February 8 and February 9. The circumstances under which he gave those statements give rise to his appeal and those will be described below. Suffice it to say that on February 8 he eventually admitted he bought the bullets that fit the gun, that he had been told that Nai had hired someone to kill his wife, that he accompanied Khae and Xeng to Si’s workplace, and that they knew when Si got off work. On February 9 he admitted that after they arrived at Si’s place of employment, he realized the others were going to go through with the shooting and that he had heard that Nai had been looking for someone to kill his wife. The 14 year old confessed to waiting for Si and firing at her.
Lo denied that Nai had induced him to be part of the plan to kill his wife by giving him a car. He told the interrogating police officer he had paid Nai $600 for the car and still owed him another $400. He explained he had not taken possession of the car because he did not have a license and the door needed to be fixed.
According to the defense psychologist, Lo’s level of intelligence is in the bottom one percent of the population, or at the level of most 8 year olds. Based on the results of a battery of tests, Lo qualifies for a “diagnosis of either developmental disability or mental retardation.” His mother explained he never recovered from a serious early childhood disease he suffered in Thailand. He attended special education classes and graduated from Sacramento High School. He lived at home but had been unable to maintain a job. Nevertheless, he did not suffer from mental illness, he was able to form the intent to kill, and he could understand that people might want to kill someone.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Conspirators and aiders and abettors, particularly those who are not present and do not perpetrate the charged offense, have difficulty accepting basic legal principles that equate their criminal culpability with that of the perpetrator. Where, as here, a jury holds a defendant vicariously liable for the acts of her coconspirators, we see a vast array of creative arguments to minimize responsibility and to deflect criminal liability onto others. Mimi’s creativity encompasses a confusing hodgepodge of theories, instructions, argument, and evidence under the guise of an attack on the sufficiency of the evidence. The legal principles are straightforward, once we unravel the argument.
Mimi insists there is insufficient evidence to support her murder conviction because there is no evidence she aided and abetted the perpetrator. The prosecutor presented no evidence and did not argue that Mimi knew the 14-year-old shooter, let alone assisted him in shooting Si. The Attorney General contends, however, there is ample evidence Mimi was part of a criminal conspiracy to murder Si.
Here is where Mimi’s argument becomes difficult to follow. Pointing to Penal Code section 31 as embodied in CALCRIM Nos. 400 and 401, Mimi argues that liability can be imposed for substantive crimes on a coconspirator only if the conspirator qualifies as a principal. It is true that the jury was instructed as follows based on CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” And the jury was instructed on the requirements of Penal Code section 31 in the language of CALCRIM No. 401 to find the defendant “knew that the perpetrator intended to commit the crime, ” and “specifically intend[ed] to, and [did] in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
These instructions applied to the aiding and abetting theory of liability, not to conspiracy. Nevertheless, Mimi contends that the jury was bound to follow the aiding and abetting instructions, even in the face of the prosecution’s concession that she did not know or assist the shooter. She ignores the jury’s prerogative to choose among alternative theories of liability. She was jointly tried with Lo, and the facts surrounding his involvement as a getaway driver presented the quintessential aider and abettor. She is correct that if the jurors were assessing her liability as an aider and abettor, like Lo, they would have been compelled to find the elements described in CALCRIM Nos. 400 and 401. But those instructions, including her reliance on Penal Code section 31, do not apply to Mimi’s liability as a coconspirator.
In another novel twist on a sufficiency challenge, Mimi weaves in part of the prosecutor’s closing argument about her personality. She does not challenge the admissibility of any evidence regarding her role in the relationship, nor does she allege prosecutorial misconduct based on the prosecutor’s argument that she must have been the mastermind behind the conspiracy because she was more articulate and more intelligent than Nai, whom the prosecutor characterized as a “milquetoast.” She does, however, ask us to discount what she baldly asserts was improper character evidence.
Mimi testified, consistent with what she had told her interrogators during the investigation of Si’s murder, that she was not in love with Nai, she had no interest in a long-term relationship with him, and they had a mere friendly sexual relationship. She portrayed herself as mild mannered and compliant, willing to run whatever errands Nai requested without asking any questions. Against this backdrop, the prosecutor sought to disabuse the jury of this caricature of her true personality.
The prosecutor needed to prove that Mimi knew of Nai’s plan to murder his wife and agreed (explicitly or implicitly) to help him accomplish his nefarious objective. Thus, the prosecutor encouraged the jury to infer Mimi’s motive from her many love letters and telephone calls professing undying love and devotion to him and to infer her knowledge and participation from her aggressive search for a gun and purchase of bullets. Whether Mimi was a mastermind or a foot soldier is irrelevant. In the absence of a direct attack on either the admissibility of the evidence or on the propriety of the prosecutor’s argument, we reject Mimi’s indirect challenge to the inferences the prosecutor urged the jurors to draw.
The straightforward question posed is whether there is substantial evidence to support the murder and conspiracy verdicts, which in this case presents evaluation of the same evidence. Mimi recognizes that her burden is heavy in light of the compulsory rules governing appellate review of an insufficiency of the evidence claim. We must scour the whole record in the light most favorable to the prosecution to determine whether any rational trier of fact could find the elements of the charged crimes beyond a reasonable doubt based on substantial evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The evidence we are searching for in this case is evidence of each of the elements of a criminal conspiracy.
“The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself--‘an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ [Citations.]... Thus, ‘where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.’ [Citation.] [¶] This second aspect of conspiracy--which imposes joint liability on conspirators--operates independently of the first aspect, which makes a conspiracy itself a crime.” (People v. Salcedo (1994) 30 Cal.App.4th 209, 215.) Mimi argues there was insufficient evidence of conspiracy as a separate offense and, consequently, insufficient evidence to support her murder conviction as well.
Conspiracy requires proof of: “(1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt act towards achievement of that goal. [Citation.] These elements are sufficiently met by circumstantial evidence, particularly when those circumstances are the defendant’s carrying out the agreed-upon crime. [Citation.] [¶] The overt acts charged as part of the conspiracy can be circumstantial evidence of its existence.
‘“Such acts may establish the purpose and intent of the conspiracy and relate back to the agreement whose purpose may be otherwise enshrouded in the hush-hush admonitions of the conspirators.”’ [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.)
Mimi contends her involvement with Nai may have been suspicious, but “[s]uspicion is not evidence” (People v. Thompson (1980) 27 Cal.3d 303, 324) and “mere speculation cannot support a conviction” (People v. Marshall (1997) 15 Cal.4th 1, 35). We reject Mimi’s attempt to degrade powerful circumstantial evidence to mere suspicion and speculation. The facts of the cases she cites highlight the crucial distinction between circumstantial evidence of reasonable, credible, and solid value and flimsy evidence based on mere suspicion or speculation.
We will first examine the circumstantial evidence in the light most favorable to the verdict that Mimi agreed to help Nai with the knowledge he was planning to murder his wife and with the specific intent to assist him reach that objective. Perhaps the most compelling evidence are the overt acts she took to further the conspiracy; that is, her repeated attempts to obtain a gun and her purchase of the bullets. She offers innocent explanations for her actions, explanations, of course, the jury was free to reject, particularly in light of the fact she lied to investigators and denied ever purchasing the bullets. Since she and Nai were canvassing friends and family for a weapon at the same time they maintained their extramarital affair and she expressly told her brother the gun was “for Nai’s wife, ” it strains credulity to believe she had no idea of his plan to murder Si.
Mimi’s professions of love and visions of a happily-ever-after ending, exposed in her voluminous letters, certainly belied the nonchalant attitude toward Nai she tried to convey during the investigation and at trial. Again, given her duplicity, the jury was free to infer an obvious motive to get rid of the woman who threatened to derail her fairy tale.
The phone trail strengthened the prosecution’s case. Not only did the police officer demonstrate the extraordinary number of calls between Mimi and Nai in the month before and after the murder, suggesting an intensity in the relationship at odds with Mimi’s testimony, but he also carefully documented the timing of the calls in relationship to the calls Nai made to his coconspirators on the day of the murder. Standing alone, the telephone records may not have produced a conviction, but when taken with all the other evidence, they bolstered the inference that Mimi was indeed a vibrant participant in a conspiracy to kill.
By contrast, the links between the defendants and the alleged coconspirators in the cases Mimi cites are completely speculative. For example, in People v. Bamber (1968) 264 Cal.App.2d 625 (Bamber), the evidence put the defendant “near the scene of the burglary on the night it occurred and in the company of a person who might have committed it.” (Id. at p. 633.) His presence created a strong suspicion, but in the absence of fingerprints, shoeprints, or any evidence to tie him to the crime, the court found the evidence woefully insufficient to support the verdict. (Ibid.)
Similarly, in People v. Blackwell (1961) 193 Cal.App.2d 420, no one identified defendant Frey as one of the robbers; one of the victims observed the third robber’s hand and did not notice tattoos; and no loot, no weapon, nor any clothing allegedly worn by the third robber was found in Frey’s motel room. Frey had tattoos on both hands. “At best the evidence merely shows that Frey associated with Blackwell and Johnson. It falls far short of the quantum necessary to overcome the presumption of innocence and to meet the burden resting on the prosecution to establish guilt beyond a reasonable doubt.... That the circumstances were suspicious may be conceded, but mere surmise and conjecture are not enough.” (Id. at pp. 424-425.)
