IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE ,
Plaintiff and Respondent,
S122240
v.
) Ct.App.
2
B154557
CATARINO GONZALEZ, JR.,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA172833
In Davis v. United States (1994) 512 U.S. 452 (Davis), the United States
Supreme Court held that a defendant’s invocation of the right to counsel during
custodial interrogation, safeguarded by Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), must be unambiguous and unequivocal to be valid. In the present case,
defendant said, before submitting to a polygraph examination during a custodial
interrogation, “if for anything you guys are going to charge me I want to talk to a
public defender too, for any little thing.” The police assured him he could talk to a
public defender “anytime you want to,” but explained they planned to “book” him
that night and would release him the following day if the polygraph examination
showed he was telling the truth about his involvement in the murder that police
suspected him of having committed. The interrogation continued that evening and
the following day. Defendant ultimately confessed to the crime.
The Court of Appeal concluded defendant’s statement was a “sufficiently
clear” request for counsel and that, at a minimum, the police should have asked
1
defendant to clarify whether he wanted an attorney. We disagree. For the reasons
that follow, we conclude that defendant’s statement was ambiguous and equivocal
and that the police were not required to ask clarifying questions to determine his
intent.
STATEMENT OF FACTS
Defendant Catarino Gonzalez, Jr., was convicted, following a jury trial, of
the first degree murder of Los Angeles Police Officer Filbert Cuesta (Pen. Code, §
187, subd. (a)) with the special circumstances that the victim was engaged in the
performance of his duties as a peace officer at the time of the murder, that the
murder was committed to avoid a lawful arrest, and that it was committed by
means of lying in wait (Pen. Code, § 190.2, subd. (a)(5), (7), (15)).1 Defendant
was also convicted of the premeditated attempted murder of Officer Richard
Gabaldon. The jury also found true various sentence enhancements for firearm
use. (§§ 12022.5, subd. (a); 12022.53, subds. (c), (d), (e)(1).) Following the
penalty phase of the trial, the jury fixed the penalty for the murder of Officer
Cuesta at life without the possibility of parole. Defendant was sentenced to that
term consecutive to a term of 25 years to life for using a firearm. On the
attempted murder count, defendant was sentenced to a consecutive term of 15
years to life, consecutive to a term of 20 years to life for using a firearm.
The evidence introduced at trial showed the following: In April 1998,
defendant was a member of the Smiley Hauser clique of the 18th Street gang and
went by the moniker “Termite.” Officer Cuesta and his partner, Gary Copeland,
were members of a gang unit and monitored the Smiley Hauser clique. Over the
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
2
preceding two-year period, the two officers had stopped and talked to defendant
two or three times a week. On April 1, Officers Cuesta and Copeland participated
in the arrest of defendant for possession of rock cocaine. Defendant was convicted
and sentenced to probation, including a term in county jail. As a condition of
probation, defendant was prohibited from associating with gang members. After
he was released from county jail, defendant adopted a more confrontational
attitude toward police, including Officers Cuesta and Copeland.
On August 3, 1998, Officer Copeland detained defendant for drinking in
public. Defendant was taken to the police station where he was cited and released.
When Officer Copeland declined to give him a ride home, defendant became upset
and called Copeland a “punk ass bitch.” The following day, while on patrol,
Officer Copeland observed freshly painted gang graffiti that read “T•Mite,” and
“18th St T.M.L.S.” and had the word “police” crossed out. This indicated to
Copeland that the author of the graffiti intended to retaliate against, and possibly
kill, a police officer. Copeland believed defendant was the author.
On August 8, Copeland called Officer Cuesta and told him about the
graffiti. When Officer Cuesta began his shift that night, he told his partner,
Officer Richard Gabaldon, that he believed the graffiti was grounds to revoke
defendant’s probation.
That night, defendant and other members of the 18th Street gang appeared
uninvited at a wedding reception on Carlin Street. Defendant was seen showing a
gun to some girls. Shortly after midnight, while on patrol, Officers Cuesta and
Gabaldon saw several individuals whom they believed to be gang members going
into the party, and stopped to investigate. At about the same time, defendant and
other gang members left the party through a back gate.
