Los Angeles County Super. Ct. No. A 579310-01. Judge: J. D. Smith.
The opinion of the court was delivered by: George, C. J.
Defendant David Earl Williams appeals from a judgment of the Los Angeles County Superior Court imposing a sentence of death following his conviction by jury of (1) the first degree murder of Joanne Lacey (Pen. Code, § 187, subd. (a));*fn1 (2) robbery (§ 211); (3) arson causing great bodily injury (§ 451, subd. (a)); (4) kidnapping for robbery (§ 209, subd. (b)); and (5) kidnapping (§ 209, subd. (a).) In connection with the murder charge, the jury found true the special circumstance allegations that the murder was committed while defendant was engaged in committing the offenses of robbery and kidnapping (§ 190.2, subd. (a)(17)), and also found true a special circumstance allegation that the murder involved the infliction of torture. (§ 190.2, subd. (a)(18).) The jury also found true an allegation that defendant personally used a firearm in the course of the murder. (§§ 1203.06, subd. (a)(1), 12022.5.) Defendant admitted enhancement allegations, as to each count, that he had suffered one prior felony conviction for burglary (§ 459) and one prior prison term for rape (§ 261, subd. (a)(2)). (§§ 667, subd. (a), 667.5, subd. (a).) At the conclusion of the penalty phase of the trial, the jury returned a verdict of death. The trial court imposed a sentence of death on count 1, murder with special circumstances. The court imposed and stayed consecutive sentences of one year on the robbery count, nine years on the arson count, "imprisonment in the state prison for life with the possibility of parole" on the aggravated kidnapping count (§ 209, subd. (b)), one year eight months on the kidnapping count, five years for the firearm enhancement, five years for the prior felony conviction, and one year for the prior prison term. Defendant's appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
The murder victim was Joanne Lacey, an African-American woman who resided in Altadena, and who was 42 years of age at the time of her death. Her husband, Napoleon Lacey, testified that his wife's habit was to return home from her work as a supervisor at the downtown Los Angeles branch of the United States Postal Service at approximately 7:30 or 8:00 p.m., but that on March 20, 1989, she failed to return home as usual. Eventually, he went out in search of her, accompanied by her mother. He noted that after work she sometimes stopped for groceries at a Boys Market in Pasadena. He added that his wife ordinarily wore several rings, a gold-and-diamond bracelet, and one or more necklaces.
Luis Martinez, a mailroom clerk at Mrs. Lacey's place of employment, testified that at approximately 7:00 or 7:15 p.m. on March 20, 1989, he accompanied Mrs. Lacey to the employee parking lot to see her new, dark-blue Volvo automobile. He observed her drive away from the parking lot. Another co-worker, Faye Swain, testified that she encountered and spoke with Mrs. Lacey at the Pasadena mall, near the J.C. Penney store, between approximately 7:40 and 8:00 p.m. the same evening.
Another witness, Shirley Bobbe, testified that at approximately 8:00 p.m. on March 20, 1989, she was parked in front of the Boys Market in Altadena, loading groceries into her vehicle, when she observed a dark-blue Volvo driven by a middle-aged African-American woman begin to back out of a parking space. When Bobbe was ready to depart and began backing out of her parking space, she noticed that the dark-blue Volvo had not backed farther out of its spot.
At 9:45 p.m. on March 20, 1989, a $200 cash withdrawal from Mrs. Lacey's bank account was made at the automated teller machine at the Orangewood Shopping Center on California Boulevard in Pasadena.
Mrs. Lacey's friend Carrie Runnels testified that at approximately 10:30 p.m. on March 20, 1989, she received a telephone call from Mrs. Lacey. Mrs. Lacey seemed excited or rushed, and requested a loan of $500, stating that she had had an accident. She directed Mrs. Runnels to come alone to "Palm and Loma Alta" Streets in Altadena. When Mrs. Runnels stated that she would bring her husband along, Mrs. Lacey objected, instructing her to come alone. Mrs. Runnels drove a block and a half from her residence in Altadena when she observed a parked vehicle displaying blinking lights. The vehicle then followed Mrs. Runnels, who pulled over. The vehicle, which was Mrs. Lacey's new dark-blue Volvo, pulled up next to Mrs. Runnels and stopped. Mrs. Lacey was in the passenger seat. She silently extended her hand towards Mrs. Runnels, who gave her $500. Mrs. Lacey passed the cash toward the driver and appeared to be sad. Mrs. Runnells asked whether Mrs. Lacey was all right and received an affirmative response. The Volvo departed, driven by a person with shoulder-length black hair.