In both cases, the defendant was convicted based on evidence of mere association with the coconspirators in close proximity, in either time or place, to the crime. A fleeting association bears little resemblance to the facts in this case. Mimi did not just know or associate with Nai, she was pregnant with his child, was planning a life with him, tried to get a gun, sparred with the intended victim, and bought bullets. She lied about her motives as well as her actions. Thus, unlike the evidence in Bamber and Blackwell, the jury verdicts were not based on impermissible conjecture and surmise, but rather on reasonable inferences a rational juror might draw from substantial evidence of a conspiracy to murder Si Saeturn.
II
INSTRUCTIONAL ERROR
A. CALCRIM No. 417
Citing People v. Hernandez (2003) 30 Cal.4th 835, Mimi points out that a conspiracy to commit murder is punishable by a maximum sentence of 25 years to life; special circumstances cannot apply. She argues that in order to punish a defendant for first degree murder with special circumstances, it was necessary for the jury to find that she was an actual principal in the crime of first degree murder, which required proof that she was either a perpetrator or an aider and abettor. CALCRIM No. 417 gave the jury an “erroneous alternative” -- to find her guilty of first degree murder with special circumstances without having to find she was an actual principal in the murder. She is wrong.
In Hernandez, the Supreme Court held that the special circumstances in Penal Code section 190.2 did not apply to the crime of conspiracy to murder. (People v. Hernandez, supra, 30 Cal.4th at p. 866.) Mimi was convicted of murder as well as conspiracy to murder. She was sentenced to life without the possibility of parole as a special circumstance not based on her conviction for conspiracy to murder as in Hernandez, but based on her conviction for murder. Indeed, the Supreme Court recognized that the issue would arise only when the conspirators did not succeed in killing their intended victim. When, as here, the conspirators did succeed, “the conspirators could be charged with murder, and the special circumstance could be alleged for that crime. The prosecution would gain no apparent advantage in charging special circumstances also as to the separate [] crime of conspiracy to murder. Under Penal Code section 654, a defendant may not be punished for both the murder and the conspiracy [citation]; in any event, the punishments of death and life without the possibility of parole may only be imposed on a defendant once.” (Id. at p. 866.)
As we explained above, conspiracy is a substantive crime as well as a mechanism for holding conspirators criminally liable for the acts of their coconspirators. This essential principle is embodied in CALCRIM No. 417, wherein the jurors were instructed: “A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime.” The instruction also describes at some length the natural and probable consequences doctrine, a doctrine of little relevance when the target and completed offense are one and the same.
Nevertheless, Mimi’s insistence that CALCRIM No. 417 usurps Penal Code section 31’s mandate that a principal must be either a perpetrator or an aider and abettor is simply not the law. In In re Hardy (2007) 41 Cal.4th 977, the Supreme Court explained plainly: “One who conspires with others to commit a felony is guilty as a principal. (§ 31.) ‘“Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design.” [Citations.]’ [Citation.] Thus, if petitioner conspired with others to kill the victims for financial gain, he is as guilty of their murders as the person who actually stabbed them.” (In re Hardy, at pp. 1025-1026.) Her role as a conspirator, according to the Supreme Court in Hardy, means she was a principal. Aiding and abetting is a separate, unrelated theory of liability which, in this case, the prosecutor readily conceded did not apply to Mimi. CALCRIM No. 417 properly states the law of conspiracy and does no violence to Penal Code section 31.
B. Sua Sponte Limiting Instruction on Character Evidence
Recycling her same objection to the prosecutor’s argument about her domineering personality, Mimi attempts to foist responsibility on the trial court to minimize the damage with a limiting instruction. Mimi cites no case in which a court has found a sua sponte obligation to instruct the jury on the limited admissibility of character evidence. The authority, she concedes, is to the contrary.
“Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request.” (People v. Lang (1989) 49 Cal.3d 991, 1020.) Nevertheless, she relies on mere dicta in a very old, discredited case involving other crimes evidence to support the notion that hers is the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64.) Because the evidence was relevant to motive, was not unduly prejudicial, and was not a dominant part of the evidence, this is certainly not the occasional and extraordinary type of case necessitating unsolicited judicial intervention.
Not only did Mimi fail to request a limiting instruction, but she also failed to object to the admissibility of the telephone conversations she now complains were misused by the prosecutor in closing argument. She insists that the substance of these conversations took center stage at trial even though the substance of the conversations did not reveal her knowledge of a conspiracy or her intent to participate in one. She acknowledges they were relevant to prove motive pursuant to Evidence Code section 1101, subdivision (b) but argues they were only marginally relevant and were highly prejudicial.
Without repeating at length what we have said before, Mimi’s repeated attempts to distance herself from Nai were discredited by the sheer number and substance of her conversations with him. They undercut her credibility and highlighted her motive to help remove the woman who came between her and her man and the lifestyle she coveted. Moreover, while exposing her duplicity and therefore damaging to her case, the calls were not highly prejudicial. Nor did they dominate the trial. They consumed approximately one day of testimony in a 21-day trial and were extremely helpful in proving the nature of her relationship with the man who admittedly conspired to kill his wife. There is nothing extraordinary about the evidence, or the role it played in this case, to deviate from the well-accepted principle that a trial court does not have a sua sponte obligation to give a limiting instruction on how jurors should use the evidence.
C. CALCRIM No. 362
CALCRIM No. 362, like its predecessor, CALJIC No. 2.03, allows, but does not require, a jury to infer a consciousness of guilt from a defendant’s false statements. Both instructions admonish the jury that a defendant’s lies by themselves are not sufficient to prove guilt. “The California Supreme Court has consistently upheld CALJIC No. 2.03 against various and sundry attacks. [Citations.]” (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103, fn. 3.) “Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362... none is sufficient to undermine our Supreme Court’s approval of the language of these instructions.” (Id. at p. 1104.) Nevertheless, Mimi has not been deterred from mounting another hopeless challenge to CALCRIM No. 362.
CALJIC No. 2.03, unlike CALCRIM No. 362, allowed the jurors to infer consciousness of guilt from falsehoods made “before [] trial.” CALCRIM No. 362 as given does not restrict the time frame within which the defendant lies, and thus, the instruction allowed the jury to infer Mimi’s consciousness of guilt from her trial testimony if the jury found she lied under oath. She contends the instruction lightened the prosecution’s burden of proof by allowing her false testimony to become affirmative evidence of guilt, a danger exploited by the prosecutor during closing argument. We disagree on multiple grounds.
First, the Supreme Court has reaffirmed its holding that the consciousness of guilt instruction does not lessen the prosecution’s burden of proof. (People v. Benavides (2005) 35 Cal.4th 69, 100.) The timing of the statement does not matter. “The inference of guilt comes from the fact that a falsehood was told in order to mislead the authorities and avoid suspicion, not the time at which the statement was made.” (People v. White (1995) 35 Cal.App.4th 758, 772.) Allowing the jury to infer a consciousness of guilt from statements made during as well as before trial does not thereby lessen the prosecutor’s burden of proof.
Second, the language of the instruction does not allow the jury to use a defendant’s statements as affirmative proof of guilt. Mimi misconstrues the instruction and fails to take account of the many other instructions that, when read together, reminded the jury of the prosecutor’s burden of proving each and every element of the crimes beyond a reasonable doubt. (CALCRIM Nos. 220, 417, 520, 521, 563.)
The jury was instructed as follows based on CALCRIM No. 362: “If a defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he or she was aware of his or her guilt of the crime and you may consider it in determining his or her guilt. You may not consider the statement in deciding any other defendant’s guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
An inference of a consciousness of guilt is not the equivalent of a finding of guilt and the plain language of CALCRIM No. 362 merely allows the jury to consider evidence of consciousness of guilt as one factor in determining guilt. Because the instruction expressly prohibits the jury from relying on that evidence alone to convict, we reject the argument it erroneously allowed the jury to bootstrap disbelief into affirmative evidence of guilt in a manner diluting the prosecutor’s burden of proof.
D. CALCRIM No. 226
CALCRIM No. 226 provides, in pertinent part: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” Again Mimi objects to the changes CALCRIM No. 226 made to its predecessor, CALJIC No. 2.21.2, according to which a witness’s lie had to occur during sworn testimony. She complains that the modification urged the jurors to reject her entire testimony based on the fact she lied to police in unsworn statements made prior to trial. The vice in the instruction, according to Mimi, is that when taken in conjunction with CALCRIM No. 362, the jury was permitted to use her rejected trial testimony as affirmative evidence of guilt.
We found no vice in CALCRIM No. 362 as we explained above, and we find no vice in CALCRIM No. 226, taken either separately or in conjunction with CALCRIM No. 362. Like CALCRIM No. 362, there is nothing in the plain language of CALCRIM No. 226 to use a defendant’s false statements as affirmative evidence of guilt. Rather, the instruction allows the jury to disregard all, part, or none of a witness’s testimony based on anything bearing on witness credibility. Nor do we agree that the instruction “urge[s]” the jury to reject all of defendant’s testimony. The instruction does not “urge, ” it simply allows the jury maximum flexibility to assess the credibility and believability of a witness’s testimony. This is true whether the false statement was made to a police officer during an interrogation or whether it was made under oath at trial. The jury is entrusted with the responsibility to weigh the significance of the falsehood and the circumstances under which it was made, a responsibility the jury is uniquely equipped to discharge.
