People v. Johnson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL RAYMOND JOHNSON,

Defendant and Appellant.

S070250

Ventura County Superior Court

CR 39376

January 3, 2022

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger,

and Jenkins concurred.

Justice Liu filed a dissenting opinion, in which Justice Lavin*

concurred.

__________________________

* Associate Justice of the Court of Appeal, Second Appellate

District, Division Three, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. JOHNSON

S070250

Opinion of the Court by Groban, J.

A jury convicted defendant Michael Raymond Johnson of

first degree murder (Pen. Code, § 187), attempted murder (Pen.

Code, §§ 187, 664), one count each of kidnapping and spousal

rape (Pen. Code, §§ 207, subd. (a), 262, subd. (a)(1)), and of being

a felon in possession of a firearm (Pen. Code, former § 12021,

subd. (a)(1)). It found true the special circumstances of

intentionally killing a peace officer engaged in the performance

of his duties, and murder during the commission of a kidnapping

(Pen. Code, § 190.2, subd. (a)(7), (17)(B)), as well as various

sentencing enhancements. The jury returned a verdict of death

at the penalty phase. The court denied the automatic motion to

modify the verdict (Pen. Code, § 190.4, subd. (e)), imposed the

death sentence, and imposed stayed sentences for the remaining

counts. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

We affirm the judgment.

I. THE FACTS

According to the evidence presented at his trial, in July

1996, defendant armed himself and kidnapped his wife, G.A.,

from her workplace. She eventually accompanied defendant to

a remote mountain area where he forced her to engage in sexual

activity. Later that day, after defendant and G.A. had returned

to G.A.’s home, the police, responding to a 911 call, arrived and

removed G.A. from the house. Defendant then shot and killed

one officer at the scene, 26-year-old Ventura County Deputy

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Sheriff Peter Aguirre, and fired several rounds toward another

officer, Deputy Sheriff James Fryhoff, who was able to disable

defendant with return gunfire.

A. Guilt Phase

1. Prosecution Evidence

Defendant and G.A. married in 1985 but they had little

contact over the following years. They reestablished contact and

began a romantic relationship in early 1996. G.A., her 15-year-

old daughter from a different relationship, D.G., and D.G.’s

boyfriend, Francisco, lived together in a one-bedroom house in

Ojai. Defendant began living at the house with G.A., D.G., and

Francisco in June 1996.

On July 14, defendant and G.A. went to a secluded

mountain area to “make love” at a spot they had visited for this

purpose a few times before. They removed their clothes, but

then defendant became angry and jealous when G.A. told him

she had come there before with D.G.’s father. G.A. explained to

defendant that it was a long time ago, and G.A. and defendant

then had sex.

On an unspecified date around that same time, G.A. was

at home in the shower laughing about something. Defendant,

who was also home, accused her of being in the shower with

Francisco. G.A. told defendant he was “crazy” because she had

been alone in the bathroom and Francisco had been in the living

room with D.G..

On July 15, when G.A. returned home from work, she

learned that defendant had moved out. On the phone, defendant

told G.A. that she was not good enough for him and he wanted

a divorce. He said he moved out because he thought G.A. had

been talking to Francisco in the shower and he was jealous.

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On the afternoon of July 17, defendant came to the

residence where G.A. worked as a housekeeper, followed her

into the house, and threw a gun on a bed. He had another gun

in his pocket. He told G.A., “I love you, I can’t leave, I have to

stay close to you.” G.A. told defendant that he could not stay

with her because she needed to work. Defendant repeatedly told

G.A. that he had to stay with her, “every minute of every day.”

He told her he would take her to Wisconsin but that they first

needed to rob a bank because they did not have money. G.A.,

who was doing laundry while they spoke, explained that she

needed to work to support her daughter and could not leave.

Defendant said he would take G.A. by force.

G.A. had not seen defendant like this before. He was

acting strangely, “crazy,” and speaking rapidly and loudly. He

had a pistol and became angry when G.A. tried to convince him

to give her the pistol. He mentioned a movie he was going to

write that they had previously joked about, called “Crazy Love,”

which was a story in which defendant thought he and G.A. were

both crazy. He told G.A. they were in the movie at that moment.

While defendant and G.A. were still at her employer’s

house, defendant told G.A. he wanted her to remove Francisco

from her home. G.A. called her daughter at G.A.’s house and

told her that she and Francisco needed to leave, mentioning that

defendant had two “pistolas.”

Shortly after, G.A.’s employer called to tell G.A. she was

free to leave. To convince defendant to leave, G.A. suggested

they go for a ride. She suggested they each leave in their own

car, but defendant insisted they travel in one car. They left for

G.A.’s house.

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When they arrived at G.A.’s home, D.G. and Francisco

were still there, along with other children. Defendant said

everyone could stay except Francisco. G.A. insisted that

everyone leave because she was afraid defendant might shoot

the children. G.A. did not feel that she could get away from

defendant. She told defendant, “Let’s go cruising.” Because he

believed he was being followed, defendant took D.G.’s dog with

them because it would bark when it saw people it did not

recognize.

They returned to the mountain spot they had visited on

July 14. Defendant wanted to move further up the mountains,

but G.A. did not want to, so defendant stopped where they were.

G.A. testified that defendant kept looking around, “scared,” and

said that someone was following him. They brought pillows and

a blanket from the car, secured the dog to a tree, undressed, and

lay down. G.A. explained that she removed her clothes because

defendant was removing his clothes like they had done at this

location a few times before to have sex, but they had never before

had sex while defendant possessed guns.

G.A. testified at trial that defendant then got on top of her

and tried to have sex. She testified that defendant was unable

to get an erection or ejaculate and did not penetrate her vagina.

But she remembered telling Sergeant Garcia that they had sex.

The jury heard G.A.’s grand jury testimony in which she said

that defendant was able to insert his penis inside her vagina “a

little bit.”

After about 20 minutes, G.A. told defendant, “Let’s go,”

because the mosquitos were biting her. Defendant packed

everything up and they left for G.A.’s home. After they arrived

at the house, D.G., who had left the house earlier, called G.A.

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and asked if she should call the police. G.A. said yes. D.G. called

and informed an emergency operator that G.A. was in danger,

that defendant had two guns, and that he had made G.A. remove

D.G. from the house. D.G. reported that defendant had a

criminal record and was planning to rob a bank. Police were

dispatched to G.A.’s house.

At the house, defendant wanted to have sex but G.A. told

defendant to take a shower. G.A wanted to distract defendant

and for him to surrender to the police. Defendant told G.A. to

take a shower with him, so they got in the shower together.

While showering, defendant kept the guns on a window ledge

near his hands. At no point that day did G.A. feel she could get

away from defendant.

Meanwhile, Deputies Aguirre and Steven Sagely

responded to the domestic disturbance call, with Deputies

Fryhoff and David Sparks responding as backup. Fryhoff and

Sparks took positions at the rear of the house while Aguirre and

Sagely approached the front and knocked on the front door.

Knowing it was the police, G.A. went to the front door in

her towel. Sagely saw G.A. appearing upset, like she had been

crying and she was trying to speak. As G.A. was stepping

outside and Aguirre was stepping inside, G.A. told the officers

that defendant had guns.

The officers remaining outside then heard rapid gunfire

from inside the house. While looking in a window, Fryhoff

observed defendant running for the front door, so Fryhoff ran

toward the front of the house. As he rounded the front corner,

he saw defendant on the front lawn, face Fryhoff and fire several

rounds toward him. While taking cover, Fryhoff was able to

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shoot defendant in the chest, and then saw him lying naked on

his back with two guns nearby.

The officers found Aguirre inside the house, lying on his

back, between a wall and a large potted plant in a corner,

“[b]leeding profusely from the face,” and struggling to breathe.

Deputy Aguirre died from his injuries that were caused by

gunshot wounds. His gun was fully loaded and holstered.

After the shootout, defendant was taken into custody and

transported to a hospital for treatment of his chest gunshot

wound. Psychiatrist Donald Patterson, retained by the district

attorney’s office, interviewed defendant that night while he was

receiving treatment in a hospital emergency room.

The prosecution played portions of the interview during

the trial. Defendant described his intense feelings of jealousy

for G.A. and belief that she was unfaithful. He confessed to

kidnapping her at gunpoint. He also described jumping out from

behind a wall and shooting Aguirre after he saw the police

pulling G.A. out of the house. He described feeling as if he had

been in a movie that afternoon but explained that he was

conscious of what he had done and that his acts had been a

passive suicide attempt.

The prosecution presented expert testimony on three

subjects — Deputy Aguirre’s gunshot wounds, bullet forensics,

and blood spatter patterns — to support its theory that

defendant shot and killed Aguirre in an execution style. As to

the first subject, Deputy Aguirre’s gunshot wounds, he suffered

three — one in his left arm and two entering the left and right

side of his forehead — all with exit wounds. The medical

examiner, who autopsied Aguirre’s body, opined: Each of the

head gunshot wounds likely caused instantaneous loss of

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consciousness and motor skills. Aguirre would have been

incapable of shielding himself once he received the first of the

head wounds. Based on stippling wounds on Aguirre’s right

forehead, the gun’s muzzle was approximately 12 to 18 inches

from Aguirre’s head when the bullet entered the right side of his

forehead. Stippling wounds are caused when the muzzle of a

gun is sufficiently close to the target so that gunpowder released

with the bullet’s discharge impacts the skin and causes injuries.

Second, the prosecution’s ballistics expert opined: The

trajectory of a bullet that passed into the floor in the part of the

house where Aguirre was shot was consistent with being the

final shot into Aguirre. Two magazines of ammunition found in

a fanny pack in the home and two boxes of ammunition found in

a suitcase in defendant’s car were consistent with those fired

from the Colt .45-caliber and Beretta .32-caliber semiautomatic

handguns found outside near defendant when he was arrested.

Third, a blood spatter analyst testified about the three

areas of blood spatter events on the walls and objects in the area

where Deputy Aguirre was shot. The expert opined: One of the

blood spatter deposits, indicating a high velocity event

(gunshot), occurred while Aguirre’s head was about 13 inches

from the floor, facing up, between a wall and a potted plant in

the corner. The bullet trajectory that went into the floor was

consistent with the bullet wound in Deputy Aguirre’s right

forehead that had the stippling pattern. A spatter pattern on

Aguirre’s hand suggested that it had been in a defensive

position.

The prosecution also presented evidence about

defendant’s criminal record to show he faced a potential life

sentence when he armed himself on the day of the shooting. A

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Ventura County deputy district attorney testified as an expert

on sentencing, that defendant had served a prison term and had

convictions for five felonies including two serious felonies. He

explained that a person with two prior serious felonies faced a

sentence of 25 years to life upon conviction of a new felony.

Defendant’s parole officer from 1991 testified about his practice

of reviewing with parolees the conditions of their parole prior to

their release date, including the requirement that parolees must

refrain from possessing firearms. He would advise parolees that

it is a felony for a felon to possess a firearm. He recalled

defendant signing a parole form that informed defendant that

he was prohibited from possessing firearms.

2. Defense Evidence

To contest the prosecution’s case on premeditation, the

defense presented wound ballistics, crime reconstruction, and

optometry evidence, as well as evidence of defendant’s behavior

immediately after the shooting. To contest the special

circumstance allegations of intentionally killing a peace officer

engaged in the performance of his duties, and murder during the

commission of a kidnapping, it also presented an expert on

police practices and evidence that defendant did not kidnap G.A.

A defense expert on wound ballistics, Dr. Martin Fackler,

opined that based on the forensic evidence, which included

Deputy Aguirre’s stippling wound and the angles of bullet

trajectories within G.A.’s house, it was impossible to determine

the sequence of the shots fired and whether Aguirre or

defendant or both were in motion when the shots were fired. It

was possible that defendant shot Aguirre deliberately after

Aguirre was on the ground, but it was also possible, and a “little”

more likely based on the rapidity of the shots, that defendant

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shot Aguirre while defendant was running by, and Aguirre was

falling to the ground.

The crime scene reconstructionist similarly opined that

the physical evidence did not support conclusions as to the

sequence of shots fired and whether the shooting was execution

style, but rather that the evidence was consistent with

defendant firing the gun while either or both he and Deputy

Aguirre were in motion and that the final shot to Aguirre’s head

occurred while he was incapacitated and falling but not yet on

the ground. He viewed the “scene as a dynamic, fast-moving

sequence of events” with continuing changes in the position and

distance between defendant and Deputy Aguirre. Defendant

could have been running by as he fired the gun.

An optometrist who examined defendant in 1994 testified

that defendant had 20/400 vision, which meant that he could

only see at 20 feet what a person with normal vision could see

at 400 feet. Movement and backlighting also affect a person’s

vision. A person with 20/400 vision, however, could discern

whether a person was lying on the ground, the location of the

person’s head, whether he was wearing a badge and gun belt,

and whether he was bleeding.

To show that defendant’s behavior was rash and

delusional rather than premeditated, the defense additionally

presented testimony of a sheriff’s deputy, that he heard

defendant repeatedly mumbling “Hare Krishna” while he lay

naked on the ground after the shootout with Fryhoff.

As part of its challenge to the special circumstance of

shooting a police officer while engaged in the performance of his

duties, the defense presented the testimony of Roger Clark, an

expert on police practices. Clark opined that under the

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circumstances, a reasonable and well-trained officer would not

have concluded that exigent circumstances warranted police

entry because the purported victim was already outside and

nothing “was emanating from inside the house to indicate that

there [was] a crime being committed or someone in danger

which would create the emergency for the officer, necessitate the

officer to go in.” A reasonable officer would have coordinated

with his partners instead of entering the house.

Regarding the kidnapping offenses including the

kidnapping special circumstance, the defense read into the

evidence the following portions of Sergeant Garcia’s interview of

G.A.: Garcia asked G.A. if defendant made any threat like he

would kill or shoot her if she would not come with him. G.A.

responded that defendant showed her the gun but did not point

it at her and that he told G.A. that if she did not come with him,

he would stay with her because he did not want to be without

her for one minute. She told Sergeant Garcia that she felt afraid

and hurt because defendant had forced G.A. to remove her

daughter from the house that day. Because defendant had guns,

G.A. explained that she was forced to leave with him so that

there was “no danger to my children.” Defendant did not at any

time that day say anything to G.A. about shooting or killing

anyone.

3. Rebuttal Evidence

The prosecution presented a police practices expert, who

opined that under the circumstances, a reasonable police officer

would determine that immediate entry into G.A.’s home was

necessary to protect the officers and the purported victim, G.A.,

because the lighting conditions did not allow the officers to see

inside, and because the police needed to investigate an ongoing

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domestic disturbance situation. Without entering the house,

Aguirre would have been unable to fulfill his role as the officer

protecting the contacting officer because he was not in a position

to determine where “the threat” was coming from. A reasonable

police officer would not believe that retreat or doing nothing was

a safe alternative because of the limited opportunity for the

officers to conceal themselves and the limited exit available from

the gated property. Officers are trained to respond quickly in

this scenario.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence of the impact of 26-

year-old Aguirre’s death on his family, friends, and fellow

officers (Pen. Code, § 190.3, factor (a)), defendant’s criminal

activity involving the use or threatened use of force or violence

(id., factor (b)), and his prior felony convictions (id., factor (c)).

Deputy Aguirre and his wife met in high school and had a

three-year-old daughter for whom Aguirre was the primary

caretaker while both he and his wife worked. Aguirre’s wife

described the pain and loss she felt. Their daughter also felt the

loss and had continued to ask when her father was returning.