Prosecution witness Troy Cory, a resident of Pasadena, testified that at approximately 11:00 p.m. on March 20, 1989, he heard some yelling outside his residence. He heard two or three gunshots or firecracker explosions, then heard someone call "let's get out of here" or "get in there." After hearing loud noises from a vehicle being driven away, he heard a loud explosion and observed a fireball rise toward the sky. He ran outside and saw that a vehicle was burning and that a firearm and some money were lying in the street.
Firefighters responded to the scene described by Cory, at approximately 11:30 p.m. on March 20, 1989. They observed a vehicle burning, with flames reaching four feet high. A fire spread down the street from a source located under the vehicle, probably gasoline. After approximately 15 or 20 minutes the firefighters were able to extinguish the blaze. When Pasadena Fire Department firefighter Robert Taylor opened the ruined vehicle's trunk by means of a sledgehammer, he observed a human body inside.
At the scene, Pasadena Police Officer Jayce Ward observed a .22-caliber revolver in the street near the vehicle, with two expended rounds and one unexpended round. The victim's body could be observed from the vantage point of the rear passenger compartment, because the backseat of the vehicle had been consumed by flames. Pasadena Police Department police assistant Susan Rogers testified that located in the front of the vehicle were a handbag, a bag of groceries from Boys Market, and a bag of children's clothing in a J.C. Penney bag. Also on the grass near the vehicle was a spout from a gasoline container. Nearby were a gas cap, a $20 bill, and a gold-chain necklace.
The victim's charred body was lying facedown in the trunk of the Volvo, with her hands under her body. There were no rings on the victim's hands. It appeared that the fire had burned away the victim's clothing except for some buttons that had melted to the skin. A briefcase located under the body contained papers belonging to Joanne Lacey. It appeared that a burn on the victim's forehead had consumed the flesh and reached the skull. One arm was burned to the bone. There were burns on much of the body, and there was a .22-caliber bullet located in the victim's left hand.
Dr. Susan Selser, a pathologist employed by the Los Angeles County Department of Coroner, testified that an autopsy disclosed that Mrs. Lacey had been alive when the fire started, and died from smoke inhalation and burns. Dr. Selser believed that the victim had been alive for up to 10 minutes during the fire, adding that the gunshot wound to the left hand occurred prior to death. There was also bruising to the neck, indicating compression prior to death.
Dr. William Davies, a surgeon specializing in burns, testified concerning the "all-consuming" and "excruciating" pain that the victim suffered as a result of burns, smoke inhalation, and suffocation. He believed she had endured the pain for at least four or five minutes, and perhaps for as long as 15 minutes. He observed soot in her lungs, esophagus, and gullet. He believed that more than 90 per cent of the victim's body suffered third-degree burns.
Pasadena Fire Department investigator Robert Eisele inspected the burned Volvo and found burn patterns along the left side of the vehicle, also finding indications that the driver's side door had been open at the time of the fire. The roof of the vehicle had begun to cave in from the heat of the fire, and the sunroof had been consumed. The vehicle smelled of gasoline, and later tests confirmed there was gasoline on the mats. The passenger compartment showed severe burn patterns. The fire had burned through the passenger compartment into the trunk. The right side of the trunk, where the victim's head was positioned, suffered severe fire damage. The victim's forehead had adhered to the fender well. One tail light had been destroyed by fire. In the passenger compartment, the seats had burned away and the windshield had melted. The engine compartment, however, was intact, including various rubber hoses and insulated electrical wires. There were no electrical shorts, and the gasoline tank had not caught fire.
Eisele was of the opinion that someone had set the fire intentionally by pouring gasoline into the passenger compartment or possibly into the trunk, and lighting the fuel with a match or cigarette lighter. He believed that the person who set the fire may have suffered a burn to the hand, because it appeared to Eisele that the gasoline vapors had exploded when the fire was ignited.