E. Accomplice Instructions
Mimi complains, on the one hand, that the trial court failed to instruct sua sponte that Lo’s testimony required caution and corroboration because he was an accomplice and, on the other hand, that the court erred by instructing the jury to view Cheng’s testimony with distrust because he was an accomplice as a matter of law. We conclude that Mimi suffered no prejudice from either the delivery of the accomplice instruction involving Cheng or the failure to give an accomplice instruction involving Lo.
Preliminarily we point out that “[a]ccomplice testimony must be corroborated to avoid the evil of an accused being convicted solely on the testimony of a coperpetrator who has a motive to place all the blame on the accused. Independent evidence must therefore connect the accused to the commission of the substantive offense....” (People v. Maldonado (1999) 72 Cal.App.4th 588, 598.) The corollary rule is that an accomplice’s testimony implicating the defendant should be viewed with distrust. The instructions are designed to remind the jury that accomplices, by nature, are riddled with conflicts of interest, that self-interest often trumps loyalty, and that their testimony, as a general rule, is not entitled to the same level of confidence as other witnesses.
Here the testimony offered by Lo and Cheng does not fit the accomplice archetype. Neither accomplice fingered Mimi. Neither testified or told the interrogating police officers that Mimi was a member of the conspiracy, that she committed any overt acts in furtherance of the conspiracy, or that she aided and abetted the murder. Rather, the connection between their pretrial statements or testimony at trial and Mimi was quite attenuated.
Lo explained how he, Xeng, and Khae waited 25 to 30 minutes for Si to leave work before Xeng shot her. This testimony supported the jury’s finding of lying in wait and therefore indirectly inculpated anyone who was involved in the conspiracy. But he did not name Mimi or attempt to deflect responsibility to her.
Cheng testified that he attempted to exchange the bullets that did not fit the gun for Nai. He could not buy the right bullets without the gun. Like Lo, he did not mention Mimi or accuse her of taking part in the murder of Si. Neither Lo’s nor Cheng’s testimony was plagued with the evils the rules governing accomplice testimony were designed to cure.
Nevertheless, Mimi contends the accomplice instruction unfairly tainted her because she, like Cheng, had purchased bullets for Nai. She makes what we believe to be the unreasonable inference that the jurors would find her an accomplice simply because Cheng was identified as an accomplice as a matter of law and both of them bought bullets. We agree with the Attorney General that there is no reasonable probability that CALCRIM No. 335 led the jury to infer that Mimi was guilty from Cheng’s status as an accomplice.
Such an inference would have been at odds with the many instructions emphasizing that the prosecution bore the burden of proving that Mimi was a member of the conspiracy, including the admonition that “[e]vidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy.” Thus, taking the instructions as a whole, there is no reasonable probability that the jury would use CALCRIM No. 335 and Cheng’s accomplice status as a substitute for proof of Mimi’s guilt.
Similarly, it is not reasonably probable that the jury would have reached a result more favorable to Mimi had it been instructed to view with care and caution Lo’s pretrial statements. Lo described what he, Xeng, and Khae did on the night of the shooting, not what Mimi said or did. The evidence against Mimi that she had attempted to secure a gun, that she bought bullets for Nai, that she lied to the police officers, that she had a motive to kill Si because she was in love with Nai and wanted to spend her life with him, and that she talked to Nai through all the critical planning phases did not come from Lo. Any cautionary instruction under these circumstances would have little, if any, impact on the jury’s consideration of Mimi’s guilt, and the accomplice corroboration requirement only applies to “convictions” for underlying substantive offenses, and not to true findings on enhancement allegations. (People v. Maldonado, supra, 72 Cal.App.4th at pp. 597-598.)
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Central to Mimi’s appeal is her belief that she was unfairly convicted of murder and conspiracy because the prosecutor improperly portrayed her to the jury as a dominating, evil woman who spearheaded the plot to murder Nai’s wife and improperly urged the jury to infer guilt from the personality evidence. In the next version of the same theme, she complains that her lawyer did not shield her from the improper use of the character evidence by objecting to the evidence in the first place and then failed to contain the damage by requesting a limiting instruction, objecting to the prosecutor’s argument, requesting the court to admonish the jury to disregard the impermissible argument, and objecting to the prosecutor’s continued reliance on the same evidence in opposition to the motion for a new trial. She fails to sustain her burden of proving her lawyer’s representation fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1256.)
This case is a vivid reminder of the huge chasm between the story advocates tell in their briefs and the story the record tells. It is true the prosecutor attempted to persuade the jury the persona Mimi presented was a fake. In his view, the evidence did not support her pretrial statements and trial testimony about the nature of her relationship with Nai as we have discussed at some length above. But this was only one of many arguments the prosecutor made and by far one of the least important. The thrust of his case was not her personality, but what she did and said: she tried to obtain a gun she said was “for Nai’s wife” and she bought bullets at Nai’s request. Simply put, Mimi exaggerates the role of the so-called character or personality evidence in this case.
That being said, the prosecutor did rely on hours of taped telephone conversations between Nai and Mimi to discredit Mimi, the witness. Mimi contends her lawyer should have objected to the admissibility of the tapes and his failure to do so deprived her of her constitutional right to adequate representation. We disagree.
“An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) Mimi’s lawyer, like us, may have been more focused and more concerned about her overt actions than the nuances of the lovebirds’ daily chit-chats. Mimi’s criminal liability was the same whether she controlled the conspiracy or merely participated in it. Thus, her lawyers could have made the imminently reasonable tactical decision not to object to the admissibility of the evidence, particularly when it was likely to be admitted as evidence of motive.
Nor do we find her lawyer fell short in failing to react to the prosecutor’s argument, either by objecting, asking for an admonition or limiting instruction, or starting it all over again at the motion for a new trial. Appellate counsel attributes far more significance to this one strain of argument than we believe is justified by a reading of the whole record. If, as we conclude, the telephone conversations were played for the jury to vividly demonstrate that the nature of her relationship with Nai was at odds with how she represented it before and during trial and thereby to undermine her credibility, then defense counsel could tactically decide to minimize the impact by essentially ignoring it. In any event, the evidence was relevant and the prosecutor’s interpretation of it was reasonable. Thus, an objection would have been overruled. Mimi’s ineffectiveness claim fails.
IV
DEAD FETUS PHOTOGRAPH
The Legislature has determined that the killing of a fetus can be murder. (Pen. Code, § 187, subd. (a).) Although the Legislature failed to define “fetus, ” our Supreme Court has endorsed the medical definition to include “’the unborn offspring in the postembryonic period, after major structures have been outlined, ’” and this period occurs in humans “‘seven or eight weeks after fertilization.’” (People v. Davis (1994) 7 Cal.4th 797, 810.) It was undisputed that in this case the fetus was between 18 and 20 weeks old. Mimi offered to stipulate that Si’s fetus met the requisite definition; that is, it was of sufficient age and the major structures had been outlined. Nevertheless, the trial court allowed, over defense objection, the prosecutor to show the jury a photograph of the dead fetus. The court erred.
“If a fact is not genuinely disputed, evidence offered to prove that fact is irrelevant and inadmissible under Evidence Code sections 210 and 350 respectively.” (People v. Hall (1980) 28 Cal.3d 143, 152, disapproved on another point in People v. Valentine (1986) 42 Cal.3d 170.) The holding of the Supreme Court in People v. Bonin (1989) 47 Cal.3d 808, 849 is on point. The court explained: “Through the offer of the defense, the facts covered by the proposed stipulation -- the victim was a human being and was alive before the alleged criminal act was committed and dead afterwards -- were removed from dispute. Therefore, the testimony elicited to prove such facts was irrelevant and inadmissible. As we also held in Hall, ‘if a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence... to prove that element to the jury.’ [Citation.] Thus, the court should have compelled the prosecution to accept the defense’s offer and barred it from eliciting testimony on the facts covered by the proposed stipulation.” (Bonin, at p. 849.)
The Attorney General insists the prosecutor is entitled to more leeway and should not be hamstrung by the defense. According to the Attorney General, to deny the prosecutor the opportunity to display the dead fetus would have been to “deprive the state’s case of its persuasiveness and forcefulness.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) We disagree and the cases cited by the Attorney General prove the point.
For example, in People v. Crittenden (1994) 9 Cal.4th 83, the prosecution displayed 24 graphic photographs of the victim’s bludgeoned bodies, one covered by blood-soaked clothes, others with bound wrists and blackened fingernails, some with knives protruding and in close proximity to a purse with the contents spilled out nearby. “The prosecution tried the first degree murder charges on the theories that the murders were premeditated or committed in the course of a robbery, and that the murder of William involved torture. The photographs depicting the various knife wounds and blunt trauma to the bodies were relevant to establish the manner in which the victims were killed, including the nature and placement of the victims’ wounds. [Citations.] The photographs of the location and condition of the bodies, including the manner in which the victims were bound and gagged, also were relevant to the issue of premeditation and deliberation. [Citations.] In addition, the nature of the nonfatal wounds inflicted upon William, as well as his facial expression, as shown in the photographs, were relevant to demonstrate the perpetrator’s intent to cause the cruel suffering necessary to establish that the murder involved torture.” (Id. at p. 133.)
