IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR M. MIRANDA-GUERRERO,
Defendant and Appellant.
S118147
Orange County Superior Court
00WF1146
November 17, 2022
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Guerrero concurred.
PEOPLE v. MIRANDA-GUERRERO
S118147
Opinion of the Court by Liu, J.
Defendant Victor M. Miranda-Guerrero was charged with
six crimes and convicted of five: kidnapping to commit rape,
murder, attempted carjacking, assault with intent to commit
rape, and receiving stolen property. The jury could not reach a
verdict on an additional assault charge, and it was dismissed.
Although Miranda-Guerrero pleaded not guilty to all counts, the
defense contested only the murder and assault allegations at
trial. The jury found true a special circumstance that the
murder occurred during the commission or attempted
commission of rape, and it returned a death verdict. We affirm.
I. FACTS
A. Guilt Phase
The charged offenses occurred in Huntington Beach
between September 1999 and May 2000.
1. September 1999 Kidnapping of Jamie H.
On September 12, 1999, Jamie H. was asleep in her car in
a parking structure in downtown Huntington Beach when she
was awakened by the driver’s side window breaking.
Miranda-Guerrero was standing outside Jamie’s car, and he
began punching her in the face. She fought back and tried to
start the car. Miranda-Guerrero grabbed her hair and slammed
her head into the car door. He opened the car door, pushed her
into the passenger seat, and got into the driver’s seat. He threw
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a backpack into the back seat and told Jamie in broken English
that he had “fire,” which she took to mean that he had a gun.
Miranda-Guerrero started the car and drove to a
residential area. He pulled over, and he and Jamie continued to
fight. He unzipped his pants, exposed his erect penis, and told
Jamie to get on top of him. She refused. He took a condom out
of his pocket, put it on, and tried to kiss Jamie, but she turned
away. He started driving again, and when he reached a stop
sign, Jamie jumped out of the car. Miranda-Guerrero caught
her shirt and dragged her along the street briefly before letting
go, at which point she was able to escape with the help of a
nearby driver.
Jamie had abrasions on her thigh, elbow, and buttocks
from the attack, and a clump of her hair was missing. She got
stitches on her eye and lip. A few days later, her car was found
with a brick, broken glass, hair, keys, and blood in it. Blood
found on Jamie’s boots after the attack matched
Miranda-Guerrero’s DNA.
2. November 1999 Murder of Bridgette Ballas
a. Prosecution Case
On the night of November 26, 1999, Bridgette Ballas went
out for drinks with a friend in downtown Huntington Beach.
They went to Gallagher’s Bar for a while and then walked to
Aloha Grill, where they met several other people. Ballas’s friend
left around 1:00 or 1:30 a.m., but Ballas stayed at the bar. Her
friend testified that, at that point, Ballas was not staggering or
otherwise showing significant signs of impairment. She told
police the next day that Ballas had five or six drinks during the
time they were together.
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Soon after her friend went home, Ballas left Aloha Grill
with a small group of people, including an acquaintance with
whom they had been sitting. The group walked a short distance
to the house of Jason H., where they continued to hang out and
drink. One woman who was part of that group testified that
Ballas did not appear drunk and was not stumbling during the
walk to Jason’s house. Ballas told her at one point that she felt
“kind of funny” because she did not know anyone at Jason’s, and
she left the house after 30 or 40 minutes.
Early in the morning of November 27, Richard B. heard
someone scream “Oh my God” three times in quick succession.
He looked out his window but did not see anything. When he
went outside later that morning, he found Ballas lying partially
in the street with her head on the curb. She was between two
vehicles. Her pants were pulled down and her shirt was pulled
up above her breasts, and she was nonresponsive when Richard
tried to speak to her. The location where he found her was about
seven-tenths of a mile from Jason’s house and about a tenth of
a mile from her apartment. He covered her with a blanket and
called 911.
Ballas was breathing when Officer Juan Munoz arrived,
so Munoz called for medical care. She was taken to Western
Medical Center for emergency treatment. At that point, she was
in a coma. A CT scan showed swelling of her brain and a blood
clot on the left side of her brain, which was then surgically
removed by Dr. Israel Chambi. Part of her temporal lobe was
removed to provide more space for her brain to swell; it was
damaged and soft. Dr. Chambi testified that he believed her
injuries were consistent with blunt trauma resulting from likely
more than one impact.
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The doctor who performed Ballas’s autopsy later came to
a similar conclusion. Ballas also had an ear injury that
appeared to come from pulling or tugging rather than from blunt
trauma. No defensive wounds were found on her body, and no
foreign DNA was found under her fingernails. Small pieces of
gravel were found inside Ballas’s labia, and several abrasions
were found inside her vagina that, in the opinion of the doctor
who conducted the sexual assault examination, were consistent
with injuries often seen in women who have been forcibly
penetrated. Saliva collected from a swab of one of Ballas’s
breasts matched Miranda-Guerrero’s DNA. Despite treatment,
she died after a few days from the severity of the swelling of her
brain.
Miranda-Guerrero presented an alternative narrative
that Ballas fell down and hit her head on the curb after
urinating in the street. Police swabbed an area of the street
around where Ballas was found for evidence. Part of a nearby
gutter appeared damp in crime scene photographs, but that area
was not swabbed. No urine was found on the swabs that were
collected.
Over Miranda-Guerrero’s motion to suppress, several
hours of video from his interviews with police were played for
the jury, including a portion of the interviews in which he told
the officers that he had hit Ballas.
b. Defense Case
As noted, the theory of Miranda-Guerrero’s defense was
that the brain injury that killed Ballas resulted from her falling
and hitting her head on the curb because she was intoxicated.
Defense counsel argued that Miranda-Guerrero had met Ballas
after she left Jason’s house and that he was walking with her
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when she stopped to urinate between the two cars where she
was found. After urinating, she stood up and fell over.
Miranda-Guerrero conceded that he raped her after she was
knocked unconscious by the fall.
Jason testified that Ballas seemed intoxicated when he
met her on the night of November 26; he said her eyes were
glassy and her eyelids were “a little droopy.” But he said she
did not fall down or seem unsteady on her feet during the time
he was with her that evening. A criminalist who conducted an
analysis of Ballas’s blood the morning she was found testified
that she likely had a blood-alcohol level of 0.15 to 0.19 grams
percent around 2:30 a.m. on November 27. He testified that the
degree to which this blood alcohol level would affect a person’s
gross motor skills depends on the individual.