Officer Cuesta spoke to the hostess of the party, Maria Guzman, who
complained about the uninvited gang members and wanted the party to end. The
3
officers told her the party was too loud, that there were too many people and she
would have to close it down. She told the police she doubted anyone would leave
as long as they remained out front. Officer Cuesta suggested to Gabaldon that
they drive around the block so that it would appear they were leaving. Officer
Cuesta drove around the block and parked on Westhaven Street behind the party.
The officers wanted to see if people from the party were climbing over the back
fence. Gabaldon called for backup to assist in breaking up the party.
Cuesta continued around the block before parking at the intersection of Du
Ray and Carlin Streets, three or four buildings east of the party. As Officer
Gabaldon was getting out the car, he heard gunfire coming from behind him, a
total of 12 to 15 shots fired in rapid succession. He got back into the car and slid
down in his seat. Officer Cuesta yelled an epithet. The rear windshield was shot
out and the car began to roll forward, then turned sharply left and hit a parked car.
Officer Gabaldon looked over at his partner; Cuesta was slumped forward, his
head resting on his chest; he was bleeding uncontrollably from a gunshot wound to
his head. Gabaldon got out of the car with his weapon drawn and looked in the
direction from which the shots had been fired. He saw three or four men running
from the corner and fired at them.
Two eyewitnesses saw the shooting and both identified defendant as the
shooter. The first, Agipato Negron, another 18th Street gang member, had been at
the party with defendant. Negron saw defendant pull out a gun and start firing
straight at the police car. The second eyewitness, Sylvia Thomas, lived in an
apartment building on Cochran Street near the intersection of Carlin Street. She
was standing on the balcony of her apartment shortly after midnight and saw a
police car parked on Carlin with two officers inside. She noticed three men
walking down Cochran Street toward Carlin. She recognized them as three men
she had seen earlier that evening while warming up her car before driving her
4
sister to work. One of the men was defendant. She saw defendant step forward,
raise his hands and start shooting. She had no doubt the shooter was defendant
because she watched to see the expression on his face as he fired and he “didn’t
look like he had feelings while he was doing it.”
After the shooting stopped, defendant and the other two men ran from the
scene. The following evening, police, led by Detective Richard Henry, executed a
search warrant at the home of defendant’s sister and brother-in-law, Araceli and
Joel Loza, based on information that defendant had gone to their residence after
the shooting. Police found an identification card bearing defendant’s name, letters
written to him that addressed him as “Termite,” and 154 rounds of various brands
of nine-millimeter ammunition in a shed behind the house.
The following day, Detective Henry spoke to the Lozas and told them he
wanted to talk to defendant about Officer Cuesta’s murder. Loza brought
defendant to police headquarters on August 11, 1998. At Loza’s request,
defendant was photographed to show that he had no injuries before speaking to
police.
Defendant was interviewed that day by Detectives Henry and Aldahl. After
defendant waived his rights, he admitted he had been at the party but maintained
that he had not shot Officer Cuesta. He told the detectives that, when the shooting
began, he jumped over the back gate and ran away, eventually ending up at his
sister and brother-in-law’s house where he remained until the next morning. He
told them he fled the scene because he was afraid his probation would be violated
for associating with gang members. In order to reconcile inconsistencies between
defendant’s denials and evidence that he had been involved in the shooting,
Detective Aldahl asked defendant whether he would be willing to take a lie
detector test. Defendant agreed.
5
At this point, Detective Aldahl asked, “You’re willing to do it?” Defendant
replied, “That um, one thing I want to ask you to that, if for anything you guys are
going to charge me I want to talk to a public defender too, for any little thing.
Because my brother-in-law told me that if they’re trying to charge you for this
case you might as well talk to a public defender and let him know cause they can’t
[Untranslatable].” Aldahl told defendant, “Well, you can do that anytime you
want to. [¶] The thing is, that — that we’re going to book you tonight.”