Thus, unlike the photograph of the dead fetus, the photographs introduced into evidence in Crittenden were relevant to the issues to be decided by the jury. Here, by contrast, there was no dispute the fetus had reached the requisite gestational age. In fact, a fetus in gestation for 18 to 20 weeks is so far beyond the embryonic stage of less than seven to eight weeks in gestation that the issue of fetal development was indisputable. Mimi’s offer to stipulate to this indisputable fact added little to what the court had already told the prospective jurors during voir dire, and that is that Si Saeturn was five months pregnant at the time she was killed. As a result, we need not base our decision on some amorphous right by defense counsel to foist a stipulation upon an unwilling prosecutor and thereby deny him of the force of his graphic evidence because we conclude that in this case the fact that the fetus met the statutory definition for murder was simply not a fact in dispute at all. The trial court thereby abused its discretion by admitting irrelevant evidence.
Nevertheless, we do not find the error prejudicial. Of course the view of the fetus may have evoked a strong emotional response from some of the jurors. Indeed, as Mimi points out, one alternate juror had expressed her aversion to seeing such a photograph before trial. But she was reassured the fetus had not sustained any mortal wounds. The photograph may have been irrelevant, and indeed cumulative to the medical testimony, but it did not convey anything the jurors did not already know. There was nothing about this particular photograph that was unduly graphic or disturbing beyond the tragic fact of the death itself. Therefore, we conclude that it is not reasonably probable that, in the absence of the photograph, Mimi would have received a more favorable verdict.
V
CRUEL AND UNUSUAL PUNISHMENT
Mimi contends it is cruel and unusual punishment to send her to state prison for life without the possibility of parole given that she was only 22 years old at the time Si was murdered, she had no criminal record, and she was not present at the shooting. She emphasizes that she did not supply either the gun or the bullets that were actually used; nor did she know any of the perpetrators or assist them in any way. She believes her role was quite peripheral even if, as the jury found, she was part of the criminal conspiracy to murder.
“[T]he Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution preclude punishment that is disproportionate to a defendant’s individual culpability.” (People v. Webb (1993) 6 Cal.4th 494, 536.) “To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristic of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is ‘grossly disproportionate to the defendant’s individual culpability’ (ibid.), so that the punishment ‘“‘shocks the conscience and offends fundamental notions of human dignity’”’ [citation], the court must invalidate the sentence as unconstitutional.” (People v. Lucero (2000) 23 Cal.4th 692, 739-740).
The trial court rejected the notion that a life sentence without the possibility of parole was cruel or unusual punishment. The court characterized Mimi as the “driving force behind the conspiracy which resulted in the murders” and, “[i]n effect, [she] turned loose other conspirators, assisted them, supported them, and saw to it that this crime was carried out.” Mimi contends there is no evidence to support the trial court’s factual findings and urges us to strike the findings and grant a new sentencing hearing.
“[B]oth the trial and the appellate court have the authority to determine whether a sentence results in cruel or unusual punishment. [Citations.] While the proper determination of this claim may be fact-specific [citation], it is a role of the appellate court to decide mixed questions of fact and law.” (People v. Meeks (2004) 123 Cal.App.4th 695, 706.) We review these mixed questions independently. (Id. at p. 707.)
While there may not be direct evidence of Mimi’s role in the conspiracy, there is compelling circumstantial evidence to support the trial court’s factual findings. She continues to minimize her culpability because she did not know the actual perpetrators and did not talk to them personally. But coconspirators do not need to have personal relationships; their joint participation in a criminal enterprise is sufficient. And the jury rejected her defense that she did not know anything about the plan to murder Si and did not participate in the conspiracy.
The nature of the crime in this case was horrific. The victim, who did nothing more than try to preserve her marriage, was shot and killed. And given that Mimi herself had attempted to secure a gun “for Nai’s wife, ” there was sufficient evidence to support the inference that she knew Si would be shot. The fact she did not personally know, aid, or assist the actual perpetrator is not determinative of her individual culpability as long as she conspired with Nai to have an innocent woman gunned down.
We must consider not only the nature of the crime, but we must take great care to assess Mimi as an individual in our analysis of the “nature of the offender.” (In re Lynch (1972) 8 Cal.3d 410, 425.) She bristles at the characterization that she was the “mastermind” or “‘driving force’” behind the conspiracy. In this context, her role does affect her culpability. We disagree with her position that there was no evidence she assumed a leadership position in this operation.
To the contrary, the trial court, who, like the jurors, listened to her testimony and watched her demeanor, was in a position to assess her credibility. There is ample evidence to support the rejection of the naïve image she attempted to create, particularly in light of the many lies she told about the kind of relationship she had with Nai and her expectations for the future. Moreover, a prosecution witness carefully choreographed the calls she made and received from Nai to demonstrate that she was in close contact during the pivotal planning phases of the murder, particularly in the afternoon hours on the day of the shooting.
It is terribly sad that such a young mother plotted with Nai to do away with her nemesis. But 22 years old is quite old enough to know better. Her lack of criminality adds to the tragedy, particularly when three young children must grow up without their mother. Yet these circumstances do not militate against a life sentence when her participation in the conspiracy cost another young mother, indeed, a mother who was expecting another child, her life.
In sum, while the sentence is harsh, we cannot say it shocks our conscience or offends our fundamental notions of human dignity. A self-centered mistress, jealous of the life a wife enjoyed with the mistress’s lover, participated in a vicious and brutal plan to have her murdered. There was circumstantial evidence to support the trial court’s finding she was a driving force. The court, in summary fashion, indicated that her involvement “in effect” rendered assistance to the others. That is not to say she directly supported the perpetrators, but it is to say she played a major role and an innocent woman was killed because of her. We therefore conclude the sentence did not violate the constitutional proscription against cruel and unusual punishment.
VI
MIRANDA
A. Factual Background
On February 8 and 9, 2006, Lo told a police detective that he knew Nai was planning to kill his wife; that he went with Nai and Khae to purchase bullets; that 14-year-old Xeng was the shooter; that he saw Khae make sure the bullets fit the gun; that he, Khae, and Xeng went to Si’s place of employment, parked the car, and waited for her to get off work; that he heard three or four shots; that he drove the getaway car; and that Nai gave him a $1,600 car for $500. His incriminating statements provided the essence of the prosecution’s case against him. He urges us to reverse his conviction because the confession was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) and its more recent counterpart, Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378]. Specifically, he asserts the interrogating officer failed to honor his invocation of the right to counsel. In addition, Lo asserts his statements to police were involuntary, the product of coercive interrogation techniques to which he was particularly vulnerable because of his limited mental capabilities. The record shows otherwise.
B. The Interrogations
Given the nature of the arguments before us, we will set forth the interrogation in some detail.
At approximately 2:00 a.m. on February 8, 2006, police officers awakened Lo at home and asked him to accompany them to the police station for questioning. Once at the station, the detective acknowledged that it was very late and expressed appreciation to Lo for coming down to the station. Lo confirmed that he had come down to the station voluntarily, and the officer told him he was not under arrest. Nonetheless, Lo was given a Miranda advisement, including his right to remain silent, the right to the presence of an attorney before and during questioning, that if he could not afford an attorney one would be appointed for him free of charge before any questioning if he wanted. After each right was read, the detective asked if he understood, and at the conclusion of the advisement asked again if he understood and asked, “having those rights in mind... are you willing to talk to me now?” Lo responded in the affirmative to each of the questions.
The interrogation began at 2:37 a.m. The detective told Lo he was investigating a shooting where his name had come up. He then proceeded to ask whether Lo had a gun at home (no, not allowed to carry a gun inside the house), about his arrest record (none), and about his education (high school graduate). Lo gave consent to a search of his room, after the detective told him he did not have to consent (“You don’t want me to search it, then you tell me, Scott, don’t search it.”) The detective then asked Lo whether he owned a car and thereafter inquired about the registration and date of purchase. The detective apparently checked the license plate number and indicated it was registered to Nai Saechao. Lo acknowledged he bought it from Nai two and a half months earlier for $1,000. He identified Nai as someone he played “street” basketball with and learned that his car was for sale from Nai’s cousin, Cheng, with whom he played team basketball.
There followed an extended discussion of the Sacramento Kings and basketball, after which the detective returned to the subject of the car and asked if Lo had it in his possession for two and a half months. Thereafter, the interrogation focused on the car, Lo’s relationship with Nai, and their relationships with others in common. Lo indicated that he had left the car at Nai’s house after the purchase so Nai could fix the door for him, but “after the incident, what happened to his wife -- that I hear about it, ” he had no time to fix it. He denied any knowledge of Nai’s relationship with his wife or other women. The detective asked Lo whom he would talk to if Lo were in the detective’s position. Lo responded, “Of course, the husband, ” then “the family.” The detective offered a list of possibilities (the husband’s girlfriend) and Lo offered others (the husband’s coworkers). The detective then offered that he should also want to talk with people the husband played basketball with, including Lo. At this point, the detective explained, “Okay, so we’re to the point now where we reach out and we ask you what you know about Nai and about this stuff. Okay? So that kind of sums it up for you where I’m at with you.” The detective then reminded Lo that he agreed to come down voluntarily and he had read him his rights, and stated that “you need to make sure that you tell me the truth.” Lo assured him that he was not going to lie, and the detective declared that “ninety-nine percent of people that come in here lie to me... ” and that “most of the questions that I ask people and that I’m going to ask you, I already know the answers to. Because I’ve talked to all of those people that have brought me to you.”
He then exclaimed: “Okay. What I need from you is the absolute truth. Okay? It’s very important. Because I have a very good idea of what happened to Si and I pretty sure I’m figuring out who did this to her and who was behind it and the people that were involved in it. Okay? Basically the first person to tell me the truth on that, that’s what I take to the District Attorney and then they decide what charges, if any, is [sic] going to be filed. But I want to be able to tell the District Attorney and the people that are involved with that at least somebody came forward and told me the truth on that. This is a very serious case.”