An officer who arrived at the scene before Ballas was
taken to the hospital testified that the ground underneath her
pelvic area on the street appeared wet, and the wetness drained
toward the gutter. He tried to smell the wet spot after Ballas
was taken away, and he said it did not smell like urine. A palm
print from Ballas’s right hand was also found on the tailgate of
the car parked immediately in front of where she was found.
The fingers on the print were pointing nearly straight up, with
the thumb facing the street.
The radiologist who conducted the CT scan of Ballas
testified that her injuries could have been caused by a fall from
full height if she hit her head on the curb without breaking her
fall. He said the injuries would also be consistent with her head
being slammed into the curb by an attacker. And he said he had
only seen a fall cause injuries like Ballas’s when the patient was
geriatric or when the person fell from a height or the fall
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occurred during activities like bicycling, skateboarding, or
rollerblading.
According to an officer who interviewed Richard after
Ballas was found, Richard stated that the voice he heard yelling
early in the morning on November 27 might have been male.
3. May 2000 Attempted Carjacking of Heidi D.
On the night of May 25, 2000, Heidi D. went out with a
few of her friends in downtown Huntington Beach. They
returned around midnight to the parking garage where they had
left their car. Miranda-Guerrero approached the group as they
got to the car. He started talking to the women, but he was
incoherent. He tried to grab the keys from Heidi, and they
started fighting over the keys near the driver’s side door. She
eventually let Miranda-Guerrero take the keys, and he got into
the car.
One of Heidi’s friends went to the driver’s side door and
told Miranda-Guerrero to give her the keys. He grabbed her by
the back of her head and pulled her into the car. This conduct
was the basis of the additional assault charge on which the jury
could not reach a verdict. Another of her friends opened the
passenger door and started hitting Miranda-Guerrero and
trying to get the keys out of the ignition. He hit her back with
his elbow. Heidi and a third friend ran to a nearby bar to get
help, and the other two friends soon got away and joined them.
Miranda-Guerrero was gone by the time they all got back to the
car.
4. May 2000 Assault on Deena L.
a. Prosecution Case
Deena L. testified that on the evening of May 25, 2000, she
went with her boyfriend and a few friends to Gallagher’s Bar in
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Opinion of the Court by Liu, J.
downtown Huntington Beach. She stayed until shortly before
midnight and then left to walk home. Her friends and boyfriend
remained at the bar. This was within an hour of the attack on
Heidi and her friends. Deena noticed that a man was following
her as she walked home, and when she turned around to return
to an area with more people, he ran and caught up to her. He
grabbed her hair and put his other hand over her mouth, and he
pushed her down onto the sidewalk. She bit his fingers to try to
get him to release her.
At that point, the man started slamming Deena’s head
against a brick planter next to the sidewalk. She testified that
he slammed her head against the planter four to six times. She
started to lose consciousness, but she was able to get out of the
man’s grasp and hit him. He ran away at that point. Deena
found a police officer in a coffee shop and told him what had
happened. When she and the officer left the coffee shop, they
spotted Miranda-Guerrero walking in a nearby alley, and he
was arrested.
Deena identified Miranda-Guerrero as the man who had
attacked her. DNA collected from under Deena’s fingernails and
between her teeth matched Miranda-Guerrero’s.
b. Defense Case
The defense theory was that the evidence was insufficient
to show Miranda-Guerrero specifically intended to rape Deena
when he attacked her.
A security worker at Gallagher’s Bar testified that
Miranda-Guerrero had come to the bar twice on the evening of
May 25. The worker turned him away both times because he
was too intoxicated. The first time Miranda-Guerrero came to
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the bar was around 11:30 p.m.; the second time was around
midnight, just before the assault on Deena.
5. Receiving Stolen Property
Christine J.’s car was broken into on September 1999
while parked in a parking structure in Huntington Beach. A
purse and phone were taken. After Miranda-Guerrero was
arrested, police obtained his backpack from the restaurant
where he worked and found Christine’s phone inside.
B. Penalty Phase
The prosecutor’s case in aggravation consisted of victim
impact testimony from Ballas’s parents and sisters. The
prosecutor also discussed the facts of the other charged offenses
and the circumstances of Ballas’s death.
Miranda-Guerrero’s case in mitigation consisted
principally of testimony about his childhood in Mexico and
testimony from five psychologists about his cognitive
functioning. Miranda-Guerrero was one of eight children and
grew up very poor. His father drank too much and abused
Miranda-Guerrero’s mother. Miranda-Guerrero started
working at a restaurant when he was about eight years old and
left school when he was eleven or twelve.
Around the time Miranda-Guerrero stopped attending
school, he went to work with Hector Ortega, the son of the
woman for whom he had been working at the restaurant. He
and Ortega manufactured leather belts in a room in the home of
Ortega’s mother. Ortega testified that this process involved
smearing glue onto the belts with their hands without gloves or
masks in a room with no fans, and that they eventually made
hundreds of belts per day. The glue had a strong odor, and they
would get headaches as they worked with it.
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Dr. Antonio Puente interviewed Miranda-Guerrero and
administered a series of neuropsychological tests. He found that
Miranda-Guerrero’s IQ was around 70, in the bottom two
percentiles of the population, which he characterized as falling
into “the mild mental retardation range or borderline
retardation range.” He described Miranda-Guerrero as “highly
compromised
intellectually,
somewhat
compromised
educationally,
and
in
some
ways
challenged
neuropsychologically as well.”
Dr. Robert Owen evaluated Miranda-Guerrero and
administered a test to assess whether he showed antisocial or
psychopathic characteristics. Dr. Owen testified that
Miranda-Guerrero showed a much lower degree of antisocial
and psychopathic characteristics than the general population of
men in the criminal justice system.
Dr. Ricardo Weinstein examined Miranda-Guerrero on
three
occasions
and
conducted
a
quantitative
electroencephalogram
(QEEG
analysis,
a
type
of
neurophysiological measurement. Dr. Weinstein testified that
Miranda-Guerrero had an IQ between 75 and 82 and was
functioning at the borderline of “what we consider mental
retardation.” He testified that Miranda-Guerrero’s cognitive
functioning is typically equivalent to that of a person between
the ages of six and ten, but when he is intoxicated, that level of
functioning may deteriorate further. Dr. Barry Sterman
reviewed the QEEG data collected by Dr. Weinstein and
testified that there was evidence of “significant brain
disturbance,” particularly in areas related to moral judgment
and impulse control.
Finally, Dr. Mark Cunningham reviewed various records
and reports but did not personally examine Miranda-Guerrero.
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He testified that Miranda-Guerrero has developmental
impairments and “distinct brain abnormalities” that “provide
some physiological basis for judgment, emotional and behavior
disturbances.”