Defendant said, “Yeah?” Aldahl replied, “If that’s okay? And if you come out —
if you come out telling the truth tomorrow, we’ll let you go.” Defendant asked,
“Book me on what?” Aldahl said, “On murder. That doesn’t mean you’re going
to be filed on. That doesn’t mean you’re going to be filed on, okay?”
Detective Henry explained that “based on what we have right now, we’re
just going to book you tonight for the murder.” He told defendant, however, that
if the polygraph results indicated defendant was being truthful, “We want to do
some more investigation on this.” Furthermore, he said, “[j]ust because we say
we’re booking you for this murder, doesn’t mean you’re getting violated, and
going to do that five years you’re so worried about either, all right?” Defendant
said, “Yes, sir.” Somewhat later in the conversation, Detective Henry also told
defendant, “[A]n arrest is not a prosecution; you hear me?” Defendant replied,
“Yes, sir.” After some further, nonsubstantive conversation, the interrogation
ended and defendant was housed overnight in a cell.
The issue of a public defender came up again the following day as
defendant was being interrogated by the polygraph examiner, Ervin Youngblood.
At the outset of the interrogation, Youngblood asked defendant whether he had
been advised of, and had waived, his rights the previous day. Defendant said he
had. Youngblood then asked him whether he was “waiving your rights here today
to talk to me also?” Defendant replied, “Yes, sir.” Just before defendant took the
6
test, he said, “Sir, I was going to ask you that, is there any, like – cause they told
me about a public defender.” Youngblood replied, “What about a public
defender?” Defendant said, “They said that he would show up for anything.”
Youngblood told him, “Oh, you have a right to a public defender. That’s why I
asked you did they – they told you about your rights.” Defendant replied, “They
read my rights, yeah.” There was no further mention of a public defender.
After defendant admitted to Youngblood he had shot Officer Cuesta,
defendant was again interrogated by Detective Aldahl. He repeated his admissions
to Aldahl. Toward the end of the interrogation, he said, “I don’t have no public
defender.” Aldahl replied, “You didn’t get one? You didn’t get one,” but was
interrupted by another detective on a unrelated matter. Following the interruption,
Aldahl said, “All right. What were you saying? You said something about a
public defender?” Defendant said, “Yeah.” Aldahl told him. “You can have one
any time you want, man. I told you that when I first advised you.” Defendant
said, “Yeah, but already a lot of things went by, and I haven’t had a public
defender.” Aldahl said, “You want one right now? I mean, if that’s the thing, then
we’re [done] talking. And I’m out of here.” Defendant said, “Really?” Aldahl
told him, “I can’t talk to you until you talk to this — whoever you’re going to talk
to, so it’s up to you. [¶] I’m just looking for some answers to the blanks here. I
already know what happened. I know where you were standing from [where] you
shot. I know what distance it was. You know, I’ve got all the evidence from this
crime scene. [¶] I just need to know what your intent was. You’ve already said
you wanted to scare the cop, the police; right?” Defendant said, “My intent wasn’t
to kill him. My intent wasn’t to hit a cop.”
Following the police interrogation, defendant met with his mother in the
presence of Detective Garcia. He told his mother he was not the shooter and that
7
police were lying when they said he was. After she left, however, he again
admitted to having shot Officer Cuesta.
Before trial, defendant moved to suppress statements he made to the police
on grounds that the statements were taken in violation of Miranda and were
involuntary. At the hearing on the motion, four police officers testified that each
one of them had arrested defendant on a prior occasion, and on each occasion he
had been advised of his Miranda rights. On two of those occasions he waived his
rights and spoke to the police. On the third occasion, after he was given his rights,
he was not asked any further questions, though the officer’s report was unclear as
to whether he had invoked his right to counsel. On the fourth occasion, defendant
asserted his right to counsel and was not questioned further.