On March 24, 1989, Detective John Knebel, a homicide investigator in the Pasadena Police Department was informed by a caller, John Wright, that Wright's daughter had information concerning the case. Wright's daughter informed Knebel that Margaret Williams (who had a child by defendant's brother) had spoken to Wright's daughter about Williams's having been paid to purchase gasoline and to serve as a lookout while someone burned up an automobile. Knebel found that Margaret Williams had an outstanding warrant for her arrest on assault charges. He arrested her the following day and interrogated her. He arrested defendant soon thereafter.
By contrast, at trial, Margaret Williams (hereafter referred to as Williams) offered a different account of her activities. She testified under a grant of immunity, and the defense chose not to cross-examine her. She explained that an acquaintance, Loretta Kelley, arrived at Williams's residence in the early morning hours of March 21, 1989. Kelley informed Williams that defendant had something to tell her. When defendant entered Williams's residence, he smelled of gasoline and had a shirt wrapped around one hand. He went to the kitchen and wiped his hand, neck, and ankle with grease. Williams observed burns on his hand. Defendant removed approximately $600 or $700 in denominations of $20 and $100 from his pocket, along with some jewelry -- two rings, a bracelet, and a necklace. When Williams asked him what had happened, he responded that he had "robbed a bitch," adding, "I burnt the bitch up." He informed her that he had been involved in an automobile collision with the victim, who had wanted to summon the police. Defendant said he told the victim that he would retrieve his driver's license from his vehicle, but instead returned with his firearm. He forced her into the passenger seat of her automobile, and drove aimlessly for awhile. He subsequently directed the victim to withdraw cash from an automated teller machine, then picked up Loretta Kelley. The victim begged for her life. At his demand, she telephoned a friend to request that she bring $500 to a location in Altadena. Defendant reported to Williams that he gave Kelley $50 to "watch out," and paid another person $100 to procure $2 of gasoline. He and Kelley set the victim's vehicle on fire, and during the process defendant suffered burns.
Williams testified that she observed defendant give Kelley a gold necklace. It appeared to Williams that Kelley was frightened. Kelley informed Williams that she had driven around with defendant and the victim. Williams asked the two to leave, and gave them a ride in her automobile to separate destinations. Two days later, while Williams and a friend were standing in a public place near other persons, Williams discussed what she had heard.
Defendant was arrested in front of his residence at approximately 1:30 p.m. on March 25, 1989. When he was arrested, he was driving his red Chevy Vega and wore black shoulder-length hair. Detective Knebel observed evidence of collision damage to the rear of defendant's automobile. A .22-caliber live round of ammunition was recovered from defendant's residence.
Los Angeles County Sheriff's Department criminalist James Bailey examined a fragment of the victim's blue Volvo and was of the opinion that the red marks on the fragment could have come from defendant's red Vega. California Highway Patrol Sergeant Jon West, who was an expert in accident reconstruction, was of the opinion that damage to and markings on the rear of defendant's Vega and the front, passenger-side bumper of the victim's Volvo were consistent with a very low-speed collision occurring at a slight angle. On the Volvo, the front, passenger-side bumper was scuffed, and the lens for the turn signal was missing. Red paint marks on the outer, right edge of the headlamp lens corresponded to damage to the rear of the Vega near the license plate. The rear end of the Vega also had unrelated damage.