Aguirre’s daughter had been unable to continue kindergarten.

Aguirre’s mother described Aguirre’s generosity, close

relationship with his daughter, and educational aspirations,

and described seeing Aguirre’s injured body at the hospital and

the effect of his death. Aguirre’s sister-in-law described the

positive influence and support Aguirre had provided when she

was struggling with substance abuse and teenage motherhood.

Aguirre’s childhood best friend described his struggle with

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Aguirre’s death and recalled Aguirre’s positive qualities

including his sense of humor.

Fryhoff, Sparks, and other officers also described Aguirre

as a kind, religious family man, and described their deep

feelings of loss and guilt and the long-lasting impacts that

Aguirre’s death had on the sheriff’s department. They described

the experience of discovering Aguirre bleeding and dying in the

house and the trauma experienced by the sheriff’s department

that day.

A local teenager remembered Aguirre’s approachability

and that he stood out as an officer who showed an active interest

and support toward him and other teenagers in the community.

The prosecution presented three incidents of criminal

activity in which defendant used force or violence. In December

1986, defendant carjacked a woman at gunpoint, throwing her

purse out the window when she exited her car. Defendant had

also robbed a McDonald’s restaurant at gunpoint. In November

1993, someone in a white truck hit pedestrian Johnny Reeves,

collided with a parked vehicle, and drove away. In 1995,

defendant reported to the sheriff’s department that in

November 1994, after his brother told him that gang members

had assaulted him, defendant had gotten in his truck and

started driving because he had decided to hit the first person

who he saw that looked like a gang member. He saw a

pedestrian that he thought fit the description, hit him, and

drove off, possibly hitting another car. Defendant reported the

incident to take responsibility as part of his Alcoholics

Anonymous (AA) efforts and explained he had also reported it to

the sheriff’s department a year earlier.

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The prosecution reminded the jury of the guilt phase

evidence concerning defendant’s prior felony convictions.

2. Defense Evidence

Pursuant to Penal Code section 190.3, factors (d), (h), and

(k), the defense presented evidence that defendant struggled

with schizophrenia and his crimes derived from his mental

disease, he served in the army during the Vietnam War under

difficult conditions, he would make a positive adjustment to

prison, he had worked as a rehabilitation counselor, and he had

sought help for his mental health difficulties.

Defendant served in the military starting in 1965 at age

18 and was stationed in Vietnam under dangerous conditions.

His battery unit second commander remembered defendant as

a “hard worker” and a “smart kid.” Another soldier serving in

the same unit testified that defendant served as a radio

telephone operator (RTO), which was a “very hazardous”

assignment that usually required volunteers because most

RTOs would be “cracking up or burning out.” Defendant served

as an RTO on more than one occasion. Defendant was once

found absent without leave while in Vietnam and was “issued

an undesirable discharge certificate.”

Defendant’s mother observed he was “quiet and

withdrawn” after returning from the Vietnam War. After he

returned, he would often be gone for long periods of time and

show up unexpectedly, homeless. During the early 1990s,

defendant exhibited odd behavior around food, such as having

bad dreams when he ate pork and asking his parents to remove

bacon fat from the refrigerator because he believed it was

contaminating his food.

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In 1981, defendant worked in exchange for room and board

for Jane Siemon, a Wisconsin dairy farmer. One day, Siemon

sent some soup to her husband and defendant while they were

working on the farm. Defendant, believing Siemon was trying

to poison him, refused to eat her cooking for the remaining

several months on the farm.

A Ventura County social worker performed a psychiatric

assessment of defendant in 1994 and concluded he had organic

delusional disorder related to brain damage from the “heavy

use” of marijuana, LSD, and amphetamines. She based her

conclusion on defendant’s description of several delusions, e.g.,

that he was in an “underground” war against those who sought

to brainwash “organic eaters” by poisoning the food, water, and

air. Defendant believed that “people who inhabit the real

world,” including his parents, sought to control and read his

mind. Defendant’s self-reported story of hitting a pedestrian

believing he was a gang member was evidence of delusional

disorder. Defendant did not appear to be seeking “benefits,” but

instead wanted treatment because he believed himself to be a

danger to others and wanted to rehabilitate himself so that he

could return to work.

A county drug and alcohol counselor saw defendant for six

months in 1994. Defendant had sought help because he believed

he was a danger to himself or others. He explained in a letter

to the counselor that he had stolen his employer’s car, but that

the employer had agreed “to drop all charges” if defendant would

seek mental health treatment. Defendant did not miss

appointments, which he would attend by bicycling from Ventura

to Ojai and appeared “[v]ery much” committed to his

rehabilitation. But defendant was also facing homelessness and

feared returning to prison.

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County psychologist Lisa Kus diagnosed defendant in

1994 with organic delusional disorder based on his history of

substance abuse. Several months later, when defendant

returned because his delusions were persisting, she referred

him to a psychiatrist who prescribed an antipsychotic

medication. Another psychiatrist on the staff, however,

evaluated defendant and concluded that he did not need

medication. Dr. Kus did not diagnose defendant with

schizophrenia because she could not rule out that his delusions

were unrelated to his substance abuse history, but she was “very

confident” he suffered from a delusional disorder and described

at length the delusions he had self-reported. She noted that

defendant had stated that he believed he needed to maintain his

sobriety because he did not want to go back to jail, but that he

appeared sincere in seeking help.

A county psychiatrist saw defendant in 1995 and

prescribed him with Haldol, an antipsychotic medication. The

psychiatrist observed defendant to exhibit symptoms of delusion

including the belief that his son wanted to harm him and had

staged an event to intimidate him.

Defendant earned a certificate of completion for a two-year

alcohol and drug studies program at Oxnard College around

1996. Defendant’s professor in the program said defendant was

an “excellent student.”

Defendant volunteered as a counselor during 1995 and/or

1996 in a Salvation Army substance abuse rehabilitation

program. Defendant’s supervisor, who was the director of the

program, said defendant was a “superior” worker and “very

committed,” “extremely caring,” and an “extremely good

listener.” He had one of the “highest graduation rate[s]” for his

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caseload of participants and “the actual rehabilitation of the

men that worked for [defendant] was better than most.”

Defendant’s supervisor at Primary Purpose, a recovery home for

addicts where defendant worked as a paid detoxification

specialist in 1995, rated defendant’s work as “excellent” and

“dependable.” Defendant listened well to the clients and

assisted them with placement in long-term programs “very

well.”

Defendant’s supervisor at Tiber House, a sober living

residence for mentally ill men, said defendant was the “best

house manager” the facility had. During his yearlong

employment starting in 1995, defendant demonstrated that he

cared “very much” about the residents, providing counseling and

support “[e]very chance he got,” often at his own expense and

time. Defendant was a “very good listener,” and was viewed as

compassionate and trustworthy. Defendant also appeared to “be

struggling with something,” and was committed to his own

recovery and “constantly attending” AA meetings. Defendant’s

role was to counsel the residents and oversee the house, and he

received free board in exchange.

Psychologist Charles Hinkin, assistant professor at the

University of California at Los Angeles School of Medicine and

director of the neuropsychology assessment lab at the West Los

Angeles VA Medical Center, has treated veterans for brain

diseases including schizophrenia. He reviewed defendant’s

records and the police investigation files and interviewed and

tested defendant for approximately eight hours. Hinkin

concluded defendant suffered from paranoid schizophrenia that

manifested at approximately age 32.

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Hinkin noted that defendant had suffered several

paranoid delusions over the previous 20 years, some of which

defendant had noted in his interview with Dr. Patterson upon

his arrest, such as his belief that he was part of a world of

organic eaters forced underground to wage war against others

and that his parents were Nazis who wanted to poison him

through food. He had also believed that he was a “warrior for

Krishna” and robbed a McDonald’s to show that “killing sacred

cows” was evil. He also had delusions that his father had

molested defendant’s son, that G.A. was having an affair with

Francisco, that he was in a movie on the day of the shooting, and

that his son intentionally made him ill and staged a gang fight

in order to intimidate him. Hinkin noted that defendant also

reported to Patterson that he had experienced a “lot of

hallucinations” while taking Haldol.

Hinkin explained that an example of the “flat affect”

typical of schizophrenia was defendant’s lack of emotional

response during the interview with Patterson and his

explanation to Patterson that he was not feeling any emotion,

where a normal person would have had a “huge emotional

response” to the events on the day of the shooting.

Hinkin testified that defendant’s various test results and

overall history, including accounts of others such as the

Wisconsin farmer, suggested that defendant was schizophrenic

and not feigning mental illness. Defendant had a significant

score on the paranoid schizophrenia scale on a standardized test

he took in 1974.

Hinkin opined defendant suffered from a psychotic episode

of schizophrenia during the shooting and the days preceding it.

Defendant was “under the influence of extreme mental or

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emotional disturbance” that day, his capacity to conform his

conduct to the law was impaired, and he committed the offense

because of the disease. Hinkin noted that defendant had

erroneously believed that Francisco had been in the shower with

G.A., stated he believed he was in a movie, was hysterically

laughing according to an account by G.A. that Hinkin had

reviewed, seemed agitated and scared, kept looking around and

took G.A.’s dog because he thought he was being followed, and

reported to Patterson “kind of having [a] delusion” that day.

James Park, a psychologist and institutional adjustment

expert, reviewed defendant’s correctional records and opined

that defendant would be a “reasonably good prisoner” and good

worker. Defendant had previously received “recognition of

outstanding performance” working on a prison building retrofit

project. Based on research and his experience working in the

Department of Corrections, Park opined that older prisoners

like defendant (age 50 at the time of trial) are more likely to

“conform” and have a positive effect on other inmates.

Defendant had no history of violence in his earlier

incarcerations and was unlikely to be dangerous. The

prosecution questioned Park at length about Park’s background

and work history at the Department of Corrections, and about

prisoners’ access to exercise facilities, cable television, medical

care, education, and visitors.

3. Rebuttal Evidence

The jury heard additional portions of defendant’s

interview with Patterson. In it, defendant described his

evaluations by the various Ventura County mental health staff,

the “real frightening” hallucinations he experienced while

taking Haldol, his attendance in recovery programs, and his

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self-diagnosis of schizophrenia. He described experiencing

delusional thinking when in close emotional relationships such

as with G.A. and with his son. He explained that he did not form

close bonds with friends or family and avoided his son because

he would become “pretty emotional,” and his delusional thinking

would become “amplified.” Defendant experienced “intense

paranoia” and a desire to kill his father when he believed he had

molested defendant’s son. He also described his criminal

history, including robbing a McDonald’s as part of a “religious

battle” and that he “sorta had that delusion today too.” He

explained that he had reported his delusions to prison staff

while he was incarcerated for the McDonald’s robbery.

Patterson had been a court-retained psychiatric expert in

criminal and other matters for over 40 years. He interviewed

defendant on the night of the shooting so he could evaluate his

mental status in that timeframe. Defendant appeared in

contact with reality, unparanoid, nondelusional,

nonhallucinatory, unconfused, responsive, and coherent, and

had well-organized speech.

Patterson also reviewed defendant’s mental health and

other records. He agreed with the Ventura County mental

health professionals’ diagnosis of organic delusional disorder

given defendant’s 20-year history of abusing alcohol, marijuana,

and methamphetamine, but there was not information available

as to how often and what quantity of substances defendant had

consumed. The difference between delusional disorder and

schizophrenia, Patterson opined, was that the former was

characterized by “non-bizarre” as opposed to bizarre delusions,

e.g., believing one’s internal organs have been replaced. The

belief that one was being poisoned or followed, or that a partner

was unfaithful, were examples of non-bizarre delusions because

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such events could actually happen. Paranoid schizophrenics are

characterized by delusions of persecution and are suspicious of

others. The schizophrenic is not in contact with reality, whereas

a person with a delusional disorder can function except in the

areas of his or her delusion. Patterson agreed periods of

remission can occur when the schizophrenic individual is better

functioning, but the paranoia is nonetheless present. The

schizophrenic individual tries to control exposure to upsetting

events to avoid paranoid episodes.

Patterson opined defendant’s delusions were substance-

induced delusions. He acknowledged that the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition (DSM-

IV) ruled out substance-based delusional disorder as a diagnosis

if the subject had been substance free for four weeks. Even

though defendant had denied ingesting drugs for over two years,

Patterson hypothesized that defendant’s belief that his father

had molested his son was the result of drug use. Patterson

acknowledged that defendant had provided a lot of truthful

information in his interview, but believed defendant was trying

to manipulate him.

Patterson concluded defendant was not suffering from

delusional disorder on the day of the shooting and was able to

wholly control his behavior. Defendant was apparently capable

of enjoying sexual relationships with G.A., did not lack

motivation as evidenced by his work at Tiber House and

Primary Purpose, maintained good eye contact during the

interview, and was not scattered in his discussion of topics,

which all indicated the absence of schizophrenia.

Defendant’s classmate at Oxnard College testified that

defendant told her he began using LSD in high school.

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II. DISCUSSION

A. Denial of Defendant’s Motion to Suppress His

Statements Made to Patterson

Defendant contends his rights under the Fifth and

Fourteenth Amendments to the federal Constitution were

violated when, after he had been arrested, law enforcement

representatives repeatedly disregarded his multiple invocations

of both his rights to silence and to have counsel present and

ultimately coerced his confession. The trial court found that

defendant had invoked his rights to silence and to have counsel

and accordingly suppressed some of his statements made during

one of the earlier encounters with law enforcement. The court

found, however, that defendant initiated the later discussion

with Patterson and knowingly and voluntarily waived his

earlier invocation of his rights.

Defendant argues Patterson unlawfully interrogated him

in violation of Miranda v. Arizona (1966) 384 U.S. 436

(Miranda) and Edwards v. Arizona (1981) 451 U.S. 477

(Edwards), ultimately obtaining his admissions and confessions

that were subsequently admitted against him during the

prosecution’s case-in-chief. The Attorney General does not

dispute that defendant initially invoked both his rights to

silence and to have counsel present but contends defendant

himself eventually initiated the communication with Patterson

that led to his statements, and therefore the trial court properly

denied the motion to suppress.

While the issue is close, we agree with the trial court that

the record, particularly the recorded interview, demonstrates

that defendant initiated the conversation freely and that he

knowingly and voluntarily waived his Miranda rights.

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Nonetheless, we are troubled by the earlier law

enforcement conduct. In a three-hour period, while defendant

was at the hospital receiving treatment for a fresh gunshot

wound, law enforcement officials repeatedly approached

defendant to obtain a statement, impermissibly interviewed

him, angrily confronted him about Aguirre’s murder, and sent a

psychiatrist to defendant’s hospital room to interview him.

Within this timeframe, defendant invoked his right to silence

each time he was asked, on four occasions, and on at least two

of those occasions also requested an attorney. The trial court

acknowledged that statements were taken from defendant after

he had invoked these rights and appropriately suppressed

statements related to them. But we agree with the trial court

that defendant initiated the subsequent conversation with

Patterson and did so with a knowing and voluntary waiver and

therefore the statements to Patterson were admissible.

1. Factual Background

a. Earlier Law Enforcement Contacts with

Defendant

After he was arrested, paramedics transported defendant

to Ojai Valley Community Hospital at about 6:15 p.m. for

treatment of his injuries that included the chest gunshot wound.

At approximately 7:00 p.m., Ventura County Sheriff’s Detective

Robert Young contacted defendant in the emergency room to

obtain a statement about shooting Deputy Aguirre. Defendant

was lying in a hospital gurney, naked with a cloth over his lower

body, handcuffed by both hands to the gurney, and connected to

monitors, intravenous fluids, and a urinary catheter.