Both Detectives Henry and Aldahl also testified, as did the polygraph
examiner, Youngblood. Detective Henry testified that he understood defendant’s
reference to a public defender to mean defendant had been told by his brother-in-
law if “he was charged with a crime, did he want to have the services of a public
defender.” He testified further that he and Aldahl had explained to defendant the
distinction between being charged with a crime and being arrested. Finally, he
testified that he did not believe defendant’s reference to a public defender meant
that defendant was requesting an attorney at that moment. Aldahl testified to the
same effect, “He never asked for an attorney. [¶] He mentioned a public
defender. But he never asked for one.” He testified further that, during the final
interrogation, when defendant raised the subject of a public defender and the
transcript showed Aldahl’s reply — “You didn’t get one?” — the transcript
erroneously showed it as a question. Aldahl said his reply was a statement, not a
question. Finally, Youngblood testified that he did not interpret defendant’s
reference to a public defender to be a request for an attorney. “He appeared to be
8
reaffirming that he did have a right to have an attorney if he wanted one, which I
let him know that he did.”
In denying defendant’s motion, the trial court, citing Davis, concluded that
defendant’s references to counsel were ambiguous. The trial court characterized
defendant as “an experienced person in terms of contact with the police,” and
observed that on a prior occasion he had invoked his right to counsel.
Furthermore, the trial court noted that, under Davis, the police were not required to
ask clarifying questions. Accordingly, the trial court concluded: “This defendant
well knew his Miranda rights even though he never had been suspected of killing
a police officer. He had many contacts with the police. He knew what his rights
were. There was ample opportunity during this interview for him to say, hey, that
is it, I don’t want to talk to you guys anymore. He never said that in a clear
fashion as I believe required by the authorities.”
The Court of Appeal reversed. It found that defendant had “adequately”
invoked his right to counsel after having initially waived his rights. The Court of
Appeal additionally held that police should have asked defendant to clarify
whether he wanted an attorney present.2 The Court of Appeal found, further, that
the error in admitting defendant’s statement was not harmless beyond a reasonable
doubt and reversed the judgment.
We granted the People’s petition for review.
DISCUSSION
Concerned that “without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime contains inherently
2
The Court of Appeal also concluded that defendant’s initial waiver of his
rights was valid and rejected his claim that his statement was involuntary.
9
compelling pressures” that might lead an accused person to make statements in
derogation of his or her Fifth Amendment privilege against self-incrimination, the
United States Supreme Court, in Miranda, required law enforcement agencies to
advise the accused of certain rights and to honor the accused’s exercise of those
rights. (Miranda, supra, 384 U.S. at p. 467.) Specifically, the accused must be
warned “prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney, one will be
appointed for him prior to any questioning if he so desires.” (Id. at p. 479.) As the
Supreme Court recently made clear in Dickerson v. United States (2000) 530 U.S.
428, Miranda is a rule of constitutional magnitude. (Id. at pp. 437-441.)
Police advisement of a suspect’s Miranda rights is the first line of defense
against the suspect’s involuntary waiver of the privilege against self-incrimination.
(Davis, supra, 512 U.S. at p. 461.) In Edwards v. Arizona (1981) 451 U.S. 477,
the court added “a second layer of prophylaxis for the Miranda right to counsel”
(McNeil v. Wisconsin (1991) 501 U.S 171, 176), when it held that, once a suspect
has asserted his or her right to counsel during custodial interrogation, the
interrogation must cease and the suspect “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. at pp. 484-485.)
Edwards’s holding, by its own terms, applies only where “the accused in
custody . . . has clearly asserted his right to counsel.” (Edwards v. Arizona, supra,
451 U.S. at p. 485.) In McNeil v. Wisconsin, supra, 501 U.S. 171, the high court
emphasized the distinction between a request for counsel for purposes of custodial
interrogation, implicating the Fifth Amendment privilege against self-
incrimination, and a request for counsel for purposes of the Sixth Amendment
10
right to counsel. “The purpose of the Sixth Amendment counsel guarantee — and
hence the purpose of invoking it — is to ‘protec[t] the unaided layman at critical
confrontations’ with his ‘expert adversary,’ the government, after ‘the adverse
positions of government and defendant have solidified’ with respect to a particular
alleged crime. [United States v.] Gouveia [(1984)] 467 U.S. [180, 189] [104 S.Ct.