After his arrest, defendant made four statements to the police. With minor omissions, all four were admitted in evidence. The first statement was made in the course of a tape-recorded interview conducted on the day of his arrest, Saturday, March 25, 1989, by Detectives Knebel and Lionel Salgado, also a homicide investigator in the Pasadena Police Department. Defendant denied all knowledge of the crime during this interview. In the second statement, also tape-recorded, and taken on Monday, March 27, 1989, by Knebel, defendant explained that he had recently purchased his vehicle in a damaged condition, and he offered an alibi covering the time of the murder, involving a person named "Macho Man." During the third interview, conducted on Tuesday, March 28, 1989, after Knebel had inspected marks on defendant's left hand and ankle that suggested he had suffered burns, and the officer had shown the marks to a physician and photographed them, defendant asked to speak to Knebel. In a statement that was not tape-recorded but that occurred in the presence of two additional officers, defendant informed Knebel that Loretta Kelley had picked him up in a blue Volvo, but when she admitted that the vehicle was stolen he panicked, because he was on parole. He and Kelley agreed that the only way to remove defendant's fingerprints was to burn the vehicle. They poured gasoline on the automobile, and he was burned when they started the fire. The two of them proceeded to Margaret Williams's residence to treat the burns. Kelley had a large amount of cash and some jewelry in her possession. Defendant took a bracelet from Kelley but later disposed of it in a storm drain. Knebel testified that a bracelet identified by Napoleon Lacey as belonging to the victim was recovered by the police at the location described by defendant.
In a fourth interview, conducted by Knebel and Salgado in the afternoon of March 28, 1989, and tape-recorded for the most part, defendant repeated much of his earlier statement and claimed he first learned from a news article that there was a body in the trunk of the vehicle. Salgado asked why a firearm was found at the scene. Defendant acknowledged that the weapon belonged to him and began to weep. He admitted robbing the victim, taking her car, and forcing her to withdraw cash from an automated teller machine. He blamed Kelley for forcing the victim into the trunk of the vehicle and for shooting her. He acknowledged that he had assisted in sprinkling gasoline on the automobile. He claimed that Kelley ignited the fire before he was ready, causing him to suffer burns.
The defense did not present evidence at the guilt phase of the trial.
B. Penalty Phase Evidence
The prosecution introduced evidence of defendant's 1983 conviction for residential burglary and rape, and his 1981 conviction for attempted burglary. In addition, the court admitted portions of the tape-recorded statement of March 25, 1989, that had been deleted for the purpose of the guilt phase of trial. In this portion of his statement, defendant discussed his prior prison term for burglary and rape, explaining that he and his crime partner broke into the victim's home and that they were apprehended when his crime partner confessed.
The victim of the rape, R.T., testified concerning the circumstances of the crime. She had retired to bed for the night when defendant dragged her from her bed, beat her with a "huge stick," and sodomized and raped her, repeatedly calling her "bitch" during the sexual assaults. She testified that defendant then directed his crime partner to rape her. The man declined, but when defendant insisted, tried to comply but was unable to achieve an erection. Defendant's accomplice whispered to her that he had not stolen the money hidden in her Bible and apologized for what he was doing, stating, "I really don't want to do this. He's crazy. Do whatever he says 'cause he'll kill you."
R.T. testified that defendant bound her with a telephone cord and appeared to enjoy brutalizing her. When she complained she could not breathe, he stuffed a sock down her throat. He poured orange juice over her to "get rid of fingerprints." The men departed in her Mercedes automobile. In addition to injuries caused by the rape, she suffered a broken nose, black eyes, and bruises all over her body as a result of the attack. After the crime, she sold her residence, left her employment as a record producer, and moved away from the area.
Defendant's crime partner in the rape, Shelby Fulcher, testified against defendant at the penalty phase of the trial. He related substantially the same circumstances described by the rape victim. He was arrested three days after the crime, confessed, pleaded guilty, and was sentenced to a 10-year term in prison. He expressed remorse at the time of his confession.
Terry Robinson, a sergeant in the Los Angeles County Sheriff's Department, testified that when she responded to the rape scene, it appeared that R.T. had been beaten with a portion of a tree branch. Susan Lawton, also a sergeant in the Los Angeles County Sheriff's Department, testified that when she interrogated defendant concerning the crime, he waived his constitutional rights, signed an admonition form, and denied any involvement in the crime. He claimed that Fulcher came to his residence to request assistance in disposing of a Mercedes automobile and other items of property. Defendant denied knowing anything about the property. When Lawton informed defendant that Fulcher had implicated him, defendant terminated the interview, stating he wanted to "think about it." An hour later, defendant asked to speak with the officer, who reminded him of his constitutional rights. Defendant claimed the crime was Fulcher's idea, asserting Fulcher had committed the rape and violent assault on the victim. Defendant admitted hitting the victim with a stick and tying her up. He admitted pouring orange juice on her and placing a sock in her mouth.