In addition to cross-examining the defense witnesses, the
prosecutor called Dr. David Frecker, who described the QEEG
test used by Dr. Weinstein and Dr. Sterman as “fraught with
many problems” and said his practice did not use that test
because they “find it to be unreliable.” In closing argument, the
prosecutor played parts of the videotape of Miranda-Guerrero’s
interviews with police and argued that his conduct during those
interviews demonstrated that his cognitive capacities were
greater than the doctors’ evaluations had shown.
II. GUILT PHASE ISSUES
A. Admission of Statements to Police
Miranda-Guerrero challenges the admission at his trial of
statements he made to police officers during three custodial
interrogations, which collectively spanned 12 hours between
May 26 and May 29, 2000. He argues that his statements were
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) and that they were involuntary in light of the totality
of the circumstances. He expresses particular concern about the
effect of admitting statements he made near the end of his
second interview, in which he said he may have hit Bridgette
Ballas “maybe two times.” We find no error.
1. Facts
Miranda-Guerrero was arrested early in the morning on
May 26, 2000, immediately after the attack on Deena. His first
interview began about six hours later. He was interviewed by
two detectives of the Huntington Beach Police Department,
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Dave Dierking and Sam Lopez. Miranda-Guerrero’s first
question to the officers was whether they spoke Spanish. Early
in the interview, before Miranda-Guerrero received his Miranda
advisement, Dierking asked in which language he was more
comfortable proceeding. Because his response — “maybe more
I speak Spanish because maybe I don’t understand
everything” — indicated that his command of English was
uncertain, Lopez served as translator for the remainder of the
interrogation.
After some preliminary questions, the detectives asked
Miranda-Guerrero how long he had been in the United States.
He said he had been in the country two or three years. Lopez
then gave him an advisement as to his Miranda rights. The full
transcript of the advisement is reproduced below as it appeared
in the exhibits used at Miranda-Guerrero’s trial. The
statements in brackets are translations included in the superior
court’s exhibit that it used to evaluate whether
Miranda-Guerrero’s statements should be suppressed.
“[LOPEZ]: Okay. Lo voy hacer dos modos, Ingles y
Espanol, okay? You have the right to remain silent.
Entiendes eso? [Do you understand that?]
“[MIRANDA-GUERRERO]: Of course.
“[LOPEZ]: Anything you say may be used against
you in court. Entiendes eso?
“[MIRANDA-GUERRERO]: Si, si antes estaba en la
corte? [If, if I was in court before?]
“[LOPEZ]: Todo que usted me dice, lo puedo usar en
corte contra used [sic]. [Everything that you say may
be used in court against you.]
“[MIRANDA-GUERRERO]: Yeah.
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Opinion of the Court by Liu, J.
“[LOPEZ]: Okay, primero Ingles y entonces Espanol,
okay? [[F]irst English and then Spanish.] Usted
tiene el derecho . . . usted tiene el derecho, uh . . . [You
have the right . . . you have the right, uh . . .] or, or
you have the right to remain silent. Anything you
say may be used against you in court. You have the
right to the presence of an attorney before and
during any questioning. If you cannot afford an
attorney, one will be appointed for you free of charge
before any questioning if you want.
“De primero. Usted tiene el derecho para meser [sic]
silencio. [First of all, you have the right to remain
silent.] Usted no tienes que decir nada si quieres.
Entiendes eso? Porque aqi [sic] en este los Estados
Unidos tene [sic] derechos. Todo que usted me dice,
lo puedo user . . . usar en corte contra used [sic].
Entiendes eso? [You do not have to say anything if
you want. Do you understand that? Because here
in the United States you have rights. Everything
that you tell me can be used, used in court against
you. Do you understand that?] Okay.
“Usted tiene el derecho a tener un abogado. Y si no
tienes dinero para un abogado, el corte de [sic] da uno
gratris [sic] de costa. Entiendes eso? Eh, eh . . . usted
tiene el derecho obtener un abogado durante unos . . .
unas preguntas. Entiendes eso? Si o no? Digame si.
[You have the right to have an attorney. If you do
not have money for an attorney, the court will
provide one free of charge. Do you understand that?
Eh, eh . . . you have the right to obtain an attorney
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during the, the questions. Do you understand? Yes
or no? Tell me . . . yes.]
“[MIRANDA-GUERRERO]: Mm hm.
“[LOPEZ]: Okay, porque es importante [because it’s
important].
“[DIERKING]: Just so I know, I speak a little, is
that a si or no?
“[MIRANDA-GUERRERO]: Yeah.
“[LOPEZ]: Si. Si no tienes dinero por un abogado,
el corte te da una gratis de costa. Entiendes eso? El
corte te da uno. Entiendes eso? [If you do not have
money for an attorney, the court will give you one
free of charge. Do you understand that? The court
will give you one. Do you understand that?]
“[MIRANDA-GUERRERO]: Mm hm.
“[LOPEZ]: Entonces con estos derechos en mento,
quieres hablar con nosotros . . . sobre los cargos?
[Then, with these rights in mind, do you want to talk
with us . . . about the charges?]
“[MIRANDA-GUERRERO]: Pues no se . . . como de
que? [Well, I don’t know . . . like about what?]
“[LOPEZ]: Si o no? Quires [sic] hablar sobre los
cargos? Quires [sic] hablar con nosotros? [Yes or no?
Do you want to talk about the charges? Do you want
to talk with us?]
“[MIRANDA-GUERRERO]: Pues si pe — [Well yes,
bu —]
“[LOPEZ]: Okay.
“[DIERKING]: Okay, do you understand those?
Okay? Now you, you sorta indicated that you were
just walking?”
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The interview proceeded for about two hours without
further advisement. As the parties agreed during the superior
court’s hearing on Miranda-Guerrero’s suppression motion, the
officers did not inform him of any rights he may have had under
the Vienna Convention on Consular Relations, and “the subject
of consular consultations did not come up.”
Miranda-Guerrero’s second interview began when
Dierking and Lopez woke him up shortly after midnight that
evening. At the start of the interview, Lopez asked
Miranda-Guerrero the following question: “Te acuerdas cuando
hablamos de los derechos? Que tienes . . . permanecer silencio y
todo eso.” The superior court’s exhibit indicates that Lopez’s
Spanish was deficient, but it translates his question as “Do you
remember when we talked about the rights? That you have . . .
to remain silent and all that.” Miranda-Guerrero replied “Um-
hmm.” Lopez then asked in Spanish if Miranda-Guerrero
wanted to talk to them again with those rights in mind. He said
yes, and the interview proceeded.