2292, 2298.] The purpose of the Miranda-Edwards guarantee, on the other hand
— and hence the purpose of invoking it — is to protect a quite different interest:
the suspect’s ‘desire to deal with the police only through counsel,’ Edwards,
supra, [451 U.S.] at [p.] 484, [101 S.Ct. at p. 1884].” (McNeil, supra, 501 U.S. at
pp. 177-178.) Therefore, invoking the Fifth Amendment interest “requires, at a
minimum, some statement that can reasonably be construed to be an expression of
a desire for the assistance of an attorney in dealing with custodial interrogation by
the police.” (McNeil, supra, 501 U.S. at p. 178.)
In Davis, supra, 512 U.S. 452, the court articulated the standard by which
courts are to determine when a suspect’s reference to an attorney, after an initial
waiver of rights, constitutes a request for counsel. In Davis, defendant, who was
being interrogated by Naval Investigative Service agents, was advised of, and
waived, his Miranda rights but then, an hour and a half into the interview, said,
“ ‘Maybe I should talk to a lawyer.’ ” (Id. at p. 455.) The agents reminded
defendant of his right to counsel and told him they would not interrogate him
further until he clarified whether he was requesting counsel. He told them he did
not want an attorney and, after again being reminded of his right to remain silent
and to counsel, the interrogation proceeded until he said, “ ‘I think I want a lawyer
before I say anything else.’ ” (Ibid.)
In granting certiorari, the high court observed that there was no clear
standard by which to evaluate an ambiguous or equivocal request for counsel. It
noted that case law had evolved three approaches. Some courts had held that any
11
mention of counsel, however ambiguous, was sufficient to require an immediate
end to questioning. Others had sought to create a threshold of clarity so that
comments falling short of that threshold would not constitute invocation of the
right to counsel. Finally, some courts had permitted interrogators confronted with
an ambiguous request for counsel to ask only clarifying questions about whether
the suspect was requesting counsel. (Davis, supra, 512 U.S. at p. 456.)
In articulating a governing standard, the high court held, preliminarily, that
whether a suspect has invoked his or her right to counsel “is an objective inquiry.”
(Davis, supra, 512 U.S. at p. 459.) The court continued: “[I]f a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a reasonable officer
in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the cessation of
questioning.” (Ibid., first italics added.) Accordingly, “the suspect must
unambiguously request counsel. . . . Although a suspect need not ‘speak with the
discrimination of an Oxford don,’ post, at 2364 (SOUTER, J., concurring in
judgment), he must articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not require that the officers stop
questioning the suspect.” (Ibid.) A contrary result, the court observed, would
transform Miranda’s protection into “ ‘wholly irrational obstacles to legitimate
police investigative activity,’ [citation], because it would needlessly prevent the
police from questioning a suspect in the absence of counsel even if the suspect did
not wish to have a lawyer present.” (Id. at p. 460, quoting Michigan v. Mosley
(1975) 423 U.S. 96, 102.)
The court acknowledged “that requiring a clear assertion of the right to
counsel might disadvantage some suspects who — because of fear, intimidation,
12
lack of linguistic skills, or a variety of other reasons — will not clearly articulate
their right to counsel although they actually want to have a lawyer present.”
(Davis, supra, 512 U.S. at p. 460.) However, the court stated, the Miranda
warnings themselves, once explained to the suspect, who then knowingly and
voluntarily waives them, are sufficient to dispel whatever coercion inheres in the
interrogation process. Edwards provided “an additional protection” but “is one
that must be affirmatively invoked by the suspect.” (Davis, supra, 512 U.S. at
p. 461.)