Young informed defendant he was under arrest for the

suspected murder of a police officer, advised him of his Miranda

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rights, and asked if he was willing to talk. Defendant responded

“no.”

Young then informed Michael Bradbury, the District

Attorney of Ventura County, that defendant had “refused to

waive his Miranda rights and discuss the shooting” but had not

requested legal counsel. At 7:20 p.m., Bradbury approached and

spoke with defendant at his hospital gurney in the emergency

room to verify that defendant was “advised of [his] rights to

remain silent,” did not want to talk to the police, and understood

he would need to initiate further discussion if he decided to talk.

According to Bradbury, defendant opened his eyes, and affirmed

he did not want to talk, stating, “Yes, I feel a little bit in shock

right now. I may want to talk to you later.”

A few minutes later, at approximately 7:30 p.m., Detective

Young and district attorney investigators Richard Haas and

Dennis Fitzgerald contacted defendant at his hospital gurney in

the emergency room to obtain his consent to search G.A.’s

house.1 After defendant gave consent, Haas asked defendant

about his living situation and his occupation. Following

defendant’s response that he was a resident manager at a

facility for patients with a dual diagnosis of mental illness and

chemical dependency, Young asked defendant whether he was

“a patient there or just the, uh, manager?” Defendant responded

he was the manager but that he had “been a mental health

patient,” explaining, “two years ago I went into the mental

health system.” Haas asked for the name of the facility where

1

“Miranda [is] not violated when an officer ask[s] for and

obtain[s] consent to search after the defendant had exercised his

privilege against self-incrimination.” (People v. James (1977)

19 Cal.3d 99, 115 .)

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defendant was the residential manager. Defendant responded,

“Tyber House for men with dual diagnosis.” Haas asked if there

was “chemical dependency as well as mental problems”;

defendant responded, “I have both, I have what they call a dual

diagnosis.” Haas asked, “what was your chemical dependency?”

Defendant responded, “marijuana.” Haas asked, “If we had

someone come out and talk to you like a psychiatrist, would you

be willing to talk to him?” Defendant responded, “Yes, the last

time I talked to one was probably a year and a half ago.” Haas

asked, “[D]o you have a regular one or anything or?” Defendant

responded, “No. A year and a half ago it took me nine months

to see a psychiatrist (unintelligible) I saw a counselor and [then]

a psychologist (unintelligible) psychiatrist.” The investigators

did not readvise defendant of his Miranda rights before asking

these questions. Haas testified at the suppression hearing that

he would have asked defendant if he would speak to a

psychiatrist even if defendant had invoked his right to counsel.

As noted below, the trial court found that Haas and Young

violated defendant’s right to silence by continuing to interview

him after he had given consent to search the house.

At 8:25 p.m., Detective Young returned to defendant’s

hospital room to ask for a statement, reminding defendant he

had purportedly told District Attorney Bradbury that he might

be willing to speak after he felt more comfortable. Defendant

responded “no,” explaining, “I think I told [Bradbury] that, uh, I

think I’m in a state of shock right now and I’m kinda confused

so I’d rather wait to talk to a lawyer, I think that’d be a good

idea.” Young asked defendant if he wanted to talk to a lawyer

and defendant responded, “I think so . . . I think that’d be a good

idea.”

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At about 8:50 p.m., just before leaving the hospital, Young

returned to defendant’s room to address him. Upset, Young told

defendant that he had not just shot a “uniform” but rather had

killed a “living, productive human being, unlike” defendant. He

told defendant that he wanted him to know the name of the

deputy he had murdered, that he was 26 years old and had a

wife and a child, and that he wanted him to remember Deputy

Aguirre and his family “every minute of every day for the rest of

his life.” According to Young and a nurse who overheard the

encounter, defendant responded that he sensed that Young was

angry.

b. Patterson Contacts Defendant

Defendant was then transferred to another hospital.

There, psychiatrist Donald Patterson began observing

defendant in the hospital’s trauma observation room starting at

approximately 9:15 p.m. The district attorney’s office had called

Patterson on the evening of the homicide and retained him to

interview defendant close in time to the events that day to

evaluate his mental state as a homicide suspect. Patterson had

conducted 17 such evaluations of homicide suspects on behalf of

the district attorney’s office in the previous six years. He

explained that his purpose was to determine defendant’s mental

status close in time to the earlier events that day but that

“eliciting incriminating information” . . . “was not the purpose of

my interview.”

Deputy District Attorney Richard Holmes, along with a

district attorney investigator, met Patterson at the hospital,

gave him a tape recorder and a Miranda advisement card, and

instructed him to contact defendant. Patterson was aware that

the district attorney’s office would be paying his fee. Holmes

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informed Patterson that defendant had been advised of his

Miranda rights and had been unwilling to talk but had stated

he might be willing to talk later. Holmes confirmed Patterson

was there to engage defendant in conversation, explaining at the

suppression hearing that he told Patterson: “I’d like you to go

in and do your usual thing, advise him of his rights, tell him who

you are, who you work for, and see if he wants to talk now.”

Holmes was unaware that defendant had invoked his

right to counsel to Detective Young. Had Holmes known

defendant had invoked his right to counsel earlier in the

evening, he would not have permitted Patterson to speak with

defendant. Holmes explained, “[b]ecause it’s improper. If — if

someone has unequivocally invoked counsel, it’s improper for

law enforcement to contact him. And I would — I would stay

absolutely away from there.” He testified further, “[I]t’s not at

all proper if they’ve invoked their right to counsel, and I just

simply stay away from — if somebody invokes the right to

counsel, I would let Dr. Patterson watch and observe and that

would be it.”

Patterson observed defendant for about an hour during

which a surgery resident evaluated defendant’s injuries. In

Patterson’s presence, defendant reported to the surgery resident

that he was experiencing chest and neck pain, and discomfort

and numbness, and noted to the surgery resident his

understanding that it was “against the rules to give prisoners

anything for pain.” The surgery resident explained, “it’s not

against the rules, however, the doctor needs to evaluate you

when you’re not under the influence of any medication because

if we give you something that altered your sensorium. Then

we’re not gonna be able to treat[]you appropriately so when the

doctor says that they’ve gotten all the information that they

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need, then that will be —” The surgery resident testified at the

hearing that she told defendant this — that she needed to delay

the administration of pain medication — so that the surgery

resident could assess defendant. Defendant was still

handcuffed to his gurney and connected to monitors,

intravenous fluids, and a urinary catheter.

At approximately 10:04 p.m., Patterson introduced

himself to defendant as “a psychiatrist from Santa Barbara.”

Defendant responded, “I heard you were going to come here.”

Patterson told defendant “the DA’s office [had] asked me to come

and talk with ya.” Defendant responded, “Great.”

Regarding defendant’s Miranda rights, Patterson told

defendant: “And I have to advise you of your rights the same as

you’ve probably been advised already, namely that you don’t

have to cooperate with us, you have the right to remain silent,

don’t have to talk with me or ask — tell me anything about

yourself or answer any of my questions.” He said further, “And

anything you say could be used against you in a court of law. I

will make a report of it, and you subsequently will see it, a copy

of my report, and if you can’t afford to provide yourself an

attorney at this point, it’s the responsibility of the County of

Ventura to obtain such legal aid for you, get you an attorney.”

Patterson did not tell defendant that he had the right to have an

attorney present before and during the questioning.

Patterson asked, “So, the next thing then in knowing these

things, are you willing to talk with me about yourself?”

Defendant declined to talk, explaining, “I don’t think so. I’m

facing very serious charges and I think I’d rather talk to a

lawyer first.” He stated further, “That be okay? I think right

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now I’m in a state of shock and kind of confused and I don’t know

that the information I’d give you would be that accurate.”

Patterson responded, “I see. Well, that’s your decision,

you have to make that — ” Defendant repeated, “that’s the

decision I’ve made.” Patterson responded, “I’m gonna just stay

around here with you and let you get back from X-ray and see

how you’re getting along and see if you still feel, feel that way

or — [¶] . . . [¶] — cause at some point you did say that you

would be willing to talk to me and so —.” He stated further,

“And it’s up to you, you can still refuse it, but you did say that

at one time.”

Defendant responded, “I did say that, yeah.” Patterson

stated, “So I, I’ll wait a little bit and they’re gonna take you over

to X-ray and get going and get these other things, your medical

condition taken care of. But I’ll be around for a little while.”

Defendant responded, “Alright.”

After this exchange, Patterson stepped out of the room

momentarily to inform Deputy District Attorney Holmes, who

had been waiting in the hallway, that defendant had refused to

waive his Miranda rights. Holmes testified Patterson did not

tell him that defendant had invoked counsel but instead told

him that defendant had declined to talk and had said he might

be willing to talk later. Holmes directed Patterson “to follow the

defendant wherever he went and just observe him.” Ventura

County District Attorney Bradbury testified at the suppression

hearing that in homicide investigations, the district attorney’s

office would dispatch a psychiatrist to observe the suspect even

if he were unwilling to talk. Patterson followed defendant’s

gurney when he was transported to the X-ray room at 10:05

p.m., remained with him for about 15 minutes while his X-rays

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were taken, and then followed him at 10:21 p.m. back to the

observation room, where they waited for the surgery resident for

about five minutes. Patterson stood near the foot of defendant’s

gurney about two feet to the side.

When the surgery resident returned, she explained to

defendant in Patterson’s presence that doctors would operate on

defendant to remove lead fragments from beneath his

diaphragm but that the resident would first insert a tube into

defendant’s chest to drain blood that had accumulated there. A

few seconds after this conversation, which was approximately

20 minutes after defendant had invoked his right to counsel to

Patterson, defendant turned to Patterson, who was then the

only other person in the room, and said, “[s]till here, huh?”

Patterson responded, “Yeah, just, just in case you’re — I can, I

can, whatever.” Defendant said Patterson had a “kind face.”

Patterson thanked him. Defendant stated, “The last

psychiatrist I talked to, made me very angry, you know.”2

Patterson asked defendant for the psychiatrist’s name.

Defendant gave the names of two psychiatrists he had seen;

Patterson said he did not know them. Defendant volunteered

2

The parties’ transcripts interpret the audio of this

comment differently. The prosecution transcript instead

interprets this comment as: “The last psychiatrist I talked to,

maybe you know him?” The trial court did not specifically rule

on this statement. We adopt the defense version because

Patterson agreed at the suppression hearing that this is what

defendant said. Regardless of which version we adopt, the two

statements are not substantively different for purposes of our

analysis, especially since the record is undisputed that

defendant began the conversation by telling Patterson, “Still

here, huh?”

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information about his previous efforts to seek treatment

through the county mental health department.

Following a brief pause during which apparently the

surgery resident had reentered the room and could be heard

talking, defendant asked Patterson, “You wanna talk about it?”

Patterson responded, “Sure.” Defendant stated, “I’ll talk, and

you can listen.” Patterson agreed, and stated, “Cause you, you

don’t mind, and we could just talk about what has happened or

something.”

Defendant then volunteered further information about his

mental health history, including earlier diagnosis of organic

delusional disorder. Defendant explained he had attempted to

see a psychiatrist at the county mental health department and

become “very angry” because the psychiatrist did not think

defendant would become a mental health patient and did not

schedule him for another appointment. Defendant explained

that being in an “intense emotional relationship” had

“amplified” his delusional thinking. Patterson asked defendant

questions about his delusions and whether medication had

helped. Defendant subsequently reiterated that being in an

“emotional relationship” (referring to G.A.) had “[s]tirred things

up” and that he felt like he was “in a movie” that afternoon.

Defendant volunteered that he was “aware of everything

that happened that day” and after responding to Patterson’s

question about why defendant did what he did (defendant said

he did not know why), defendant sought to limit the topics of

conversation:

“DEFENDANT: I think I’d be better off talking to you

about emotional states than about actual specific facts.

“PATTERSON: Okay.

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“DEFENDANT: I’m sure my lawyer wouldn’t appreciate

it, you know?

“PATTERSON: Well, he can, he can get a copy of what

you’re talking about, you know, if that’s —

“DEFENDANT: Well, I think you, you probably deal with

emotional states rather than facts anyway, but

(unintelligible) if you’re giving some type of a diagnosis.”

They continued to discuss defendant’s role as a resident

manager at the dual diagnosis facility and his involvement with

AA meetings. Defendant eventually introduced a new topic,

that he had had “another violent episode” about ten years earlier

in which he robbed a McDonald’s restaurant. Defendant mostly

talked and Patterson would ask questions including whether

defendant tried to seek help for his delusions in prison and

whether his delusions were part of his legal defense for the

robbery.

Defendant explained that he diagnosed himself with

schizophrenia after his own study and that he avoided being

close to his family because the emotions would exacerbate his

delusions. Defendant explained that he married G.A. so she

could get a green card, that they had not been in contact for

many years, and that he recontacted her recently so he could get

a divorce. Patterson asked if G.A. was “involved in this thing

tonight . . . .” Defendant responded that he had kidnapped G.A.

and continued to explain that he had shot Aguirre. Regarding

G.A., he explained, “I kidnapped her, you know” and “pulled a

gun on her and I said we’re gonna be together forever.”

Regarding Aguirre, defendant explained that he saw Aguirre

enter the home and tell defendant to put his hands up.

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Defendant “just jumped out and shot” Aguirre. He explained, “I

was getting what I wanted . . . .”

When medical staff had arrived to move defendant,

Patterson offered to return, stating, “I’ll see if I can come back,

but, uh, maybe if it doesn’t bother you to talk to me anyway.”

Defendant responded Patterson, “Yeah, you’re a very good

listener, that’s (unintelligible).” Defendant later explained, “I’m

kinda, you know, uh, self-diagnosing, nobody else will diagnose

me.” Patterson responded, “Trying, trying to figure yourself out,

huh?” Defendant agreed, “Yeah, I mean I’m just confused, you

know?” He discussed at length his own efforts, through classes,

reading articles, and study of the DSM-IV, to diagnose himself

and understand his condition.

After defendant explained “what happened” that day,

defendant and Patterson discussed defendant’s reasons for

speaking with Patterson:

“DEFENDANT: I started out by just not wanting to tell

you exactly what happened —

“PATTERSON: Yeah.

“DEFENDANT: — but it ended up that way.

“PATTERSON: Well, we went sort of round and round —

“DEFENDANT: At this point I don’t have anything to

lose by being honest and saying what happened.

“PATTERSON: Yeah.

“DEFENDANT: And I understand my lawyer’s really

going to be pissed and so forth.

“PATTERSON: Um-hum.

“DEFENDANT: So then (unintelligible)

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“PATTERSON: You can certainly talk, and he’ll get what

we’re talking about.

“DEFENDANT: I’m sure he will, yeah.

“PATTERSON: And uh —

“DEFENDANT: And I don’t know why they, why they say

don’t say nothing, because if you did something and people

know you did it, there’s people (unintelligible) —

“PATTERSON: They saw you.

“DEFENDANT: . . . you know, they saw me, right. How

are you gonna say you didn’t? I mean that, what are you

accomplishing, you know, I think the situ — I think it’s

best to be honest, that way you get to the root of it.

“PATTERSON: Um-hum.

“DEFENDANT: You know, I mean it’s not normal

behavior.

“PATTERSON: Um-hum.

“DEFENDANT: It’s not, you know the average person

wouldn’t (unintelligible) something like that.