The third interview was conducted two days later. At the
beginning of the interview, Lopez read Miranda-Guerrero’s
rights to him from a card on which they were correctly
translated into Spanish. He had Miranda-Guerrero read the
card as well.
Although various statements Miranda-Guerrero made
during his interviews were introduced at trial, the most
incriminating statement regarding his murder charge came
during the second interrogation. Miranda-Guerrero’s
explanation of the circumstances of Ballas’s death changed over
the course of his interviews. He claimed at first that he had
never seen Ballas, then that he was walking with her on the
night she died but that he left before she was hurt, and
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eventually that she fell and hit her head, the position he
maintained at trial. At the end of his second interview, which
spanned more than seven hours, he told the officers that he may
have hit Ballas twice. On further questioning, he said he could
not recall any other details with certainty. Asked when he hit
her, he said, “Maybe when she had fallen down . . . . Maybe . . .
maybe that’s when maybe I . . . when maybe I hit her. Because
I hadn’t remember [sic] that I had hit her.” Asked if he now
remembered hitting her, he responded, “Well . . . you’re saying
(I did). But I . . . . Really, I . . . . Well, I haven’t remembered,
but . . . but like, like, you’d say that (. . . ?) . . . no, no, no.” When
the officers asked again if he remembered hitting Ballas, he
responded, “No man. But if I hit her maybe it was two. But no,
I don’t remember.”
About three hours of video from the interviews were
played during the trial. The prosecutor discussed
Miranda-Guerrero’s
statements
and
changing
story,
emphasizing them particularly in rebuttal to the defense’s
closing argument. As he told the jury, “[i]t took hours and hours
and hours of questions. . . . He didn’t admit anything.” The
prosecutor pointed out that the first thing Miranda-Guerrero
said when asked if he knew what had happened to Ballas, at a
time when he was still denying that he had ever seen her, was
“[p]erhaps she was killed.” “What innocent person in the
position of the defendant would ever say that?” he asked. “He
repeatedly tells the police he never saw her fall,” the prosecutor
said. “And then only four hours into the second interview, six
hours total, he finally tells the police the truth. And he tells the
police, perhaps he hit her twice.”
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2. Miranda Analysis
The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” To safeguard a suspect’s
Fifth Amendment privilege against self-incrimination from the
“inherently compelling pressures” of the custodial setting
(Miranda, supra, 384 U.S. at p. 467), the high court adopted a
set of prophylactic measures requiring law enforcement officers
to advise a suspect of his right to remain silent and to have
counsel present prior to any custodial interrogation (id. at
pp. 444–445). “A suspect who has heard and understood these
rights may waive them,” but the prosecutor “ ‘bears the burden
of establishing by a preponderance of the evidence that the
waiver was knowing, intelligent, and voluntary under the
totality of the circumstances.’ ” (People v. Leon (2020) 8 Cal.5th
831, 843 (Leon).) “The totality approach permits — indeed, it
mandates — inquiry into all the circumstances surrounding the
interrogation,” including the defendant’s “age, experience,
education, background, and intelligence,” and “whether he has
the capacity to understand the warnings given him, the nature
of his Fifth Amendment rights, and the consequences of waiving
those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 725.
“A statement obtained in violation of a suspect’s Miranda
rights may not be admitted to establish guilt in a criminal case.”
(People v. Jackson (2016) 1 Cal.5th 269, 339.) When evaluating
the admissibility of a defendant’s statements on appeal, we
accept the trial court’s resolution of disputed facts if supported
by substantial evidence, and we independently determine from
the undisputed facts and the facts properly found by the trial
court whether the statements were illegally obtained. (Ibid.
Miranda-Guerrero challenges the adequacy of the Miranda
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advisory and waiver only with respect to the first two of his three
interviews, although he also challenges the voluntariness of his
statements from the third interview.
Miranda-Guerrero did not argue before the trial court that
his Miranda rights were violated due to a lack of English
comprehension. But the record raises some question about
whether his English fluency was adequate for him to
understand his rights when he was advised of them in English.
His response to the warning that what he said could be used
against him — “if, if I was in court before?” — indicated that he
did not grasp that relatively straightforward admonition. At
several points, he struggled with questions put to him in
English, for instance responding “Uh, it’s where?” when asked
with whom he lived, and answering “My brother?” when asked
if he had ever had problems with women. When Dierking
thanked him for cooperating with the officers during the first
interview and said that the case would be given to the district
attorney, Miranda-Guerrero admitted to Lopez that he didn’t
understand what Dierking had said. When asked where he first
saw Deena L., he answered, “Oh because, because she’s angry
and because she said it.” At some points, however, Miranda-
Guerrero did respond appropriately and was able to ask
clarifying questions.
We need not decide whether the Miranda advisement
given in English was sufficient. Recognizing the language
barrier, Lopez advised Miranda-Guerrero in Spanish as well.
Some translation difficulties made the Spanish advisement
suboptimal; it is not clear why the officers, who had access to a
printed card with properly translated Miranda advisements,
chose to advise Miranda-Guerrero at the first interview with a
Spanish translation developed on the fly. However, we conclude
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that under the totality of the circumstances, the Spanish
admonition adequately informed Miranda-Guerrero of his
rights.
As to the right to remain silent and the right to court
appointment of counsel, Lopez’s Spanish advisement was
sufficient. He explained that Miranda-Guerrero had the right
to silence, that he did not have to say anything if he did not want
to, and that whatever he said could be used against him. He
instructed Miranda-Guerrero twice that he had the right to a
court-appointed attorney if he could not pay for counsel, and he
took steps to phrase the right in clear and simple terms.
It is a closer question whether Lopez adequately advised
Miranda-Guerrero of his right to consult with an attorney prior
to his interrogation and to have an attorney present throughout
the interview. Miranda admonitions require no “talismanic
incantation,” but they must contain each of the mandatory
warnings, either as the high court set them out in Miranda itself
or by some “ ‘fully effective equivalent.’ ” (California v. Prysock
(1981) 453 U.S. 355, 359–360 (per curiam), quoting Miranda,
supra, 384 U.S. at p. 476.) Notifying a suspect that he or she
has the right to a court-appointed attorney without explaining
that this includes the right to have an attorney present before
and during any custodial interviews is an insufficient
admonition. (Duckworth v. Eagan (1989) 492 U.S. 195, 205.