The court characterized as “a bright line” the requirement in Edwards that
questioning must cease upon a request for counsel and posited that this bright light
rule would be dimmed if police were forced to guess whether a defendant’s
ambiguous request for counsel required cessation of questioning “with the threat
of suppression if they guess wrong. We therefore hold that, after a knowing and
voluntary waiver of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an attorney.” (Davis,
supra, 512 U.S. at p. 461.)
Addressing whether police were required to ask clarifying questions of a
suspect who makes an equivocal or ambiguous request for counsel, the court,
while characterizing such questioning as “good police practice,” “decline[d] to
adopt a rule requiring officers to ask clarifying questions. If the suspect’s
statement is not an unambiguous or unequivocal request for counsel, the officers
have no obligation to stop questioning him.” (Davis, supra, 512 U.S. at pp. 461-
462.)
Prior to Davis, decisions of this court and the Court of Appeal had
“indicated that a request for counsel need not be unequivocal in order to preclude
questioning by the police.” (People v. Crittenden (1994) 9 Cal.4th 83, 129.)
However, because adoption of article I, section 28, subdivision (d) of the
13
California Constitution requires California’s appellate courts to apply federal
standards to Miranda issues, Davis now provides the standard by which we assess
whether a defendant’s reference to counsel constituted an unambiguous and
unequivocal invocation of the right to counsel. (Id. at pp. 129-130; see also
People v. Michaels (2002) 28 Cal.4th 486, 510; People v. Cunningham (2001) 25
Cal.4th 926, 992-993; People v. Box (2000) 23 Cal.4th 1153, 1194-1195.)
Consistent with Davis, a reviewing court — like the trial court in the first
instance — must ask whether, in light of the circumstances, a reasonable officer
would have understood a defendant’s reference to an attorney to be an unequivocal
and unambiguous request for counsel, without regard to the defendant’s subjective
ability or capacity to articulate his or her desire for counsel, and with no further
requirement imposed upon the officers to ask clarifying questions of the
defendant. (Davis, supra, 512 U.S. at pp. 460-462.) In reviewing the issue,
moreover, the reviewing court must “accept the trial court’s resolution of disputed
facts and inferences, and its evaluations of credibility, if supported by substantial
evidence. [The reviewing court] independently determine[s] from the undisputed
facts and the facts properly found by the trial court whether the challenged
statement was illegally obtained.” (People v. Cunningham, supra, 25 Cal.4th at
p. 992.)
Defendant challenged the admission of his statements to police on three
distinct grounds. First, he argued he did not validly waive his rights; second, that,
if he did validly waive his rights, his subsequent reference to a lawyer constituted
a later invocation of Miranda counsel under Edwards; and, third, that his
statements were coerced and therefore involuntary. The trial court rejected all
three arguments. The Court of Appeal also rejected his first and third claims, but
agreed with defendant that his reference to counsel, after having validly waived
his rights in the first instance, invoked his Miranda right to counsel and that
14
questioning should have stopped. The Court of Appeal concluded that defendant’s
initial comment to the officers about wanting a public defender, if charged,
constituted “a sufficiently clear articulation of a desire to speak to counsel at that
time” and should have been understood as such by the police. The Court of
Appeal found further that “there was no basis for concluding that appellant was
sophisticated enough to draw the same distinction between booking and charging
that a police officer or attorney would draw. At minimum, the detectives should
have asked appellant whether he meant he wanted to consult an attorney if the
police were going to keep him in custody.” Finally, as evidence that police
understood defendant had requested an attorney, the Court of Appeal referred to
Detective Aldahl’s “reaction” after defendant stated, during the third interview, he
did not have a public defender, “You didn’t get one?”
