# (HC) Delgado v. McDowell

> District Court, E.D. California · June 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10053162

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding Stone survived enactment of AEDPA

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 EZEKIEL ISIAH DELGADO, No. 2:21-cv-1084 TLN DB P
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 NEIL McDOWELL,
15 Respondent.
16
17 Petitioner is a state prisoner proceeding through counsel with a petition for a writ of
18 habeas corpus under 28 U.S.C. §2254. Petitioner challenges his conviction imposed by the
19 Sacramento County Superior Court in 2020 for two counts of first-degree murder with a special
20 circumstance of multiple murders and one count of discharging a firearm into an occupied
21 vehicle. Petitioner was sentenced to a term of 100 years to life. Petitioner raises the following
22 claims: (1) his statements to police were obtained in violation of his Miranda rights; (2) his
23 statements were obtained as the result of an unlawful arrest; (3) there was insufficient evidence of
24 premeditation and deliberation; (4) a jury instruction on felony murder violated due process; (5)
25 an inadequate instruction on the defense of voluntary intoxication violated due process; and (6)
26 the cumulative effect of all errors violated due process. For the reasons set forth below, this court
27 will recommend the petition be denied.
28 ////
1 BACKGROUND
2 I. Facts Established at Trial
3 The California Court of Appeal for the Third Appellate District provided the following
4 factual summary:
5 Near midnight on April 9 to 10, 2014, defendant, then aged 16, went
with Taylor Cober and Elose Brown, purportedly to buy a small
6 amount of marijuana. The seller (DeShawne Cannon) and his female
companion (Gina Elarms) were sitting in a sedan. Brown had $40
7 and defendant gave Brown his wallet with $25 in it; the total was less
than the agreed-upon amount of $70. Defendant told a detective he
8 thought Cannon was reaching for a gun, so he shot him. He then shot
Elarms because she could identify him, then shot Cannon again. He
9 emptied his 10-shot pistol from behind, striking Cannon five times
and Elarms at least three times. His admissions and reenactment were
10 video recorded and shown to the jury. Defendant and Brown each
claimed to have taken Elarms's purse, splitting the money contained
11 therein.
12 Brown and Cober were given immunity and testified they thought
the plan was to buy marijuana. Brown heard the shooting but claimed
13 not to have seen it. Later, defendant told Brown he thought Cannon
was preparing to shoot and defendant shot him to protect Brown.
14 Cober testified defendant admitted shooting someone. In confusing
passages, Cober testified there may have been mention of doing a
15 “lick” (robbery) earlier, but he had thought it was said in jest.
16 There was corroborative but inconclusive testimony from two
witnesses about the perceived ethnicity and clothing of people they
17 saw leaving after the shootings. A review of defendant's telephone
revealed searches for stories about the incident and inquiries about
18 Amtrak and Greyhound schedules.
19 The defense theory was that defendant falsely confessed to protect
his friends and earn street credibility. No robbery had been planned.
20 At worst defendant acted rashly, not with deliberation, after he
thought Cannon was going to pull a weapon. This would be voluntary
21 manslaughter, via an imperfect self-defense theory.
22 The prosecutor argued for premeditated murder because defendant
had time to reflect, fired at least five times at Cannon, shot Elarms at
23 least three times, then shot Cannon again. Felony murder also could
apply because from the evidence it was rational to infer a plan to rob
24 the seller.
25 (ECF No. 17-13 at 3-4.1)
26
1 Respondent lodged the state court record. (See ECF No. 17.) The Court of Appeal’s decision
27 on petitioner’s Miranda and arrest claims was published. People v. Delgado, 27 Cal. App. 5th
1092 (2018). Its decision on the remaining claims was not published. Herein, for consistency,
28 this court cites to the copy of the Court of Appeal’s decision lodged by respondent.
1 II. Procedural Background
2 A. Judgment and Sentencing
3 The jury convicted petitioner of all charges: two counts of first-degree murder and one
4 count of discharging a firearm at an occupied vehicle. In addition, the jury found true a multiple-
5 murder special circumstance and found that petitioner personally used a firearm causing death.
6 The trial court sentenced petitioner to prison for a total unstayed term of 100 years to life.
7 B. State Appeal and Federal Proceedings
8 On appeal, the Court of Appeal remanded to the superior court for a juvenile transfer
9 hearing and for the superior court to exercise its discretion, pursuant to an intervening law,
10 regarding firearm enhancements. (ECF No. 17-13 at 29.) In July 2020, the superior court
11 affirmed the previously imposed sentence of 100 years to life. (ECF No. 17-18.) In all other
12 respects, the Court of Appeal affirmed. (ECF No. 17-3.)
13 The California Supreme Court denied petitioner’s petition for review without comment.
14 (ECF No. 17-17.) Petitioner did not file any petitions for a writ of habeas corpus with the state
15 courts.
16 Petitioner filed the present §2254 petition on June 21, 2021. (ECF No. 1.) After
17 respondent filed an answer (ECF No. 16), this court granted petitioner’s motion for the
18 appointment of counsel. (ECF No. 19.) On August 8, 2022, petitioner, through counsel, filed a
19 traverse. (ECF No. 32.)
20 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
21 An application for a writ of habeas corpus by a person in custody under a judgment of a
22 state court can be granted only for violations of the Constitution or laws of the United States. 28
23 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
24 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502
25 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
26 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
27 corpus relief:
28 ////
1 An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
2 with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –
3
(1) resulted in a decision that was contrary to, or involved an
4 unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
5
(2) resulted in a decision that was based on an unreasonable
6 determination of the facts in light of the evidence presented in the State
court proceeding.
7
8 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
9 holdings of the United States Supreme Court at the time of the last reasoned state court decision.
10 Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011)
11 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be
12 persuasive in determining what law is clearly established and whether a state court applied that
13 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th
14 Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle
15 of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
16 announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S.
17 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely
18 accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be
19 accepted as correct.” Id. at 64. Further, where courts of appeals have diverged in their treatment
20 of an issue, it cannot be said that there is “clearly established Federal law” governing that issue.
21 Carey v. Musladin, 549 U.S. 70, 76-77 (2006).
22 A state court decision is “contrary to” clearly established federal law if it applies a rule
23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)
25 (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §
26 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct
27 governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that
28 principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
1 (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]
2 federal habeas court may not issue the writ simply because that court concludes in its independent
3 judgment that the relevant state-court decision applied clearly established federal law erroneously
4 or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;
5 see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not
6 enough that a federal habeas court, in its independent review of the legal question, is left with a
7 firm conviction that the state court was erroneous.” (Internal citations and quotation marks
8 omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief
9 so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”
10 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
11 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a
12 state prisoner must show that the state court's ruling on the claim being presented in federal court
13 was so lacking in justification that there was an error well understood and comprehended in
14 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
15 There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693
16 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not
17 supported by substantial evidence in the state court record” or he may “challenge the fact-finding
18 process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,
19 366 F.3d 992, 999-1001 (9th Cir. 2004), abrogated by Murray v. Schriro, 745 F.3d 999-1000 (9th
20 Cir. 2014)2); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes
21 factual findings without an opportunity for the petitioner to present evidence, the fact-finding
22 process may be deficient and the state court opinion may not be entitled to deference.). Under the
23
2 In Kipp v. Davis, 971 F.3d 939, 953 n.13 (9th Cir. 2020), the Court of Appeals explained the
24 effect of the decision in Murray on Taylor:
In Murray I, we recognized that Pinholster foreclosed Taylor’s suggestion that an
25
extrinsic challenge, based on evidence presented for the first time in federal court, may
occur once the state court's factual findings survive any intrinsic challenge under section
26
2254(d)(2). Murray I, 745 F.3d at 999–1000. Kipp does not present an extrinsic challenge
27 so Murray I’s abrogation of Taylor on this ground is irrelevant here.
Similarly, in the present case, there is no extrinsic challenge based on evidence presented for the
28 first time in federal court so Murray’s limitation of Taylor is not relevant.
1 “substantial evidence” test, the court asks whether “an appellate panel, applying the normal
2 standards of appellate review,” could reasonably conclude that the finding is supported by the
3 record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).
4 The second test, whether the state court’s fact-finding process is insufficient, requires the
5 federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact-
6 finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding
7 process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d
8 943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not
9 automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may
10 make factual findings without an evidentiary hearing if “the record conclusively establishes a fact
11 or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459
12 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).
13 The court looks to the last reasoned state court decision as the basis for the state court
14 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
15 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from
16 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the
17 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en
18 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim
19 has been presented to a state court and the state court has denied relief, it may be presumed that
20 the state court adjudicated the claim on the merits in the absence of any indication or state-law
21 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be
22 overcome by showing “there is reason to think some other explanation for the state court's
23 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
24 Similarly, when a state court decision on a petitioner's claims rejects some claims but does not
25 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that
26 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013).
27 When it is clear, that a state court has not reached the merits of a petitioner’s claim, the
28 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court
1 must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099,
2 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
3 If a petitioner overcomes one of the hurdles posed by section 2254(d), the federal court
4 reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.
5 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear
6 both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is
7 such error, we must decide the habeas petition by considering de novo the constitutional issues
8 raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet
9 the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual
10 basis of [the] claim in State court proceedings” and by meeting the federal case law standards for
11 the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S.
12 170, 186 (2011).
13 ANALYSIS
14 Petitioner raises the following claims: (1) his statements to police were obtained in
15 violation of his Miranda rights; (2) his statements were obtained as the result of an unlawful
16 arrest; (3) there was insufficient evidence of premeditation and deliberation; (4) a jury instruction
17 on felony murder violated due process; (5) an inadequate instruction on the defense of voluntary
18 intoxication violated due process; and (6) the cumulative effect of all errors violated due process.
19 The federal court looks to the last reasoned decision of the state court on petitioner’s
20 claims. Because the California Supreme Court summarily denied petitioner’s claims, this court
21 looks to the decision of the Court of Appeal.
22 I. Miranda Violation
23 Petitioner argues the state court’s denial of his motion to suppress incriminating
24 statements he made to police violated his rights under Miranda v. Arizona, 396 U.S. 868 (1969).
25 Petitioner contends the police employed an unconstitutional two-step interrogation by reading his
26 Miranda rights only after he had incriminated himself. At trial, the prosecution was permitted to
27 use both petitioner’s pre-Miranda statements and post-Miranda statements. While the state
28 appellate court found petitioner’s pre-Miranda statements should have been suppressed, it found
1 petitioner’s post-Miranda statements admissible. Petitioner argues that in coming to that
2 conclusion, the state court unreasonably applied clearly established federal law and unreasonably
3 determined the facts.
4 A. Legal Standards
5 The Fifth Amendment provides that “no person shall be compelled in any criminal case to
6 be a witness against himself.” A suspect subject to custodial interrogation also has a Fifth
7 Amendment right to consult with an attorney, and the police must explain this right prior to
8 questioning. Miranda v. Arizona, 384 U.S. 436, 469-73 (1966). In Miranda, the United States
9 Supreme Court held that “[t]he prosecution may not use statements, whether exculpatory or
10 inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
11 use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. at
12 444. To this end, custodial interrogation must be preceded by advice to the potential defendant
13 that he or she has the right to consult with a lawyer, the right to remain silent and that anything
14 stated can be used in evidence against him or her. Id. at 473-74. These procedural requirements
15 are designed “to protect people against the coercive nature of custodial interrogations.”
16 DeWeaver v. Runnels, 556 F.3d 995, 1000 (9th Cir. 2009).
17 1. Voluntary Waiver
18 A suspect may waive his Miranda rights, provided the waiver is “voluntary in the sense
19 that it was the product of a free and deliberate choice rather than intimidation, coercion, or
20 deception,” and “made with a full awareness of both the nature of the right being abandoned and
21 the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986)
22 (citation omitted). But an express waiver of Miranda rights is not necessary. Berghuis v.
23 Thompkins, 560 U.S. 370, 384 (2010); North Carolina v. Butler, 441 U.S. 369, 373-75 (1979).
24 Instead, a valid waiver of rights may be implied under the circumstances presented in the
25 particular case. See Berghuis, 560 U.S. at 384; Butler, 441 U.S. at 373. As a general proposition,
26 the “law can presume that an individual who, with a full understanding of his or her rights, acts in
27 a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection
28 those rights afford.” Berghuis, 560 U.S. at 385. For instance, “a suspect may impliedly waive the
1 rights by answering an officer's questions after receiving Miranda warnings.” United States v.