In addition, the prosecution presented evidence concerning the impact of Mrs. Lacey's murder on her mother, sister, and daughter. Mrs. Lacey's daughter had been 13 years of age at the time of her mother's death; she described how the trauma of the loss led her to experience anger and to misbehave at school. Her father, who initially informed her that her mother had died in an automobile accident, placed her with a relative. Some time prior to the trial he disclosed to her the exact circumstances of her mother's death, leading to a psychological breakdown for the young woman.
Mrs. Lacey's mother had resided with the victim and was close to her; her daughter's death caused her anxiety, confusion, and sleepless nights. The victim's sister described her sister's kindness and her terror of violence and firearms.
The defense presented the testimony of defendant's wife, Evangeline Williams. She testified that defendant's parents were drug abusers and that his mother had died of a drug overdose that may have been intentional. Defendant had four brothers and two sisters, and there was a period when all of defendant's siblings were incarcerated at the same time. When defendant's mother died, the children were sent to reside with an abusive aunt whom defendant attacked with a hammer. Defendant's grandmother eventually took in her grandchildren, but was hateful and did so solely for the welfare money she would receive for their care. Evangeline Williams characterized defendant as a childlike person who had low self-esteem. In her view, defendant was a talented artist, and she identified several paintings as defendant's work. She asked the jury to spare his life.
A consultant who had worked in the correctional system for many years also testified for the defense, describing the intense security surrounding prisoners who are sentenced to life in prison without the possibility of parole, and adding a description of the living and working conditions experienced by such inmates. He also described some of the amenities available to such prisoners, including access to television, library books, family visits, and exercise.
Psychiatrist Claudewell Thomas testified that he diagnosed defendant as having a borderline personality disorder. He noted scars on defendant's shoulders, and concluded they may have been caused by abuse suffered by defendant as a child. He characterized defendant as being filled with rage, but the witness believed defendant would not be a danger to others in a structured setting. Dr. Thomas had not reviewed defendant's prison records but was not surprised to learn he had been diagnosed with antisocial personality disorder. In Dr. Thomas's view, both disorders arose from childhood abuse.
A. Asserted Errors Affecting the Guilt Phase of the Trial
1. Admissibility of Defendant's Statements
Defendant claims that the four statements he made to the police following his arrest were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and were involuntary. His argument on appeal relies in principal part upon the circumstances of his first interrogation, but he also refers to the subsequent interrogations. He asserts that the admission of his statements into evidence constituted a violation of rights secured by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and that the error requires reversal of his conviction and sentence of death.
As noted, defendant was interviewed by the police on four occasions. At the first interview, conducted on Saturday, March 25, 1989, the day of defendant's arrest, Detectives Knebel and Salgado advised defendant of his rights pursuant to Miranda and at two points during the interview asked clarifying questions with respect to possible invocation of defendant's rights. The officers engaged in vigorous questioning, including references to the death penalty and to incriminating evidence that the officers did not possess, and repeated exhortations to defendant to tell the truth. Defendant steadfastly denied participation in the crimes.
The second interview occurred on Monday, March 27, 1989, when Knebel posed some questions concerning the damage to defendant's vehicle and other matters, without readvising defendant of his rights under Miranda.
The third interview occurred on Tuesday, March 28, 1989, after Knebel noticed possible burn marks on defendant's left hand and ankle, had the marks examined by a physician, and photographed the marks. Defendant subsequently requested to speak to Knebel, and, after being reminded of his rights to counsel and to remain silent, gave a statement admitting he was present in the victim's vehicle with Kelley and participated in burning it, but denying any contact with the victim. He agreed to give a tape-recorded statement to Knebel and Salgado that afternoon.
In the ensuing fourth interview, after an advisement of and waiver of Miranda rights, he repeated the assertions he had made during the third interview, but ultimately admitted robbing and kidnapping the victim. He asserted that Kelley shot the victim and placed her in the trunk of the vehicle.