According to the translation in the superior court’s exhibit,
Lopez instructed Miranda-Guerrero that “you have the right to
obtain an attorney during the, the questions.” He did not specify
which “questions” he was referring to, and nothing else in the
advisement explained that Miranda-Guerrero’s right to an
attorney applied not just during court proceedings, but before
and during any interrogation. Nor did Lopez take any steps to
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clarify the ambiguous admonition, instead immediately asking
Miranda-Guerrero to declare whether he understood the right.
In context, however, it would be reasonable for a suspect
in Miranda-Guerrero’s position to presume that “the questions”
to which Lopez referred were the questions that the detectives
were about to ask him. And while Miranda-Guerrero may not
have understood every aspect of the Miranda advisement he
was given in English, the full and accurate recitation of his
rights in English may have helped clarify any ambiguity about
what questions Lopez was referencing in the Spanish
admonition. Perhaps most significantly, Miranda-Guerrero
agreed at the beginning of the third interview that the rights he
was advised of then — which included the right to have counsel
present, explained multiple times and in accurate Spanish —
were the same as the rights the detectives had discussed with
him during the first interview. Considering the totality of the
circumstances, we conclude that the admonition at the first
interview was adequate to advise Miranda-Guerrero of his right
to the presence of an attorney during the interrogation.
Miranda-Guerrero argues that even if he was adequately
advised of his rights, he did not understand or waive them. He
says he did not understand his rights because his initial
response when asked if he understood them was “Mm hm”
rather than something more affirmative. But when advised of
his rights at the third interview, Miranda-Guerrero clearly
indicated not only that he understood his rights, but that they
were the same rights of which he had been advised at the first
interview. Miranda-Guerrero similarly says he did not waive
his rights because his initial response when asked if he wanted
to talk to the detectives was “Pues si pe —,” which the court’s
transcript translates as “Well yes, bu —.” But he proceeded
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immediately to speak with the officers, answered their questions
without hesitation, and said nothing “ ‘that could be construed
as an invocation of his’ ” Miranda rights. (People v. Flores (2020
9 Cal.5th 371, 417.) Under these circumstances, we cannot
conclude that his initial answers when asked at the first
interview if he wanted to talk, standing alone, are sufficient to
show he did not understand or waive his rights. (See ibid. [“ ‘A
suspect’s expressed willingness to answer questions after
acknowledging an understanding of his or her Miranda rights
has itself been held sufficient to constitute an implied waiver of
such rights.’ ”].
Miranda-Guerrero also argues that the totality of the
circumstances suggests he did not knowingly and intelligently
waive his rights, notwithstanding the proper advisement,
because of his relative youth and limited education, his lack of
experience with the American legal system, and his difficulty
understanding English. As noted, he also claims he did not
sufficiently express to the officers that he understood his rights
because he answered “Mm hm” rather than something more
affirmative when first asked whether he understood the
advisement at his initial interview.
Miranda-Guerrero was 22 years old at the time of his
police interviews, and he had left school when he was eleven or
twelve. In Leon, we upheld the waiver of a defendant of similar
age who had failed sixth grade, “consistently performed in the
borderline range on intelligence tests,” whose “knowledge of the
legal system came mainly from Mexican soap operas,” and who
answered “ ‘uhm-hm’ ” when first asked if he understood his
rights. (Leon, supra, 8 Cal.5th at pp. 840–841.) Certain aspects
of the record in Leon were more indicative of a knowing and
intelligent waiver than the evidence before us here. In
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particular, the Spanish advisement in that case was given from
a pre-printed form, and the interviewer, a native Spanish
speaker, took care to give the advisement in a Spanish dialect
with which the defendant was familiar. (Id. at p. 840.) But
there are additional, affirmative indications in this case that
Miranda-Guerrero understood the advisement he was given.
Most notably, Miranda-Guerrero made clear at the start of the
third interview that his understanding of the rights Lopez read
him then from an accurately translated Spanish-language form
was the same as his understanding from the first interview. We
conclude that under these circumstances Miranda-Guerrero’s
waiver at the first interview was knowing and intelligent.
The Attorney General does not dispute that
Miranda-Guerrero was not fully advised of his rights at the
beginning of the second interview; the sole admonition provided
was the question, in what the translator termed deficient
Spanish, “Do you remember when we talked about the rights?
That you have . . . to remain silent and all that.” However, no
readvisement was required.
Readvisement is not necessary following a valid
admonition and waiver when the “subsequent interrogation is
reasonably contemporaneous.” (People v. Spencer (2018) 5
Cal.5th 642, 668.) “In determining whether a subsequent
interrogation is reasonably contemporaneous, we consider the
totality of the circumstances. Relevant considerations include:
‘1) the amount of time that has passed since the initial waiver;
2) any change in the identity of the interrogator or location of
the interrogation; 3) an official reminder of the prior
advisement; 4) the suspect’s sophistication or past experience
with law enforcement; and 5) further indicia that the defendant
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subjectively understands and waives his rights.’ ” (Ibid.,
quoting People v. Smith (2007) 40 Cal.4th 483, 504.
We have held that interrogations taking place as long as
40 hours after a Miranda warning and waiver do not require
readvisement when conducted by the same officers in the same
location with an experienced defendant who “evinced no
reluctance to be interviewed.” (People v. Williams (2010) 49
Cal.4th 405, 434–435.) Miranda-Guerrero did not have
experience with the criminal justice system at the time of his
interviews, and he expressed some hesitation about proceeding
when he was advised of his Miranda rights at the first
interview. But his second interview took place fourteen hours
after the first interview, in the same location and with the same
detectives. He was also reminded, albeit briefly, of the original
Miranda admonition at the beginning of the second interview.
Considering all of the circumstances, we conclude that no
readvisement was required at the second interview.
3. Voluntariness Analysis
Miranda-Guerrero also argues that his statements to
officers were involuntary because the officers’ methods were
coercive, because he was not advised of his consular rights under
the Vienna Convention, and because of his personal
characteristics, including his limited education, inexperience
with the criminal justice system, and lack of English proficiency.
Under our precedents, his confession was not involuntary.
Involuntary statements to police are inadmissible for all
purposes. (People v. Peevy (1998) 17 Cal.4th 1184, 1193.
Statements are involuntary when they are not the product of “ ‘a
rational intellect and free will.’ ” (People v. Maury (2003) 30
Cal.4th 342, 404, quoting Mincey v. Arizona (1978) 437 U.S. 385,
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398.) To use a defendant’s statements to police at trial, the
prosecutor must prove by a preponderance of the evidence that
they were voluntary. (People v. Peoples (2016) 62 Cal.4th 718,
740 (Peoples).) On appeal, the voluntariness of the statements
“is reviewed independently in light of the record in its entirety,
including ‘all the surrounding circumstances — both the
characteristics of the accused and the details of the
interrogation.’ ” (People v. Benson (1990) 52 Cal.3d 754, 779.
