(Alameda County Super. Ct. No. H32353B). Trial Judge: Hon. Philip V. Sarkisian.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted of first degree murder a second time after a retrial, largely on the basis of her statements to police. We had reversed her initial conviction on grounds of instructional error.
On this second appeal, defendant contends that the court erroneously denied a renewed motion to suppress her statements to police. The initial trial court had denied a similar motion, rejecting defendant's claim that the police had violated her constitutional rights to silence and assistance of counsel. Although we affirmed that ruling on appeal, we reversed the conviction on other grounds. As a result of the reversal, defendant was entitled to raise her constitutional claims again upon retrial. In considering the renewed motion to suppress, the court refused to re-hear the evidence considered by the initial trial court. After hearing new evidence bearing on the constitutional claims, it denied the renewed motion. Defendant now contends that the trial court was required to hold a de novo hearing at which all of the evidence bearing on the suppression of her statements could be presented. We find no error in the trial court's failure to hold the de novo hearing, concluding in the published portion of this opinion that because defendant's new evidence did not raise material factual or legal issues not considered by the original trial judge or create the realistic possibility that the factual findings of that judge were in error, she was not entitled to a de novo hearing.
Defendant also contends that our ruling in the first appeal on the suppression motion was erroneous, that during the second trial the court improperly admitted hearsay evidence and committed instructional error, and that the prosecutor committed misconduct. We affirm.
This is defendant's second appeal. In a partially published decision, we reversed her earlier murder conviction because the trial judge failed to instruct on lesser included homicide offenses. (People v. Anderson (2006) 141 Cal.App.4th 430, 450 (Anderson I).)
The evidentiary basis for defendant's prosecution was described in detail in Anderson I. In general, defendant told police that she and her boyfriend went to the victim's room in a motel to use drugs with him. After a time, her boyfriend and the victim began to fight. While the boyfriend was holding the victim in a headlock, defendant cut open the victim's pocket and stole his money. The pair then fled, leaving the victim to suffocate from a crushed larynx. (Anderson I, supra, 141 Cal.App.4th at pp. 435--438.)
In the nonpublished portion of Anderson I, People v. Anderson (July 18, 2006, A108482) (hereafter Anderson I nonpub.), we affirmed trial court rulings that defendant had not invoked her Fifth Amendment rights to silence and counsel during the extended interrogation that preceded her confession. Because this appeal largely concerns those Fifth Amendment contentions, the fact background is quoted from our prior opinion:
Defendant's Statement Regarding an Attorney: "This statement occurred four to five hours into the interview, at the end of the first of three videotapes. Approximately 15 minutes before making the statement, and before she was placed under arrest, defendant had been under sustainedquestioning from Detective Ronald Clark. Rather than responding to Clark's questions, she finally said,'Can you take me home? Can you pick me up tomorrow? I don't feel well.'*fn2 The detective responded,'Okay. Hold on,' and left the room. Defendant sat alone in the interview room for the next nine minutes. Finally, Clark and the other detective involved in the questioning, Gregory Lemmon, returned and placed her under arrest. After a brief discussion, the detectives left her alone for two more minutes. Then Clark returned and began to take defendant to the restroom, but, after prompting from an officer outside the room, he first removed her purse to search it, appearing to leave her alone in the room.
"At this point on the videotape, an officer outside the interview room, Detective Katherine Pickard, is faintly audible. Defendant says,'I need a tampon.' Addressing defendant from off-camera, Clark notes that her purse contains only sanitary pads and asks,'Is that what you want?' His hand is seen briefly at the edge of the video screen, holding something. After this, defendant sits quietly for seven seconds, alone on the videotape, and then says in an even voice,'I need a lawyer.' There is no response from the police. Based on the sound of faint voices off camera, it appears that the officers were talking to each other outside the room at the time defendant's statement was made. Then there is a bit of laughter. Defendant continues looking toward the door. Twenty seconds after defendant spoke, Pickard, off-camera says,'Is that okay?' Defendant responds,'I don't care. Any one,' then stands and leaves the room. Throughout the remaining two videotapes, approximately another six or seven hours, defendant made no further reference to a lawyer, including after receiving the Miranda*fn3 warning regarding her right to one.