On August 7, 1992, the People filed a motion in the trial court pursuant to Evidence Code section 402, seeking a ruling on the admissibility of defendant's statements to the police. The People sought to anticipate and counter potential arguments that at the outset of the first interrogation, the officers erred in posing clarifying questions during their Miranda advisement, that they failed to honor a subsequent invocation of rights, and that they did not renew the Miranda advisement prior to the second interrogation. With respect to potential claims regarding voluntariness, the People sought to counter anticipated assertions that the officers' references to the death penalty during the first interrogation, or exhortations to tell the truth during the third interrogation, were coercive.
The court conducted a hearing at which Knebel and Salgado testified. Knebel testified that defendant seemed cocky during the first interview, but was more subdued during the remaining interrogations. Knebel testified that at the outset of the first interview, defendant seemed to understand his rights, but was confused concerning the availability of counsel. Defendant appeared to understand the officers' explanation and displayed eagerness to speak with them. The officers testified they had not at any time offered defendant a reduced sentence in return for his cooperation, and they denied supplying defendant with any of the information he mentioned in the course of his statements, or making off-the-record threats or promises to defendant.
Defendant testified at the hearing that he had been subjected to multiple interrogations other than those recorded by the police, that he repeatedly had invoked his rights to remain silent and to counsel, and that prior to the second interrogation the officers promised he would receive a prison sentence of no more than 18 years if he admitted participation in the crimes and implicated other persons. Defendant testified he merely repeated the statements the officers had directed him to make. He claimed to have had no involvement whatsoever in the crime. He explained he made the statements in order to secure the promised 18-year sentence and to obtain revenge upon Kelley, but also because he wished to learn a new trade in prison.
At the conclusion of the testimony, defense counsel argued that defendant's incriminating statements had been coerced in the manner outlined in defendant's testimony.
In response, the prosecutor pointed out that she had filed a trial brief seeking to rebut anticipated defense claims based upon the officers' Miranda advisement and their statements concerning the death penalty, but that defense counsel had not addressed such claims in his argument. The prosecutor contended that defendant was not subjected to coercion.
The trial court commented that neither the taped and transcribed interviews nor the testimony of the witnesses provided any indication that defendant had been subjected to psychological or physical coercion. "He freely banters back and forth with the investigating officers. He carefully exonerates himself when it is appropriate. And on the stand, when he talked about the second statement, that doesn't coincide with what he said [in the taped second interview]." The court pointed out that in the second statement, far from implicating other persons, as defendant claimed he was directed to do by the officers, he merely offered an alibi. The court concluded that, "with those findings, and the court reading the moving papers of the People," the officers' mention of the death penalty during the first interview was not coercive. In addition, the court declared, "the fact that defendant was not advised on the second statement I don't find fatal to the statement. The first statement, the second and third statement is a continuing investigation. And on the third statement again he was advised, freely and voluntarily gives up his rights. And in those phases of the interrogation where he talked about asking for his attorney [i.e., the first interrogation], he goes right on and says he will talk to him. [¶] Again, I find no evidence of physical or psychological coercion. I find the defendant's statements . . . were freely and voluntarily made with no coercion on behalf of the officers, that his rights under Miranda are not violated in any way."
Defendant arguably forfeited his claims based upon Miranda, supra, 384 U.S. 436, because he did not raise them in the trial court. (See People v. Rundle (2008) 43 Cal.4th 76, 116, 121, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The hearing conducted to determine the admissibility of the statements was held on the People's motion. At the hearing, defense counsel did not argue that the officers had violated rights secured by Miranda.
On the other hand, the prosecutor's motion and argument to the court brought certain elements of the Miranda claim before the court, including the possibility that defendant had invoked his right to counsel at the outset of the first interrogation, and that his waiver of rights on that occasion was involuntary because of the officers' mention of the death penalty. Defendant testified at the hearing that he "continually" invoked his right to counsel during several days of interrogation, but that his invocation was disregarded. And the prosecutor elicited testimony from her own witnesses concerning the Miranda advisements and the circumstances of defendant's waiver of those rights, including defendant's demeanor as observed by the interrogating officers. The trial court ruled that no Miranda violation had occurred.
Assuming, without deciding, that defendant's claims were preserved, we conclude they lack merit, as we shall explain.