2 Rodriguez, 518 F.3d 1072, 1080 (9th Cir. 2008) (citation omitted); see Butler, 441 U.S. at 373 (A
3 valid waiver of Miranda rights may be implied through “the defendant's silence, coupled with an
4 understanding of his rights and a course of conduct indicating waiver.”); Terrovona v. Kincheloe,
5 912 F.2d 1176, 1179 (9th Cir. 1990). “An ‘implicit waiver’ of the ‘right to remain silent’ is
6 sufficient to admit a suspect's statement into evidence.” Berghuis, 560 U.S. at 384 (citation
7 omitted).
8 2. Two-Step Interrogation
9 In 1985, the United States Supreme Court addressed the admissibility of a confession
10 obtained after a Miranda warning but preceded by the suspect’s earlier unwarned and
11 incriminating statements. The Court held that “the admissibility of any subsequent statement
12 should turn . . . solely on whether it is knowingly and voluntarily made.” Oregon v. Elstad, 470
13 U.S. 298, 309 (1985).
14 In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court considered a related
15 question - the admissibility of a confession obtained through the deliberate use of a two-step
16 interrogation strategy. The Ninth Circuit has defined a two-step interrogation as one that involves
17 “eliciting an unwarned confession, administering the Miranda warnings and obtaining a waiver of
18 Miranda rights, and then eliciting a repeated confession.” United States v. Narvaez-Gomez, 489
19 F.3d 970, 973-74 (9th Cir. 2007) (citation omitted). In Seibert, the Supreme Court, in a plurality
20 opinion, held that when the two-step strategy is used, the admissibility of the postwarning
21 statement should depend on whether the “Miranda warnings delivered midstream could be
22 effective enough to accomplish their object.” Seibert, 542 U.S. at 615 (Souter, J., plurality
23 opinion). In a concurrence, Justice Kennedy determined that when law enforcement deliberately
24 withholds Miranda warnings until after obtaining an in-custody confession and insufficient
25 curative measures have been taken to ensure that the suspect understood the meaning and
26 importance of the previously withheld warnings, a voluntary postwarning confession must be
27 excluded. Id. at 621-22 (Kennedy, J., concurring in the judgment). Where there was no
28 ////
1 deliberateness, Justice Kennedy opined that admissibility of the postwarning statements should be
2 governed by the principles set out in Elstad. Id. at 622.
3 In United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), the Ninth Circuit adopted
4 Justice Kennedy’s concurrence and held that the narrower test of looking for a deliberate two-step
5 strategy along with an objectively ineffective mid-stream warning represented Seibert’s holding.
6 Williams, 435 F.3d at 1158. In order to determine whether an interrogator used a deliberate two-
7 step strategy, courts should consider “whether objective evidence and any available subjective
8 evidence, such as an officer's testimony, support an inference that the two-step interrogation
9 procedure was used to undermine the Miranda warning.” Id. (citations omitted). “[O]bjective
10 evidence would include the timing, setting and completeness of the prewarning interrogation, the
11 continuity of police personnel and the overlapping content of the pre-and postwarning
12 statements.” Id. at 1159 (citations omitted). The absence of subjective evidence is not
13 dispositive. Reyes v. Lewis, 833 F.3d 1001, 1030 (9th Cir. 2016) (citation omitted).
14 Justice Kennedy’s concurrence constitutes “clearly established law” for purposes of
15 analysis under 28 U.S.C. § 2254(d). See Reyes, 833 F.3d at 1028. The clearly established rule
16 under Seibert, according to Reyes, is that “if officers deliberately employ the two-step technique
17 employed in Seibert, and if insufficient curative measures are taken to ensure that later Miranda
18 warnings are genuinely understood, any warned statement thereby obtained must be suppressed
19 even if the statement is voluntary.” Id. at 1029.
20 B. Decision of the State Court
21 The Court of Appeal found that petitioner’s Miranda rights were violated when he made
22 the first incriminating statements but his statements made after he received Miranda warnings
23 were not tainted by his prior statements. The Court of Appeal concluded that petitioner’s second
24 confession was voluntary and, because the second confession was more detailed than the first, the
25 initial Miranda violation was harmless error.
26 Because the facts overlap, the Court of Appeal considered petitioner’s Miranda claim and
27 unlawful arrest claim together. In his federal petition, petitioner raises them as separate claims.
28 ////
1 This court considers the Miranda claim here and the unlawful arrest claim in the following
2 section.
3 The Court of Appeal first provided an overview of the issues and its decision:
4 Although we do not agree entirely with defendant, we agree that
many mistakes were made. As we will describe, the communication
5 among the involved detectives was inadequate to say the least.
6 Two seasoned detectives in the first team arrested defendant under
the mistaken belief there was an outstanding warrant for his arrest.
7 They took him in handcuffs to the station, seized his belongings
including his cell phone, and left him shackled in an interrogation
8 room for nearly an hour and a half. They did not tell the second team
they had arrested and shackled him. They did not Mirandize him.
9
When the first detective in the second team found defendant, he
10 immediately unshackled him, told him he was not under arrest and
was free to leave, and a ride would be arranged for him. Defendant
11 answered some questions, but made no inculpatory statements. After
defendant was left in that room again, a second detective from the
12 second team came in and immediately demanded that defendant
unlock his cell phone so its contents could be retrieved. Although this
13 detective also initially told defendant he was not under arrest, when
defendant asked how long he would be there, the detective indicated
14 the answer hinged on completion of the data retrieval process. He
then questioned defendant at length. When defendant eventually
15 admitted that he had shot the victims, a third detective in the second
team--who had been watching through a one-way mirror--told the
16 second detective via text message that it was time to Mirandize
defendant. That was done, defendant was invited to repeat what he
17 said, and he repeated and elaborated on his admissions,
spontaneously moving chairs to reenact the crimes.
18
In a detailed written ruling, the trial court found defendant was in
19 custody at the beginning, was freed from custody by the first
interrogator, but was not back into custody until he admitted to the
20 second interrogator that he had shot the victims. The court found
defendant's statements, including those after the Miranda warnings,
21 were voluntary, and not the product of a deliberate plan to evade
Miranda.
22
We disagree with the trial court's determination of when custody was
23 reinstated. When the second interrogator demanded access to
defendant's cell phone and indicated he could not leave until it was
24 examined, defendant was back in custody, and therefore his
unwarned statements should have been excluded. No reasonable
25 person would have felt free to leave at that time under these
circumstances. However, precedent dictates that absent a deliberate
26 policy or practice to evade Miranda, a subsequent voluntary warned
confession is admissible notwithstanding a prior unwarned
27 confession. (See Missouri v. Seibert (2004) 542 U.S. 600, 124 S.Ct.
2601, 159 L.Ed.2d 643; People v. Camino (2010) 188 Cal.App.4th
28 1359, 116 Cal.Rptr.3d 173 (Camino).) Although all of defendant's
1 unwarned statements should have been suppressed as the products of
a custodial interrogation without a Miranda waiver, the finding that
2 the subsequent warned confession was voluntary is supported by the
record.
3
The subsequent warned confession was cumulative of and more
4 detailed than the unwarned confession. Therefore, we conclude
beyond a reasonable doubt that the Miranda violation did not
5 contribute to the verdicts and was not prejudicial to defendant. (See
Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
6 705.)
7 Our conclusion should not be read to condone the multiple
inexplicable failures to communicate and other mistakes
8 demonstrated by this record.
9 (ECF No. 13-3 at 5-6.)
10 The Court of Appeal then examined the evidence presented at the suppression hearing, the
11 arguments of trial counsel, and the trial court’s ruling:
12 B. Facts at Suppression Hearing
13 Detective Brian Meux (who had about 20 years as a peace officer)
testified Cannon's cell phone was found at the crime scene and
14 pointed the investigation to Brown, who had texted Cannon (using
the moniker “WK Lynch”) about a marijuana deal shortly before the
15 killings. Meux helped execute a search warrant at Brown's residence
beginning about 5:15 p.m. on April 11, 2014. Meux and fellow
16 detectives, Angela Kirby and Jason Lonteen, had investigated
Brown's associates via sheriff's records and social media, and linked
17 Brown with a man named “Lynch” and defendant. When the warrant
was executed, defendant, Cober, Brown, and some of Brown's
18 relatives were present, and the team wanted to talk to all of them.
19 Although Meux apparently did not know this, Detectives French and
Roberts had brought defendant to the station in handcuffs, taken his
20 belongings, and shackled him to the floor of an interrogation room.
The video shows they left defendant at about 6:54 p.m. Meux did not
21 come in the room until about 8:18 p.m., meaning defendant was left
shackled to the floor and alone in the room for nearly an hour and a
22 half.
23 Meux testified he first spoke to Brown and his mother, and then went
to the room where defendant was held. Meux was surprised to find
24 him in shackles and freed him to use the bathroom; according to
Meux, defendant was not then a suspect in the murders. Because of
25 the way he had found defendant, Meux assured him that he was not
under arrest, was free to leave, and did not have to talk. The video
26 recording (with audio) shows that Meux offered to get defendant a
ride or to have someone pick him up but did not wait for defendant's
27 verbal response before beginning questioning. Meux understood that
at Brown's house defendant had given officers a false name, and at
28 some point Meux learned he was on probation. Defendant had said
1 he had an outstanding arrest warrant, but eventually Detective Rose
told Meux that he could find no such warrant.
2
Meux questioned defendant about his whereabouts at the time of the
3 crimes, and although defendant denied involvement he gave answers
that conflicted with information Cober had provided, leading Meux
4 to conclude defendant was lying. Accordingly, Meux had pressed
defendant to tell him the truth. When he left the room, Meux told
5 defendant he was going to close the door so other people would not
see defendant, but that the door was not locked and defendant was
6 not under arrest. Meux left the station to try to find Lynch, who was
still considered a prime suspect, but suggested that Detective
7 Lonteen question defendant. Before Meux found Lynch, he heard
from Detective Kirby that defendant had admitted the shooting; he
8 told her he had not Mirandized defendant, he had merely given
defendant the standard Beheler admonitions applicable to non-
9 arrested persons. (See California v. Beheler (1983) 463 U.S. 1121,
103 S.Ct. 3517, 77 L.Ed.2d 1275.)
10
On cross-examination Meux testified that although he asked
11 defendant if he had been involved in the murder, and told defendant
he did not believe him, he still thought defendant was a witness rather
12 than a suspect. Meux also testified that before Lonteen questioned
defendant, Detective Rose told Meux that defendant did not have a
13 warrant, and Meux believed Lonteen was present and knew this.
14 Lonteen (who had 16 years as a peace officer) testified he had been
interviewing Brown's mother and sister and did not watch Meux
15 interview defendant. Meux had told Lonteen that Meux did not
believe defendant was truthful about his whereabouts, and Meux's
16 summary to Lonteen of defendant's statements did not match what
Lonteen had heard from Brown's relatives. Lonteen did not know
17 defendant had been arrested and recalled nothing about a warrant.
18 The video shows that Meux left the room at about 8:45 p.m., and
about 15 minutes later someone showed defendant to the bathroom;
19 defendant was returned to the room at about 9:06 p.m., and about 10
minutes later Lonteen entered the room. Lonteen found that the door
20 was ajar and defendant was not restrained. Lonteen demanded that
defendant provide the password to unlock his cell phone (which
21 previously had been taken from him); defendant unlocked it and gave
Lonteen the password, and Lonteen told defendant the cell phone's
22 contents would be downloaded by the police.
23 The transcript shows (consistent with the video) that Lonteen entered
the room and immediately after identifying himself said:
24
“[Lonteen:] [H]ere's the thing dude. We gotta verify some stuff. We
25 need to get in your phone. What's the passcode?
26 “[Defendant:] For - what is this for?
27 “[Lonteen:] Just to go through - we've got to go through some of this
stuff man to make sure you're telling us on the up and up. All right?
28
1 “[Defendant:] Yeah.
2 “[Lonteen:] So I'm trying to help you out by doing that. I just want
to try to give you an opportunity so we can do that. So, um, you can
3 punch it in or I can do it. It's up to you.” (Italics added.)
4 Lonteen testified defendant asked him how long defendant would be
there because Meux had told him he was free to go; Lonteen
5 confirmed that defendant was free to go. But the transcript (and
video) reflects that the following occurred:
6
“[Defendant:] And, ah, how long am I gonna be here?
7
“[Lonteen:] We're trying to figure that out right now....
8
“[Defendant:] Because . . the other man [i.e., Meux] told me that I'm
9 not under arrest or anything so.
10 “[Lonteen:] Okay, yeah. That's true.”
11 “[Defendant:] I just - that - that's why I just want to know how long
am I gonna be here.
12
“[Lonteen:] We're gonna try to make it not too much longer. I'm
13 gonna dump this off. I'm gonna have it - I'll be right back to talk to
you and just ask you a few more questions, okay?