"Defendant moved to suppress her statement to the police. At the suppression hearing, Lemmon testified that no one was in the room when defendant said,'I need a lawyer,' and that he was not aware she had made the statement. He testified, however, that Clark and Pickard were standing outside the open door at the time. Clark testified that when defendant made the statement he was searching her purse at Pickard's desk, located'about five to ten feet' from the door of the interview room. He, too, testified that he did not hear her. Another officer, Detective Joseph Molettieri, had been posted in another room to monitor the interview by closed circuit camera, oversee the recording equipment, and take notes. Molettieritestified that his notes reflect that the interviewing detectives left the room for three minutes. During that interval, he heard defendant say,'I need a lawyer.' His notes expressly state that no one was in the room when the comment was made. Soon after, Molettierirelated defendant's comment to Clark, who had no reaction.
"The trial court refused to suppress defendant's statement to the police, ruling:'With respect to "I need a lawyer"..., this is in a covert setting. [Defendant] did not know she was being taped. Both Sergeant Lemmon and Detective Clark's testimony was... that they were outside the interview room. Also if you look at [defendant] during this part of the tape it's like she's daydreaming or pondering even the manner in which she says "I need a lawyer" is more of a question that a statement. "I need a lawyer." It's not positive. Once again, it's as though as she's thinking out loud and pondering. So we get to the query that [the prosecutor] raised, is there a noise when a tree falls in the forest. Here, was this truly an invocation that she wanted, ["]I need a lawyer, I want a lawyer["?] I'm going to find it's not.... It's interesting that this third detective... was there monitoring it and did testify that he turned the information over to Detective Clark. Obviously Detective Clark did not remember it and/or did not converse with [defendant] on it. He had indicated that he felt if he had that word that he would have addressed that in the tape. [¶] However, I'm going to find... that it was not a clear invocation of her rights to sort of ponder and make this statement. I'm basing that on my viewing of the tape.' " (Anderson I nonpub., supra, A108482.)
Defendant's Purported Statement Regarding Her Right to Silence: "Sometime after the detectives and defendant returned from the bathroom break described in the previous section, the detectives informed defendant of her rights under Miranda. After substantial further discussion, during which defendant continued to maintain her ignorance of the victim, the interview turned briefly to defendant's family. The police transcriptionists relate the conversation in the following manner, where'Q' and'Q1' are the words of the two detectives and'A' is defendant:*fn4
"'Q1: If you truly had nothing to do with this, okay? And you are a witness to this thing, and you are truly a witness to this incident, if you're scared out of your mind... I mean this has gone on for so many years in the drug world where people are afraid to give people up. Okay? Um, for any number of reasons, you know there's all kind of [...]
"'A: Oh, my god. You guys don't fuckin' know.
"'A: I got a family out there. My family would be killed. Man,
"'Q: You, you tell the truth, you can be protected.
"'Q1: You can be, are they going to be any more happy with you being in jail for something you didn't do? That's screwed up too.
"'A: I'm not happy about that. I'm not happy about none of it.
"'Q1: Well, do the right thing.
"'A: I just want to go home. Phone and tell her. I don't want to be here and talk to you guys. Please don't talk to me.
"'Q1: I will give you a phone after you do that. I will.
"'A: You lied to me earlier. You promise me?
"'Q1: I promise you that I will give you a phone and let you call them and tell them to come down here. In fact, I would encourage you to do that. I will definitely.
"'A: But would (unintelligible) get caught?
"'Q1: Yeah, we definitely want to talk to them.
"'Q: No. I want to know what happened.' "(Italics added.)
"Defendant also sought to suppress her statement to the police on the basis of the transcribed statement,'I just want to go home. Phone and tell her. I don't want to be here and talk to you guys. Please don't talk to me.' At the suppression hearing, Lemmon testified that, notwithstanding the words recorded in the transcript, defendant never said she wanted to terminate the interview. Shown the videotape and the transcript, the detective said,'I couldn't tell what she says at that point.' Clark similarly testified that defendant never asked to stop the interview. Shown the videotape, the detective testified he did not believe defendant said,'Please don't talk to me.' Instead, his recollection was that'[i]t was during a conversation during which she was concerned for her family and her safety and her being a snitch and someone having retaliation against her family and she wanted to talk to her family.'
"The trial judge denied the motion to suppress on this ground,holding that, in effect, the transcriptionists got it wrong:'Was there an invocation when she made the statement that's attributed to her in the transcript "Please don't talk to me["?]... Yesterday afternoon I must have played that 15 or 20 times in chambers. I played it at full volume and the way I got the complete answer was "Just want to go home. Use your phone and tell them, tell them, hum, I'm here and talk to you guys. Please don't," and then I'm not sure if I really hear the word ["]talk["] or some other word or expletive and then I really could not make out what was said. [¶] Based on that ambiguity, I find that ...