The basic rules applicable to defendant's claims are well settled. The high court has stated in summary that to counteract the coercive pressure inherent in custodial surroundings, "Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the 'high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst, 304 U.S. 458 . . . .' " (Maryland v. Shatzer (2010) __ U.S. __ [130 S.Ct. 1213, 1219].)
"The prosecution bears the burden of demonstrating the validity of the defendant's waiver by a preponderance of the evidence." (People v. Dykes (2009) 46 Cal.4th 731, 751; see Berghuis v. Thompkins (2010) 560 U.S. ___ [2010 WL 2160784, p.*10].) In addition, "[a]lthough there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was [voluntary,] knowing [,] and intelligent under the totality of the circumstances surrounding the interrogation." (People v. Cruz (2008) 44 Cal.4th 636, 668.) On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence. (People v. Dykes, supra, 46 Cal.4th at p. 751.)
i. Initial Waiver of Miranda Rights
As noted, defendant was arrested on March 25, 1989, a Saturday, at approximately 1:30 p.m. At approximately 4:00 p.m. on the same date, Knebel and Salgado began to interview him in an office area of their detective bureau. The interview lasted approximately half an hour.
At the outset, Knebel informed defendant that the officers wished to question him concerning a homicide, and added that defendant had "certain rights." Knebel inquired: "Do you know your rights?" When defendant answered in the negative, Knebel responded, "you don't know your rights?" Defendant answered, "I don't need to know." Knebel then delivered the full Miranda advisement.
Knebel inquired whether defendant understood the rights that had been explained to him, and received an affirmative response. Knebel asked: "Do you wish to give up your right to remain silent?" Defendant answered: "Yeah." Knebel asked: "Do you wish to give up the right to speak to an attorney and have him present during questioning?" Defendant answered with a question: "You talking about now?" Knebel responded: "Do you want an attorney here while you talk to us?" Defendant answered: "Yeah." Knebel responded: "Yes you do." Defendant returned: "Uh huh." Knebel asked, "Are you sure?" Defendant answered: "Yes." Salgado stated: "You don't want to talk to us right now." Defendant answered: "Yeah, I'll talk to you right now." Knebel stated: "Without an attorney." Defendant responded: "Yeah."
Knebel then explained: "OK, let's be real clear. If you . . . if you want an attorney here while we're talking to you we'll wait till Monday and they'll send a public defender over, unless you can afford a private attorney, so he can act as your . . . your attorney." Defendant responded: "No I don't want to wait till Monday." Knebel repeated: "You don't want to wait till Monday." Defendant replied: "No." Knebel clarified: You want to talk now." Defendant replied: "Yes." Knebel inquired: "OK, do you want to talk now because you're free to give up your right to have an attorney here now?" Defendant responded: "Yes, yes, yes."
In our view, the foregoing recitation of facts demonstrates defendant's knowing and voluntary waiver of his right to counsel. At the outset of the interrogation, defendant properly was admonished, answered in the affirmative when asked whether he understood his rights, and evinced willingness to waive his right to remain silent. When the interrogating officers asked whether defendant would waive his right to have an attorney present, defendant responded with a question -- "you talking about now?" He already had agreed to waive his right to remain silent, and his question suggests to us that his willingness to waive the assistance of counsel turned on whether he could secure the presence of counsel immediately. This suggestion is reinforced by his answers to the officers' requests for clarification. Also supporting this conclusion as to defendant's state of mind is Knebel's testimony that at the outset of the interrogation, defendant appeared confused concerning when counsel could be provided but, upon learning that counsel would not be available immediately, seemed eager to speak with the officers, acknowledging an understanding that his decision to speak constituted a waiver of his right to have an attorney present. Defendant's final and impatient "yes, yes, yes" confirms our conclusion that, once the question whether counsel could be provided immediately had been resolved, defendant had not the slightest doubt that he wished to waive his right to counsel and commence the interrogation. Under the totality of the circumstances, defendant -- who had prior experience with police interrogation -- knowingly and voluntarily waived his right to counsel.
Defendant claims that a contrary conclusion is required. He points out that in Miranda, supra, 384 U.S. 436, the high court specified that "[i]f [the suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." (Miranda, supra, 384 U.S. at pp. 444-445, italics added.) According to defendant, in response to the Miranda admonition he plainly "indicated" his desire to consult with an attorney, and questioning should have ceased instantly. He claims that Knebel violated rights secured to him by the Miranda decision when the officer continued the interchange with defendant and sought to clarify defendant's intent.