14
“[Defendant:] All right.
15
“[Lonteen:] Um, in case this [cell phone] locks up again what is [the
16 code]?
17 “[Defendant:] 7400.” (Italics added.)
18 Thus, although Lonteen told defendant the police would try to
expedite the download so that defendant could leave, he did not at
19 that point tell defendant he could leave at any time of defendant's
choosing. Leaving hinged on completion of the download.
20
After Lonteen dropped the cell phone off for review, he returned to
21 question defendant, telling him his account of his whereabouts did
not make sense. Eventually, after Lonteen repeatedly told defendant
22 he did not believe him, at about 9:56 p.m. (i.e., after about 35 minutes
of questioning) defendant admitted he had shot the victims. About
23 six or seven minutes later, Kirby texted Lonteen to tell him to
Mirandize defendant.
24
Kirby (who had 20 years as a peace officer) testified that at Brown's
25 residence defendant had given a false name and she knew it was false
and that he was on juvenile searchable probation and was an
26 associate of Brown's. Detectives French and Roberts told her
defendant had told them he thought he had an outstanding arrest
27 warrant. After Meux's interview, someone told her the lack of a
warrant had been confirmed. When she heard defendant make
28
1 admissions to Lonteen, she texted Lonteen to tell him to Mirandize
defendant.
2
After briefly leaving and returning to give defendant some water and
3 chips, Lonteen returned to the room and read defendant his Miranda
rights; defendant said he understood them. This was at about 10:18
4 p.m.
5 Before he was Mirandized, defendant had told Lonteen that he and
Brown went to buy some marijuana and defendant shot Cannon when
6 he reached for something shiny that defendant feared was a gun; he
also shot Elarms. Neither Brown nor Cober knew defendant had a
7 gun. Defendant said he took Elarms's purse after shooting her. The
purse was thrown away near an apartment. His friends had nothing
8 to do with any of this.
9 After the Miranda warnings, defendant explained what happened in
more detail. In particular, and on his own initiative, defendant moved
10 chairs around to show the position of the victims in the car and where
he was when he shot each one. His performance showed he was
11 standing outside the car on the passenger's side, behind the victims.
He then demonstrated how he fired his gun at each of them in turn,
12 replete with sound effects. The video shows defendant appeared
eager to tell his story and freely did so.
13
C. Argument and Ruling
14
Defense counsel argued correctly that juveniles do not get bail (see
15 Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1361, 59
Cal.Rptr.3d 363), and reasoned therefrom that even if there had been
16 an arrest warrant, defendant would have been in custody as a matter
of law. If there had not been an arrest warrant, he should not have
17 been arrested at all, meaning the products of his arrest (his
admissions) should be excluded. Counsel argued that although there
18 was no evidence of a plan to evade Miranda, Lonteen made a
decision not to Mirandize defendant until Kirby told him to do so,
19 and there was no substantial break in the questioning, therefore the
warned admissions should be suppressed.
20
The prosecutor argued that defendant told the detectives he had an
21 outstanding warrant, and confirmed this at the station before he was
told to empty his pockets and shackled to the floor. Meux later
22 unshackled defendant and told him he was free to go.
23 The trial court gave an initial oral ruling, followed by a more detailed
written ruling at the end of trial. The following summary incorporates
24 both rulings.
25 First, French and Roberts lawfully arrested defendant in the
reasonable belief that there was an outstanding warrant for his arrest,
26 based on what defendant himself told them. Defendant was in
custody then.
27
Second, defendant was involuntarily transported to the station, where
28 he was shackled to the floor and had all his property taken, showing
1 he remained in custody. But because he had not said anything the
People wanted to introduce, there was no evidence to exclude from
2 that period.
3 Third, Meux expressed genuine surprise at discovering defendant
was shackled, unshackled him, told him he was not under arrest and
4 was free to leave, and offered him a ride. At that point defendant was
freed from custody; this was not a planned ruse to trick him into
5 talking, even given defendant's age.
6 Fourth, once defendant told Lonteen that he shot the victims, he was
again in custody because no reasonable person (whether an adult or
7 a 16-year-old) would think he or she could leave.
8 Fifth, the officers had no policy or plan to circumvent Miranda.
9 Sixth, defendant's statements were voluntary.
10 Accordingly, the motion to suppress was denied.
11 (ECF No. 13-3 at 6-12.)
12 In subsection 1, the Court of Appeal considered petitioner’s claims that his arrest and
13 detention lacked probable cause and that his detention was unlawfully prolonged. The court
14 rejected both arguments. This court discusses the arrest and detention issues in the following
15 section. The Court of Appeal then considered petitioner’s Miranda claim.
16 2. Miranda Violation
17 Defendant contends all his statements should have been suppressed
for violation(s) of the Miranda rules, arguing that he was in custody
18 from the beginning. We agree with defendant in part, as we now
explain.
19
“ ‘In considering a claim that a statement or confession is
20 inadmissible because it was obtained in violation of a
defendant's rights under Miranda ..., the scope of our review
21 is well established. “We must accept the trial court's
resolution of disputed facts and inferences, and its
22 evaluations of credibility, if they are substantially supported.
[Citations.] However, we must independently determine from
23 the undisputed facts, and those properly found by the trial
court, whether the challenged statement was illegally
24 obtained.” ’ [Citation.] ‘ “Although we independently
determine whether, from the undisputed facts and those
25 properly found by the trial court, the challenged statements
were illegally obtained [citation], we ‘ “give great weight to
26 the considered conclusions” of a lower court that has
previously reviewed the same evidence.’ ” ’ [Citation.]”
27 (Camino, supra, 188 Cal.App.4th at pp. 1370-1371 [116
Cal.Rptr.3d 173].)
28
1 Miranda applies only to custodial interrogations, and whether a
person is in custody hinges on whether a reasonable person in her or
2 his shoes would feel free to leave. (See Howes v. Fields (2012) 565
U.S. 499, 508-509, 132 S.Ct. 1181, 182 L.Ed.2d 17; People v.
3 Aguilera (1996) 51 Cal.App.4th 1151, 1161-1162, 59 Cal.Rptr.2d
587.) We take the juvenile's age into consideration when determining
4 whether a reasonable person would feel free to leave under the same
circumstances. (See In re I.F. (2018) 20 Cal.App.5th 735, 760, 229
5 Cal.Rptr.3d 462.) Although Meux effectively freed defendant from
custody, Lonteen renewed his custodial status, as we now explain.
6
We begin by pointing out the obvious: that cell phones are now
7 ubiquitous and often contain highly private personal information.
Although the trial court found that: “When Lonteen entered the
8 interview room with defendant Delgado, he introduced himself and
asked Delgado for the access code for his cell phone so he could do
9 a ‘dump’ of its contents” (italics added), this finding is not fully
supported by the record. Lonteen demanded access. When defendant
10 asked when he could leave, Lonteen indicated it depended on when
the data was obtained. In effect, defendant asked to leave and
11 Lonteen denied his request.
12 At that point defendant, aged 16, had been arrested, taken in
handcuffs to the station, shackled to the floor of an interrogation
13 room, forced to give up his possessions, and left alone in that room
for nearly an hour and a half. Although Meux thereafter effectively
14 freed him, there were lingering indicia of custody that must be
factored in to the reasonable-person calculus to answer the custody
15 question as of the time Lonteen spoke to defendant. At that moment,
defendant told Lonteen that Meux had told defendant he was free to
16 leave. Lonteen then demanded access to defendant's cell phone, and
when defendant asked when he could leave, indicated the data
17 extraction would have to be done first. Given the entire course of
events, no reasonable person, whether adult or juvenile, would have
18 felt free to leave at that time. Accordingly, Lonteen should not have
asked defendant any questions before Mirandizing him. Therefore,
19 all of defendant's unwarned statements should have been suppressed,
and the trial court's denial of the motion was error.
20
3. Seibert and Voluntariness
21
The trial court found the warned admissions were not the product of
22 a planned effort to undermine the Miranda rule, but flowed from
missteps and miscommunications. The court's finding that there was
23 no subjective plan to evade Miranda is reviewed for substantial
evidence. (See Camino, supra, 188 Cal.App.4th at pp. 1364, 1372,
24 116 Cal.Rptr.3d 173; People v. Rios (2009) 179 Cal.App.4th 491,
507, 101 Cal.Rptr.3d 713 (Rios).) There were multiple opinions in
25 Seibert, which addressed this issue. The tie-breaking vote was by
Justice Kennedy. Accordingly, we look to his opinion to determine
26 the ground on which a majority of the high court agreed. (See
Camino, supra, 188 Cal.App.4th at p. 1370 & fn. 5, 116 Cal.Rptr.3d
27 173; Rios, supra, 179 Cal.App.4th at pp. 504-505, 101 Cal.Rptr.3d
713.)
28
1 As background, Oregon v. Elstad (1985) 470 U.S. 298, 105 S.Ct.
1285, 84 L.Ed.2d 222 had rejected a “cat out of the bag” approach
2 dictating that once an unwarned statement is made a subsequent
warned statement is inadmissible because a person cannot effectively
3 take back what she or he has said. Instead, Elstad held in part:
“Though Miranda requires that the unwarned admission must be
4 suppressed, the admissibility of any subsequent statement should
turn in these circumstances solely on whether it is knowingly and
5 voluntarily made.” (Oregon v. Elstad, supra, 470 U.S. at p. 309, 105
S.Ct. 1285.)
6
In Seibert, Justice Kennedy stated his controlling views in part as
7 follows:
8 “Elstad reflects a balanced and pragmatic approach to
enforcement of the Miranda warning. An officer may not
9 realize that a suspect is in custody and warnings are
required....” (Missouri v. Seibert, supra, 542 U.S. at p. 620
10 [124 S.Ct. 2601], opn. of Kennedy, J., italics added.)
11 “This case presents different considerations. The police used
a two-step questioning technique based on a deliberate
12 violation of Miranda. The Miranda warning was withheld to
obscure both the practical and legal significance of the
13 admonition when finally given.” (Id. at p. 620 [124 S.Ct.
2601].)
14
“When an interrogator uses this deliberate, two-step
15 strategy, predicated upon violating Miranda during an
extended interview, postwarning statements that are related
16 to the substance of prewarning statements must be excluded
absent specific, curative steps.” (Id. at p. 621 [124 S.Ct.
17 2601], italics added.)
18 “I would apply a narrower test applicable only in the
infrequent case, such as we have here, in which the two-step
19 interrogation technique was used in a calculated way to
undermine the Miranda warning. [¶] The admissibility of
20 postwarning statements should continue to be governed by
the principles of Elstad unless the deliberate two-step
21 strategy was employed.” (Id. at p. 622 [124 S.Ct. 2601],
italics added.)
22
In short, Seibert categorically barred admission of warned
23 statements, whether voluntary or not, that are obtained by a
deliberate attempt to thwart the Miranda safeguards. (See Camino,
24 supra, 188 Cal.App.4th at pp. 1369-1370, 116 Cal.Rptr.3d 173; Rios,
supra, 179 Cal.App.4th at pp. 504-505, 101 Cal.Rptr.3d 713.) The
25 trial court made a factual finding that no proscribed two-step
technique was employed in this case, and that finding is supported
26 by the evidence recounted ante.
27 In various ways, defendant tries to fit this case within Seibert. In
support, he relies on authority listing some objective indicia courts
28 may consider in determining whether an intentional procedure was
1 used to circumvent Miranda. (See, e.g., United States v. Williams
(9th Cir. 2006) 435 F.3d 1148, 1158-1159; Camino, supra, 188
2 Cal.App.4th at p. 1370, 116 Cal.Rptr.3d 173.) Although we
ultimately determine the admissibility of evidence in the face of
3 Miranda or voluntariness challenges, we are reviewing the trial
court's factual finding regarding intent. “ ‘It is true that it is very
4 difficult to prove what the state of a man's mind at a particular time
is, but if it can be ascertained it is as much a fact as anything else.’ ”
5 (Postal Service Bd. of Governors. v. Aikens (1983) 460 U.S. 711,
716-717, 103 S.Ct. 1478, 75 L.Ed.2d 403; see United States v.
6 Williams (2008) 553 U.S. 285, 306-307, 128 S.Ct. 1830, 170 L.Ed.2d
650; People v. Johnson (1901) 131 Cal. 511, 514, 63 P. 842.) We
7 take Justice Kennedy's opinion as written: It requires a finding of a
deliberate intent and plan to circumvent Miranda. We uphold the trial
8 court's finding there was no such intention.