“PATTERSON: Yeah.

“DEFENDANT: So you know.

“PATTERSON: But you have given me some insight into

the way you were feeling and as you say a part of a —

“DEFENDANT: Yeah, after I’d talked to you a little bit I

thought well, it’s probably more beneficial to me to give

him as much information as I can while I’m uh —

“PATTERSON: While you’re fresh, fresh from it.

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“DEFENDANT: Yeah, I, I’m not under the influence of

any chemicals or drugs yet, they’re gonna sedate me pretty

soon. And it’s fairly close to the time of the incident.

“PATTERSON: Yeah.

“DEFENDANT: And the closer the better I would think.

“PATTERSON: Yeah.

“DEFENDANT: You know. Time can alter the way you

see things.”

When Patterson prepared to depart, defendant stated:

“Yeah, it’s probably better if you write your report as quickly as

possible so you can (unintelligible)” and remarked, “You had a

kind face. . . . I think that’s [an] asset in your business.”

During various points in the conversation, the surgery

resident or other medical staff entered the room to perform

medical procedures on defendant including prepping him for the

chest tube insertion, drawing blood, and administering local

anesthesia and intravenous sedation. At one point the

conversation paused, apparently while the chest tube was

inserted.

c. Trial Court Findings and Rulings

The defense moved to suppress the statements defendant

made to Patterson, contending that the police and prosecution

had failed to cease efforts to interrogate defendant despite his

invocations of his rights to silence and counsel, and that

defendant had not waived his Miranda rights nor initiated the

discussion with Patterson.

After a multiday hearing, the trial court found that

defendant invoked his right to silence when Detective Young

Mirandized him in their first encounter, Young and Investigator

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Haas violated defendant’s Miranda rights by continuing to

question him after he had given consent to search G.A.’s house,

and defendant later invoked his right to counsel to Young. It

excluded portions of the interview conducted by Young and

Haas.

The court found, however, that defendant initiated the

discussion with Patterson when he said to him, “Still here, huh,”

and that he invited Patterson to talk more, told him that he

(defendant) would talk and that Patterson could listen, and

picked the topic of conversation. The court concluded that the

subsequent contact by Patterson was attenuated from

defendant’s earlier invocations. The court found “as a fact the

defendant, for whatever reason — and I believe the reason was

he wanted to talk to the psychiatrist — initiated the

conversation, controlled the conversation, directed the

conversation and took it to the places he wished to go.”

The court concluded that Patterson’s request to interview

defendant after he had invoked counsel to Detective Young of

the sheriff’s department did not violate Edwards because the

district attorney’s office had “come down a separate path” from

the sheriff’s department and retained Patterson for its own

purpose of evaluating defendant’s mental state. The court found

that Patterson went to the hospital “for the avowed purpose of

evaluating defendant for purposes of a determination

concerning the defendant’s mental state post-incident and I

think the District Attorney’s Office has no alternative but to

pursue a line of that nature, certainly in a case such as this.”

The trial court concluded that the audio recording of the

interview was “[t]he most powerful and compelling evidence of

the defendant’s understanding, knowledge, appreciation and

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willingness to participate in the conversation . . . .” The court

“wish[ed]” Patterson had taken an explicit Miranda waiver from

defendant when defendant started talking to Patterson but

concluded that defendant knowingly waived his rights because

he twice stated that his lawyer was going to be upset that

defendant had talked to Patterson and because defendant

controlled the conversation and directed the topics for

discussion. The trial court found that defendant “knew what

was going on. He knew what use it would be put to. He knew

with whom he was speaking. He knew what he was speaking

of. He discusses that he is or is not in pain, he discusses in fact

his motivations to speak at that time before he becomes

anesthetized or sedated, and that was important to him, that

the facts be known at the best possible time and he tells us that

in his statement which would be the time in closest proximity to

the time at which these events occurred.” Acknowledging

defendant’s medical condition, the court concluded that the

audio of the interview nonetheless demonstrated that defendant

had knowingly and voluntarily participated in the interview.

The court accordingly denied the motion to suppress.

2. Analysis

We address below three questions: (1) whether law

enforcement’s earlier contacts with defendant violated his

Miranda rights; (2) whether defendant initiated the

conversation that resulted in his confession; and (3) whether he

did so with a knowing and voluntary waiver of his previously

invoked Miranda rights. “The Fifth Amendment provides that

no ‘person . . . shall be compelled in any criminal case to be a

witness against himself.’ In Miranda[, supra,]

384 U.S. 436 . . ., the [United States Supreme] Court concluded

that ‘without proper safeguards the process of in-custody

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interrogation of persons suspected or accused of crime contains

inherently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where he

would not otherwise do so freely.’ Id., at 467. Accordingly, the

Court formulated the now-familiar “procedural safeguards

effective to secure the privilege against self-incrimination.” ’

Colorado v. Spring, 479 U.S. 564, 572 (1987) (quoting Miranda,

supra, 384 U.S. at 444). Among these is the rule that when an

accused has ‘expressed his desire to deal with the police only

through counsel, [he] is not subject to further interrogation by

the authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges, or conversations with the police.’ Edwards[, supra],

451 U.S. 477, 484–485 . . . . .” (Arizona v. Mauro (1987) 481 U.S.

520, 525–526, fn. omitted.) “ ‘[I]nterrogation’ under Miranda

refers not only to express questioning, but also to any words or

actions on the part of the police . . . that the police should know

are reasonably likely to elicit an incriminating response from

the suspect. The latter portion of this definition focuses

primarily upon the perceptions of the suspect, rather than the

intent of the police.” (Rhode Island v. Innis (1980) 446 U.S.

291, 301, fns. omitted (Innis).) “ ‘[N]ot all conversation between

an officer and a suspect constitutes interrogation. The police

may speak to a suspect in custody as long as the speech would

not reasonably be construed as calling for an incriminating

response.’ ” (People v. Hensley (2014) 59 Cal.4th 788, 810–811

(Hensley).) The ban on further interrogation is intended to

prevent police “ ‘ “from badgering a defendant into waiving his

previously asserted Miranda rights.” ’ ” (People v. Thomas

(2012) 54 Cal.4th 908, 926.) “If further conversations are

initiated by the police when there has not been a break in

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custody, the defendant’s statements are presumed involuntary

and inadmissible as substantive evidence at trial.” (Ibid.)

In reviewing Miranda claims, we “accept the trial court’s

resolution of disputed facts and inferences, and its evaluations

of credibility, if they are substantially supported. [Citations.]

However, we must independently determine from the

undisputed facts, and those properly found by the trial court,

whether the challenged statement was illegally obtained.”

(People v. Boyer (1989) 48 Cal.3d 247, 263 (Boyer); accord, People

v. Hoyt (2020) 8 Cal.5th 892, 931.) We review Miranda claims

under federal constitutional standards. (People v. Sims (1993)

5 Cal.4th 405, 440 (Sims).)

a. Earlier Law Enforcement Contacts Violated

Mosley and Edwards

We agree with defendant that his Miranda rights were

violated at various points during the evening of July 17, 1996.

As detailed in the factual background: (1) Haas and Young

approached defendant to question him a mere 10 minutes after

defendant had confirmed to District Attorney Bradbury that he

did not want to speak, and within a half hour of his original

invocation to Young. In that encounter, Haas and Young did not

readvise defendant about his rights to remain silent and have

the assistance of counsel. Their questioning concerned the same

ongoing investigation and was by one of the same officers,

Young, who had just recently attempted to interview defendant.

(2) Less than an hour after this questioning by Haas and Young,

Young again returned to defendant’s gurney to ask for a

statement concerning the same investigation. Young did not

readvise defendant of his rights, instead informing him that

according to Bradbury, defendant had stated he might be willing

to talk later. Defendant responded by telling Young that he

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thought he had told Bradbury that he was feeling shocked and

confused “right now” and wanted to wait to talk to a lawyer, and

then reasserted his Miranda rights to Young. (3) Nonetheless,

Young again returned to defendant’s gurney about 25 minutes

after that encounter, to berate him for murdering Aguirre. (4)

Seventy-five minutes after that, Patterson attempted to

interview defendant about the same ongoing investigation.

Within this three-hour timeframe, defendant invoked his right

to silence each time he was asked, on four occasions, and on at

least two of those occasions also requested an attorney. In sum,

prior to Patterson’s arrival, law enforcement officials had,

within the previous three hours, twice contacted defendant

about his willingness to provide a statement, impermissibly

interviewed him, and angrily confronted him about Aguirre’s

murder (after defendant had invoked counsel to the same

officer). The trial court found that defendant invoked his right

to silence when Detective Young Mirandized him in their first

encounter, and that Young and Investigator Haas violated

defendant’s Miranda rights by continuing to question him after

he had given consent to search G.A.’s house. Thus, it correctly

excluded portions of the interview conducted by Haas and

Young.

We also agree with defendant that the district attorney’s

office violated Edwards by the manner in which Patterson

requested to interview defendant after he had invoked his right

to counsel. As the trial court found and the Attorney General

agrees, defendant invoked his right to counsel when Detective

Young returned to defendant’s gurney at 8:25 p.m. to request a

statement. Resuming contact with a suspect at a later time for

purposes of interview, where the suspect had earlier requested

the assistance of counsel and remains in custody without

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counsel, is a clear violation of the rule that all efforts at

interrogation must cease once the right to counsel is invoked.

(Edwards, supra, 451 U.S. at p. 485.) In Edwards, the

defendant invoked his right to counsel and questioning ended,

but the police returned the next morning for an interview. (Id.

at pp. 478–479.) Edwards then waived his rights and made

statements. (Id. at p. 479.) The high court ruled the statements

inadmissible, holding that “when an accused has invoked his

right to have counsel present during custodial interrogation, a

valid waiver of that right cannot be established by showing only

that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights.” (Id. at

p. 484.) Edwards explicitly stated that once a suspect invokes

the right to counsel, law enforcement personnel may not resume

interrogation until counsel is provided or the suspect reinitiates

contact. This is a bright-line rule: It requires all questioning

cease after a suspect requests counsel. “ ‘In the absence of such

a bright-line prohibition, the authorities through “badger[ing]”

or “overreaching” — explicit or subtle, deliberate or

unintentional — might otherwise wear down the accused and

persuade him to incriminate himself notwithstanding his earlier

request for counsel’s assistance.’ ” (People v. Henderson (2020)

9 Cal.5th 1013, 1022 (Henderson), quoting Smith v. Illinois

(1984) 469 U.S. 91, 98.)

The Attorney General contends — as the trial court

concluded below — that the district attorney’s office had a

“legitimate ‘purpose’ ” in “enlist[ing] Dr. Patterson’s aid in

observing appellant and gathering information relevant to his

mental state, whether or not appellant wished to speak to him.”

By this, the Attorney General can be understood to argue that

because the district attorney’s office had another purpose

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(besides interrogation) in sending Patterson to visit defendant,

which was to observe him, the office committed no constitutional

violation. The Attorney General is correct, to an extent: Police

officers routinely remain in the presence of suspects for

custodial matters such as booking and transportation, even

after the suspect has invoked his or her Miranda rights. (E.g.,

Oregon v. Bradshaw (1983) 462 U.S. 1039, 1042 (Bradshaw)

[transporting suspect to police station]; People v. Enraca (2012)

53 Cal.4th 735, 750 (Enraca) [booking interview].) But the

Edwards rule “renders a [suspect’s] statement invalid if the

authorities initiate any ‘communication, exchanges, or

conversations’ relating to the case, other than those routinely

necessary for custodial purposes.” (Boyer, supra, 48 Cal.3d 247,

274, italics omitted.)

The evidentiary hearing established the prosecution’s

intention to send Patterson to interview defendant about his

mental state and not merely to observe him. The district

attorney’s office called Patterson on the evening of the homicide

and retained him to interview defendant close in time to the

events that day to evaluate his mental state as a homicide

suspect. District attorney staff gave Patterson a tape recorder,

Miranda card, and instructed him to advise defendant of his

Miranda rights. Patterson testified he went to the hospital to

interview defendant to evaluate his post-event mental state. He

explained that when a district attorney’s office reaches out to

him, “as typical when I get such a call, my question is will the

suspect be willing to talk with me.” Patterson did not merely

Mirandize defendant. Instead, Patterson did more, making

clear to defendant that he was there to “talk” with him,

explaining that “the DA’s office asked me to come and talk with

ya” and after partially describing defendant’s Miranda rights,

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said, “So, the next thing then in knowing these things, are you

willing to talk with me about yourself?” Patterson’s

communications here, violated the bright-line rule of Edwards.

Deputy Holmes confirmed as much that Patterson was there to

engage defendant in conversation, explaining that he told

Patterson: “I’d like you to go in and do your usual thing, advise

him of his rights, tell him who you are, who you work for, and

see if he wants to talk now.” Holmes testified that had he known

defendant had invoked his right to counsel earlier in the

evening, he would not have permitted Patterson to speak with

defendant. Holmes explained, “Because it’s improper. If — if

someone has unequivocally invoked counsel, it’s improper for

law enforcement to contact him. And I would — I would stay

absolutely away from there.” He testified further, “[I]t’s not at

all proper if they’ve invoked their right to counsel, and I just

simply stay away from — if somebody invokes the right to

counsel, I would let Dr. Patterson watch and observe and that

would be it.”

Thus, the record clearly shows the district attorney’s

intention that Patterson was to interview defendant for

evidence about his mental state as part of its criminal

investigation. This is why Patterson arrived with a Miranda

card and a tape recorder. Patterson did not merely observe

defendant in order to evaluate his mental state: He contacted

defendant, advised him of his Miranda rights, asked him if he

was willing to talk about himself, responded to defendant’s

request for counsel by reminding him that he had supposedly

earlier agreed to talk to Patterson, and then telling defendant

he (Patterson) would remain close by in case defendant changed

his mind about asserting his Miranda rights.

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The fact that Patterson might also have intended to

observe defendant does not eliminate the fact that Patterson

sought to interview defendant as directed by the district

attorney’s office. As Innis explained, we consider the situation

primarily from the suspect’s perspective in determining whether

there was interrogation. (Innis, supra, 446 U.S. at p. 301.) Even

if Patterson might have permissibly gone to the hospital and sat

silently in defendant’s room for the purpose of observing his

behavior (a fact pattern not before us here), defendant would not

have understood mere silent observation to be Patterson’s

purpose from Patterson’s words and conduct: The explanation

Patterson gave defendant for his presence was to interview

defendant. Patterson told defendant, “the DA’s office asked me

to come and talk with ya,” and after addressing defendant’s

Miranda rights, asked defendant, “next thing then in knowing

these things, are you willing to talk with me about yourself?”

(See Innis, supra, 446 U.S. at p. 301 [“ ‘interrogation’ under

Miranda refers not only to express questioning, but also to any

words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response

from the suspect.”].)