We “ ‘ “examine the uncontradicted facts surrounding the
making of the statements to determine independently whether
the prosecution met its burden.” ’ ” (Maury, at p. 404.) When
testimony in the record is conflicting, we “ ‘ “must ‘accept that
version of events which is most favorable to the People, to the
extent that it is supported by the record.’ ” ’ ” (Ibid.
“[C]oercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’. . . .” (Colorado v.
Connelly (1986) 479 U.S. 157, 167.) Coercion is not limited to
physical abuse; it may involve “more subtle forms of
psychological persuasion.” (Id. at p. 164.) These techniques
include “ ‘repeated suggestion and prolonged interrogation.’ ”
(People v. Hogan (1982) 31 Cal.3d 815, 843, disapproved on
another ground in People v. Cooper (1991) 53 Cal.3d 771.) They
also include deprivation of sleep and food (Greenwald v.
Wisconsin (1968) 390 U.S. 519, 521 (per curiam)), as well as
“deception or communication of false information” (Hogan, at
p. 840).
If coercive police conduct is present, we evaluate the
totality of the circumstances to determine whether a defendant’s
statements were freely given. (People v. Maury, supra, 30
Cal.4th at p. 404.) Factors that we consider include the coercion
discussed above, as well as “the length of the interrogation and
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Opinion of the Court by Liu, J.
its location and continuity, and the defendant’s maturity,
education, and physical and mental health.” (Peoples, supra, 62
Cal.4th at p. 740.) A defendant’s “inexperience” and “low
intelligence” may weigh against a finding of voluntariness, as do
“deprivation and isolation imposed on [the] defendant during his
confinement.” (People v. Neal (2003) 31 Cal.4th 63, 68.
Miranda-Guerrero asserts that several circumstances of
the second interview raise concerns about the voluntariness of
his confession at the end of that interview. The officers began
interviewing him just after midnight, and the interrogation
continued for more than seven hours until Miranda-Guerrero
said he might have hit Ballas twice. Miranda-Guerrero notes
that he “showed some signs of fatigue” (Peoples, supra, 62
Cal.4th at p. 741), telling the detectives at one point that he was
“very sleepy.” Further, the officers repeatedly emphasized
Miranda-Guerrero’s isolation and referred to the absence of any
relationships in Miranda-Guerrero’s life and the distance from
his family as reasons why he might have attacked Ballas. In
repeated accusations over the course of the night, the officers
asserted dozens of times that he “beat,” “hit,” or “punched”
Ballas.
While these aspects of the second interrogation of
Miranda-Guerrero are relevant, they ultimately do not
distinguish this case from prior cases in which we have declined
to find involuntary a confession given in response to overnight
questioning. In Peoples, for instance, we affirmed a finding of
voluntariness in a case involving a twelve-hour overnight
interview in which the police questioned the defendant
“constantly for the first 10 hours of the interview.” (Peoples,
supra, 62 Cal.4th at p. 739.) An expert testified in that case that
“the detectives used coercive techniques . . . over 50 times
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during the 12-hour interrogation.” (Id. at p. 740.) The interview
in Peoples was both longer and more coercive than
Miranda-Guerrero’s second interview. Moreover, as in Peoples,
Miranda-Guerrero “was given numerous breaks, drinks, and
food,” and the officers “never offered him leniency for his
confession and never threatened a harsher penalty if he
remained silent.” (Id. at p. 741.) The defendant in Peoples also
showed considerably greater signs of exhaustion than
Miranda-Guerrero — “sweating, pulling out his hair, rubbing
his skin, twitching his facial muscles, grinding his teeth, and at
times appearing to fall asleep.” (Id. at p. 739.
Miranda-Guerrero says his confession was nevertheless
involuntary because the detectives did not advise him of his
right under Article 36 of the Vienna Convention on Consular
Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (Article
36) to have the Mexican consulate notified of his detention, even
though the detectives became aware early in the interviews that
he was likely not a citizen of the United States. Although the
failure to notify a suspect of his or her consular rights does not
by itself require suppression of the suspect’s statements, this
court and the United States Supreme Court have recognized
that “[a] consular notification claim may be raised as part of a
broader challenge to the voluntariness of a confession.” (Leon,
supra, 8 Cal.5th at p. 846, citing Sanchez-Llamas v. Oregon
(2006) 548 U.S. 331, 350.) But “[i]n most circumstances, there
is likely to be little connection between an Article 36 violation
and
evidence
or
statements
obtained
by
police.”
(Sanchez-Llamas, at p. 349.) Miranda-Guerrero says he would
have invoked his Miranda rights to counsel and to remain silent
if he had been advised of his consular rights or received consular
assistance. But this argument is too speculative given the
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Opinion of the Court by Liu, J.
record in this case. (See Leon, supra, 8 Cal.5th at p. 847; People
v. Vargas (2020) 9 Cal.5th 793, 833.) Considering the totality of
the circumstances and our independent review of the video of
Miranda-Guerrero’s interrogation, we cannot conclude that his
confession during his second custodial interview was
involuntary.
Furthermore, the first and third interviews exhibited few
of the troubling features of the second interview. The first
interview took place at 8:00 a.m. and lasted just over two hours.
The third took place several days later at 10:00 a.m. and also
lasted only a few hours. The questioning during the first
interview was not aggressive or coercive, and while there were
periods of insistent questioning in the third interview, they were
relatively brief. We therefore conclude that Miranda-Guerrero’s
statements from the first and third interviews were voluntarily
given as well.
B. Consular Notification
Miranda-Guerrero seeks a “comprehensive judicial ‘review
and reconsideration’ of his conviction and sentence” because of
the interviewing officers’ failure to inform him of his right to the
assistance of the Mexican consulate under Article 36. This
review, he says, must “ ‘examine the facts’ ” of the conviction and
sentence, “and in particular the prejudice” resulting from the
violation of the convention. He claims this entitlement flows
from the decision of the International Court of Justice in Avena
and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12
(judg. of Mar. 31) (Avena), in which the court instructed that
such review and reconsideration would be the appropriate
remedy for violations of foreign nationals’ consular rights. (Id.
at pp. 59–60, ¶¶ 121–122.