9 The record, far from suggesting any deliberate protocol to undermine
Miranda guided the detectives, instead suggests they acted with little
10 or no method at all. Further, we agree with the trial court that
defendant's warned statements were “Where the voluntariness of a
11 confession is raised on appeal, the reviewing court should examine
the uncontradicted facts to determine independently whether the trial
12 court's conclusion of voluntariness was proper. If conflicting
testimony exists, the court must accept that version of events that is
13 most favorable to the People to the extent it is supported by the
record. [Citation.]” (In re Shawn D. (1993) 20 Cal.App.4th 200, 207-
14 208, 24 Cal.Rptr.2d 395.)
15 “ ‘[T]he question in each case is whether the defendant's will was
overborne at the time he confessed. ... The burden is on the
16 prosecution to show by a preponderance of the evidence that the
statement was voluntary. [Citation.] ‘When, as here, the interview
17 was tape-recorded, the facts surrounding the giving of the statement
are undisputed, and the appellate court may independently review the
18 trial court's determination of voluntariness.’ [Citation.]” (People v.
Dowdell (2014) 227 Cal.App.4th 1388, 1401, 174 Cal.Rptr.3d 547.)
19
“A confession is involuntary under the federal and state guaranties
20 of due process when it has been extracted by any sort of threats or
violence, or obtained by any direct or implied promises, however
21 slight, or by the exertion of any improper influence. [Citation.]
Coercive police activity is a necessary predicate to a finding that a
22 confession was involuntary under both the federal and state
Constitutions. [Citations.]” (In re Joseph H. (2015) 237 Cal.App.4th
23 517, 534, 188 Cal.Rptr.3d 171.)
24 We have watched the lengthy video and are convinced that no police
coercion occurred and that defendant's will was not overborne.
25 Defendant presents as a mature and savvy youth; he never appears
cowed or browbeaten. The questioning was not abusive, and
26 defendant had three restroom breaks, was given water twice, and was
given a snack. During the post-warning period, entirely on his own
27 initiative, he acted out the murders complete with sound effects.
Nothing in the video indicates that defendant felt coerced in the
28
1 constitutional sense of the term at any time while he was being
questioned.
2
Defendant's briefing points out that after defendant admitted the
3 killings but just before he was Mirandized he asked: “Do you think I
can make a phone call?” Lonteen told him he could, and when
4 defendant asked if that meant only one Lonteen told defendant he
could make more than one, then Mirandized him. But defendant did
5 not ask to make any calls at that moment, and therefore this does not
show his statements were involuntary. Put another way, this incident
6 did not signal to defendant that he was being held incommunicado,
as his briefing seems to imply. Nor do we find anything menacing in
7 the fact that two different detectives questioned defendant over a few
evening hours while expressing disbelief at his exculpatory story.
8 The video refutes the claim of involuntariness.
9 Defendant suggests that he never voluntarily waived his Miranda
rights. We disagree. After Lonteen Mirandized defendant and
10 defendant separately said he understood each one of the four
Miranda rights, the following occurred:
11
“[Lonteen:] Okay, I'm gonna kind of go back over a lot of these
12 things that we talked about and make sure that again, I understand
the right story. Are you okay with that?
13
“[Defendant:] You say what?
14
“[Lonteen:] Are you okay with doing that?
15
“[Defendant:] Going back?
16
“[Lonteen:] Just - just kind of going through again and making sure
17 that I understand all the story.
18 “[Defendant:] Yeah, yeah, yeah.”
19 Although the better practice is to obtain an explicit waiver of
Miranda rights, an explicit waiver is not required. Lonteen ensured
20 defendant understood his rights and wanted to talk; although not
ideal, that was sufficient. “The core issue in ruling on a challenge to
21 a Miranda waiver is whether an in custody accused made an
uncoerced and fully aware choice not to assert the right to counsel or
22 silence.” (Rios, supra, 179 Cal.App.4th at p. 499, 101 Cal.Rptr.3d
713; see People v. Whitson (1998) 17 Cal.4th 229, 245-250, 70
23 Cal.Rptr.2d 321, 949 P.2d 18.) Defendant was aware of his choices
and chose to talk. Because defendant's warned statements were
24 voluntary and there was no plan to bypass Miranda, the warned
statements were admissible under Seibert and related cases.
25
4. Prejudice
26
Because the trial court allowed the jury to hear (and watch) the
27 unwarned admissions, we must decide whether the error was
harmless beyond a reasonable doubt.
28
1 “The beyond-a-reasonable-doubt standard of Chapman ‘requir[es]
the beneficiary of a [federal] constitutional error to prove beyond a
2 reasonable doubt that the error complained of did not contribute to
the verdict obtained.’ [Citation.] ‘To say that an error did not
3 contribute to the ensuing verdict is ... to find that error unimportant
in relation to everything else the jury considered on the issue in
4 question, as revealed in the record.’ [Citation.] Thus, the focus is
what the jury actually decided and whether the error might have
5 tainted its decision. That is to say, the issue is ‘whether the ... verdict
actually rendered in this trial was surely unattributable to the error.’
6 [Citation.]” (People v. Neal (2003) 31 Cal.4th 63, 86 [1 Cal.Rptr.3d
650, 72 P.3d 280]; see People v. Elizalde (2015) 61 Cal.4th 523, 542
7 [189 Cal.Rptr.3d 518, 351 P.3d 1010].)
8 Another way to phrase the Chapman test is this: “ ‘Is it clear beyond
a reasonable doubt that a rational jury would have found the
9 defendant guilty absent the error?’ ” (People v. Merritt (2017) 2
Cal.5th 819, 827, 216 Cal.Rptr.3d 265, 392 P.3d 421.) Here, the
10 answer is “yes.”
11 Although we reject the Attorney General's initial view that the
testimony of defendant's companions that night coupled with vague
12 corroboration from eyewitnesses renders the error harmless, we
agree that defendant's warned statements fully encompassed his
13 unwarned statements, were more detailed, and included his
spontaneous and vivid reenactment of the crimes. Defendant does not
14 point to anything significant in the unwarned statements that was not
repeated during the warned statements. Although during argument
15 the prosecutor mentioned the point at which defendant said he would
tell the truth, the prosecutor repeatedly emphasized the physical
16 reenactment and described how that fit with the forensic evidence,
arguing this showed defendant was telling the truth. Thus, the
17 inadmissible evidence was at worst partly cumulative of the
admissible evidence. Although defendant contends the statements
18 were “joined at the hip” and “interlocking,” because all the
statements (and actions) were video recorded, there was no
19 uncertainty about what defendant said or did. The jury would either
find defendant meant what he said or find he was trying to protect his
20 companions and earn street credibility by assuming liability for the
shootings. Contrary to defendant's view, that calculus would not have
21 changed if the more limited unwarned statements had been
suppressed, as they should have been. Therefore, we can be sure that
22 the verdicts were not attributable to the Miranda error.
23 The fair administration of justice demands that peace officers be
trained in Miranda procedures and adhere to their training. The
24 system did not function in several ways in this case. But the mistakes
made did not prejudice defendant.
25
26 (ECF No. 13-3 at 12-21.)
27 ////
28 ////
1 C. Discussion
2 Petitioner makes three primary arguments regarding the admissibility of his post-Miranda
3 statements. First, petitioner challenges the state court’s holding that he voluntarily waived his
4 Miranda rights prior to giving the second confession. He argues that the state court misconstrued
5 federal law by failing to consider whether when officers gave petitioner his Miranda warnings,
6 they took sufficient measures to cure any taint of petitioner’s initial incriminating admissions.
7 Second, petitioner argues that the state court unreasonably found that officers did not deliberately
8 employ a two-step interrogation procedure. Third, petitioner contends the trial court’s improper
9 admission of his pre-Miranda statements was prejudicial.
10 1. Voluntariness of Miranda Waiver
11 Petitioner argues that even if a two-step interrogation was not a deliberate attempt to
12 evade Miranda, the court must still consider whether or not curative steps were taken when
13 evaluating the voluntariness of a Miranda waiver. Petitioner misreads the rule of Seibert that is
14 binding on this court. The clearly established rule in Seibert is that “if officers deliberately
15 employ the two-step technique employed in Seibert, and if insufficient curative measures are
16 taken to ensure that later Miranda warnings are genuinely understood, any warned statement
17 thereby obtained must be suppressed even if the statement is voluntary.” Reyes, 833 F.3d at 1029
18 (emphasis added). A two-step interrogation after Seibert renders a post-Miranda confession
19 inadmissible where: (1) the interrogation technique is a deliberate strategy to avoid giving
20 Miranda warnings; and (2) the police fail to take sufficient curative measures. Nothing in Seibert
21 or Reyes indicates that a second confession is not admissible if officers failed to take curative
22 measures, regardless of the deliberate nature of the two-step process. Rather, once a court
23 determines the two-step process is not deliberate, then the court looks to the voluntariness
24 standards set out in Elstad. Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment).
25 Petitioner cites no authority to support his interpretation of the Seibert rule and this court
26 is aware of none. While petitioner contends that the Ninth Circuit in Reyes examined curative
27 measures, he fails to point out that the court only did so after determining officers deliberately
28 employed a two-step process. See Reyes, 833 F.3d at 1030-33. This court finds the fact the state
1 court did not consider curative measures was not contrary to or an unreasonable application of the
2 clearly established federal law set out in Seibert.
3 Petitioner also argues that the state court unreasonably applied Elstad when it found he
4 voluntarily waived his Miranda rights before he gave his second confession. Petitioner contends
5 his youth, intellectual and psychological limitations, and the intimidation resulting from being
6 shackled and from the aggressive questioning leads to the conclusion that petitioner did not
7 voluntarily waive his rights.3 The video of the interrogation shows petitioner appeared to
8 understand his rights and hesitated only for a moment before agreeing to continue the
9 interrogation. “[A] suspect may impliedly waive the rights by answering an officer's questions
10 after receiving Miranda warnings.” United States v. Rodriguez, 518 F.3d 1072, 1080 (9th Cir.
11 2008) (citation omitted); see also North Carolina v. Butler, 441 U.S. 369, 373 (1979) (A valid
12 waiver of Miranda rights may be implied through “the defendant's silence, coupled with an
13 understanding of his rights and a course of conduct indicating waiver.”). Petitioner fails to show
14 that no reasonable jurist could agree with the state court’s finding of voluntariness.
15 2. Did Officers Deliberately Employ a Two-Step Interrogation Procedure?
16 The question for this court on habeas review is whether the state court’s determination
17 that the two-step interrogation was not a deliberate attempt to evade Miranda was so unreasonable
18 that it is “beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. For
19 determinations of law, petitioner must show the Court of Appeal’s decision was contrary to, or an
20 unreasonable application of, clearly established federal law. 28 U.S.C. §2254(d)(1). With respect
21 to the Court of Appeal’s determination of the facts, the federal court may only find it
22 unreasonable where it is “convinced that an appellate panel, applying the normal standards of
23 appellate review, could not reasonably conclude that the finding is supported by the record.”
24 Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016) (citing Hibbler v. Benedetti, 693 F.3d
25 1140, 1146 (9th Cir. 2012)); see also 28 U.S.C. §2254(d)(2).
26
3 Petitioner also contends here that he lied to officers about stealing Elarm’s purse, which shows
27 that he was “taking the fall” for his co-defendants when he confessed. It is not clear to this court
how that argument – that petitioner’s confession was unreliable - relates to the voluntariness of
28 his Miranda waiver. Petitioner cites not case law relating these two concepts.
1 a. Unreasonable Application of Clearly Established Law
2 Petitioner argues the Court of Appeal unreasonably applied Seibert because it focused on
3 the lack of subjective evidence that the officers intended to evade Miranda. As petitioner points
4 out, objective evidence of intent can be sufficient to prove officers acted deliberately. Williams,
5 435 F.3d at 1158. The court in Williams listed the following objective factors courts might
6 consider in determining whether an intentional two-step process was used: “the timing, setting
7 and completeness of the prewarning interrogation, the continuity of police personnel and the
8 overlapping content of the pre-and postwarning statements.” Id. at 1159.
9 The Court of Appeal stated that it was reviewing the trial court’s “finding that there was
10 no subjective plan to evade Miranda” for “substantial evidence.” (ECF No. 17-13 at 15-16.) The
11 court held that “[t]he record, far from suggesting any deliberate protocol to undermine Miranda
12 guided the detectives, instead suggests they acted with little or no method at all.” (Id. at 17.) The
13 court concluded that the trial court’s “factual finding that no proscribed two-step technique was
14 employed in this case” was “supported by the evidence recounted ante.” (Id.) In that prior
15 section, the court summarized the content of the video and described some of the testimony of
16 Detectives Meux and Kirby. The court described both objective and subjective evidence and
17 stated that the record “suggests” the officers did not intentionally employ a two-step procedure.