Under settled law, a psychiatric interview of a suspect is

interrogation if the interview contains material later to be used

in the prosecution’s case, including evidence about a suspect’s

mental state. (See People v. San Nicolas (2004) 34 Cal.4th 614,

640; Estelle v. Smith (1981) 451 U.S. 454, 466–469 [Miranda

advisements were required prior to defendant’s pretrial

examination by a court-retained psychiatrist, where the

psychiatrist later testified for the prosecution]; People v. Ghent

(1987) 43 Cal.3d 739, 750; People v. Polk (1965) 63 Cal.2d 443,

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449; People v. Walker (1972) 29 Cal.App.3d 448, 451–456; People

v. Montgomery (1965) 235 Cal.App.2d 582, 590.) In Estelle,

supra, at pages 456–457, the trial court ordered a psychiatric

examination of a defendant to determine his competency to

stand trial. (Id. at pp. 456–457.) But the examining

psychiatrist later testified for the prosecution about defendant’s

mental status. (Id. at pp. 459–460, 464.) The high court held

“the Fifth Amendment privilege, therefore, [was] directly

involved here because the State used as evidence against

respondent the substance of his disclosures during the pretrial

psychiatric examination.” (Id. at pp. 464–465.) The court

explained, “The considerations calling for the accused to be

warned prior to custodial interrogation apply with no less force

to the pretrial psychiatric examination at issue here.

Respondent was in custody at the Dallas County Jail when the

examination was ordered and when it was conducted. . . . When

Dr. Grigson went beyond simply reporting to the court on the

issue of competence and testified for the prosecution at the

penalty phase on the crucial issue of respondent’s future

dangerousness, his role changed and became essentially like

that of an agent of the State recounting unwarned statements

made in a postarrest custodial setting. During the psychiatric

evaluation, respondent assuredly was ‘faced with a phase of the

adversary system’ and was ‘not in the presence of [a] perso[n]

acting solely in his interest.’ ” (Id. at p. 467.)

In the immediate wake of the senseless murder of a

beloved colleague, the police and district attorney were

understandably zealous in their effort to question the apparent

perpetrator. But we find concerning the multiple clear

violations of Miranda that occurred in this case through the

repeated efforts of investigating officials to solicit defendant’s

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waiver of his rights to silence and counsel, after he had

expressed his unwillingness to talk. That defendant invoked his

right to remain silent does not mean police could never again

approach him and inquire whether he was still unwilling to talk.

(See Michigan v. Mosley (1975) 423 U.S. 96, 100–104.) But it is

one thing to reapproach a suspect about his willingness to talk

after a “significant period of time” (id. at p. 106); it is another

thing to reapproach the suspect to confront him or to inquire

about his willingness to talk no less than five times in a roughly

three-hour span. These violations not only infringed

defendant’s established constitutional rights, they also

jeopardized the efforts of the prosecution, court, and jurors to

have a jury weigh the charges against defendant and render a

sentence. We emphasize the substantial costs to the justice

system and the lives affected when law enforcement officials,

however well-intentioned, do not conform their own conduct to

the law.

b. Defendant Initiated the Conversation with

Patterson

Concluding that there were Miranda violations does not,

however, resolve the question whether those violations require

that defendant’s later statements to Patterson be suppressed.

Like the trial court concluded below, the Attorney General

contends defendant initiated the conversation with Patterson.

After listening to the interview tapes admitted at trial and

reviewing the transcripts, we agree that defendant initiated the

later discussion that produced the statements admitted at trial.

As noted, interrogation must cease once a suspect requests

counsel. (Edwards, supra, 451 U.S. at pp. 484–485.)

“ ‘However, if the defendant thereafter initiates a statement to

police, “nothing in the Fifth and Fourteenth

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Amendments . . . prohibit[s] the police from merely listening to

his voluntary, volunteered statements and using them against

him at the trial.” ’ ” (Hensley, supra, 59 Cal.4th at p. 810.)

“ ‘After a suspect has invoked the right to counsel, police officers

may nonetheless resume their interrogation if “the suspect ‘(a)

initiated further discussions with the police, and (b) knowingly

and intelligently waived the right he had invoked.’ ” ’ ” (Enraca,

supra, 53 Cal.4th at p. 752.) “ ‘An accused “initiates” ’ further

communication, when his words or conduct ‘can be “fairly said

to represent a desire” on his part “to open up a more generalized

discussion relating directly or indirectly to the investigation.” ’ ”

(People v. Molano (2019) 7 Cal.5th 620, 656 (Molano).) This

exception to the Edwards rule requires that the suspect initiate

“ ‘further communication, exchanges, or conversations with the

police’ ” but not necessarily “the encounter at which he does so.”

(People v. Waidla (2000) 22 Cal.4th 690, 732 (Waidla); see also

People v. Mickey (1991) 54 Cal.3d 612, 652 (Mickey).) Defendant

spoke to Patterson and, as a factual matter, began the

conversation that led to his various inculpatory statements.

Patterson remained in defendant’s presence after their initial

exchange but did not speak to him. Around 20 minutes later,

after X-rays and a brief conversation with his doctor, defendant

asked Patterson, “Still here, huh?” He engaged Patterson in a

conversation about psychiatrists who had treated him and then,

after some pauses, reconfirmed his desire to speak, asking, “You

wanna talk about it?” Suspects in custody have initiated further

questioning by asking, “ ‘Well, what is going to happen to me

now?’ ” (Bradshaw, supra, 462 U.S. at pp. 1045–1046), or

“ ‘What can I do for you[?],’ ‘What do you want from me?,’ and

‘What can I do to help you[?],’ ” (Waidla, at p. 731). Defendant’s

question to Patterson, “Still here, huh?,” followed by defendant’s

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question to Patterson if he wanted to “talk about it,” squarely

falls within the kinds of statements we have found to constitute

an initiation of further communication by the accused. As the

trial court found after an eight-day evidentiary hearing,

defendant “initiated the conversation, controlled the

conversation, directed the conversation and took it to the places

he wished to go.”

We must next resolve whether defendant’s renewed

contact with Patterson should be deemed effective or instead the

tainted product of the earlier Miranda violations, considering

all the relevant surrounding circumstances. “[W]e have never

found that an initial failure to honor a defendant’s invocation —

whether of the [right] to remain silent or the right to have

counsel present — poses a categorical bar to the admission of

any subsequent statement regardless of the circumstances.

Instead, in case after case, we have held that despite the initial

failure to honor a Miranda invocation, a voluntary confession

obtained during a subsequent interrogation is admissible.”

(People v. Krebs (2019) 8 Cal.5th 265, 314, italics omitted

(Krebs).) However, as a general rule, “where law enforcement

officers have disregarded a suspect’s previously-invoked rights

by continuing to interrogate him, a renewal of contact by the

defendant will be considered an ‘initiation’ only if the decision to

renew contact was not a ‘response to’ or ‘product of’ the prior

unlawful interrogation.” (Mack v. State (Ga. 2014) 765 S.E.2d

896, 903 (Mack).) Indeed, to be valid, a defendant’s initiation

cannot be the product of the authorities’ coercion. (E.g., Boyer,

supra, 48 Cal.3d at p. 275 [holding that defendant had not

initiated the communication by calling back the officer after he

had turned to leave in light of the officer’s comments and earlier

unlawful interrogation]; People v. Neal (2003) 31 Cal.4th 63, 78

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(Neal) [holding that defendant did not voluntarily initiate an

interview in light of earlier impermissible interrogation and

defendant’s youth, isolation, and “low intelligence”]; People v.

Bradford (1997) 14 Cal.4th 1005, 1046 (Bradford) [rejecting

claim that “statement was the tainted product of earlier illegal

interrogations”].) Likewise, “a defendant’s decision to talk with

police cannot be a product of police interrogation, ‘badgering,’ or

‘overreaching,’ whether ‘explicit or subtle, deliberate or

unintentional.’ ” (People v. Davis (2009) 46 Cal.4th 539, 596

(Davis).) While as a matter of historical fact, a suspect may have

started the contact with authorities, the totality of the

circumstances might demonstrate that doing so was the product

of earlier badgering in violation of Miranda. (Mack, at p. 905;

Blake v. State (Md. 2004) 849 A.2d 410, 413–414, 422.) In Mack,

police disregarded the suspect’s invocation of his right to stay

silent by badgering and cajoling him to come clean for more than

90 minutes, after similarly having ignored his invocation of

rights on the previous day. (Mack, at pp. 904–905 & fn. 8.)

Approximately 10 minutes later, the suspect relented and asked

to speak with police. (Ibid.) In Blake, after the suspect invoked

his right to counsel, a detective gave the suspect a charging

document for first degree murder stating the penalty was

“DEATH,” even though the suspect was not eligible for the death

penalty due to his youth. (Blake, at p. 413.) The Maryland high

court concluded that the suspect’s subsequent question about

the detective’s comment (“I bet you want to talk now, huh!”) was

a response to interrogation rather than initiation. (Id. at

pp. 413–414, 422.)

Because of the prior Miranda and Edwards violations

described above, the defendant’s contention, echoed by the

dissent, that defendant did not initiate the communication with

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Patterson is not without force. And although Patterson asked

no more questions, his action of remaining with defendant for

the stated purpose of seeing if defendant would change his mind

about asserting his Miranda rights could have added more

pressure to make a statement. Patterson remained just a few

feet from where defendant was handcuffed to a gurney, twice

reminded him he had earlier agreed to speak with a

psychiatrist, and advised him that Patterson would “just stay

around here with [defendant] and . . . see if [defendant] still

feel[s]” that he wanted to assert his Miranda rights. In addition,

defendant contends that Young’s angry speech accusing

defendant of murder could have added further pressure to

confess. Defendant also argues that his compromised physical

state and related pain, shock, and confusion, would have

compromised his ability to withstand the pressure of repeated

attempts to obtain a statement. (People v. Caro (2019) 7 Cal.5th

463, 493 (Caro) [“While a defendant’s ‘compromised physical

and psychological condition’ alone will not render her

statements involuntary [citation], that condition is relevant to

the inquiry and presents an opportunity for abuse”].)

Though these facts and circumstances make this a close

case, the record, particularly the audio recording of defendant’s

conversation with Patterson, reflects defendant’s “clear

willingness and intention to talk” to Patterson. (People v.

Gamache (2010) 48 Cal.4th 347, 386 (Gamache).) As a result,

we cannot find that defendant’s conversation with Patterson

was caused by or the product of earlier violations. (See, e.g.,

Bradford, supra, 14 Cal.4th at pp. 1045–1046.)

First, the record does not reveal the sort of berating

evident in other cases that might readily wear down a suspect

(e.g., Neal, supra, 31 Cal.4th at pp. 80–83; Boyer, supra,

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48 Cal.3d at pp. 273–274), but instead a handful of one- to two-

minute conversations over a period of a few hours. The trial

court, after an extensive hearing, including sworn testimony

from Patterson and at least 16 other witnesses, found that the

tape-recorded discussion was a “low-key, very, very calm,

rational — perhaps unnervingly so — discussion of what

transpired.” At the hearing, Patterson testified “at no point did

I attempt to insert any strong injunction for him to talk to me

about the crime” and that defendant “was completely alert and

very cognizant of what he was talking to me about and without

evidence of mental confusion or disorientation.” We agree with

the trial court that defendant revealed no “outward sign of

stress, [offering] just a straight account of what happened,” and

his statements were “un[e]xcited, unforced and voluntary . . . .”

Examining the record as a whole, we conclude the relatively

brief prior interrogations that occurred — even when considered

cumulatively — did not add up to “ ‘ ‘badger[ing]” ’ ” that

effectively wore down defendant’s will to remain silent.

(Henderson, supra, 9 Cal.5th at p. 1022.)

Second, although Patterson should not have contacted

defendant to request an interview, he did not ask further

questions after defendant invoked his right to counsel. Edwards

does not bar further contact with a suspect, only further

interrogation. (See Waidla, supra, 22 Cal.4th at pp. 728–732

[although officer went to jail and met Waidla for express purpose

of interrogating him, Waidla initiated the interrogation when he

repeatedly interrupted the officer with offers of assistance

before the officer had a chance to address and advise him of his

Miranda rights]; Mickey, supra, 54 Cal.3d at p. 652 [rejecting

argument that Edwards requires a suspect to initiate the

meeting at which he initiates the interrogation, where the

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defendant had requested an interview while officers were

transporting him].) Patterson immediately stopped asking

questions when defendant invoked his right to counsel.

Patterson soon stepped out into the hallway where Holmes

directed Patterson “to follow the defendant wherever he went

and just observe him.”

Third, the recorded interview clearly shows that

defendant was engaging Patterson — defendant initiated the

conversation and Patterson only responded. (See Mickey, supra,

54 Cal.3d at p. 648 [an initiation occurs when a suspect’s “words

or . . . conduct” can be “ ‘fairly said to represent a desire . . . to

open up a more generalized discussion relating directly or

indirectly to the investigation’ ”].) As noted above, after

defendant requested counsel, Patterson asked no more

questions and there was no discussion for about 20 minutes.

Defendant then asked, “Still here, huh?” Patterson responded,

“Yeah, just, just in case you’re — I can, I can, whatever.”

Defendant then remarked, “Yeah, you seem like you have a kind

face.” Patterson responded, “Um, thank you.” Defendant then

asked, “The last psychiatrist I talked to, made me very angry,

you know.” Patterson responded, “You know who it was?” And

the two discussed briefly whether Patterson knew the

psychiatrists defendant had seen. Defendant then stated,

“Anyway, so two years ago I went through the county mental

health system.” Patterson responded, “Here in Ventura?”

Defendant responded, “Yeah, the east end, thinking that I had

some type of mental disorder.” Patterson responded, “Hum.”

Defendant volunteered, “And I saw a counselor. I saw a

psychologist and eventually I saw a psychiatrist. Took about six

months.” Patterson verified, “To get to the psychiatrist.”

Defendant responded, “Yeah.” After a brief interruption to

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perform a medical procedure, defendant asked Patterson, “You

wanna talk about it?” Patterson responded, “Sure.

(unintelligible) Cause you, you don’t mind, and we could just

talk about what has happened or something.” Defendant

continued the conversation, stating, “So anyway I was talking

about the psychiatrist that I saw.” Defendant turned the

discussion toward his relationship with G.A. and the events

under investigation with the comment: “But I think this

emotional relationship that I’ve been in for the last

year . . . [s]tirred things up.” Soon thereafter defendant

continued to direct the conversation toward the events under

investigation by saying, “[Y]ou know I, about this afternoon, I’m

aware of everything that happened . . . .” And from there, the

conversation ensued, defendant talking about his mental health

history and past diagnoses, Patterson mostly listening and

asking occasional questions. Contrary to defendant’s assertion,

it was not Patterson’s question — “you know who [your last

psychiatrist] was?” — that turned the conversation to the

instant crime and began the discussion about the criminal

investigation. Rather, as the above description makes clear, it

was defendant who turned the discussion toward his

relationship with G.A. and the events under investigation. Over

the course of the next hour, defendant continued to largely direct

the conversation and select the topics. As the trial court

properly found, defendant “picked the topic; he started the

conversation.”

Fourth, and most importantly, the record indicates that

defendant was aware he was providing information that might

be used against him, yet he viewed the tradeoff a worthwhile

one. Upon meeting defendant, Patterson Mirandized defendant

and then asked him, “So, the next thing then in knowing these

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things, are you willing to talk with me about yourself?”

Defendant declined to talk, explaining, “I don’t think so. I’m

facing very serious charges and I think I’d rather talk to a

lawyer first.” He stated further, “That be okay? I think right

now I’m in a state of shock and kind of confused and I don’t know

that the information I’d give you would be that accurate.” Early

on in his discussion with Patterson, defendant said: “I think I’d

be better off talking to you about emotional states than about

actual specific facts” and “I’m sure my lawyer wouldn’t

appreciate it, you know?” Later on in the discussion, defendant

elaborated: “I don’t know why they, why they say don’t say

nothing, because if you did something and people know you did

it, there’s people . . . . [¶] . . . [¶] . . . you know, they saw me,

right. How are you gonna say you didn’t? I mean that, what are

you accomplishing, you know, I think the situ — I think it’s best

to be honest, that way you get to the root of it. [¶] . . . [¶] . . .

after I’d talked to you a little bit I though[t] well, it’s probably

more beneficial to me to give him as much information as I can

while I’m uh — [¶] . . . [¶] . . . I, I’m not under the influence of

any chemicals or drugs yet, they’re gonna sedate me pretty soon.