The question whether a suspect has waived the right to counsel with sufficient clarity prior to the commencement of interrogation is a separate inquiry from the question whether, subsequent to a valid waiver, he or she effectively has invoked the right to counsel. (Smith v. Illinois (1984) 469 U.S. 91, 98 [analyzing a defendant's responses to an initial Miranda advisement]; People v. Martinez (2010) 47 Cal.4th 911, 951.) It is settled that in the latter circumstance, after a knowing and voluntary waiver, interrogation may proceed "until and unless the suspect clearly requests an attorney." (Davis v. United States (1994) 512 U.S. 452, 461, italics added.) Indeed, officers may, but are not required to, seek clarification of ambiguous responses before continuing substantive interrogation. (Id. at p. 459.)
With respect to an initial waiver, however, "[a] valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. (People v. Cruz, supra, 44 Cal.4th at p. 667, italics added; see Berghuis v. Thompkins, supra, 560 U.S. at p.___ [2010 WL 2160784, at p.*11].) [Miranda "does not impose a formalistic waiver procedure that a suspect must follow to relinquish these rights"].)
This court has recognized that "when a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, 'the interrogators may clarify the suspect's comprehension of, and desire to invoke or waive, the Miranda rights.' " (People v. Farnam (2002) 28 Cal.4th 107, 181, italics added [analyzing the defendant's pre-admonition statements in which he announced he would not answer questions]; People v. Johnson (1993) 6 Cal.4th 1, 27 [analyzing the defendant's statement "no tape-recorders. I don't want to incriminate myself," made at the outset of an interview, prior to a Miranda advisement]; People v. Clark (1993) 5 Cal.4th 950, 991 [officers properly responded to assertedly ambiguous statements during admonition, with comments calling for clarification], disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; United States v. Rodriguez (9th Cir. 2008) 518 F.3d 1072, 1080 [distinguishing pre- and postwaiver assertion of rights and, in the instance of initial waivers at the commencement of interrogation, concluding that officers should clarify ambiguous statements made by the defendant]; 2 LaFave et al., Criminal Procedure (3d ed. 2007) § 6.9(g), p. 865.)
Whereas the question whether a waiver is knowing and voluntary is directed at an evaluation of the defendant's state of mind, the question of ambiguity in an asserted invocation must include a consideration of the communicative aspect of the invocation -- what would a listener understand to be the defendant's meaning. The high court has explained -- in the context of a postwaiver invocation -- that this is an objective inquiry, identifying as ambiguous or equivocal those responses that "a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking the right to counsel." (Davis v. United States, supra, 512 U.S. at p. 459, relying upon Connecticut v. Barrett (1987) 479 U.S. 523, 529 [a decision analyzing a response to an initial admonition]; see also People v. Gonzalez (2005) 34 Cal.4th 1111
, 1124.) This objective inquiry is consistent with our prior decisions rendered in the context of analyzing whether an assertion of rights at the initial admonition stage was ambiguous. (See People v. Farnam, supra, 28 Cal.4th at p. 181.) We note that a similar objective approach has been applied by the United States Court of Appeals for the Ninth Circuit to identify ambiguity in a defendant's response to a Miranda admonition; a response that is reasonably open to more than one interpretation is ambiguous, and officers may seek clarification. (United States v. Rodriguez, supra, 518 F.3d at p. 1080.)
In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends. In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of follow-up questions to render more apparent the true intent of the defendant.
In the present case, defendant had indicated to the officers that he understood his rights and would relinquish his right to remain silent. When asked whether he also would relinquish the right to an attorney and to have an attorney present during questioning, defendant responded with a question concerning timing. In light of defendant's evident intent to answer questions, and the confusion observed by Knebel concerning when an attorney would be available, a reasonable listener might be uncertain whether defendant's affirmative remarks concerning counsel were intended to invoke his right to counsel. Furthermore, under the circumstances, it does not appear that the officers were "badgering" defendant into waiving ...