18 Based on those statements this court cannot find the Court of Appeal unreasonably applied clearly
19 established federal law by only considering subjective evidence of the officers’ intent.
20 b. Unreasonable Determination of the Facts
21 This court has viewed the video of plaintiff’s interrogations and read the transcript of the
22 evidence presented at the suppression hearing. Both the video and the suppression hearing
23 evidence give this court pause about the state court’s finding the officers did deliberately employ
24 a two-step interrogation. Nonetheless, this court concludes that the Court of Appeals’ decision
25 was not based on such an unreasonable determination of the facts that no “fairminded jurist could
26 reach [that] conclusion.” Shinn v. Kayer, 141 S. Ct. 517, 524 (2020) (per curiam).
27 ////
28 ////
1 (i) Video of Interrogations
2 This court agrees with petitioner that the objective evidence gleaned from the
3 interrogation video could lead to the conclusion that at least one of the interviewing officers
4 deliberately planned to try to obtain a confession before giving petitioner his Miranda warnings.
5 The video shows the following.
6 Detective Meux entered the interview room almost an hour and a half after petitioner was
7 taken there. After he unshackled petitioner’s leg and took petitioner to the bathroom, Meux first
8 told petitioner that petitioner’s name had come up in their investigation of a double homicide.
9 (ECF No. 17-1 at 121.4) He then told petitioner he was not under arrest, told him he was free to
10 go, and offered to find petitioner a ride home. (Id.) While the Court of Appeal stated that Meux
11 told petitioner “he did not have to talk,5” Meux did not explicitly make that statement. Rather,
12 without waiting for any response from petitioner about getting a ride home, Meux told petitioner
13 he just wanted to “figure out how to clear your name” and launched into a series of basic
14 identification questions about, among other things, petitioner’s age, parents, and school. (Id. at
15 122, et seq.)
16 The questioning turned accusatory. Meux asked where petitioner was the night of the
17 murders and told him witnesses had identified someone at the scene who looked like petitioner.
18 (ECF No. 17-1 at 141.) Meux then told petitioner that the identification was “why we're talking,
19 okay, so that's why it's very important that if you had nothing to do with this murder that you help
20 us prove it wasn't you.” (Id.)
21 After about a half hour of questioning, Meux told petitioner he was leaving the room to
22 find out what the others being questioned were telling officers. Meux told petitioner he was
23 leaving the door unlocked and repeated that petitioner was not under arrest. (ECF No. 17-1 at
24 142.)
25

26 4 This court cites to the transcript of the interrogations contained in the Clerk’s Record. The
transcript does not reflect times. The times identified herein are from this court’s review of the
27 videotape of the interrogations.

28 5 ECF No. 17-13 at 7.
1 Detective Lonteen’s follow-up questioning continued along the same vein. Lonteen
2 entered the interview room at 9:18 p.m., about thirty minutes after Meux left and over two hours
3 after petitioner was taken to the interview room. Lonteen made clear petitioner was not free to
4 leave until officers downloaded information from petitioner’s phone. (ECF No.17-1 at 143.)
5 Lonteen briefly left the room. When he returned, he asked petitioner a few questions regarding
6 where petitioner typically stayed and then began to intensely question petitioner.
7 Lonteen told petitioner “[a]nd we know something happened involving you guys. And
8 trying to give you - this is your opportunity to tell us what your part in this whole thing was,
9 okay? This thing . . . we don't know the full story. We gotta - we gotta get it - hear from you.
10 Okay?” (ECF No. 17-1 at 164.) Lonteen said he knew petitioner went out the night of the
11 murders. “I believe based on what we know and what we've found out that you and two other
12 people left that apartment and walked down the street to another apartment complex.” (Id. at
13 176.) “And a question to you is, again, keep in mind being truthful, is I believe based on what we
14 found out that you were there at that apartment complex and involved in this incident. . . . we both
15 know that you're not being truthful about that, okay?” (Id. at 177.) Immediately after that, at
16 about 9:56 p.m., petitioner told Lonteen he shot the victims. (Id. at 178.) Lonteen asked follow-
17 up questions and at about 10:03 p.m., petitioner asked for food and water. Lonteen then appears
18 to get a call or text message. He told petitioner he would get him water and a snack and left the
19 room.
20 Lonteen returned to the interview room about ten minutes later. Petitioner asked Lonteen
21 if he could make a phone call. Lonteen put petitioner off, telling him “you will be able to make a
22 phone call.” (ECF No. 17-1 at 186.) Lonteen then told petitioner
23 [W]hat I'm gonna do is, ah, I want to go kind of through the story and
just make sure I understand everything that happened, because I don't
24 want to get the wrong story. Okay, it's important for me to hear the
right thing, it's important for you to tell me the right thing. Um, so
25 what I'm gonna do, we're gonna kind of go back over from the
beginning, okay? Are you·good with that? Okay. Ah, what I'm gonna
26 do before that is I'm gonna read you your rights.
27 The following then took place:
28 ////
1 ED: I'm just - all right, all right.
2 LONTEEN: Okay. All right. Ah, so Ezekiel, right?
3 ED: Yeah:
4 LONTEEN: I know you go by (Zeke), okay. You have the right to remain silent. Do you
5 understand that? Okay. Yes?
6 ED: Yes sir.
7 LONTEEN: Okay. Anything you say can be used against you in a court of law. Do you
8 understand that? Yes?
9 ED: Yes, sorry .
10 LONTEEN: Thank you. I just need to hear you say it. Okay you have - you have the right
11 to talk to an attorney and have an attorney present before and during questioning. Do you
12 understand that?
13 ED: Yes sir.
14 LONTEEN: Okay. If you can't afford an attorney, one will be appointed free of charge to
15 represent you before and during questioning if you desire. Do you understand that?
16 ED: Yes sir.
17 LONTEEN: Okay. I'm gonna kind of go back over a lot of these things that we talked
18 about and make sure that again, I understand .the right story. Are you okay with that?
19 ED: You say what?
20 LONTEEN: Are you okay with doing that?
21 ED: Going back?
22 LONTEEN: Just - just kind of going through again and making sure that I understand all
23 the story.
24 ED: Yeah, yeah, yeah.
25 (ECF No. 17-1 at 186-87.)
26 Petitioner then repeated the story he told earlier, with additional detail.
27 ////
28 ////
1 (ii) Suppression Hearing6
2 (a) Testimony of Detective Meux
3 Detective Meux testified as follows. Officers’ review of victim Cannon’s phone showed
4 contact with Elose Brown’s phone regarding a purchase of marijuana. However, Cannon’s
5 phone showed a contact name for that phone number as “WK Lynch.” (ECF No. 17-3 at 37-39.)
6 Research on social media showed that Jason Lynch and petitioner were associates of Brown. (Id.
7 at 41.) Kirby later testified that they knew Brown and petitioner had previously been arrested
8 together. (Id. at 128.)
9 On April 11, officers executed a search warrant at Brown’s home. There, they found
10 Cober, petitioner, Brown, and some members of Brown’s family. (ECF No. 17-3 at 41.) Initially,
11 officers spoke to Brown, with Brown’s mother present. According to Meux, officers did not, at
12 that time, consider petitioner to have been involved. (Id. at 44-45.)
13 Meux testified that petitioner was not a “primary suspect.” “At best, he was potentially a
14 witness who might have some knowledge about Elose [Brown] or Mr. Lynch’s involvement.”
15 (ECF No. 17-3 at 46.) When asked whether petitioner might have matched the physical
16 description from some of the eyewitness descriptions of people seen running from the car,” Meux
17 stated that the description was “[o]nly that the witnesses described potentially a light-skinned or
18 light-skinned people running from the scene. Beyond that, there wasn't a very descriptive
19 description that was given about height or weight or anything like that.” (Id. at 46-47.)
20 When he questioned petitioner about his whereabouts, Meux thought petitioner was lying
21 because Cober told officers that petitioner had gone to a house in south Sacramento that night.
22 (ECF No. 17-3 at 49.) Meux later testified that Cober said petitioner had gone to “the complex”
23 that night. (Id. at 66.)
24 Meux left the interview room to talk with Lynch. He asked Lonteen to speak with
25 petitioner because he thought Lonteen might have additional information based on interviews
26 with others. (ECF No. 17-3 at 53.) On his way to see Lynch, Meux got a call from Kirby that
27
6 The transcript of the suppression hearing is contained in the Record of Transcript. It begins at p.
28 35 of ECF No. 17-3.
1 petitioner had confessed. He was “surprised” and told Kirby he had not Mirandized petitioner.
2 (Id. at 55.)
3 Meux testified that he knew officers had taken a witness’s statement identifying a “light-
4 skinned person” running out of the gate after the shooting. (ECF No. 17-3 at 58-59.) He agreed
5 that Brown, Lynch, and Cober are African American and that petitioner is a “very light-skinned
6 Hispanic.” (Id. at 58, 69.) Meux confirmed that during the interview, he told petitioner a witness
7 had identified someone who looked like petitioner running from the scene. (Id. at 67.) He went
8 on to state: “I believed that Mr. Delgado was present there because of the descriptions of people
9 running and the number of people that were running.” But, he did not recall any indication that
10 petitioner “was the person involved in the shooting.” (Id. at 67-68.) When Meux was asked
11 whether at that time he interviewed petitioner he knew a robbery had also been committed, Meux
12 testified that he knew a purse had been taken. (Id. at 68.)
13 Meux then contradicted himself. He testified that petitioner was not a suspect because
14 “we didn’t have any evidence pointing to him. We didn’t have anybody putting him there.”
15 (ECF No. 17-3 at 69.)
16 (b) Testimony of Detective Lonteen
17 Lonteen testified that when he entered the interview room, he knew petitioner was a
18 minor. He did not know whether petitioner had been given any admonitions. However, it can be
19 inferred that Lonteen did not think petitioner had been Mirandized because he agreed with
20 petitioner that petitioner was free to leave and testified that “we had not discussed even the
21 potential of arresting him at that point. He was a witness as far as we knew.” (ECF No. 17-3 at
22 100-101.) Lonteen also testified that he believed petitioner was not in custody when Lonteen
23 entered the interview room. (Id. at 111.)
24 Lonteen recalled that on April 10, the day of the crimes and the day before petitioner was
25 interviewed, officers had information that “light-skin Hispanics, two or three, were seen running
26 from the scene of the crime.” He testified that he did not, however, recall the witness statement
27 that “one of them was a white male with short brown hair wearing a white T-shirt.” (ECF No. 17-
28 3 at 104.) But, he did recall that he knew before interviewing petitioner “one person saying that it
1 was light-skinned Hispanics. One said possibly a white male.” He did not recall that the witness
2 identified the white male as possibly the shooter. (Id. at 105.) Lonteen also testified that he knew
3 Brown and Lynch are Black. (Id. at 107.)
4 Lonteen thought petitioner might have been with Brown that night and was “involved” in
5 the crimes. But, “[t]o what degree, I had no idea.” (ECF No. 17-3 at 110-11.)
6 Lonteen agreed that his questioning of petitioner after giving him the Miranda warnings
7 was essentially a continuation of previous questioning. (ECF No. 17-3 at 113.)
8 (c) Testimony of Detective Kirby
9 Detective Kirby confirmed that she had taken a statement from a witness who told Kirby
10 she saw people running from the scene and “‘[o]ne of them was a white male with short brown
11 hair wearing a white T-shirt. Something about the way he was moving makes me think he was the
12 one that shot.’” (ECF No. 17-3 at 125.) Kirby testified that she “recall[ed] definitely sharing
13 [that information] with Detective Lonteen.” (Id. at 126.) She did not recall sharing the
14 information with Meux, but testified that it was “likely that I would.” (Id.) Kirby testified that
15 she did not consider petitioner a suspect when he was taken in for questioning. (Id. at 130.) She
16 did not observe Meux’s interview of petitioner and just saw a little of Lonteen’s interview before
17 petitioner confessed. (Id.)
18 (iii) Trial Court Decision on Suppression Motion7
19 As stated above, this court considers the decision of the Court of Appeal when conducting
20 review under 28 U.S.C. §2254(d). The Court of Appeal stated that the trial court’s determination
21 that no two-step procedure was intentionally used was supported by the evidence set out in its
22 own decision. While this court takes that statement at face value - that the Court of Appeal relied
23 on the facts it described - this court has reviewed the trial court’s decision, and in particular its
24 findings of fact, to assure that all evidence before the Court of Appeal is considered herein.