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California codified the requirements of Article 36 in Penal
Code section 834c. (Leon, supra, 8 Cal.5th at p. 845.) In Leon,
we assumed without deciding that the rights found in Article 36
and section 834c are individually enforceable (Leon, at p. 846),
and we do so here as well. But even if Miranda-Guerrero is
authorized to enforce Article 36 and entitled to the remedy
described in Avena, we have already found that he has not
shown prejudice on this record from the violation of his consular
rights. Any matters outside the record suggesting that
Miranda-Guerrero was prejudiced may be raised in a petition
for habeas corpus; we express no view here on the validity of
such a claim. (See In re Carpenter (1995) 9 Cal.4th 634, 646
[review on direct appeal “is limited to the four corners of the
record on appeal”].
C. Denial of Presence at Certain Proceedings
Miranda-Guerrero claims he was prejudicially denied his
constitutional and statutory rights to be present during five trial
proceedings: (1) a meeting on juror misconduct; (2) discussions
regarding spectator misconduct; (3) a meeting concerning the
portions of his police interview to be played at trial; (4) a
conference on jury instructions; and (5) a proceeding regarding
a response to a jury question. We disagree.
A criminal defendant has both constitutional and
statutory rights to be present at certain trial proceedings.
(People v. Cole (2004) 33 Cal.4th 1158, 1230.) “The federal
Constitution provides a defendant the right to be present if ‘ “(1
the proceeding is critical to the outcome of the case, and (2) the
defendant’s presence would contribute to the fairness of the
proceeding,” ’ ” and the state constitutional right is largely
equivalent. (People v. Caro (2019) 7 Cal.5th 463, 478–479; see
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Opinion of the Court by Liu, J.
People v. Harris (2008) 43 Cal.4th 1269, 1306.) The statutory
right is coextensive with the state constitutional right but can
only be waived in writing. (Cole, at p. 1231; People v. Wall (2017
3 Cal.5th 1048, 1060.
Miranda-Guerrero claims that his absence from the five
proceedings constitutes structural error, but we have said that
“[e]rroneous exclusion of the defendant is . . . trial error that is
reversible only if the defendant proves prejudice.” (People v.
Perry (2006) 38 Cal.4th 302, 312.
1. Meeting on Potential Juror Misconduct
Between the guilt and penalty phases, the court informed
the parties, in Miranda-Guerrero’s presence, that Juror No. 11
had told the bailiff that Juror No. 1 called her spouse after the
verdict was reached. The following afternoon in chambers, in
Miranda-Guerrero’s absence and without a waiver, the parties
indicated it was unnecessary to question the jurors.
Miranda-Guerrero had no right to be present at the
in-chambers meeting. In Harris, we held that “[t]he dismissal
of a juror for misconduct is not a matter for which the defendant
must be present.” (People v. Harris, supra, 43 Cal.4th at
p. 1309.) Deciding whether to investigate misconduct cannot be
said to be more “ ‘ “critical to the outcome of the case” ’ ” than
deciding whether to dismiss a juror for misconduct. (People v.
Caro, supra, 7 Cal.5th at pp. 478–479.) Miranda-Guerrero
claims that he may “have perceived something about Juror
No. 1” that warranted investigation or dismissal. But we have
rejected similarly speculative theories about how a defendant
“could have contributed to the fairness of the proceedings.”
(Harris, at p. 1307.) Moreover, any error was not prejudicial.
Miranda-Guerrero was present when the court first announced
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Opinion of the Court by Liu, J.
the Juror No. 1 issue and was aware that his counsel was given
an option to request further investigation. He had ample
opportunity to raise any concerns he may have had about Juror
No. 1. “[N]othing in the record indicates” that Miranda-
Guerrero’s presence at the in-chambers meeting would have led
to further inquiry or dismissal of the juror. (Caro, at p. 479.
2. Meetings on Spectator Misconduct
During the trial, the parties and the court met in
chambers twice without Miranda-Guerrero to discuss spectator
misconduct. It was decided at the first meeting that the court
would give a general admonition, and at the second meeting it
was determined that the court would individually admonish an
audience member. Miranda-Guerrero did not have a
constitutional or statutory right to be present at either
proceeding because they involved discussions on spectator
misconduct and admonitions, which are “routine procedural
discussions on matters that do not affect the outcome of the
trial.” (People v. Perry, supra, 38 Cal.4th at p. 312.) Conducting
the meetings on spectator misconduct without Miranda-
Guerrero present was not error.
3. Conference on Interview Excerpts To Be Played at
Trial
After the court ruled on the admissibility of Miranda-
Guerrero’s police interview in his presence, the prosecutor
indicated that the parties were going to work together to select
which portions would be played to the jury. The parties agreed
on the selected portions and informed the court of their
agreement at an in-chambers meeting the following afternoon
without Miranda-Guerrero present. The parties and the court
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Opinion of the Court by Liu, J.
then discussed the timeline and process for verifying and
playing the tapes to the jury.
In People v. Davis (2005) 36 Cal.4th 510, we held that a
defendant had both a statutory and constitutional right to be
present at a “hearing during which the contents of [a] jailhouse
tape were discussed and agreed upon” because the defendant
“could have assisted his attorneys in deciphering the tape” since
he was present when it was made. (Id. at p. 531.) Miranda-
Guerrero argues he had a right to be present because, as in
Davis, he was “most familiar with the contents of the
statements” in the tape and therefore could have “assisted his
attorneys” in selecting the excerpts. But unlike in Davis, the
court here had already ruled on the admissibility of the tapes,
and the determination of which excerpts would be played was
made by counsel before the in-chambers meeting. Accordingly,
Miranda-Guerrero’s presence at the meeting could not have
“ ‘ “contribute[d] to the fairness of the proceeding.” ’ ” (People v.
Caro, supra, 7 Cal.5th at p. 479.) Nor is it clear how a meeting
discussing the logistics of playing preapproved portions of the
tape could have been “ ‘critical to the outcome of the case.’ ” (Id.
at pp. 478–479.
In any event, no substantive decisions on the admissibility
of the tape or its selected excerpts were made during the
meeting. Miranda-Guerrero has not shown how excluding him
from this logistical discussion could have “ ‘ “prejudiced his case
or denied him a fair and impartial trial.” ’ ” (People v. Caro,
supra, 7 Cal.5th at p. 479.) Any error in excluding him was not
prejudicial.
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4. Conference on Jury Instructions
At the end of the guilt phase, in Miranda-Guerrero’s
absence, the court discussed with counsel the jury instructions
for lesser included offenses. We have repeatedly held that
defendants “may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the
outcome of the case, because the defendant’s presence would not
contribute to the fairness of the proceeding.” (People v. Perry,
supra, 38 Cal.4th at p. 312.) These include “conference[s] on
jury instructions.” (Ibid.) Excluding Miranda-Guerrero from
this conference was not error.