Lo then indicated that he had been at Nai’s house for a ceremony when he did the funeral. He had been at the house two times, but not before the funeral, though he had bought a car from him. Lo indicated that he “used to run” with a gang, the Outlaw Crips, and he still talked to Khae Saephanh and his brother Cheng, but he stopped hanging out at their house the previous October 31 and would go there only once in awhile, to say hi to their dad, who was like his second dad. On further questioning, he acknowledged he remained friends with both of them and acknowledged that he had seen Nai at their house, but he would not accede to the detective’s suggestion that Nai was at the house on a regular basis up until his wife’s death; he had only seen him there twice.
When asked what he thought should happen to Nai if he simply did not want to be married and planned to have his wife killed, Lo answered that he should be “locked up” for “murder” as well as those who killed her. Lo rejected the detective’s suggestion that people who were involved should be given leniency for being honest. He then denied that Nai ever approached him about doing anything or knowing anybody that would kill somebody. He did not think Nai would ask or tell Khae or Cheng or Sung or Cow or Lo Quoy anything about getting a gun; if Nai did they would tell Lo, and he could ask them.
After a break, the detective returned and indicated that he had talked to a lot of people and knew a lot, but he did not know certain details. He then asked Lo to put on his “detective hat” again, “And remember, again, a lot of the questions that I ask you, I already know the answers to. In fact, I know those answers plus a whole bunch more.” He then told Lo that he had talked to Nai extensively and had his phone records. He asked Lo whether Lo believed the detective had any reason to believe that “Nai is behind this.” Lo responded, “I can’t really say nothing.” He asked what Cheng would tell him. Lo responded, “I don’t know. They’re closer to Nai, so....” He asked what Khae would tell him. Lo said he did not know. The detective reminded Lo that “I already know the answers to all this stuff.” The subject then returned to Cheng, indicating that “Ch[e]ng filled us in about a lot of stuff” “regarding you and [Khae]” “and him and Nai. And you know exactly what I’m talking about.” Lo responded, “That we play ball?” The detective said: “No. “It’s more than just playing ball.” “... [Y]ou and [Khae] and Ch[e]ng and Nai had some conversations about some things. Okay? Related to Si’s death. His wife’s death....” When the detective told Lo, “you need to tell me what those conversations were, ” Lo responded, “I do not know. I -- I have no idea.” The detective persisted in telling Lo they had “a lot of evidence” and he should disclose his conversations with the others.
“Detective: You’re –- you’re a smart guy, right? You know exactly why you were coming down here. You were coming down here to talk about this case. Okay?
“L. Saephan: Oh, believe me. I have no idea.
“Detective: No. You do.
“L. Saephan: No, believe me. I don’t.”
This pattern of questioning continued, and when the detective, expressing exasperation, declared that he would not expect Lo to tell the truth until he heard some of the evidence he had, Lo exclaimed: “Nah, I would tell you the truth. I ain’t going to lie about that. I got nothing to do with it.” Lo continued, “I probably called Nai and Ch[e]ng and Khae, tell them to play ball and that’s all.” When the detective told him not to get defensive, Lo declared he was “getting mad because you’re accusing me of lying over here” and reaffirmed that he was being honest.
“I’m being pressured to tell.... I –- I’m –- you know, I walk over, you know, nicely and I come here nicely. I talked to you nicely. You want anything, I tell you anything. But you think I’m lying. So, know what?”
The back and forth continued, with the detective alluding to statements by Cheng and Khae, asserting, “It’s just a matter of time for Nai.” Lo maintained that “I told you everything that I know about.” The detective’s accusations that Lo was lying became increasingly pointed, with the detective indicating Lo’s statements were not true “unless Nai and [Khae] or Ch[e]ng and Cou... are all lying.” Lo then asserted they could all be lying because they were all cousins, while he was by himself. Disagreeing with the detective, Lo stated that the three did not like him, and though he had earlier stated he was friends with them, that had changed the week before. Speaking of Khae, Lo stated:
“He don’t like me. I don’t know why. That’s why I ask him, you know, what –- what I did to you all for you all not to like me. (Unintelligible) I don’t kick it with them no more. That’s why I’m playing ball, you know, on my own.”
The detective then indicated that Cheng had told him things they were able to corroborate and suggested that Lo was not being completely honest. Lo insisted he was being honest, and the detective returned to the subject of Lo’s purchase of a car from Nai, suggesting that Nai gave the car to Lo. Lo insisted that he bought the car. During this thread of questioning, the detective asked Lo to tell him about the conversation between him, Nai, Khae, and Cheng about the bullets for the gun that Nai was trying to get. The detective then declared, “I already know about it. It’s over. The gig’s up.” Lo responded, “Oh, you talking about that? That’s when I (unintelligible). They talking about bullet. That’s when I like -–” The detective then said: “Tell me about that.” Lo disclosed while he and Cheng they were alone at Cheng’s house, Cheng told him “his cousin” wanted a bullet; he did not say why and Lo told Cheng he could not help him. He was not allowed to carry a gun in his house. Lo stated that the only time Nai mentioned anything to him about a gun was when Khae was arrested for shooting a shotgun.
The detective then declared he already knew that Lo and Khae got either a gun or bullets for Nai. Lo denied this, reaffirming his earlier statement that Cheng asked him about bullets but Lo did not assist. The detective then returned to the subject of the car purchased from Nai, and Lo explained that all he had to prove the sale of the car was the title. He had asked Nai to sign it but Nai told him he did not need to sign it. The detective then returned to telling Lo that he knew Lo, Khae, Cheng, and Nai were behind the killing, but he did not know who actually shot her. Again, Lo stated that he was telling the truth, that he was trying his best to help the detective, that he had been trying to change his life around, forget the “gangbanging, ” and just wanted to “chill” with his mom and brother; that he had no reason to shoot her; that had he done something like that, he would have come clean with the detective; and that he would not shoot his own, explaining that Nai’s wife was a part of his stepdad’s family.
The detective again returned to the purchase of the car from Nai, and Lo repeated his account of the purchase -- payment of $600 a month and a half before the death of his wife, and the car remained with Nai so that Nai could repair the door. He made the car payment with money he had saved from working at an AM/PM gas station. Returning to the approach of saying that he already knew Lo was involved, the detective stated, “I already know that you were there, ” to which Lo responded, “There where?” Lo explained that he was with his family the entire day before New Year’s Day.
The detective then allowed that maybe he had been lied to about some things, but other things had been corroborated. He said he was “trying to go to bat” for Lo, but he needed to corroborate what Lo was saying. He stated, “I’m trying to -- to convince you that the right thing to do is to tell me what you know about Nai and [Khae] and Ch[e]ng regarding this thing.” He asserted that, based on what he knew, Lo knew more than he was saying, but he could not show Lo his “whole hand.” Lo then indicated he hardly knew Nai, and as for the conversation among Khae, Cheng, and Nai about getting a gun, Cheng asked him for a bullet and he said he did not have one. The detective then explained why his explanation for the possession of Nai’s car did not make sense because neither Nai nor Cheng had stated Lo bought the car from Nai. Lo reaffirmed the veracity of his statements about the car, and the detective asked if he would take a lie detector test. The following exchange ensued.
“Detective: Would you -- let me ask you this. Would you take a -- a lie detector test?
“L. Saephan: For what? I ain’t got nothing to lie. I'll tell you everything I know.
“Detective: Exactly. Exactly.
“L. Saephan: For what? This whole thing for what?
“Detective: To see if you’re telling me the truth about the car.
“L. Saephan: Oh, so now you don't believe me? So now you don't believe me.
“Detective: No. My job is to get to the bottom of it. Okay?
“L. Saephan: Yeah. My job is just
“Detective: I just want -- I'm trying
“L. Saephan: My job is to answer you. I am answering you. I’m doing my best to answer you
“Detective: I'm trying to (unintelligible)
“L. Saephan: So why -- why do I need to take the lie detector for? I got nothing to lie. For what?
“Detective: Okay. Then if you don’t have any lying, then you have nothing to worry about.
“L. Saephan: For what? What do I need to take it for when you try to say I’m involved with it -- with this case.
“Detective: That’s what people are saying.
“L. Saephan: That’s what people are saying but see you
“Detective: Remember I -- I am just (unintelligible) fact finder. Okay?
“L. Saephan: (Unintelligible) You think -- see, you -- you over here thinking about people. You don’t think about me. See what I’m saying?
“Detective: No. I am thinking about you.
“L. Saephan: I’m only -- I’m thinking my ass off just give you the -- you know, the frickin’ crap I know. You’re getting me pissed already.
“The thing that I know from whatever happened -- what happened in the case or whatever about that car, you know, I tell you everything that you want to know. I’ll tell you everything and you’ll think I’m lying.
“Detective: Why are you getting so defensive?
“L. Saephan: Because I’m mad.
“Detective: We’re having –- we’re having a
“L. Saephan: Because I’m mad. You wake -- you all wake me up at 1:00 o’clock in the morning just to play this stupid game with me.
“Detective: I’m not playing a game with you.
“L. Saephan: Man.
“Detective: I told you that in the beginning.
“L. Saephan: I want to go home and call my lawyer. That’s what I want to do.
“Detective: (Unintelligible) You’re – you’re (unintelligible) and I want to clear your name.