25 Below this court cites relevant portions of the trial court’s decision.
26 ////
27
7 The trial court’s written decision can be found in the Clerk’s Transcript starting at p. 282 in ECF
28 No. 17-1.
1 Neither Detectives Meux, Lonteen nor Kirby observed defendant
Delgado leaving the Sumatra Drive residence. None of those
2 detectives were aware that Delgado had been arrested, placed in
handcuffs for transportation to the sheriff’s station, or that Delgado
3 was held in an interview room at the station for approximately 84
minutes, shackled to the floor or table, before Detective Meux
4 entered the room to interview Delgado.
5 At the time, neither Detective Meux, nor Lonteen, nor Kirby
considered Delgado to be a suspect in the murder. All of them
6 considered Delgado to be a possible material percipient witness to
the shooting. Their primary suspects for the shooting at the time that
7 Meux began his interview of Delgado were Elose Brown and Jason
Lynch.
8
9 (ECF No. 17-1 at 285.)
10 Meux immediately removed the shackles, took Delgado to the
bathroom, and upon their return told Delgado that he was not under
11 arrest, and was free to go at any time. Meux left the door to the
interview room open, and pointed out to Delgado that he was leaving
12 it open because Delgado was free to leave at any time. The videotape
of Detective Meux interview of Delgado demonstrates what seems
13 to be genuine surprise to find out that Delgado had been shackled in
the interview room.
14
15 (ECF No. 17-1 at 286.)
16 Meux’s “focus was upon Delgado as someone who might have seen something that
17 happened on Howe Avenue, as opposed to being the person who did something on Howe
18 Avenue.” (ECF No. 17-1 at 287.)
19 Detective Lonteen testified that he did not see defendant Delgado
leave the Sumatra Drive location, did not see him enter the Sheriff's
20 substation, had not spoken to Detectives French and Roberts, and
knew nothing about Delgado's custody status. Detective Lonteen
21 knew that Detective Meux thought that Delgado was not being
truthful about his whereabouts on the day leading up to the shooting.
22 Meux had asked Lonteen to see if he could get any additional
information about this from Delgado.
23
24 (ECF No. 17-1 at 287.)
25 When Lonteen entered the interview room with defendant Delgado,
he introduced himself and asked Delgado for the access code for his
26 cell phone so he could do a "dump" of its contents. Delgado asked
Lonteen how long he would be there, pointing out that the other
27 detective "told me that I am not under arrest or anything." Lonteen
advised Delgado that they were trying to make it not much longer.
28 At the time, Lonteen was of the opinion that Delgado was not in
1 custody, and he had no reason at that time to believe that Delgado
would not be going home shortly.
2
3 (ECF No. 17-1 at 287-88.)
4 The trial court summarized the facts occurring after petitioner first confessed to Lonteen:
5 For the next several moments, Detective Lonteen discussed the
details of what Delgado was saying with him. [Tr. pp. 62- 70: 6].
6 Detective Kirby was observing Detective Lonteen's interview of
Delgado through a one way mirror in an adjacent room. She was
7 shocked when she heard Delgado admit to the murder, as Elose
Brown and Jason Lynch still were their primary suspects as being the
8 shooter and accomplice. Detective Lynch immediately called
Detective Meux, who had left to interview Jason Lynch.
9
Meux was just pulling into the parking lot of Lynch's place of
10 employment when he received the call from Kirby. At the time he
received the call, he was of the belief that Lynch was the shooter.
11 Meux told Kirby that Delgado never had been read his Miranda
rights, and that Lonteen should do that immediately. Kirby then
12 either called or texted Lonteen to come out of the interview and
confer with her. She told Lonteen that Delgado's Miranda rights had
13 to be read to him. Lonteen went back into the interview with
defendant Delgado and read him his Miranda rights.
14
15 (ECF No. 17-1 at 289.)
16 The trial court’s relevant findings were:
17 I find that the evidence establishes that Meux was genuinely
surprised to find that Delgado was shackled to the floor or table.
18 Meux did not participate in Delgado being placed into custody, did
not see Delgado leave the Sumatra Drive address or arrive at the
19 Sheriffs substation, or have any other reason to believe that Delgado
was in custody.
20
I find that Meux immediately released defendant Delgado from
21 custody upon making the discovery that he had been restrained. He
told Delgado that he was not under arrest; he told Delgado that he
22 was free to leave any time; he told Delgado that he would give him
a ride home or wherever he wanted to go; and Meux left the door to
23 the interview room not only unlocked, but also wide open.
24 (ECF No. 17-1 at 292-93.)
25 I find that Detective Meux's statements to Delgado about not being
under arrest and free to leave were not a subterfuge to conduct an
26 interview of a suspect by tricking him into thinking that he was free
to go, and therefore not be subject to a custodial interrogation. All
27
////
28
1 three detectives testified that Delgado was not a suspect in the
shooting right up to the point where he confessed.
2
3 (ECF No. 17-1 at 294.)
4 The fact that detectives Meux and Lonteen suspected that Delgado
was lying about his whereabouts on the evening of April 9th does not
5 mean that they believed that he possibly was the shooter who killed
Cannon and Elarms. All it means is that they suspected that Delgado
6 had information about what had happened on April 9th and 10th, and
was attempting convince the detectives that he had no information to
7 impart. That doesn't mean that Delgado was a suspect, and it doesn't
mean that he was in custody.
8
9 (ECF No. 17-1 at 295.)
10 I find that a reasonable juvenile, aged 16 years and 11 months, who
had prior experience with the juvenile justice system, would have
11 known that he was not under arrest during Detective Meux's
interrogation and the beginning of Detective Lonteen's interrogation,
12 and was free to leave at any time.
13 (ECF No. 17-1 at 297.)
14 Here there is no evidence that either the Sacramento County Sheriffs
Department, or the Homicide Bureau or even this specific team of
15 detectives had any policy or protocol to not advise persons subject to
custodial interrogations of their Miranda rights [trial court is
16 distinguishing Seibert here]. To the contrary, the evidentiary hearing
demonstrated that the detectives here were very conscious to
17 distinguish between potential witnesses who were not in custody and
suspects who were the subject of custodial interrogations.
18
All three detectives testified that they did not consider defendant
19 Delgado to be a suspect based upon what they knew at the time. All
three detectives testified that they considered the primary suspects to
20 be Elose Brown and Jason Lynch. All three detectives testified that
they considered Delgado to be a potential witness because they
21 thought that Delgado may have been in the vicinity of the shooting,
or maybe was told something about the shooting by Brown.
22
Viewing the facts known to the detectives at the time strongly
23 suggests that the most reasonable conclusion was that Brown and
Lynch were the likely shooters, and Delgado was at best a possible
24 witness. Both detectives who came in contact with Delgado at the
Sheriff’s station told him that he was not under arrest and that he was
25 free to leave.
26 All three detectives made clear the distinctions between the handling
of witnesses who are not in custody when being interviewed, and
27 suspects who are in custody when they are being interrogated. All
three detectives made clear that Delgado was not provided with
28 Miranda rights because he was not in custody, and he was not
1 considered a suspect. All three detectives made clear that non-
suspect potential witnesses specifically are told that they are not
2 under arrest and are free to go. All three detectives referred to this
advice as the "Beheler admonition." On the other hand, suspects who
3 are being interrogated and who are not free to leave are given their
Miranda rights.
4
The detectives demonstrated this distinction on April 11, 2014, when
5 they repeatedly gave Delgado the "Beheler admonition," i.e., that he
was not under arrest and that he was free to go, up until his status
6 changed from potential witness to suspect, at which time he was
given his Miranda warnings. I find that the detectives' treatment of
7 defendant Delgado was not a subterfuge designed to "lull" him into
an unadvised confession.
8
9 (ECF No. 17-1 at 300-01.)
10 Detective Kirby was observing the interview in "real time" from the
adjacent room, and immediately contacted Detective Meux to advise
11 him that Delgado had confessed. Detective Meux advised Detective
Kirby that Miranda warnings had not been given, but had to be given
12 at that time. Detective Kirby immediately contacted Detective
Lonteen to suspend the interview and come out for a conference.
13 During that conference, Detective Lonteen was advised to administer
the Miranda warnings, which he did immediately upon returning to
14 the interview with Delgado.
15 (ECF No. 17-1 at 302.)
16 (iv) Did the Court of Appeal Unreasonably Determine the
17 Facts?
18 In Williams, the Ninth Circuit listed the following objective factors courts might consider
19 in determining whether an intentional two-step process was used: “the timing, setting and
20 completeness of the prewarning interrogation, the continuity of police personnel and the
21 overlapping content of the pre-and postwarning statements.” Williams, 435 F.3d at 1159. In
22 Reyes, the Ninth Circuit found police conduct was a deliberate attempt to evade Miranda where
23 the interrogations were “‘systematic, exhaustive, and managed with psychological skill.’” Reyes,
24 833 F.3d at 1031 (quoting Seibert, 542 U.S. at 616).
25 This court agrees with the Court of Appeal that petitioner’s transportation to the police
26 station, shackling, and initial isolation for almost an hour and a half do not, from the objective
27 evidence, appear to have been part of a plan to convince petitioner to incriminate himself. As the
28 trial court pointed out, the video shows that Meux seemed surprised petitioner had been shackled.
1 However, many aspects of the conduct of Meux, and particularly of the conduct of Lonteen, after
2 that point could be considered indicative of such a plan.
3 Both Meux and Lonteen were experienced detectives. The setting for the interrogations
4 was a small, stark room at the police station. Both officers indicated they knew petitioner was a
5 minor. While Meux told petitioner he was free to leave, he did not give petitioner a chance to
6 respond to that statement before launching into a series of questions. At first, those questions
7 were nonthreatening. Meux asked petitioner for identifying and background information.
8 However, Meux quickly turned to a series of pointed questions during which he told petitioner he
9 thought he was involved in the crimes and accused petitioner of lying.
10 Shortly after Meux left, Lonteen began questioning petitioner. Again, the questions were
11 pointed and accusatory. When petitioner did incriminate himself, Lonteen continued questioning
12 him for several minutes. Lonteen then left for a brief period of time – only about ten minutes.
13 When he returned, he did not immediately give petitioner the Miranda warnings. Rather, Lonteen
14 first made it clear that he wanted to go back over petitioner’s incriminating statements “from the
15 beginning” and asked petitioner if he was okay with that. Lonteen then gave petitioner the
16 Miranda warnings. While petitioner said he understood each one, Lonteen did not seek a waiver
17 from petitioner before beginning his questioning.
18 Whether or not Meux and Lonteen considered petitioner the shooter, their questions and
19 behavior certainly indicated they thought he was involved. Involvement in even the drug
20 purchase or the robbery would have been criminal. Meux and Lonteen’s conduct could
21 reasonably be considered an attempt to get information from petitioner about the shooting
22 generally and a confession from petitioner about his involvement.
23 The evidence presented at the suppression hearing also provides some support for
24 petitioner’s position. While Meux and Lonteen testified at the suppression hearing that they did
25 not consider petitioner a suspect, and therefore did not feel Miranda warnings were necessary,
26 evidence was presented at the suppression hearing that puts that testimony in doubt.
27 First, there was evidence that both Meux and Lonteen knew that a witness told police she
28 saw a light-skinned Hispanic, with short hair running from the scene and that she felt he could be
1 the shooter. Detective Kirby testified that she had taken the witness’s statement and recalled
2 telling Detective Lonteen. She testified she likely told Detective Meux. Lonteen testified that he
3 recalled knowing that a witness had identified a light-skinned Hispanic before questioning
4 petitioner but did not recall that the witness felt that person might be the shooter. Both Lonteen
5 and Meux knew that Brown and Lynch, the two people they repeatedly stated were the suspects in
6 the shooting, were African American. There was no testimony at the suppression hearing that any
7 witnesses saw African Americans at the scene or running from the scene. Given these facts, it is
8 hard to believe that the officers did not consider petitioner a suspect, despite their testimony to the
9 contrary.
10 Second, the officers’ testimony at the suppression hearing regarding whether or not they
11 considered petitioner a suspect was at times lacking in substance and at times contradictory.
12 While Meux, Lonteen, and Kirby all testified that Brown and Lynch were the suspects in the
13 shooting, they never explained why that was so. The officers knew Brown and Lynch were likely
14 involved in the planned drug transaction based on the phone records. But, both Meux and
15 Lonteen testified that they felt petitioner was lying about his whereabouts. Meux specifically
16 testified that he believed petitioner was at the scene. During the interrogation, Lonteen told
17 petitioner, “I believe you were at the apartment complex and involved in this incident.” At the
18 suppression hearing, Lonteen attempted to explain why that statement did not necessarily mean
19 he considered petitioner a suspect –
20 "Involved" could be there, but a witness -- and I don't know to what
level of participation. Those things are really unknown at that point;
21 but being present, in my mind, I consider being involved if they have
intimate knowledge of what happened but not necessarily maybe a
22 actor in the event itself.