And it’s fairly close to the time of the incident.” Thus, as the

trial court noted, defendant “discuss[ed] in fact his motivations

to speak at that time before he [became] anesthetized or

sedated, and that was important to him, that the facts be known

at the best possible time and he tells us that in his statement

which would be the time in closest proximity to the time at

which these events occurred.” The dissent posits that defendant

may have doubted whether he was actually free to remain silent

or to consult a lawyer before speaking with Patterson. (Dis.

opn., post, at pp. 11–12.) But we need not speculate about

defendant’s thought-process as to why he chose to speak with

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Patterson: defendant expressly detailed why he chose to speak

to Patterson in the taped recording of the discussion.

Defendant’s statements showed he was making a deliberate

decision to speak with Patterson because he determined that it

was “best to be honest.” Defendant’s statements also show a

clear and deliberate recognition that he wanted to speak before

sedatives impacted his thinking. And, his statement that “I’m

sure my lawyer wouldn’t appreciate” him talking with Patterson

about “specific facts,” coupled with his statement (detailed

below) that “I understand my lawyer’s really going to be

pissed . . . .” demonstrate that he understood he had the right to

remain silent or consult a lawyer before talking to Patterson.

The dissent also contends that the protection of Edwards

is not limited to cases where the suspect was berated or where

law enforcement employed “overt” coercion. (Dis. opn., post, at

pp. 2, 19.) We agree. As the dissent states, the question we

must answer is whether defendant’s decision to speak with

Patterson was in “ ‘ “response to” or “product of” the prior

unlawful interrogation.’ ” (Dis. opn., post, at pp. 9, 20, quoting

Mack, supra, 765 S.E.2d at p. 903; see also Boyer, supra,

48 Cal.3d at pp. 273–274.) Our case law makes clear that the

question of whether law enforcement officials repeatedly

berated or badgered the suspect will naturally be relevant in

determining whether the suspect spoke in response to the

officials’ conduct. (See Davis, supra, 46 Cal.4th at p. 596 [“a

defendant’s decision to talk with police cannot be a product of

police interrogation, ‘badgering,’ or ‘overreaching,’ whether

‘explicit or subtle, deliberate or unintentional’ ”]; see also Boyer,

supra, 48 Cal.3d at pp. 273–274.) As the dissent acknowledges:

“Of course, where a suspect is berated, it is more likely his

initiation was tainted by law enforcement misconduct.” (Dis.

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opn., post, at p. 20.) We again agree. But surely the converse is

also true: where a suspect is not berated, though that fact is not

dispositive, it makes it less likely his initiation was tainted by

law enforcement misconduct.

The dissent also argues that Patterson’s “understated

manner” “presented [defendant] with a deliberate contrast to

the impatient and even angry officers who had sought to

question him earlier.” (Dis. opn., post, at pp. 10–11.) The

dissent argues that this fact is relevant in assessing “ ‘the entire

sequence of events’ that night.” (Id. at p. 10, quoting Mack,

supra, 765 S.E.2d at p. 904.) We disagree. As the dissent

acknowledges, the question we must answer is whether

defendant’s decision to talk was the “ ‘ “product of” the prior

unlawful interrogation.’ ” (Dis. opn., post, at pp. 9, 20, quoting

Mack, supra, 765 S.E.2d at p. 903, italics added; see also Boyer,

supra, 48 Cal.3d at pp. 273–274.) Though the dissent suggests

that Patterson’s “tactics” were “unethical” (dis. opn., post, at

pp. 5–6, 11), it appears to recognize, as it must, that Patterson’s

conduct was lawful. (Illinois v. Perkins (1990) 496 U.S. 292 296–

300.) Patterson’s lawful conduct simply does not answer the

question we must resolve here, i.e., whether defendant spoke to

Patterson because the police had previously acted unlawfully.

And if defendant ultimately decided to talk because of the

efficacy of Patterson’s “understated manner” (dis. opn., post, at

pp. 10–11) and because he determined that he and Patterson

“ ‘share[d] a common interest, that their relationship is a

[mutual] rather than an adversarial one’ ” (id. at p. 5), then

surely defendant did not speak because of the prior unlawful

conduct of police interrogation.

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Finally, the dissent asserts that the majority’s holding

abrogates the “ ‘bright-line rule’ ” in Edwards “that all

questioning must cease after an accused requests counsel.”

(Smith v. Illinois, supra, 469 U.S. at p. 98.) We disagree. “[W]e

have never found that an initial failure to honor a defendant’s

invocation — whether of the [right] to remain silent or the right

to have counsel present — poses a categorical bar to the

admission of any subsequent statement regardless of the

circumstances. Instead, in case after case, we have held that

despite the initial failure to honor a Miranda invocation, a

voluntary confession obtained during a subsequent

interrogation is admissible.” (Krebs, supra, 8 Cal.5th at p. 314,

italics omitted.)

In fact, the majority and dissent do not disagree on the

applicable legal standard. We agree that Edwards establishes

a bright-line rule. We agree that the question we must

ultimately decide is whether defendant’s decision to speak with

Patterson was the “ ‘product of’ the prior unlawful

interrogation.” (Mack, supra, 765 S.E.2d at p. 903.) Where we

disagree is in the application of this standard. The dissent relies

heavily on its interpretation of a single sentence Patterson

uttered in which Patterson reminded defendant that defendant

had previously promised to speak to him and that he would wait

around to see if defendant changed his mind. From this, the

dissent surmises that defendant would have felt that he had to

speak with Patterson or he would be “going back on his word”

and that defendant would have felt that Patterson “was not

satisfied with Johnson’s refusal.” (Dis. opn., post, at pp. 7–8.)

This, coupled with Patterson’s decision to remain present for 20

minutes without a break and without a change in location or

personnel, indicates to the dissent that defendant’s decision to

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talk was the product of prior unlawful conduct.3 (Id. at pp. 9–

14.) But, once again, we need not rely on surmise. We have a

full tape of the interview itself.

Ultimately, the operative question is whether, when

defendant began talking to Patterson at 10:20 p.m., he did so

freely, or he did so because of undue coercion. As the trial court

explained, the record itself — and most notably listening to the

tape of defendant’s and Patterson’s conversation — establishes

that defendant, fully aware that his statements could later be

used against him, chose to speak with Patterson because “if you

did something and people know you did it . . . it’s best to be

honest.” Our review of the audio recording demonstrates

defendant was speaking easily and comfortably and was

3

The dissent also relies on the fact that Patterson spent

about an hour simply observing defendant before introducing

himself and yet defendant did not attempt to engage Patterson

in conversation during this time. (Dis. opn., post, at p. 14.)

However, the record further indicates that Patterson was in

plainclothes with nothing about his appearance that would show

he was associated with law enforcement or the district

attorney’s office. Defendant was on a gurney and, based upon

defendant’s condition, Patterson was waiting for “medically . . .

the proper time for me to talk with him about why I was there.”

Patterson was “not trying to establish eye contact.” Medical

professionals were in and out and Patterson did not identify

himself to them. The fact that defendant did not begin a

dialogue with a silent stranger under these circumstances does

not inform whether he wanted to initiate further communication

with Patterson once Patterson identified himself and stated that

“the DA’s office asked me to come and talk with ya.” Only after

defendant learned that the district attorney’s office sent

Patterson, did defendant eventually decide to speak with him,

explaining that “after I’d talked to you a little bit I though[t]

well, it’s probably more beneficial to me to give him as much

information . . . .”

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generally directing the conversation while Patterson mostly

listened. As the trial court concluded, that defendant “knew

what was going on. He knew what use it would be put to. He

knew with whom he was speaking. He knew what he was

speaking of. He discusses that he is or is not in pain, he

discusses in fact his motivations to speak at that time before he

becomes anesthetized or sedated, and that was important to

him, that the facts be known at the best possible time and he

tells us that in his statement which would be the time in closest

proximity to the time at which these events occurred.” We

therefore need not speculate about why defendant did not speak

to Patterson before Patterson identified himself (dis. opn., post,

at p. 14), or whether defendant felt that he was not free to

remain silent (id. at pp. 11–12), or whether Patterson’s

statements made defendant feel that he would be going back on

his word if he did not speak with Patterson (id. at p. 7), or

whether Patterson’s “understated manner” encouraged

defendant to speak to him (id. at pp. 10–11). We agree with the

trial court’s conclusion that the audio recording of the interview

was “[t]he most powerful and compelling evidence of the

defendant’s understanding, knowledge, appreciation and

willingness to participate in the conversation . . . .” On this

record, considering the entire circumstances of the interview, we

are persuaded that defendant freely initiated the conversation

with Dr. Patterson.

c. Defendant Knowingly and Voluntarily Waived

His Miranda Rights

Apart from whether there was a legally valid initiation,

there remains the question whether defendant voluntarily and

knowingly waived his Miranda rights. We conclude he did.

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As noted above, a suspect initiates “further

communication, when his words or conduct ‘can be “fairly said

to represent a desire” on his part “to open up a more generalized

discussion relating directly or indirectly to the investigation.” ’ ”

(Molano, supra, 7 Cal.5th at p. 656.) “The initiation of further

dialogue by the accused . . . does not in itself justify

reinterrogation” (Sims, supra, 5 Cal.4th at p. 440); “ ‘the burden

remains upon the prosecution to show that subsequent events

indicated a waiver of the Fifth Amendment right to have counsel

present during the interrogation’ ” (ibid.). “The state must

demonstrate that the suspect knowingly and intelligently

waived his right to counsel ‘under the totality of the

circumstances, including the necessary fact that the accused,

not the police, reopened the dialogue with the authorities.’ ”

(Hensley, supra, 59 Cal.4th at p. 810.) “ ‘The waiver must be

“voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or

deception” [citation], and knowing in the sense that it was

“made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon

it.” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1086

(McCurdy).) “ ‘[A]n express waiver is not required where a

defendant’s actions make clear that a waiver is intended.’ ”

(People v. Frederickson (2020) 8 Cal.5th 963, 1010.) Although a

suspect’s responses to further interrogation may not be used to

cast doubt on the clarity of his or her initial request for counsel,

“[s]uch subsequent statements are relevant only to the distinct

question of waiver.” (Smith v. Illinois, supra, 469 U.S. at

p. 100.)

A prior Edwards violation is not by itself dispositive of

whether a suspect knowingly and voluntary waived his or her

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rights. As we have said before, “[W]e cannot conclude that an

Edwards violation, ‘unaccompanied by any actual coercion or

other circumstances calculated to undermine the suspect’s

ability to exercise his free will, so taints the investigatory

process that a subsequent voluntary and informed waiver is

ineffective for some indeterminate period.’ (Oregon v. Elstad

(1985) 470 U.S.[, 298,] p. 309.) Rather, if the statement made

after an Edwards violation is voluntary, ‘the admissibility of any

subsequent statement should turn in these circumstances solely

on whether it is knowingly and voluntarily made.’ ” (Bradford,

supra, 14 Cal.4th at p. 1040.) “Only if the ‘totality of the

circumstances surrounding the interrogation’ reveals both an

uncoerced choice and the requisite level of comprehension may

a court properly conclude that the Miranda rights have been

waived.” (Moran v. Burbine (1986) 475 U.S. 412, 421 (Burbine).)

Thus, our case law makes clear that earlier attempts to

interrogate a defendant after an invocation of rights can violate

Edwards, but a subsequent decision to speak with law

enforcement can still be voluntary. That is the case here.

Regarding the requirement that the waiver be voluntary,

we conclude that for the same reasons discussed in part

II.A.2.b., ante, the record shows that defendant’s initiation was

voluntary and uncoerced by law enforcement’s earlier conduct.

Notably, there is no indication that Patterson “ ‘threatened,

tricked, or cajoled’ ” defendant into a waiver. (People v.

Honeycutt (1977) 20 Cal.3d 150, 160.)

Defendant relies on Neal, supra, 31 Cal.4th 63 to argue he

did not voluntarily waive his Miranda rights when he spoke

with Patterson, asserting that law enforcement authorities

repeatedly disregarded defendant’s efforts to remain silent and

invoke his right to counsel during the three-and-a-half-hour

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time frame, despite defendant’s physical condition and

expressed shock and confusion, and that Young berated

defendant for murdering Aguirre.

In Neal, however, the defendant invoked his right to

counsel nine times, and the officer intentionally violated the

defendant’s Miranda rights, applying an aggressive method of

interrogation that he knew was improper. “[T]he officer . . . not

only continued the questioning improperly but badgered

defendant, accusing him of lying, and informing defendant that

‘this is your one chance’ to help [yourself] and that ‘if you don’t

try and cooperate . . . , the system is going to stick it to you as

hard as they can.’ Despite this badgering, defendant did not

admit his guilt at that session. After the session ended,

however, defendant was placed in custody and kept in jail

overnight without access to counsel or other noncustodial

personnel and without food or drink or toilet facilities. The

following morning, defendant asked to speak to the officer, who

thereafter met with him, resumed questioning, and ultimately

obtained two confessions from him.” (Neal, supra, 31 Cal.4th at

p. 68; see id. at pp. 73–75.) Neal was an 18-year-old high school

dropout with limited intelligence and little experience of the

criminal justice system. (Id. at p. 84.)

Here, defendant not only initiated the conversation with

Patterson, he led it. Patterson asked few questions and

frequently gave only one-word responses, encouraging

defendant to continue speaking. For example, after a brief

interruption during which the surgery resident entered the

room to conduct a medical procedure, defendant started a new

topic, stating, “you know I, about this afternoon, I’m aware of

everything that happened (unintelligible).” After they discussed

defendant’s attendance at AA meetings, defendant switched to

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a new topic, stating, “But this episode with me, just today

(unintelligible).” The overall picture is not of a browbeaten

suspect whose will was overborne by a coercive interrogator, but

of a suspect eager to tell his story to a sympathetic listener, even

though there might be consequences for doing so. Near the end

of their conversation, defendant urged Patterson to “write [his]

report as quickly as possible” and remarked, “[Y]ou had a kind

face. . . . I think that’s [an] asset in your business.” Thus, the

discussion between Patterson and defendant paints a different

picture than in Neal. Of significance here and in contrast to

Neal, the record before us (including defendant’s statement that

his lawyer was “really going to be pissed”) suggests that the

actions of law enforcement personnel did not cause defendant to

misunderstand the nature of his rights such to undermine the

validity of his waiver. (Edwards, supra, 451 U.S. at p. 485.)

Regarding the requirement that the waiver be knowing

and intelligent, the record establishes that defendant made a

conscious choice to talk to Dr. Patterson despite knowing he was

entitled to counsel and also knowing that, by talking to

Patterson, he was acting against his legal interest. First,

defendant had been read his full Miranda rights by Detective

Young at the start of the evening and had invoked those rights

by refusing to talk to the police and the district attorney and

asking for an attorney. Second, Patterson clearly informed

defendant at the start of the encounter that his statements could

be used against him. Defendant asserted his Miranda rights to

Patterson, as he had earlier in the evening, which showed his

understanding that he had the right to assert his rights to

Patterson. Defendant clearly understood that his statements

could be used against him, telling Patterson that he was “facing

very serious charges and I think I’d rather talk to a lawyer first.”