“L. Saephan: I am -- I am telling you the truth, sir. I don’t really get your (unintelligible), sir.
“Detective: No. No. No. I understand. But
“L. Saephan: (Unintelligible).
“Detective: -- you see, I got to ask you the tough questions so I can clear your name.”
The interrogation continued for another 11 pages of transcript, focused on the car sale. Lo continued to affirm his version of the car purchase, and the detective remained skeptical, telling him that he was trying to find a way to verify that Lo was telling the truth. When Lo insisted, “Sir, I’m telling you the truth right now, ” the detective said, “I’m giving you the chance to do that.” Lo replied, “I am. I know I’m going to accept that chance.” The detective then offered the lie detector test as a way of verifying Lo’s story. The conversation continued:
“L. Saephan: I’m telling you the truth right now.
“Detective: Let – I’m going to go with that.
“L. Saephan: Uh-huh.
“Detective: Okay? But you can verify that if you take that test. That lie detector test to see if (unintelligible).
“L. Saephan: For what?
“Detective: So I can verify
“L. Saephan: Let me -- let me -- let me -- you don’t trust me.
“Detective: You asked me
“L. Saephan: -- I’m lying to you (unintelligible).
“Detective: You -- you asked me
“L. Saephan: All right.
“Detective: You ask me how I can verify what you’re telling me.
“L. Saephan: Uh-huh.
“Detective: Okay? And I’m telling you all of our other options are exhausted. I cannot prove any other way. Okay?
“L. Saephan: Uh-huh.
“Detective: You pass that test, I can prove it. I can say, you know what? Lo told me the truth.
“L. Saephan: Uh-huh.
“Detective: Get off him. Stop bugging him.
“L. Saephan: Uh-huh.
“Detective: He told me the truth. Okay. That’s what that does. That verifies Lo’s truth.
“L. Saephan: I -- can I talk to my lawyer first.
“Detective: (Unintelligible).
“L. Saephan: (Unintelligible) this test or whatever.
“Detective: You can do whatever you want.
“L. Saephan: Yeah. I just want to talk to my lawyer and see if this right or wrong. I just want to explain everything to him.
“Detective: You have -- why do you have a lawyer?
“L. Saephan: I have a right. You know?
“Detective: Yeah.
“L. Saephan: I’ve been having
“Detective: Do you have a lawyer?
“L. Saephan: No. I’m going to plan to get one. That’s the only thing about it.
“Detective: Okay. ’Cause I -- I haven’t told
“L. Saephan: You know?
“Detective: -- you you’re under arrest.
“L. Saephan: I know that but you know what I’m talking about, I ask my lawyer first before I, you know, answer your all right or wrong whatever. You know, I have ri -- I have my rights. You feel me?
“Detective: You’re right. You do.
“L. Saephan: I have my rights. I have my rights. Right or wrong, I know my rights and wrongs. I don’t do stuff like that so, yeah. I want to, you know,
“Detective: Okay.
“L. Saephan: Yeah.
“Detective: All right. Well, you know, if we decide to go that route then what I’ll do is I’ll come to you and say, hey, I would like you to do this and then you can talk to your lawyer about taking that and you can make a decision whether you want to or not want to. That’s fair. Is that fair?
“L. Saephan: Just like I said -- just like I said.
“Detective: Is that fair?
“L. Saephan: Why I got to take the lie detector test for?
“Detective: You don’t have to take it. I’m not telling you you have to take it. I’m just telling you that it helps us clear up things. Ch[e]ng took it.
“L. Saephan: Well, that’s him then. You know what I’m talking about.
“Detective: You’re right.
“L. Saephan: Good for him.
“Detective: That’s him.
“L. Saephan: I got nothing to do it. (Unintelligible).
“Detective: That’s him. What’s that?
“L. Saephan: When I going to take it? (Unintelligible) take it.
“Detective: Oh, we’ll set it up later this week. I don’t know. I got to go -- we have a lady that does it.
“L. Saephan: Uh-huh.
“Detective: She’s very nice. Very professional and very good.
“L. Saephan: Uh-huh.
“Detective: And I don’t even know what her schedule is. We have to get a hold of her and then -- and then get your schedule and get the two of you guys together to do it. That’s all.
“L. Saephan: Yeah. Just like I said, I have nothing to do with it but I want to talk to my lawyer first before I do that test though.
“Detective: That’s fine. I can respect that.
“L. Saephan: You know?
“Detective: Absolutely.
“L. Saephan: Yeah. I have my right, too.
“Detective: All right.
“L. Saephan: I -- I know I ain’t do nothing wrong. That’s why I want to talk to him first. ’Cause I, you know, (unintelligible) you know, don't take it.
“Detective: Yeah.
“L. Saephan: (Unintelligible).
“Detective: You don’t have to take it. I’m not telling you
“L. Saephan: But you all going to be bugging me if I don’t take it.
“Detective: No. No. No. No. I
“L. Saephan: See that’s the whole thing about it.
“Detective: I’m – I’m telling you
“L. Saephan: That’s like I want -- I want be left alone. Just like I said to everybody, I want to be left alone right now.
“Detective: Li -- listen to me. You don’t have to take it.
“L. Saephan: Uh-huh.
“Detective: Okay?
“L. Saephan: But you all going to be on my ass.
“Detective: I -- I -- you don’t have to take it. I’m telling you it’s a tool for me to verify what you say because every other means on what you say, I haven’t been able to do that.
The interrogation continued without a lie detector test. The detective emphasized that what Lo had said “so far” was “not matching up to [the detective’s] evidence.”
“Detective: Okay? It’s nothing personal. I think you’re a great guy.
“L. Saephan: Uh-huh.
“Detective: Okay? You got a great future. I don’t want to see you throw it down the tube for Nai.”
“L. Saephan: (Unintelligible).
“Detective: I know for a fact – In know for a fact that you know more about what Nai’s saying and Nai and [Khae] were talking about and Ch[e]ng. Okay?
“L. Saephan: Uh-huh.
“Detective: It’s up to you to tell me, ah, whether you think it’s worth telling me that. Okay?
“L. Saephan: I’ll tell you whatever I – I know, sir.”
The detective then said they would take a break before going further.
After almost a 30-minute break, Lo slowly and incrementally began to reveal more and more about his participation in the killing. He ultimately admitted his involvement in purchasing bullets for the murder and eventually his presence at the scene in the car with the shooter, his observation of the murder weapon as it was loaded by Khae and Cheng to make sure the bullets fit, and his role in driving the murder vehicle away from the scene.
At 5:16 p.m. on February 9, 2006, the second interrogation began. Lo was under arrest. The detective commenced by reading Lo his rights for the second time. When reminded again of his right to an attorney, Lo stated, “Need to reach my mom so I’ll get one.” The detective ignored him and asked if he understood his rights. Lo repeated, “But I need to reach my mom first before I get the attorney.” The detective told him he would be given an attorney at his arraignment the following day, “and then you can work on getting your own attorney.” Lo stated, “I want my own attorney.” The interrogation continued.
C. Custodial Interrogation
On appeal, the Attorney General asserts for the first time that Lo was not in custody on February 8 because he accompanied the detectives voluntarily to the police station. “We review the record again to determine whether a reasonable person in defendant’s position would have felt he or she was in custody.” (People v. Stansbury (1995) 9 Cal.4th 824, 830.) We must look at the interplay and combined effect of all the relevant circumstances, including the list identified by the courts below, “to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
“Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.” (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)
It is true that after Lo was awakened at home in the middle of the night, he agreed to go with the police officers to the police station. Thereafter, however, he was subjected to several hours of interrogation by a highly skilled detective, who manifested a belief that Lo was culpable and there were mountains of evidence to prove it. Before Lo arrived, the detective knew Lo had been involved in the plot to murder Si, and therefore it was hardly surprising he was arrested at the end of the interrogation. Once Lo arrived, he had little freedom of movement and no reminders that he was free to leave.
We conclude that by the time Lo confessed, a reasonable person in Lo’s position would have felt a restraint on his freedom of movement commensurate with a formal arrest. While he may have voluntarily consented at the outset, over time the interview became custodial.
D. Clear and Unequivocal Invocation of the Right to Counsel
In Miranda, the United States Supreme Court directed police officers to cease interrogating any suspect who invokes the right to remain silent or who requests the assistance of a lawyer. The court instructed: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Miranda, supra, 384 U.S. at pp. 473-474 [16 L.Ed.2d at p. 723], italics added.) “The requirement that law enforcement authorities must respect a person’s exercise of that option [to cut off questioning] counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” (Michigan v. Mosley (1975) 423 U.S. 96, 104 [46 L.Ed.2d 313, 321].)
In Edwards v. Arizona, supra, 451 U.S. 477 [68 L.Ed.2d 378], the court confirmed that interrogation must stop as soon as the right to counsel is invoked and ruled that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation.” (Id. at p. 484 [68 L.Ed.2d at p. 386].) The suspect must unambiguously request counsel. (Davis v. United States (1994) 512 U.S. 452, 458-459 [129 L.Ed.2d 362, 371].)
The Attorney General argues the detective was not compelled to stop the questioning because Lo’s invocation of his right to counsel was equivocal. A suspect “‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’” (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124, quoting Davis v. United States, supra, 512 U.S. at p. 459 [129 L.Ed.2d at p. 371].) The request must be for the assistance of counsel “‘in dealing with custodial interrogation by the police.’ [Citation.]” (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1599.) If the statement, however, is ambiguous or equivocal, Edwards and its progeny do not require the cessation of questioning. (People v. Roquemore (2005) 131 Cal.App.4th 11, 24-25.)