We disagree with the Court of Appeal’s analysis. On its face, defendant’s
statement was conditional; he wanted a lawyer if he was going to be charged. The
conditional nature of the statement rendered it, at best, ambiguous and equivocal
because a reasonable police officer in these circumstances would not necessarily
have known whether the condition would be fulfilled since, as these officers
explained, the decision to charge is not made by police. Confronted with this
statement, a reasonable officer would have understood only that “the suspect might
be invoking the right to counsel,” which is insufficient under Davis to require
cessation of questioning. (Davis, supra, 512 U.S. at p. 459.) Here, moreover, the
detectives responded to defendant’s statement by explaining to him the difference
between being arrested and booked and being charged, thus providing him with an
opportunity to clarify his meaning, but at no point in this initial exchange did
defendant unequivocally request the immediate presence of an attorney before he
would answer any more questions. It is this type of statement Davis requires
before the police must terminate the interrogation. (Id. at pp. 461-462 [“If the
15
suspect’s statement is not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning him”].) Defendant’s statement did
not meet this standard of clarity.
Moreover, the Court of Appeal’s concern about whether defendant was
sophisticated enough to have understood the difference between being booked and
being charged seems to focus on his ability to clearly articulate his desire for
counsel, a consideration Davis rejects.3 (Davis, supra, 512 U.S. at p. 460.) The
question is not what defendant understood himself to be saying, but what a
reasonable officer in the circumstances would have understood defendant to be
saying. In this connection, the detectives were not required, under Davis, to
ascertain whether, when he used the word “charged,” defendant actually meant
“arrested” or “booked,” though, in effect, they gave him the opportunity to clarify
this point when they explained to him the difference between those terms.
Moreover, to the extent that defendant’s prior contacts with law enforcement
constituted a circumstance relevant to the reasonable officer’s understanding of his
statement, the record establishes that Detectives Henry and Aldahl were aware that
defendant had been advised of his Miranda rights on previous occasions;
defendant told them he was on probation and Detective Henry prefaced the
Miranda advisement by asking defendant whether he had had his rights read
“before,” to which defendant replied, “Yes, I did.” Therefore, the police could
reasonably have assumed that defendant was capable of making an unequivocal
request for counsel if he so desired.
3
Defendant’s brief in this court devotes itself to establishing that “charged”
means “booked” and the detective should reasonably have understood that when
he said charged, defendant meant booked. Defendant establishes only that his
statement was ambiguous. Under Davis such ambiguity is insufficient to invoke
Miranda counsel.
16
The Court of Appeal also cited Detective Aldahl’s response to defendant’s
subsequent reference to a public defender — “You didn’t get one?” — as evidence
that Aldahl understood defendant’s initial reference to be a request for counsel.
We disagree. Preliminarily, the Court of Appeal’s characterization of Aldahl’s
remark as a “reaction” ignores Aldahl’s testimony that the transcript shows a
question where he simply made a statement. In and of itself, the statement is
neutral. In any event, even if defendant’s comment could be interpreted to mean
that he thought he had requested counsel the previous day, again, Davis holds that
the relevant inquiry is not what defendant thought he was saying, nor the ability of
a defendant to clearly frame a request for counsel, but what a reasonable officer in
light of the circumstances would have understood the statement to mean. If “a
reasonable officer in light of the circumstances would have understood only that
the suspect might be invoking the right to counsel,” questioning need not cease.
(Davis, supra, 512 U.S. at p. 459.) In the circumstances of this case, we conclude
that a reasonable officer could have understood that defendant’s reference to a
public defender if he was charged was not an unequivocal request for counsel at
that moment.
The Court of Appeal also suggested that the detectives should have asked
defendant clarifying questions about his reference to counsel. Davis specifically
rejects a rule that requires police to seek clarification of a suspect’s ambiguous or
equivocal request for counsel. (Davis, supra, 512 U.S. at pp. 461-462.)
Moreover, in this case, by explaining to defendant the distinction between an
arrest and booking and being charged, the detectives did provide him with an
opportunity to clarify the meaning of his statement. He failed to do so.
For these reasons, we conclude, that the Court of Appeal erred and its
reversal of defendant’s conviction must itself be reversed.