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Patterson agreed, stating, “that’s your decision” and “it’s up to

you, you can still refuse it . . . .” Third, Patterson testified at the

hearing on the Miranda motion that defendant appeared alert

and cognizant during the interview, and his participation in the

interview was unimpaired by his physical condition. Fourth,

and most critically, defendant’s own contemporaneous

statements demonstrated a knowing waiver by defendant of his

Miranda rights. Early on in his discussion with Patterson,

defendant said: “I think I’d be better off talking to you about

emotional states than about actual specific facts” and “I’m sure

my lawyer wouldn’t appreciate it, you know?” (see p. 31, ante.)

Toward, the end of the discussion with Patterson, defendant

again reiterated this understanding, stating:

“DEFENDANT: I started out by just not wanting to tell

you exactly what happened —

“PATTERSON: Yeah.

“DEFENDANT: — but it ended up that way.

“PATTERSON: Well, we went sort of round and round —

“DEFENDANT: At this point I don’t have anything to

lose by being honest and saying what happened.

“PATTERSON: Yeah.

“DEFENDANT: And I understand my lawyer’s really

going to be pissed and so forth.

“PATTERSON: Um-hum.

“DEFENDANT: So then (unintelligible).

“PATTERSON: You can certainly talk, and he’ll get what

we’re talking about.

“DEFENDANT: I’m sure he will, yeah.

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“PATTERSON: And uh —

“DEFENDANT: And I don’t know why they, why they say

don’t say nothing, because if you did something and people

know you did it, there’s people (unintelligible) —

“PATTERSON: They saw you.

“DEFENDANT: — you know, they saw me, right. How

are you gonna say you didn’t? I mean that, what are you

accomplishing, you know, I think the situ- I think it’s best

to be honest, that way you get to the root of it.”

These responses demonstrated defendant’s awareness of

his rights to silence and counsel and that his statements would

be used against him and his conscious choice to speak to

Patterson anyway. Specifically, defendant’s comment that his

attorney would be angry “demonstrated his awareness of the

consequences of talking with Dr. Patterson,” as the Attorney

General argues, and that defendant’s agreement with

Patterson’s statement that defendant’s attorney would “get

what we’re talking about” demonstrated that defendant “was

aware of his right to speak without counsel and that the

statements would be used against him, yet he voluntarily chose

to do so anyway.” Defendant’s statement that “I understand my

lawyer’s really going to be pissed and so forth” demonstrates an

understanding that he would have a lawyer in the future and is

a direct acknowledgment by defendant that what he was doing

contradicted what that future lawyer would advise him to do.

Defendant’s statement that he “started out . . . not wanting to

tell [Patterson] exactly what happened” but concluding, “[a]t

this point [he did not] have anything to lose by being honest and

saying what happened” further illustrates his awareness that

he did not have to speak and that he was waiving this right, as

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did his comment, “I don’t know why they . . . say don’t say

nothing, because if you did something and people know you did

it.”

Defendant even knew Patterson would prepare a report at

the conclusion of the interview: When Patterson said he was

going to leave defendant to rest before surgery, defendant

replied, “Yeah, it’s probably better if you write your report as

quickly as possible . . . .” Thus, he acknowledged that Patterson

would be writing a report on what had been said, but he spoke

with Patterson anyway. As the trial court observed, defendant’s

statements make it clear defendant understood he could have a

lawyer and that his statements could be used against him in

legal proceedings.

Relying upon Bradshaw, supra, 462 U.S. 1039 and

Waidla, supra, 22 Cal.4th 690, defendant argues that an

additional round of Miranda warnings were necessary here

after any initiation in order to ensure that his statement to

Patterson was voluntary. While initiation and waiver are

indeed separate inquires that should not be “meld[ed]” together

(Bradshaw, at p. 1045), these cases do not require a new

Miranda advisement after a suspect initiates dialogue. As the

trial court acknowledged, an express Miranda waiver would

certainly make this an easier case. However, it is well settled

that a suspect initiates “further communication, when his words

or conduct ‘can be “fairly said to represent a desire” on his part

“to open up a more generalized discussion relating directly or

indirectly to the investigation.” ’ ” (Molano, supra, 7 Cal.5th at

p. 656.) “ ‘In the event he does in fact “initiate” ’ such further

communication, exchanges, or conversations, ‘the police may

commence interrogation if he validly waives his [Miranda]

rights.’ ” (Waidla, at pp. 727–728; see also Bradshaw, at p. 1044

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[“if a conversation taking place after the accused has ‘expressed

his desire to deal with the police only through counsel,’ is

initiated by the accused, where reinterrogation follows, the

burden remains upon the prosecution to show that subsequent

events indicated a waiver of the Fifth Amendment right to have

counsel present during the interrogation”].) For the reasons

stated above, the waiver here was valid.

Nonetheless, we acknowledge that certain aspects of the

interaction between Patterson and defendant make this

question close. First, defendant never expressly revoked his

invocations. Instead, the waiver here was more subtle: When

defendant asked Patterson if he wanted to talk, Patterson

responded, “[I]f you don’t mind and we could just talk about

what has happened or something,” and then a conversation

ensued. Defendant later explained that he had not wanted to

discuss what had happened that day but that “it ended up that

way” and that “at this point,” which was after he had confessed,

he had nothing to lose. As the trial court explained, “The only

thing lacking — and I think [defense counsel] argued this point

and I think well argued it — was if Dr. Patterson had stopped

and stated the Miranda, we probably wouldn’t be having this

conversation.”

Second, defendant’s medical condition — he had been

shot, he was in pain, and had been given a “pretty heavy dose”

of perhaps “local anesthesia” prior to his confession — raises

concern about whether he would have been alert and cognizant

during his encounters with Patterson.

Third, there is the possibility that law enforcement’s prior

violations of defendant’s right to counsel may have put pressure

on defendant and made him feel like he had to talk to law

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enforcement or Patterson despite his prior invocations of his

right to silence and to counsel.

Last, there is the possibility that defendant was unclear

as to whether Dr. Patterson was there to interrogate defendant

or treat him. Defendant may not have fully appreciated this

distinction. Defendant spoke to Patterson only after expressing

potential willingness to Haas to speak with a psychiatrist in the

context of a discussion in which defendant had described his

earlier efforts to see mental health specialists. In talking with

Patterson, defendant seemed interested in getting answers

about his schizophrenia. He explained his efforts to get

treatment and described his delusions and what seemed to

worsen them. He told Patterson, “I think you, you probably deal

with emotional states rather than facts anyway, but

(unintelligible) if you’re giving some type of a diagnosis.”

Nonetheless, despite these countervailing concerns, the

record overall establishes that defendant made a conscious

choice to talk to Patterson despite knowing he was entitled to

counsel and also knowing that, by talking to Patterson, he was

acting against his legal interest. Defendant had been read his

full Miranda rights by Detective Young at the start of the

evening and Patterson had clearly informed defendant at the

start of the encounter that his statements could be used against

him. Defendant asserted his Miranda rights to Patterson, as he

had earlier in the evening, which showed his understanding that

he had the right to assert his rights to Patterson. Most crucially,

we have the unique benefit of being able to listen to the audio of

the interview, which corroborates Patterson’s testimony that

defendant appeared alert and unconfused, and convinces us, as

it did the trial court, of “defendant’s understanding, knowledge,

appreciation and willingness to participate in the

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conversation . . . .” (See Burbine, supra, 475 U.S. at pp. 422–

423 [“Once it is determined that a suspect’s decision not to rely

on his rights was uncoerced, that he at all times knew he could

stand mute and request a lawyer, and that he was aware of the

State’s intention to use his statements to secure a conviction,

the analysis is complete and the waiver is valid as a matter of

law”]; accord, People v. Mattson (1990) 50 Cal.3d 826, 867.) We

agree with the trial court’s conclusion, described above, that

defendant “knew what was going on. He knew what use it would

be put to. He knew with whom he was speaking. He knew what

he was speaking of.” We further agree the conversation was

“un[e]xcited, unforced and voluntary . . . .” In sum, our review

of the audio recording reveals a defendant who is speaking

freely, easily, and comfortably and not as the result of

“ ‘ “intimidation, coercion, or deception . . . .” ’ ” (McCurdy,

supra, 59 Cal.4th at p. 1086.)

Accordingly, we affirm the denial of the suppression

motion. Defendant’s ultimate decision to speak with Patterson

was not the product of the earlier efforts to question him but of

his own free will and intelligent choice, knowing he was entitled

to, and had the option to wait for, an attorney. Only because of

an unusual record affording insight into defendant’s thinking

can we conclude defendant’s willingness to talk was

uninfluenced by the earlier Miranda violations. To be clear, we

do not hold that, after invocation, law enforcement can return

shortly thereafter and request to interrogate the suspect. That

violates Edwards’s bright line rule. Similarly, we do not hold

that law enforcement has carte blanche permission to remain

present after an invocation in the hope of inducing a suspect to

talk. Depending on the facts, such conduct could make a

subsequent initiation and waiver involuntary. For example, we

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could imagine a case where the subsequent statements by law

enforcement to the suspect are more directive (e.g. “we’ll just

stay here or follow you around until you change your mind”),

where the duration of the officer’s presence is longer, where the

manner in which the officer stays is more menacing or

intimidating, or where the defendant’s ultimate decision to talk

seems coerced based upon the defendant’s responses. But that

is not this case. Every Miranda inquiry is highly fact specific,

and here we have unique facts. Here, Patterson explained after

defendant invoked that “it’s up to you” and did not ask further

questions; Patterson was present with defendant for only a

limited time period before defendant started the conversation

with Patterson; defendant, and not Patterson, started the

conversation at issue; the recorded interview clearly shows that

defendant was calm and was engaging Patterson, with

defendant largely directing the conversation and selecting the

topics; the record indicates that defendant was aware he was

providing information that might be used against him, yet he

viewed the trade-off as worthwhile; and the trial court’s

numerous factual findings are supported by an audio recording

that we can listen to and assess for ourselves. On this unique

record, we affirm.4

4

The dissent expresses concern that this holding will

encourage law enforcement to “ ‘simply disregard the suspect’s

requests for counsel’ ” and continue to interrogate the suspect

with shifting and ever subtler tactics. (Dis. opn., post, at p. 21,

quoting People v. Storm (2002) 28 Cal.4th 1007, 1046 (dis. opn.

of Chin, J.).) We disagree. First, it is worth noting that we here

hold that the trial court properly excluded portions of

defendant’s prior interviews conducted by Haas and Young.

Moreover, we acknowledge above that this is a close case and,

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B. Exclusion of Portions of Patterson’s Interview

of Defendant

After the trial court denied defendant’s suppression

motion, the parties litigated what portions of the Patterson

interview were admissible, with defendant arguing for

admission of the entire interview but the court generally ruling

with the prosecution in admitting only limited portions.

Defendant challenges the trial court’s ruling, contending that

excluding a majority of the interview violated Evidence Code

section 356 and his federal constitutional right to due process.

The Attorney General argues the excluded portions were

irrelevant to the question of defendant’s mental state and that

regardless, any error was harmless. We conclude the trial court

acted within its discretion in redacting the statements as it did.

1. Version of Interview Presented to Jury

The redacted interview submitted to the jury described in

the statement of facts ante is recounted in more detail here. In

the redacted interview, defendant explained that he would

become overwhelmed by “intense emotions” and that he had

recently been in a monthlong “very intense emotional

relationship” with G.A. that had “[s]tirred things up.” He

on different facts, suppression of defendant’s statements to

Patterson could have been required. This fact alone, involving

the possibility — litigated over several decades — of

suppressing statements used at the trial of a defendant

convicted of the senseless murder of a law enforcement officer,

serves as a stark warning. No one should take from this opinion

the lesson that violations of constitutional rights carry no

consequences. Every violation jeopardizes the ability to place

before a jury anything a suspect might say, and jeopardizes any

conviction that might be obtained if matters that should have

been excluded are erroneously admitted.

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explained he had married G.A. some years before as a favor so

she could obtain a green card and that they had had no contact

nor began dating until recently. The week before the shooting,

he had accused G.A. of cheating on him and she had denied it.

He explained to Patterson that he had become intensely jealous

of G.A. and determined to never be physically separated from

her again. He then confessed to kidnapping G.A. at gunpoint.

The portion submitted to the jury also included Patterson

and defendant’s discussion of the events surrounding the

shooting of Aguirre. Defendant recalled observing the police

pull G.A. out of the house and realizing then that her family

must have called the police. He saw Aguirre enter the residence

and heard Aguirre tell him to put his hands up. Defendant

explained that he “was kinda looking out” from behind a wall

and “just jumped out and shot [Aguirre],” explaining that that

was how he “reacted” to the situation.

The submitted portions of the interview also included

some explanation of defendant’s experience of the events that

day. He told Patterson that on the day of the shooting, he felt

as if he “was in a movie.” He recounted earlier conversations

with G.A. in which she had urged him to write a movie because

defendant had “done some writing” in school. That afternoon

when they were driving in the car after leaving G.A.’s employer’s

residence, G.A. had reminded defendant about writing a movie

and he had explained to her that he was writing the movie at

that moment and that they were in the movie “acting it out.” He

told Patterson, “[W]hen you have guns, then that’s how you

write a movie . . . ” and that he kept telling G.A., “[Y]ou’re in [the

movie] right now, isn’t it exciting?” But he explained to

Patterson that he was “aware of everything that happened” and

“know what I did . . . .” He explained that he was “getting what

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[he] wanted” and that the “movie was going the way [he] wanted

it to.” He explained that his actions against the police that day

had been a “passive suicide attempt.”

2. Portions of Interview not Presented to Jury

In the portions of the interview excluded from the jury,

defendant and Patterson discussed defendant’s experiences

with paranoid delusions, efforts to seek mental health

treatment, self-diagnosis of schizophrenia, recognition that

close emotional relationships would intensify his delusions, and

description of prior criminal activity and incarceration as it

related to his delusions. Defendant stated, “I think you, you

probably deal with emotional states rather than facts anyway,

but (unintelligible) if you’re giving some type of a diagnosis.”

Defendant told Patterson he had paranoid delusions. He

explained that about two years before Patterson’s interview of

defendant, defendant had contacted the county mental health

department because he thought he had a mental disorder. He

saw psychologist Lisa Kus (who testified in defendant’s penalty

defense) at the county’s mental health department, and she

diagnosed him with organic delusional disorder. Kus referred

defendant to a psychiatrist who prescribed Haldol. Defendant

stopped taking the medication after three days because it caused

“a lot of hallucinations” that were “real frightening.” Patterson

told defendant that sometimes Haldol worsens hallucinations.

When defendant went back to the county’s mental health

department, he was seen by another psychiatrist who did not

schedule defendant for another appointment because he did not

think defendant “was going to be a mental health patient.”

Defendant told Patterson he also attended “12-step

meetings and recovery programs” for drug addiction and

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alcoholism and enrolled in a drug and alcohol counselor’s

certificate program at Oxnard Community College. He told

Patterson about his job working as a resident manager at the

facility for residents with dual diagnosis of mental disorder and

chemical dependency. Through information gained in these

experiences, defendant determined he had schizophrenia.

Defendant provided some descriptions of his delusions. He

explained that when he saw Kus, he had been living with his

parents and had formed the belief they were “Nazi

agents . . . trying to reprogram [defendant] through chemicals”

by poisoning his food. Defendant said he had a “paranoid

episode” for three months after that. Defendant responded

affirmatively to Patterson’s question whether defendant still

believed his father was poisoning his food.