“[A] reviewing court -- like the trial court in the first instance -- must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant’s reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant’s subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.]” (People v. Gonzalez, supra, 34 Cal.4th at p. 1125.) “On review of a trial court’s decision on a Miranda issue, we accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.” (People v. Davis (2009) 46 Cal.4th 539, 587.)
The trial court found that the February 8 reference to counsel came up in connection with the lie detector test, and in that context, Lo requested counsel. As to the February 9 interrogation, the court conceded that Lo’s request for a lawyer “was closer to an invocation but not a specific one.” The court believed Lo was merely “sparring verbally” with his interrogator, with whom he had established a relationship. The court further ruled that Lo’s mental functioning did not impede his ability to know what was going on. We agree with the Attorney General that we must consider the totality of the circumstances, including the context in which Lo referred to a lawyer as well as an evaluation of his age, experience, background, and intelligence. (People v. Roquemore, supra, 131 Cal.App.4th at p. 25.) In Roquemore, the accused, who was 18 years old, stated he was confused and asked, “‘[C]an I call a lawyer or my mom to talk to you?’” The court held that despite his age, he was familiar with his Miranda rights and his inquiry “did not constitute an unequivocal request for counsel to be present.” (Id. at p. 25.)
It is true that Lo, unlike Mr. Roquemore, had not been previously arrested and did not have familiarity with his Miranda rights. Moreover, there is evidence of his intellectual limitations. However, his rights were read to him with deliberation, and after each right was read, the detective asked if he understood. At the conclusion of the advisement, the detective asked Lo again if he understood. Lo responded in the affirmative to each of the questions. Based on the transcript of the interrogation and the video recording, we do not believe that a reasonable detective would have perceived any intellectual limitations given Lo’s aptitude for answering the questions he was asked and his agility in deflecting responsibility for his participation. In sum, he evidenced the capability to assert his Miranda rights clearly and unequivocally.
A close examination of the interrogation reveals, however, that his references to a lawyer lacked the clarity necessary to cease interrogation. Following a Miranda advisement when he arrived at the police station, he voluntarily cooperated with the detective for several hours until the detective raised the possibility of undergoing a lie detector test. Lo then became defensive and angry. He accused the detective of playing games with him. Apparently frustrated about the prospect of taking a lie detector test, he first mentioned a lawyer. He stated, “I want to go home and call my lawyer.”
It was not until the interrogator invited Lo to take a lie detector test a second time that he again asked if he could talk to his lawyer first. He indicated that he wanted a lawyer’s advice to determine whether he should take the test. He stated, “I just want to talk to my lawyer and see if this right or wrong. I just want to explain everything to him.” After Lo adamantly asserted that he knew his rights and wanted to consult with a lawyer, the detective responded: “All right. Well, you know, if we decide to go that route then what I’ll do is I’ll come to you and say, hey, I would like you to do this and then you can talk to your lawyer about taking that and you can make a decision whether you want to or not want to. That’s fair.” They had a discussion about the logistics of scheduling a test, but Lo asserted, “Yeah. Just like I said, I have nothing to do with it but I want to talk to my lawyer first before I do that test though.”
After the detective acknowledged Lo’s right to consult with a lawyer “about taking that” (i.e. a lie detector test), and said he did not have to take such a test, Lo stated: “Sir, I’m telling you the truth right now.” When the detective replied, “I’m giving you the chance to do that.” Lo replied, “I am – you know I’m gonna accept that chance” and continued to answer the detective’s questions, stating, “I’ll tell you whatever I know, sir.”
Thus, as the trial court found, the detective reasonably interpreted Lo’s comment about a lawyer not as a request for an attorney before continuing with the custodial interrogation, but as a request for a lawyer before agreeing to take a lie detector test. The request was equivocal in that it applied to a future contingency; it was not the type of clear invocation envisioned by Edwards and Davis whereby all further interrogation must cease.
In Stumes v. Solem (1985) 752 F.2d 317, an accused, like Lo, refused to take a polygraph test before consulting with an attorney. The court concluded his refusal did not constitute an assertion of his Fifth Amendment right to counsel. The court explained, “Stumes’s refusal to agree to a polygraph test without first talking to his counsel also does not warrant a finding that he failed to voluntarily and knowingly waive his Miranda rights. His refusal was not itself a general invocation of his right to remain silent or to the presence of counsel but applied only to the particular question asked. [Fn. omitted.] While a general request for counsel indicates an unwillingness to submit to any further questioning, a request for counsel only as to one question does not itself indicate such an unwillingness.” (Id. at pp. 320-321.)
The trial court conceded that the issue during the February 9 interrogation was much closer, but given the rapport the detective had established with his subject, the court believed Lo was verbally sparring with the detective. While we find the record of the interrogation provides an opening for Lo’s argument, we need not decide whether Lo clearly and unambiguously asserted his right to counsel during his second interview because any error in admitting his further admissions was harmless beyond a reasonable doubt in that there is no reasonable possibility that the error contributed to the guilty verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; Arizona v. Fulminate (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 331-332].)
Lo made his fatal admissions during his first interrogation. By the start of the second interrogation, he had already admitted knowledge of the murder plot, his participation in purchasing the ammunition, his presence at the time of the shooting, and his assistance as the getaway driver. The significance of the details he added during the second interrogation paled in comparison.
He added a few facts: he had heard Nai tell Khae to “[j]ust get it done with”; he purchased the bullets on the day Si was shot; he heard Khae tell Xeng about where Si worked and what kind of car she drove; Xeng waited outside the car for 15 to 25 minutes; and he heard Si scream, “Oh, my God.” But these facts were mere embellishments on what he had admitted a day earlier. Cumulatively, the evidence was superfluous; none of these details added a new dimension or revelation to the inculpatory story he had already told the detective. As a result, the admission of Lo’s February 9, 2006, interrogation, even if it was in violation of Miranda, was harmless beyond a reasonable doubt.
VII
VOLUNTARINESS OF STATEMENTS
As he did in the trial court, Lo argues on appeal that his admissions were the product of coercion to which he was particularly vulnerable because of his limited intellectual capabilities. Lo moved to suppress his statements. After watching the video of the interviews and reading medical reports on Lo’s mental functioning, the trial court denied the motion, finding that Lo’s mental functioning did not impede his ability to know what was going on and that he was not “threatened, forced or coerced.” He did not appear to be as impaired as the medical reports suggested. He appeared to understand what was going on and wanted to know more about his situation. Lo argues the court’s analysis of the facts and its application of controlling legal principles was “seriously flawed.” We are not persuaded.
“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.’ [Citation.] ‘“The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.]
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.] 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.]” (People v. Maury (2003) 30 Cal.4th 342, 404-405.)
In describing the totality of the circumstances supporting a finding that his incriminating statements were involuntary, Lo points to his limited mental capabilities, what he claims were the coercive circumstances of the interrogation, and the officer’s misrepresentations and false promises of leniency, and the purported Miranda violation previously discussed.
A. Mental Limitations
The reports of three doctors were presented to the trial court, and counsel agreed the court could consider them without requiring the doctors’ testimony. Defense counsel submitted a report by Dr. Roeder, who administered tests indicating that Lo had an intelligence quotient (IQ) of 60. Dr. Foster, a psychologist, and Dr. Schaffer, a psychiatrist, were appointed to examine Lo to determine his mental competency for trial. Dr. Foster opined that Lo had an IQ equivalent of 77, suggesting he functions in the borderline range. He was able to recognize and solve simple to mildly complex tasks but experienced difficulty resolving more complex items. Schaffer did not administer an intelligence test but simply referred to Dr. Roeder’s psychological evaluation and IQ measurements.
Though the IQ measurements offer some insight into Lo’s mental function and susceptibility to psychological coercion, the court also had the benefit of a video that faithfully chronicled the exchange between Lo and his interrogator. After viewing the video, the trial court was persuaded that his admissions were not the product of coercion. The court noted that in the first interrogation, “it was clear Mr. Saephanh wanted to know first of all what the detective knew. And he also wanted to know what the other people who were being interviewed by other detectives had to say about him. He had a very keen interest in that.” Further: “At the time of the second interview, watching these two DVDs, it was clear for the second interview that there was a relationship that had been established between the suspect and the [detective]. And the second conversation was a good example of the nature of this relationship. [¶] It appears that the defendant did want to talk and was sparring verbally with the detective over the terms and conditions which would prevail during that second interview.” According to the trial judge: “As far as his believability is concerned it appears to the court that Mr. Saephanh during both of those interviews knew what was going on. He knew what kind of trouble he was in and wanted to know more about his situation. [¶] It doesn’t appear that he was flailing at all insofar as his ability to understand what was going on is concerned. He didn’t appear to be as impaired as might have been suggested by the three examiners. [¶] It doesn’t appear that his mental functioning had a significant -- significant impact on his ability to consent to the continuance of the interrogation or to re-initiate the interrogation.”
The court concluded that considering the totality of the circumstances, both interviews were given freely and voluntarily.