17
DISPOSITION
The judgment of the Court of Appeal is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Gonzalez
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 12/19/03 - 2d Dist., Div. 8Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S122240Date Filed: January 24, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Robert J. Perry
__________________________________________________________________________________
Attorneys for Appellant:
Sylvia Whatley Beckham, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.Hamanaka, Assistant Attorney General, Scott A. Taryle, Donald E. De Nicola, Linda C. Johnson and James
William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
19
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sylvia Whatley Beckham402 West Ojai Avenue, Suite 101
Ojai, CA 93023
(805) 646-6208
James William Bilderback II
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2049
20
Opinion Information
| Date: | Docket Number: |
| Mon, 01/24/2005 | S122240 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by James William Bilderback CA Dept of Justice 300 S Spring St Los Angeles, CA |
| 2 | Gonzalez, Catarino (Defendant and Appellant) Represented by Sylvia Whatley Beckham Attorney at Law 402 West Ojai Avenue, Ste. 101,PMB 529 Ojai, CA |
| Disposition | |
| Jan 24 2005 | Opinion: Reversed |
| Dockets | |
| Jan 28 2004 | Petition for review filed resp The People |
| Jan 28 2004 | Record requested |
| Jan 28 2004 | Received Court of Appeal record One doghouse |
| Feb 6 2004 | Answer to petition for review filed by counsel for aplt. (Gonzalez) |
| Mar 24 2004 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Apr 20 2004 | Request for extension of time filed counsel for respondent (People) requests an extension of time to 5-24-04 to file the opening brief on the merits. |
| Apr 21 2004 | Counsel appointment order filed Sylvia Whatley Beckham is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Apr 27 2004 | Extension of time granted Respondent's time to serve and file the opening brief on the merits is extended to and including May 24, 2004. |
| Apr 28 2004 | Change of contact information filed for: counsel for aplt. |
| May 6 2004 | Opening brief on the merits filed respondent People |
| Jun 2 2004 | Request for extension of time filed counsel for appellant requests extension of time to July 6, 2004, to file the answer brief on the merits. |
| Jun 3 2004 | Extension of time granted Appellant's time to serve and file the answer brief on the merits is extended to and including July 6, 2004. |
| Jul 2 2004 | Answer brief on the merits filed by counsel for aplt. (C. Gonzalez) |
| Jul 20 2004 | Request for extension of time filed reply brief/merits to 9-20-04 |
| Jul 23 2004 | Extension of time granted Respondent's time to serve and file the reply brief on the merits is extended to and including Sept. 20, 2004. No further extensions are contemplated. |
| Sep 15 2004 | Reply brief filed (case fully briefed) respondent People |
| Sep 24 2004 | 2nd record request Remaining records (Overnight Mail) |
| Sep 24 2004 | Received Court of Appeal record 9 (6") doghouses |
| Nov 3 2004 | Case ordered on calendar 12/8/04 @ 9am., San Diego |
| Dec 8 2004 | Cause argued and submitted |
| Jan 24 2005 | Opinion filed: Judgment reversed OPINION BY: Moreno, J. --- joined by : George, C. J., Kennard, Baxter, Werdegar, Chin, Brown, JJ. |
| Feb 4 2005 | Rehearing petition filed by counsel for aplt. (Gonzalez) |
| Feb 4 2005 | Time extended to consider modification or rehearing to and ihcluding April 22, 2005, or the date upon which rehearing is either granted or denied., whichever comes first. |
| Feb 9 2005 | Received: Errata Notice dated 2/7/05 from appellant regarding Petition for Rehearing. |
| Mar 16 2005 | Rehearing denied Brown, J., was absent and did not participate. |
| Mar 16 2005 | Remittitur issued (criminal case) |
| Mar 22 2005 | Received: receipt for remittitur from CA 2/8 |
| Apr 29 2005 | Received: notice of writ of certiorari filed in U.S.S.C. |
| May 11 2005 | Compensation awarded counsel Atty Beckham |
| Jun 13 2005 | Received: Order from U.S.S.C. denying certiorari. |
| Briefs | |
| May 6 2004 | Opening brief on the merits filed |
| Jul 2 2004 | Answer brief on the merits filed |
| Sep 15 2004 | Reply brief filed (case fully briefed) |