23 (ECF No. 17-3 at 109.) Based on this court’s review of the video of petitioner’s questioning, this
24 court finds Lonteen’s suppression hearing testimony that he did not consider petitioner a suspect
25 appears disingenuous.
26 Further, the officers’ testimony on this point was not particularly consistent. As set out
27 above, Meux testified that petitioner was not a “primary” suspect but then stated that “[a]t best, he
28 was potentially a witness.” After confirming that he knew a witness identified someone who
1 looked like petitioner running from the scene, Meux testified that he believed petitioner was
2 present at the scene but did not think petitioner was the shooter. He immediately limited that
3 statement by stating that there was no evidence putting petitioner at the scene.
4 Third, the officers did not explain why petitioner was not a suspect in a crime other than
5 murder. If officers felt petitioner was at the scene, they did not explain why petitioner could not
6 have been considered an accomplice to the murders, or a participant in the intended drug
7 transaction, or the perpetrator of or accomplice to the robbery of Elarms’ purse. While those
8 were not the primary crimes officers were concerned about, they are nonetheless crimes.
9 The state courts did not explicitly consider much of this evidence. The Court of Appeal
10 spent little time discussing whether officers intentionally employed a two-step procedure. The
11 court simply concluded that “[t]he trial court made a factual finding that no proscribed two-step
12 technique was employed in this case, and that finding is supported by the evidence recounted
13 ante.” The court also stated that Seibert requires “a finding of a deliberate intent and plan to
14 circumvent Miranda. We uphold the trial court's finding there was no such intention. [¶] The
15 record, far from suggesting any deliberate protocol to undermine Miranda guided the detectives,
16 instead suggests they acted with little or no method at all.” The appellate court did not
17 independently analyze the facts presented at the suppression hearing.
18 Neither court explicitly examined the officers’ credibility at the suppression hearing that
19 they did not consider petitioner a suspect in the murder. Though, it is clear the trial court found
20 the officers credible. The state courts did not expressly consider the officers’ knowledge of the
21 witness’s statement that she saw a light-skinned Hispanic, with short hair running from the scene
22 and that she felt he could be the shooter. The trial court stated that “[v]iewing the facts known to
23 the detectives at the time strongly suggests that the most reasonable conclusion was that Brown
24 and Lynch were the likely shooters, and Delgado was at best a possible witness.” (ECF No. 17-1
25 at 300.) The trial court did not, however, explain just what those facts were.
26 Neither court explicitly considered the contradictions and lack of substance in the officers’
27 testimony. Nor did those courts explicitly consider the possibility that officers could have
28 suspected petitioner of a crime besides murder. The trial court held that the fact Meux and
1 Lonteen suspected petitioner was lying about his whereabouts did “not mean that they believed he
2 was possibly the shooter.” (ECF No. 17-1 at 295.) The trial court did not consider whether the
3 detectives might have suspected petitioner of lesser crimes.
4 In addition to the apparent failure to consider important issues with respect to the officers’
5 credibility, the state courts limited their decisions to looking at the conduct of all officers when
6 considering whether there was an intent to evade Miranda. This issue could have been limited to
7 consideration of Lonteen’s behavior.
8 The Court of Appeal found that petitioner was in custody for purposes of Miranda when
9 Lonteen told petitioner he could only leave after officers searched his phone. Even though the
10 court found a clear distinction between petitioner’s custody status during Meux’s questioning and
11 his status during Lonteen’s questioning, the Court of Appeal did not consider whether a plan to
12 evade Miranda could have originated with Lonteen and been carried out solely by him. The court
13 instead focused on all of the events leading up to petitioner’s confession. There is no reason that,
14 under Siebert, the court should have been so limited in its analysis. Seibert does not require a
15 court to examine the question of intent from the moment the defendant is contacted by the police
16 to the moment he confesses. Lonteen walked into the interview room knowing a witness had
17 identified a light-skinned person running from the scene and immediately placed petitioner in
18 custody by refusing to allow petitioner to leave when petitioner asked to do so. Lonteen did not
19 testify that he thought petitioner had been Mirandized at that point. Rather, he testified that he
20 did not know. Lonteen then jumped into intensive questioning to get petitioner to tell him the
21 “whole story.” On the record before this court, it is hard to credit the officers’, and particularly
22 Lonteen’s, testimony that petitioner was not a suspect in at least some aspect of the crimes.
23 As stated in the prior section, the Court of Appeal’s decision indicates the court looked to
24 the objective evidence from the video and some parts of the suppression hearing to uphold the
25 trial court’s determination that there was no plan to evade Miranda. It’s worth noting that, to the
26 extent the Court of Appeal relied on the trial court’s findings, the trial court specifically found
27 only that the officers’ testimony showed no “policy” to evade Miranda by using a two-step
28 interrogation process. Seibert does not require proof of a departmental policy to use a two-step
1 interrogation procedure. Rather, the question is whether the officers deliberately did so. Seibert,
2 542 U.S. at 621-22 (Kennedy, J., concurring in the judgment).
3 While this court is troubled by the state courts’ findings, federal court review is extremely
4 limited:
5 Regardless of the type of challenge, “[t]he question under AEDPA is
not whether a federal court believes the state court's determination
6 was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465,
7 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Thus, if a petitioner
challenges the substance of the state court's findings, “it is not
8 enough that we would reverse in similar circumstances if this were
an appeal from a district court decision.” Taylor, 366 F.3d at 1000.
9 “Rather, we must be convinced that an appellate panel, applying the
normal standards of appellate review, could not reasonably conclude
10 that the finding is supported by the record.” Id.
11 Hibbler, 693 F.3d at 1146. The normal standard of appellate review, as described by the Court of
12 Appeal in this case, is whether the trial court’s decision was supported by substantial evidence.
13 (ECF No. 17-13 at 15-16.) Thus, federal court review is “doubly deferential.” “Because the
14 federal court defers to the state reviewing court’s determination of the facts, and the reviewing
15 court defers to the trial court's determination of [a witness’s] credibility. This doubly deferential
16 standard means that ‘unless the state appellate court was objectively unreasonable in concluding
17 that a trial court’s credibility determination was supported by substantial evidence, we must
18 uphold it.’” Sifuentes v. Brazelton, 825 F.3d 506, 517-18 (9th Cir. 2016) (quoting Briggs v.
19 Grounds, 682 F.3d 1165, 1170 (2012)); see also Rice v. Collins, 546 U.S. 333, 341-42 (2006)
20 (that reasonable minds might disagree about a factual finding “does not suffice to supersede the
21 trial court's credibility determination” on habeas review).
22 The federal court may not substitute its judgment for that of the state court. The question
23 is whether “‘a fairminded jurist could reach a different conclusion.’” Oliver v. Davis, 25 F.4th
24 1228, 1236 (9th Cir. 2022) (quoting Shinn, 141 S. Ct. at 524). With these standards in mind, the
25 United States Supreme Court has, in some circumstances, refused to defer to a state court factual
26 finding. In Miller-El v. Cockrell, 537 U.S. 322, 347 (2003), the Court examined a state court’s
27 ////
28 ////
1 resolution of a Batson claim.8 The Court noted that the state courts “made no mention” of
2 evidence showing prosecutors asked the trial court to “shuffle” the potential jurors only when the
3 next jurors to be questioned were African American and evidence of the district attorney’s
4 historical record of purposeful discrimination. While the Court “adhere[d] to the proposition that
5 a state court need not make detailed findings addressing all the evidence before it,” it found the
6 state court’s failure to consider the evidence “does not diminish its significance.” The Court
7 found, in light of that evidence, that the state court’s finding that the defendant had not made a
8 prima facie showing of discrimination was “clear error.” Miller-El, 537 U.S. at 347.
9 As set out above, this court’s concerns about the state court credibility determination
10 revolve around the state court’s failure to explicitly state it had considered evidence that might
11 put the officers’ credibility in question. However, “a state court's written opinion is not required
12 to mention every relevant fact or argument in order for AEDPA deference to apply.” Lee v.
13 Comm’r, Alabama Dep’t of Corr., 726 F.3d 1172, 1223 (11th Cir. 2013); Miller-El, 537 U.S. at
14 347; cf. Harrington v. Richter, 562 U.S. 86, 98 (2011) (“The statute refers only to a ‘decision,’
15 which resulted from an ‘adjudication’ . . . determining whether a state court's decision resulted
16 from an unreasonable legal or factual conclusion does not require that there be an opinion from
17 the state court explaining the state court's reasoning.”); Johnson v. Williams, 568 U.S. 289 (2013)
18 (same reasoning applies where state court opinion decides some, but not all, claims explicitly).
19 In the present case, the trial court ruled on the credibility of the officer witnesses after
20 holding an evidentiary hearing and giving petitioner the opportunity to develop the record.
21 “Absent clear and convincing evidence” to the contrary, this court “must defer to the trial court's
22 credibility determination.” Rhodes v. Roe, 61 F. App’x 380 (9th Cir. 2003) (citing 28 U.S.C. §
23 2254(e)(1)); see also Mann v. Ryan, 828 F.3d 1143, 1153 (9th Cir. 2016) (“Our review of the
24 state habeas court's credibility determinations is highly deferential.”); Davis v. Ayala, 576 U.S.

25
8 The Court in Miller-El did not rule directly on the merits of the petitioner’s case. Rather, the
Court considered whether the Court of Appeals erred when it refused to grant the petitioner a
26
certificate of appealability (“COA”). The standard for granting a COA is whether “a petitioner
27 has made a substantial showing of the denial of a constitutional right.” Miller-El, 537 U.S. at 336
(internal quotation marks and citations omitted). Nonetheless, the Supreme Court in Miller-El
28 was clear that the state court’s failure to consider certain evidence was error.
1 257, 271 (2015) (“State-court factual findings, moreover, are presumed correct; the petitioner has
2 the burden of rebutting the presumption by ‘clear and convincing evidence.’” (citing Rice v.
3 Collins, 546 U.S. 333, 338-39 (2006).).
4 The officers testified they did not believe petitioner was a suspect and their intensive
5 questioning was designed to get information he may have learned as a witness or from the
6 perpetrators after the crimes. The video does show some confusion on the part of the officers
7 involved, starting with the arrest based on a non-existent warrant. And, the officers testified that
8 they were surprised when petitioner confessed to the murders.
9 “Although the record contained evidence supporting [petitioner’s] assertions,” the Court
10 of Appeal could have “reasonably determined that substantial evidence supported the trial court's
11 credibility findings” and conclusions. Reno v. Davis, 46 F.4th 821, 837 (9th Cir. 2022) (citing
12 Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Given the strict standards for federal review
13 under 28 U.S.C. §2254(d), this court concludes that petitioner fails to show the Court of Appeal’s
14 decision was based on an unreasonable interpretation of the facts.
15 3. Prejudice from Admission of First Confession
16 Petitioner’s final argument on his Miranda claim is that admission of the first confession
17 was so prejudicial that he was deprived of due process. The erroneous admission of petitioner’s
18 first confession is subject to the harmless error analysis. Neder v. United States, 527 U.S. 1, 18
19 (1999); Ghent v. Woodford, 279 F.3d 1121, 1126 (9th Cir. 2002). In reviewing the prejudicial
20 effect of the erroneous admission of petitioner’s first confession in a habeas case, the question is
21 whether the erroneously admitted evidence had a “substantial and injurious effect or influence in
22 determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Bains
23 v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000).
24 The Court of Appeals found the Miranda error did not prejudice petitioner. It held that
25 petitioner’s “warned statements fully encompassed his unwarned statements, were more detailed,
26 and included his spontaneous and vivid reenactment of the crimes.” Further, there was nothing in
27 the unwarned statement that was not repeated during the warned statement. (ECF No. 17-3 at
28 12.)
1 This court agrees that petitioner fails to show prejudice. Because petitioner’s second,
2 admissible, confession told the same story with additional detail, admission of the first confession
3 would not have had a substantial and injurious effect or influence on the jury’s verdict.
4 In sum, the decisions of the Court of Appeal that officers did not engage in a two-step
5 interrogation procedure, that petitioner’s waiver of his Miranda rights was voluntary, and that
6 petitioner was not prejudiced by admission of the first confession are not contrary to or an
7 unreasonable application of clearly established federal law or based on an unreasonable
8 determination of the facts. This court recommends petitioner’s Miranda claim be denied.