He described experiencing an “intense” paranoid delusion

about three to six months before the interview with Patterson,

in which defendant formed the belief that his father had

molested defendant’s son when his son was approximately 7

years old. Defendant felt “intense” anger and avoided his father,

thinking he would have to kill him, until he realized he was

having a delusion.

Regarding defendant’s accusation to G.A. a few days

before the shooting, that she was cheating on him, defendant

told Patterson that G.A. responded, “You’re sick, Mike, you’re

sick in the head, you need treatment, you should go [see] the

doctor.”

Defendant explained he had “another violent episode”

about 10 years earlier, in which he committed armed robbery of

a McDonald’s restaurant while he was under the influence of

drugs. Patterson asked if the armed robbery was “a fall off with

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the paranoid delusional thing.” Defendant responded, “Well you

know the armed robbery thing was, and I, this is all in my files

over at Hillmont, but I had the delusion — I sorta had that

delusion today too, but uh, I was doing a religious thing. It was

a religious battle. (unintelligible). Ever heard of Krishna? The

Indian God, Krishna?” Defendant explained he was Hindu and

robbed the McDonald’s restaurant because, “I thought they were

the demons of this world selling billions and billions of

hamburgers. I wanted to harm them, so I was gonna rob

’em. . . . I wanted to scare all the people in the restaurant.”

Patterson and defendant discussed his incarceration

following the robbery. Defendant told Patterson that when he

was pending release from incarceration, he told a staff

psychiatrist that he thought he would be harmful to himself and

society and should not be released. Defendant told prison staff

that he was continuing to have “delusions with Krishna.”

Defendant explained that he was not feeling “remorse

now” and this was “normal” for him when he was “emotionally

excited, to shut down.” He described feeling like “there’s no

emotion” but also that there was “too much emotion. You don’t

realize you have emotions, then you feel that controls your

actions.”

In addition to explaining to Patterson, in the portion

submitted to the jury, that the intense emotions defendant

experienced were overwhelming, defendant had also explained

in the excluded portions of the interview that close emotional

relationships “amplified the delusional thinking.” He explained

that the paranoid episodes were “triggered by, by uh, people

that . . . are real close . . . .” Defendant avoided seeing his son,

at the time age 22, because it would be a “pretty emotional”

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experience, and emotions would “amplif[y] the delusional

thinking, you know.” He experienced his emotions as

“disorienting and confusing and . . . uncomfortable.”

In response to Patterson’s question about whether

defendant’s delusions had “entirely disappear[ed],” defendant

explained that he still had “paranoid . . . episodes.” The

episodes would “come[] and go[].”

3. Procedural and Legal Background

The prosecution sought to admit portions of defendant’s

statements “to explain the defendant’s actions” on the day of the

shooting and argued that the remaining portions concerned

evidence of defendant’s criminal, family, educational, and

mental health history that was irrelevant “to what the

defendant was thinking or doing on the day in question and do

not shed any light on the issues in the case.” The prosecution

specifically objected on hearsay grounds to defendant’s

comments relaying statements made by his previous treating

clinicians.

The defense contended that admission of the entire

interview was necessary under his federal constitutional due

process and confrontation rights because it was defendant’s

explanation of why the shooting occurred. The defense argued

that defendant’s statements in the interview — his descriptions

of his symptoms and earlier episodes of delusions, recounting of

diagnosis by former mental health clinicians, and explanation

that his paranoid delusions were amplified by intense emotional

relationships and had resulted in earlier criminal activity —

were in response to Patterson’s questions and an explanation

that his paranoid delusions were present in the days leading to,

and had resulted in, the shooting and thus were evidence of his

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mental state. Defendant also argued that the remaining

portions of the interview were connected to the portions offered

by the prosecution to show defendant’s thoughts and actions

that day, including the admitted portion in which defendant

stated that he “just reacted” to the situation, and that the

statements added corroboration and credibility to the admitted

statements. The defense argued that exclusion of the

statements, and in particular the detailed parsing of the

statements, would create a misleading impression that

defendant confessed to shooting Aguirre absent any mental

illness and that the admitted portions were all that defendant

had told Patterson, a psychiatrist, about why he shot Aguirre.

In sum, the defense argued that excluding all references to

defendant’s mental illness would create a misleading impression

of defendant’s state of mind and deprive the jury of a complete

evaluation of defendant’s explanation of his mental state.

The prosecution objected to admission of the entire

statement as containing multiple layers of hearsay and that the

defense was not calling a mental state expert in the guilt phase

or declaring an intent to present a defense based on a mental

disease.

The trial court denied the defense motion to include the

entire interview, admitting the portions requested by the

prosecution, some additional passages the court determined to

admit, and two specific portions requested by the defense in

response to the court’s ruling. Specifically, on its own, the court

admitted portions of the discussion between Patterson and

defendant in which defendant described feeling “these intense

emotions that were kind of overwhelming,” that his relationship

with G.A. had “[s]tirred things up,” that defendant had felt like

he was “in a movie” that day but that he was “aware of

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everything that happened,” and that his conduct that day was

his “reaction to the situation” and had possibly been a “passive

suicide attempt,” and that defendant was “getting what [he]

wanted, the movie was going the way [he] wanted it to.” In

response to defense requests, the court admitted portions in

which defendant said he had accused G.A. of cheating on him

the week before, which she denied, but it declined to admit the

additional portion in which G.A. further told defendant, “You’re

sick, Mike, you’re sick in the head, you need treatment, go to the

doctor.”

The court reasoned that the portions it was admitting

were relevant to the prosecution’s offer to show defendant’s

“state of mind” and actions that day but that defendant’s

“subjective evaluation of his own psychological state as it

reflects back upon what he thought he was doing in the context

of the psychoanalysis and other treatment he had received

throughout, other therapists” (sic) was inadmissible. The court

ruled that the defense could otherwise contest the state’s case

on state of mind, malice, and premeditation such as through

expert testimony, but could not present expert opinion through

defendant’s statements. The defense could also inquire into the

circumstances of the interview, such as defendant’s condition

and the representations made by Patterson. In response to the

court’s ruling, the defense reiterated its contention that

admission of the entire interview was required and argued that

nonetheless, the inclusion of 15 additional lines from the

interview was at least admissible under the trial court’s own

theory of admissibility. As noted above, the trial court admitted

some of the requested lines.

During its opening statement, the prosecution quoted

from defendant’s statements to Patterson that he felt like he

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was in a movie on the day of the shooting. The prosecution

stated this “wasn’t a hallucination” and quoted defendant’s

further comments from the interview in which defendant stated

that he had told G.A. that he was writing a movie. The defense

renewed its motion under Evidence Code section 356 to have the

entire audiotape played during cross-examination, arguing in

response to the prosecution’s comment that defendant had not

been hallucinating, that the excised portions of the interview

supported the defense theory that defendant was experiencing

delusions that day, noting specifically that defendant had

explained that he had earlier had a delusion that he was in a

Hindu religious battle and that he had told Patterson that he

“ ‘sort of had that delusion today too.’ ” The trial court denied

the motion, explaining:

“It is one thing for a person to express subjectively, ‘This

is my state of mind at the time,’ that is, this is what I know, this

is what I said, this is what I did, which is what the present offer

is, what is before the jury. It’s a wholly different thing for them

to have him engage in psychoanalytic theory on why he did what

he did.

“And, in substance, what the defense would have the

Court do is have Mr. Johnson become his own expert. Not on

his state of mind at the time, which is — you know, one is

allowed to give one’s impressions about one’s own physical

condition under oath. But this is really ramblings of someone

about former events, former states of mind, former matters

which are wholly outside of, in my estimation, what is before the

Court.

“Now, let me be clear. I think this has all really been

rather thoroughly explored. I am comfortable with the idea and

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the reason I allowed his expression of his then existing state of

mind in because I think you have a right to argue whether a

person who sees himself in a movie is a person who has actually

formed malice. I think ultimately I’m going to hear that

argument from you.

“And inasmuch as he was recounting the events and his

then existing state of mind, that is all that is before the jury.

However, to then allow a foray into Mr. Johnson’s subjective

psychoanalytic theory concerning what moves him in times past

and how that may have some nexus with times present is not

356. It’s just — it’s not part of the same package. It’s a wholly

different issue.

“As to his cognitive functions at the time, you know, the

evidence will be whatever the evidence is. And Dr. Patterson’s

examination at this point has been markedly circumspect. It’s

been: I was there, there was the person, this is what he said.

And it was redacted to confine itself to the very narrow issues

before the Court.

“I could go on and give you some self-serving comments

about how I’m comfortable with this ruling, but I’m more

comfortable than I was before with it. I think it’s a very clear,

almost bright line distinction between his evaluative thinking

reflectively and his declarative thinking about what in fact

occurred.

“So, the objection — the motion to offer the greater portion

of evidence is denied, and the Court stands on its earlier ruling.”

Evidence Code section 356 provides that “[w]here part of

an act, declaration, conversation, or writing is given in evidence

by one party, the whole on the same subject may be inquired

into by an adverse party; when a letter is read, the answer may

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be given; and when a detached act, declaration, conversation, or

writing is given in evidence, any other act, declaration,

conversation, or writing which is necessary to make it

understood may also be given in evidence .” “ ‘ “The purpose of

this section is to prevent the use of selected aspects of a

conversation, act, declaration, or writing, so as to create a

misleading impression on the subjects addressed.” ’ ” (People v.

Hardy (2018) 5 Cal.5th 56, 104.) “ ‘ “ ‘[T]he courts do not draw

narrow lines around the exact subject of inquiry. “In the event

a statement admitted in evidence constitutes part of a

conversation or correspondence, the opponent is entitled to have

placed in evidence all that was said or written by or to the

declarant in the course of such conversation or correspondence,

provided the other statements have some bearing upon, or

connection with, the admission or declaration in

evidence. . . .” ’ ” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 600

(Clark).) This includes admission of portions “of the same

interview or conversation, even if they are self-serving” so long

as they “ ‘have some bearing upon, or connection with, the

admission . . . in evidence.’ ” (People v. Arias (1996) 13 Cal.4th

92, 156.) “Evidence Code section 356 ‘ “is founded on the

equitable notion that a party who elects to introduce a part of a

conversation is precluded from objecting on confrontation clause

grounds to introduction by the opposing party of other parts of

the conversation which are necessary to make the entirety of the

conversation understood.” ’ ” (People v. Melendez (2016)

2 Cal.5th 1, 26.) “The section permits introduction only of

statements ‘on the same subject’ or which are necessary for

understanding of the statements already introduced. The ‘other

conversation’ referred to in Evidence Code section 356 must

have some bearing upon, or connection with, the admission or

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declaration in evidence.” (People v. Breaux (1991) 1 Cal.4th 281,

302.) Evidence Code section 356 “applies only to statements

that have some bearing upon, or connection with, the portion of

the conversation originally introduced. [Citation.] Statements

pertaining to other matters may be excluded.” (People v.

Samuels (2005) 36 Cal.4th 96, 130; accord, People v. Chism

(2014) 58 Cal.4th 1266, 1324.) “Section 356 is indisputably

‘ “subject to the qualification that the court may exclude those

portions of the conversation not relevant to the items thereof

which have been introduced.” ’ [Citations.] ‘The rule is not

applied mechanically to permit the whole of a transaction to

come in without regard to its competency or relevancy . . . .’

(Witkin, Cal. Evidence (2d ed. 1966) § 320, p. 283.)” (People v.

Williams (1975) 13 Cal.3d 559, 565.)

Further, under section 352, “a trial court has broad

discretion to exclude evidence it deems irrelevant, cumulative,

or unduly prejudicial or time-consuming.” (People v. Pride

(1992) 3 Cal.4th 195, 235; see People v. Zapien (1993) 4 Cal.4th

929, 960 [affirming trial court’s ruling to admit portions of

earlier testimony sought by the prosecution for context under

Evid. Code § 356 where the court also considered and rejected

the defense’s challenge to admission of the statement under §

352].)

A trial court’s ruling under Evidence Code section 356 is

reviewed for abuse of discretion. (People v. Farley (2009)

46 Cal.4th 1053, 1103.) “ ‘ “[T]he scope of discretion always

resides in the particular law being applied, i.e., in the ‘legal

principles governing the subject of [the] action . . . .’ Action that

transgresses the confines of the applicable principles of law is

outside the scope of discretion and we call such action an ‘abuse’

of discretion.” ’ ” (Williams v. Superior Court (2017) 3 Cal.5th

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531, 540.) “To establish an abuse of discretion, defendants must

demonstrate that the trial court’s decision was so erroneous that

it ‘falls outside the bounds of reason.’ [Citations.] A merely

debatable ruling cannot be deemed an abuse of discretion.

[Citations.] An abuse of discretion will be ‘established by “a

showing the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner that resulted in a

manifest miscarriage of justice.” ’ ” (People v. Bryant, Smith and

Wheeler (2014) 60 Cal.4th 335, 390 .)

4. Analysis

Defendant contends on appeal that the trial court erred in

excluding a majority of his statement to Patterson because the

redacted statement gave the jury an incomplete, prejudicial

view of his mental state on the day of the crime as well as during

the interview with Patterson.

In the interview, defendant had explained his belief that

he had been plagued by paranoid delusions throughout his life

and that they had resulted in criminal activity similar to the

events that day. He explained that his perceptions of reality

would be incorrect due to his mental illness. Defendant

observed that his delusions were worsened by close

relationships, such as his parents and his son, and had

previously resulted in homicidal thoughts. He explained that

as the delusions were happening, he would believe they were

real, such as that his parents were Nazi agents trying to poison

his food or that his father had molested defendant’s son.

Defendant argues these explanations were part of his

explanation in the admitted portions about becoming

overwhelmed with feelings for G.A.; he highlights that he had

told Patterson that his intense feelings for G.A. had amplified

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his delusional thinking. Defendant had told Patterson that he

had considered going to see a psychiatrist a week before the

shooting because when he accused G.A. of cheating on him, she

had said he was mentally ill and needed to see a doctor. Thus,

defendant argues, his complete statement gave meaning to his

behavior and mental state at the time of the kidnapping, sexual

assault, and murder. He argues exclusion of the statements

was prejudicial because it created a misleading impression that

he shot Deputy Aguirre absent any mental illness and because

it allowed the prosecution to argue defendant committed cold-

blooded first degree special-circumstances murder by urging the

jury to “listen to that tape to hear the cold and to hear the ice”

in defendant’ statements without the benefit of hearing the rest

of the interview, which he argues would have given the jury

context to evaluate the prosecution’s characterization of

defendant’s demeanor and intent.

We conclude the trial court acted within its discretion to

redact the statements as it did. First, the court admitted

defendant’s statements that described his mental state on the

day of the shooting. Defendant described that he “felt these

intense emotions that were kinda overwhelming.” He described

that “what happened this afternoon was like I was in a movie.”

He described, “it was going on and I was living life and that was

a movie.” The court reasonably decided that defendant’s self-

diagnosis regarding prior events was unrelated to the current

events and his description of what he was experiencing that day.

The trial court chose to distinguish between statements

reflecting past unrelated events versus the events on the day of

the shooting and defendant’s analytic statements as to his mind

versus declarative statements of what he was experiencing.

Thus, it excluded the portions of the interview that covered

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defendant’s criminal, educational, psychiatric, and family

history. As the Attorney General argues, these portions were

irrelevant to what defendant was t

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