There is no IQ test that measures a person’s susceptibility to coercion. Whatever Lo’s IQ, the video recording and the transcripts of the interrogations confirm the trial court’s assessment that he was not cowed by his interrogator and that, during the give and take between them, Lo was an active participant, not a submissive, compliant victim. His mental limitations were not reflected in any apparent lack of understanding of the stakes involved, or of the rules of engagement, including his right to withdraw from the conversation. Perhaps a more intelligent person would have spoken more eloquently and been more successful in evading the skillfully executed interrogation plan, but there is no basis for finding that Lo’s admissions were not the product of a rational intellect and free will. (People v. Maury, supra, 30 Cal.4th at pp. 404-405.)
B. Circumstances of the Interrogation
The police went to Lo’s home at about 2:00 a.m., woke him up, and requested that he accompany them to the police station. He agreed. The interrogation began at 2:37 a.m. Lo notes “the coercion inherent in middle of the night encounters” and asserts the trial court failed to properly analyze this factor along with Lo’s cognitive limitations and sleep deprivation. We disagree.
As we have noted, Lo’s cognitive limitations did not appear to interfere with his understanding of the circumstances of his interrogation or his right to end the interrogation, or affect his responses to questions. Any suggestion that the timing of the interrogation during the early morning hours or sleep deprivation impaired Lo’s free will is belied by his actions during the interrogation. He was alert and animated. He carefully and persistently minimized his relationship with the alleged participants in the crime and his knowledge of the offense. There is nothing to suggest that his actions and response to the interrogation would have differed had the police picked him up and the interrogation commenced at 2:00 p.m. instead of 2:00 a.m.
C. Misrepresentations and Promises of Leniency
Lo complains that coercion was used in the interrogation techniques. He asserts the officer implied he already knew the facts and would compare what Lo told him to what all the others had said and with the physical evidence and know whether he was being truthful. He then presented himself as Lo’s advocate with the district attorney but told Lo he could not be his advocate because he was not being completely honest. According to Lo, the detective rejected Lo’s attempt to give a version of events the detective did not believe, and the detective suggested a version of events that would minimize Lo’s liability. Later, after he began to admit his involvement, Lo asked the detective if he would be kept safe from “them.” According to Lo, only after the promise was made did he admit that he knew Nai had hired someone. Lo argues an admission under these circumstances--to obtain protection--is coercive. Again, we are not persuaded.
There is a long line of cases holding confessions inadmissible when obtained as a result of express or implied promises, on the part of law enforcement officials, of “‘leniency’” or ‘“benefit’” in the event the defendant confesses. (See, e.g., People v. Cahill (1993) 5 Cal.4th 478, 485 and cases cited therein.) Confessions elicited by certain psychological ploys and interrogation techniques may also be deemed involuntary. (See, e.g., People v. Quinn (1964) 61 Cal.2d 551, 554.) However, a simple promise to “advocate” on a defendant’s behalf if he tells the truth falls far short of the type of promise that would render an admission involuntary.
Defendant’s claim is similar to that made in People v. Jones (1998) 17 Cal.4th 279, where the defendant asserted the interrogator “said that he would intercede with the district attorney on defendant’s behalf, telling the district attorney that defendant had been honest.” (Id. at p. 297.) The defendant maintained this falsely implied that such an intercession would generate leniency. As in the present case, defendant also asserted that the police deceived him by implying that they had superior knowledge of the crimes and that it would be best for him to confirm facts they already knew, when in fact they did not know them. The Supreme Court responded: “The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. ‘[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.’ [Citation.] ‘The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.’ [Citation.]” (Id. at pp. 297-298.) The court agreed with the People that “in such circumstances, the detective’s offers of intercession with the district attorney amounted to truthful implications that his cooperation might be useful in later plea bargain negotiations.” (Id. at p. 298.)
In Jones, the defendant was asked to acknowledge that no promises of “an easy time” were made, though the defendant later disavowed the acknowledgment as part of the cooperation demanded by the police. (People v. Jones, supra, 17 Cal.4th at p. 298.) But even in the absence of such an acknowledgment, a simple offer to “advocate” on a defendant’s behalf with the district attorney if the defendant tells the truth does not render later incriminatory admissions involuntary. even when combined with the suggestion that the interrogator knows the truth. Here, the interrogator also made clear the scope of his advocacy. “Basically the first person to tell me the truth on that, that’s what I take to the District Attorney and then they decide what charges, if any, is [sic] going to be filed. But I want to be able to tell the District Attorney and the people that are involved with that at least somebody came forward and told me the truth on that. This is a very serious case.”
As for Lo’s claim that the failure of the officers to honor his invocation of his Miranda rights was further evidence of coercion, we have already concluded the request was equivocal in that it applied to a future contingency. The facts surrounding the purported invocation do not add support to Lo’s claim of coercion.
D. Parole Revocation Fine
Lo argues that in light of his sentence to life in prison without possibility of parole, the court erred in imposing a parole revocation fine pursuant to Penal Code section 1202.45. Section 1202.45 requires a parole revocation fine whenever a defendant’s sentence includes a period of parole, despite the simultaneous imposition of a sentence of life in prison without possibility of parole. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Here the trial court, in addition to the sentence of life without possibility of parole, also sentenced Lo to 15 years to life with the possibility of parole on count two and 25 years to life with the possibility of parole on count three, and to a consecutive two-year term for the various enhancements. Thus Penal Code section 1202.45 applies. (See Brasure, supra, at p. 1075.) The fact that one of the life sentences was stayed is of no consequence. We acknowledge the appellate court decision in People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181 but are constrained to follow the later Supreme Court decision in Brasure.
DISPOSITION
Mimi’s parole revocation fine is stricken, as the Attorney General concedes it should be, because her sentence does not permit the possibility of parole and it involves no determinate term of imprisonment. (Pen. Code, § 1202.45; People v. Oganesyan, supra, 70 Cal.App.4th at pp. 1185-1186.) The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, her judgment is affirmed.
The judgment of conviction of Lo is affirmed.
We concur: BLEASE, J., SCOTLAND, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“A picture is worth a thousand words.” So it is regarding defendant Lo Saephanh’s challenges to his initial confession.
Having watched and listened to the entire, lengthy videotape of the first questioning of Lo on February 8, 2005, I write separately to emphasize why I have concurred in my colleagues’ rejection of Lo’s arguments that his initial confession was unlawfully obtained and thus should have been excluded.
Any reasonable and objective jurist who views the videotape would see it plainly refutes Lo’s claims that he was “particularly vulnerable to coercion because of his limited mental capabilities, ” “circumstances in which the February 8 interrogation were conducted were coercive and worked to overbear [his] free will, ” the detective “misrepresented his role by continuing to tell [Lo] that he was trying to clear [Lo’s] name and by making false promises of leniency and protection, ” and the detective “failed to honor [Lo’s] invocation of his right to counsel.”
For starters, the videotape shows that Lo was not impaired by his limited intellectual capabilities. His interaction with the detective demonstrates Lo knew what was going on, understood and voluntarily waived his Miranda rights, had no problem understanding the detective’s questions, and answered the questions in a way that illustrated his capacity to recall events and to decide whether to reveal what he knew.
The videotape also shows that the detective did not engage in any coercive conduct and that Lo was not susceptible to coercion. Indeed, Lo repeatedly resisted the detective’s efforts to get him to admit he was lying about his claimed lack of involvement in the murder. Lo did not confess because of any coercion. He voluntarily did so only after the detective stated that (1) the district attorney would decide whether Lo would be charged with any crimes based upon the shooting, (2) the detective would tell the district attorney whether he believed Lo was being truthful, (3) others involved in the murder had already told detectives what occurred, (4) Lo’s story was “not matching up” with the evidence gathered by detectives, (5) it was “up to you [Lo] to tell me [the detective] whether you think it’s worth telling me that, ” i.e., what Nai Saechao (the husband who orchestrated the murder of his wife) was talking about with others involved in the conspiracy, (6) Lo should not “throw it down the tube for Nai, ” and (7) the detective would protect Lo from being harmed by others involved in the killing (this promise was made in response to Lo’s expression of concern for his own safety if he were to tell the detective what happened).
The detective did not say he was trying to clear Lo’s name. He merely told Lo that it was important for him to not be the only one who was being dishonest about what occurred. And the detective did not promise Lo any leniency for being truthful. Indeed, the detective repeatedly said he could not make any promises or threats regarding what charges would be filed against Lo based upon his statements. To the extent the detective promised he would protect Lo against retaliation by the other culprits, this was not coercive and was not the type of promise that invalidates a confession.
Lastly, it is clear to me that Lo did not invoke his Fifth Amendment right to an attorney before answering any more questions. As explained in the opinion authored by Presiding Justice Raye, in which Justice Blease and I have concurred, Lo’s comments about wanting to talk to an attorney were limited to the issue of whether he would submit to a polygraph test. This is illustrated by the fact that, after the detective acknowledged Lo’s right to consult with an attorney “about taking that” and said he did not have to take a lie detector test, Lo continued to answer the detective’s questions, stating, “I’ll tell you whatever I know, sir.” It is readily apparent to me that Lo did so because he believed he could convince the detective that Lo had no involvement in the murder and thus should be able to go home. This is reflected by the following exchange after Lo commented about getting a lawyer before deciding whether to take a lie detector test. Lo continued to insist, “Sir, I’m telling you the truth right now, ” and the detective said, “I’m giving you the chance to do that.” Lo replied, “I am - you know I’m gonna accept that chance” and continued to answer the detective’s questions. A reasonable detective in the circumstances would have understood this as conveying Lo’s desire to carry on talking with the detective without consulting an attorney.
Accordingly, the trial court properly allowed Lo’s February 8 statements to be introduced into evidence.