9 II. Unlawful Arrest
10 Petitioner argues his arrest and detention were unlawful and the trial court violated his
11 Fourth Amendment rights when it denied his motion to suppress his statements to police.
12 Respondent counters that Fourth Amendment claims are barred from federal habeas relief
13 pursuant to Stone v. Powell, 428 U.S. 465 (1976).
14 The Supreme Court held that “where the State has provided an opportunity for full and
15 fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas
16 corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was
17 introduced at his trial.” Stone, 428 U.S. at 494; see Newman v. Wengler, 790 F.3d 876, 881 (9th
18 Cir. 2015) (holding Stone survived enactment of AEDPA). “The relevant inquiry is whether
19 petitioner had the opportunity to litigate his claim, not whether he did, in fact, do so, or even
20 whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
21 1996) (citations omitted).
22 In the instant case, petitioner moved the trial court to suppress his statements to police.
23 (ECF No. 17-1 at 67.) While petitioner’s written motion addressed only his Miranda claim,
24 petitioner raised the Fourth Amendment claim in argument on his motion. (See ECF No. 17-3 at
25 150, et seq.) As explained in more detail above, after a hearing on the matter, during which
26 petitioner was allowed to examine witnesses, the judge orally denied the motion on both the
27 Miranda and Fourth Amendment grounds. (ECF No. 17-3 at 35-180.) The judge also issued a
28 written decision. (ECF No. 17-1 at 285-302.) Petitioner raised the Fourth Amendment claim on
1 appeal. The Court of Appeal issued a reasoned decision denying that claim on its merits. (ECF
2 No. 13-3 at 12-14.)
3 In response to respondent’s argument under Stone, petitioner simply states in the traverse
4 that he “rests on the arguments made in the petition.” (ECF No. 32 at 43.) Petitioner does not
5 attempt to argue that Stone is inapplicable or that his Fourth Amendment claim was not fully and
6 fairly litigated in the state courts. This court’s review of the record shows that the state courts
7 provided petitioner with a “full and fair opportunity to litigate” his Fourth Amendment claim.
8 See Stone, 428 U.S. at 494; Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005); Abell v.
9 Raines, 640 F.2d 1085, 1088 (9th Cir. 1981). Accordingly, petitioner’s Fourth Amendment
10 claims should be denied.
11 III. Insufficient Evidence of Premeditation and Deliberation
12 Petitioner argues there was insufficient evidence to support the findings of premeditation
13 and deliberation necessary to a first-degree murder conviction. He further argues there is
14 insufficient evidence of an intent to commit robbery to support a felony murder conviction.
15 A. Legal Standards
16 The United States Supreme Court has held that when reviewing a sufficiency of the
17 evidence claim, a court must determine whether, viewing the evidence and the inferences to be
18 drawn from it in the light most favorable to the prosecution, any rational trier of fact could find
19 the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
20 319 (1979). “A reviewing court may set aside the jury's verdict on the ground of insufficient
21 evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565
22 U.S. 1, 2 (2011) (per curiam). Moreover, “a federal court may not overturn a state court decision
23 rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with
24 the state court. The federal court instead may do so only if the state court decision was
25 ‘objectively unreasonable.’” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme
26 Court cautioned that “[b]ecause rational people can sometimes disagree, the inevitable
27 consequence of this settled law is that judges will sometimes encounter convictions that they
28 believe to be mistaken, but that they must nonetheless uphold.” Id.
1 B. Decision of the State Court
2 Substantial Evidence of Murder
3 Defendant contends no substantial evidence supports the murder
convictions. We disagree with this view of the trial evidence.
4
Much of defendant’s briefing reweighs evidence or chooses between
5 competing inferences, but we must “ ‘review the whole record in the
light most favorable to the judgment to determine whether it
6 discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact
7 could find the defendant guilty beyond a reasonable doubt.’
[Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 504.) Under
8 this standard of review, defendant’s contentions fail.
9 A. Premeditated and Deliberate Murder
10 “ ‘Deliberation’ refers to careful weighing of considerations in
forming a course of action; ‘premeditation’ means thought over in
11 advance. [Citations.] ‘The process of premeditation and deliberation
does not require any extended period of time. “The true test is not the
12 duration of time as much as it is the extent of the reflection. Thoughts
may follow each other with great rapidity and cold, calculated
13 judgment may be arrived at quickly. . . .” [Citations.]’ [Citation.]”
(People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
14
Our Supreme Court has established guidelines for our review, as
15 follows:
16 “The type of evidence which this court has found sufficient
to sustain a finding of premeditation and deliberation falls
17 into three basic categories: (1) facts about how and what
defendant did prior to the actual killing which show that the
18 defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing-what may be
19 characterized as ‘planning’ activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim
20 from which the jury could reasonably infer a ‘motive’ to kill
the victim, which inference of motive, together with facts of
21 type (1) or (3), would in turn support an inference that the
killing was the result of ‘a pre-existing reflection’ and
22 ‘careful thought and weighing of considerations’ rather than
‘mere unconsidered or rash impulse hastily executed’
23 [citation]; (3) facts about the nature of the killing from which
the jury could infer that the manner of killing was so
24 particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to
25 take his victim’s life in a particular way for a ‘reason’ which
the jury can reasonably infer from facts of type (1) or (2).
26
“Analysis of the cases will show that this court sustains
27 verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least
28 extremely strong evidence of (1) or evidence of (2) in
1 conjunction with either (1) or (3).” (People v. Anderson
(1968) 70 Cal.2d 15, 26-27.)
2
The above passage established “guidelines to aid reviewing courts in
3 analyzing the sufficiency of the evidence to sustain findings of
premeditation and deliberation.” (People v. Perez (1992) 2 Cal.4th
4 1117, 1125.) “The Anderson factors, while helpful for purposes of
review, are not a sine qua non to finding first degree premeditated
5 murder, nor are they exclusive.” (Ibid.) Or as we have said before,
the factors are not “a straightjacket on the manner in which
6 premeditation can be proven adequately at trial.” (People v. Gunder
(2007) 151 Cal.App.4th 412, 420.)
7
Here, there is evidence of all three of the Anderson guideline factors.
8
There was evidence of planning because defendant went to what was
9 purportedly expected to be a peaceful and petty drug transaction
while armed with a concealed pistol. (Cf. People v. Sanchez (1995)
10 12 Cal.4th 1, 34 [retrieving knife from kitchen as planning activity];
People v. Wharton (1991) 53 Cal.3d 522, 547 [bringing hammer
11 from garage as planning activity].) He then placed himself outside
Cannon’s car and behind the seated victims. He then shot them
12 multiple times from behind. The jury could infer from defendant’s
course of conduct that he planned the killings from the beginning. It
13 was not required to believe his story that he thought Cannon was
reaching for a weapon and that he shot the seller to protect himself
14 or protect Brown.
15 There was evidence of motives to kill each of the victims. The jury
could find defendant’s plan was to take whatever he could from
16 Cannon, which is why defendant brought the loaded gun in the first
place. The jury could also accept as true defendant’s statement that
17 he shot Elarms to eliminate a witness.
18 The manner of the killings also suggested premeditation and
deliberation. Defendant shot Cannon several times, then shot his
19 companion to eliminate her as a witness, then returned his attention
to Cannon and emptied his pistol into him. Thus, the jury could
20 rationally find that there were two clear intervals in which defendant
could have reflected on the consequences of his actions. (See People
21 v. Stitely (2005) 35 Cal.4th 514, 544 [“ample opportunity to consider
the deadly consequences of his actions”]; People v. Perez, supra, 2
22 Cal.4th at pp. 1127-1128.) The jury also could find firing multiple
gunshots from behind into seated victims “was so particular and
23 exacting that the defendant must have intentionally killed according
to a ‘preconceived design’ ” to kill. (People v. Anderson, supra, 70
24 Cal.2d at p. 27.)
25 The post-shooting conduct also speaks to defendant’s mental state.
The killings allowed defendant (or Brown) to take Elarms’s purse
26 and flee, facts supporting a motive (to steal whatever they could) and
showing a lack of concern for either victim. (See, e.g., People v.
27 Lasko (2000) 23 Cal.4th 101, 112 [“defendant’s actions after striking
the fatal blow were not those of an unintentional killer: he did not
28 call an ambulance, he tried to obscure evidence of the killing”].)
1 In short, the jury was presented with substantial evidence from which
it could find first degree murder of both victims based on a theory of
2 premeditation and deliberation.
3 B. Felony Murder
4 Defendant contends no substantial evidence supports a theory of
robbery murder. Drawing reasonable inferences from the evidence in
5 support of the verdict, we disagree.
6 The jury could infer there was a plan to rob Cannon, making the
killings felony murders. The fact none of the surviving participants
7 to the sale admitted this was the plan does not conclusively negate
that idea, as defendant’s briefing suggests.
8
Brown communicated with the seller using a telephone associated
9 with Lynch. The jury could infer the use of someone else’s telephone
was designed to mask something sinister. The evidence shows the
10 proposed deal was for $70, but Brown and defendant together did not
have enough money to complete the agreed-upon transaction.
11 Defendant brought a loaded pistol to the supposed drug sale. After
the killings, defendant and Brown divvied up the money from one
12 victim’s purse. On these facts, the jury could find both he and
defendant (and perhaps Cober as well) planned a robbery from the
13 beginning.
14 In reaching this conclusion we place no reliance on Cober’s
testimony about a “lick.” That testimony was so confused and
15 contradictory that we will not infer he meant a robbery was planned
that night. (See People v. Raley (1992) 2 Cal.4th 870, 891 [“Evidence
16 is sufficient to support a conviction only if . . . it ‘ “reasonably
inspires confidence” ’ . . . and is ‘credible and of solid value’ ”].) But
17 this does not weaken the other evidence from which the jury could
infer a robbery was planned that night. Accordingly, this theory was
18 supported.
19 (ECF No. 13-3 at 21-23.)
20 C. Discussion
21 Sufficiency of the evidence claims raised in § 2254 proceedings must be measured with
22 reference to substantive requirements as defined by state law. Jackson, 443 U.S. at 324 n.16. As
23 set out above by the Court of Appeal and summarized by the Ninth Circuit, those standards are:
24 Under California law, “[a] verdict of murder in the first degree ... is
proper only if the slayer killed ‘as a result of careful thought and
25 weighing of considerations; as a deliberate judgment or plan; carried
on coolly and steadily, [especially] according to a preconceived
26 design.’” People v. Caldwell, 43 Cal.2d 864, 869, 279 P.2d 539, 542
(1955) (citations omitted). “Deliberation” and “premeditation” must
27 be construed to require “more reflection than may be involved in the
mere formation of a specific intent to kill.” People v. Anderson, 70
28 Cal.2d 15, 26, 73 Cal.Rptr. 550, 447 P.2d 942, 949 (1968).
1 Anderson explains that in reviewing verdicts of first-degree murder,
the court looks to evidence of (1) planning, (2) motive, and (3) facts
2 “from which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have [had] ... a
3 ‘preconceived design’ ” that the jury may infer from either motive or
planning. 70 Cal.2d at 26–27, 73 Cal.Rptr. 550, 447 P.2d at 949.
4 Such verdicts are typically sustained “when there is evidence of all
three types”; otherwise, there must be “at least extremely strong
5 evidence of (1) or evidence of (2) in conjunction with either (1) or
(3).” [fn 3] 70 Cal.2d at 27, 73 Cal.Rptr. 550, 447 P.2d at 949.
6
[fn 3] We note the California Supreme Court's admonition,
7 however, that the “Anderson analysis was intended only as a
framework to aid in appellate review; it did not propose to
8 define the elements of first degree murder .... The Anderson
guidelines ... are not a definitive statement of the
9 prerequisites for proving premeditation and deliberation in
every case.” People v. Hawkins, 10 Cal.4th 920, 957, 42
10 Cal.Rptr.2d 636, 897 P.2d 574, 595 (1995) (internal citations
and quotation marks omitted).
11
12 Davis v. Woodford, 384 F.3d 628, 639-40 (9th Cir. 2004)
13 This court reviews the decision of the Court of Appeal to determine whether it was
14 objectively unreasonable under 28 U.S.C. §2254(d). The Court of Appeal examined each of the
15 Anderson factors to determine if it was supported by “substantial” evidence. California courts
16 define “substantial evidence” as “evidence which is reasonable, credible, and of solid value-such
17 that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” People
18 v. Johnson, 26 Cal. 3d 557, 578 (1980). The Court of Appeal found substantial evidence of all
19 three Anderson factors.
20 First, the court found evidence showing planning. The court noted that there was
21 evidence that petitioner brought a gun, stood near the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10053162. Public record. Not legal advice.