5. Meeting on Response to Jury Question
During jury deliberations at the guilt phase, the court and
parties met to discuss jury questions with Miranda-Guerrero
absent. The court read out the jury’s latest question: “When
establishing intent in a count, may we take into consideration
established and agreed upon intents in other counts?” The court
directed counsel to meet and confer about a proposed response.
When the court reconvened, still without Miranda-Guerrero
present, the court and parties settled on redirecting the jury to
several CALJIC instructions.
In People v. Jennings (2010) 50 Cal.4th 616, 682, we held
that a defendant “did not have a constitutional or statutory right
to be personally present during the in-chambers discussion
regarding how to respond to [a] jury’s question” about an issue
of law. This is because “[t]he formulation of an appropriate
response to this question was a legal matter,” and “a defendant
does not have the right to be personally present during
proceedings, held in-chambers and outside of the jury’s
presence, concerning questions of law.” (Ibid.
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Miranda-Guerrero claims Jennings is distinguishable
because “the question and proposed response” in Jennings “were
read in defendant’s presence.” But that is a distinction without
a difference; our holding in Jennings turned on the fact that the
jury’s question and the response to it involved legal issues.
(People v. Jennings, supra, 50 Cal.4th at p. 682.) As in Jennings,
“[t]he formulation of an appropriate response” to the jury’s
intent question here was a legal matter. (Ibid.) Accordingly,
Miranda-Guerrero did not have a constitutional or statutory
right to be present at the proceeding.
D. Juror Misconduct
Miranda-Guerrero claims that his conviction must be
reversed because the trial court failed to discharge one of the
jurors for misconduct and failed to hold a hearing into the juror’s
ability to serve after a suggestion of misconduct was raised.
Even assuming the juror’s actions were misconduct,
Miranda-Guerrero was not prejudiced.
As noted, after the jury reached its guilt phase verdict but
before the verdict was announced, Juror No. 1 informed her
spouse on a phone call that she would be done later than
expected. She also told her spouse that the jury had reached a
verdict. The jury foreperson informed the bailiff of this call, the
bailiff informed the court, and the court informed the parties. It
was not clear whether Juror No. 1 told her spouse what the
verdict was, but the court instructed the parties to assume she
had for the purposes of deciding what to do about the issue.
In the court’s view, the actions of Juror No. 1 did not
constitute misconduct. Its position was that there was no need
to discuss the issue further with the jury foreperson who
reported the conversation, but it deferred to the parties about
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whether to pursue further inquiry either with the foreperson or
with Juror No. 1. After considering the issue, the parties
advised the court that they did not believe there was need for
further inquiry.
“It is misconduct for a juror during the course of trial to
discuss the case with a nonjuror.” (People v. Danks (2004) 32
Cal.4th 269, 304.) Juror misconduct raises a “presumption of
prejudice,” but that presumption is rebutted when the reviewing
court determines, based on the record as a whole, that “ ‘ “there
is no substantial likelihood that the complaining party suffered
actual harm.” ’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1309.
The jurors in this case were admonished not to talk about
the proceedings with anyone outside the jury. Assuming
without deciding that Juror No. 1 committed misconduct when
she told her spouse that a verdict had been reached, no prejudice
flowed from her actions. Juror No. 1 told her spouse that she
would be done late, that a verdict had been reached, and possibly
what the verdict was. There is no reasonable probability that
conveying this information to her spouse biased Juror No. 1
against Miranda-Guerrero or made her incapable of serving as
a penalty phase juror. (See People v. Harris, supra, 43 Cal.4th
at p. 1303.) Miranda-Guerrero also argues that the trial court
erred by declining to hold a hearing to inquire further into the
juror’s alleged misconduct. But “ ‘ “ ‘[a] hearing is required only
where the court possesses information which, if proven to be
true, would constitute “good cause” to doubt a juror’s ability to
perform his duties . . . .’ ” ’ ” (People v. Cowan (2010) 50 Cal.4th
401, 506.) The trial court assumed that Juror No. 1 told her
spouse what verdict the jury had reached and properly
concluded that Miranda-Guerrero was not harmed even under
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those circumstances. It was not required to hold a hearing to
further investigate the juror’s actions.
E. Motion for a New Trial
Shortly after the trial concluded, a newspaper article was
published detailing various lawsuits and disciplinary actions
against one of the prosecutor’s medical experts, Dr. Israel
Chambi, who was the medical witness most skeptical of
Miranda-Guerrero’s theory that a fall caused Ballas’s injury.
Miranda-Guerrero moved for a new trial, arguing that the
article constituted new evidence “that could have affected the
outcome of both the guilt and penalty phase of the trial.” The
court denied his motion.
Miranda-Guerrero asks that we remand the matter for the
superior court to reconsider its ruling on the motion for a new
trial in light of additional evidence he presents here in a request
for judicial notice. This evidence consists of two unpublished
Court of Appeal opinions from 2002 in suits against Dr. Chambi,
which he says substantiate “several of the incidents documented
in the newspaper article.” We take judicial notice of the
existence of the opinions but not the statements of fact contained
therein. (See People v. Woodell (1998) 17 Cal.4th 448, 455.
Under Penal Code section 1181, a new trial is warranted
“[w]hen new evidence is discovered material to the defendant,
and which he could not, with reasonable diligence, have
discovered and produced at the trial.” (Pen. Code, § 1181,
subd. 8.) “ ‘ “To grant a new trial on the basis of newly
discovered evidence, the evidence must make a different result
probable on retrial.” [Citation.] “[T]he trial court has broad
discretion in ruling on a new trial motion . . . ,” and its “ruling
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PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
will be disturbed only for clear abuse of that discretion.” ’ ”
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 667.
Miranda-Guerrero is not entitled to a remand for a further
hearing on his new trial motion. He does not claim that the trial
court abused its discretion in denying the motion based on the
evidence before the court at the time. And our review on direct
appeal “is limited to the four corners of the record on appeal.”
(In re Carpenter, supra, 9 Cal.4th at p. 646.) We decline to
remand on the basis of evidence not presented to the trial court.
Nor in any event would the outcome be different on
remand as a result of the Court of Appeal opinions he presents
in his request for judicial notice. Those opinions were available
when the trial took place. They would not be an appropriate
basis for a new trial because Miranda-Guerrero could, “with
reasonable diligence, have discovered and produced” them at his
original trial. (Pen. Code, § 1181, subd. 8.
Miranda-Guerrero also contends that the due process
principles expressed in Brady v. Maryland (1963) 373 U.S. 83
required the prosecutor “to investigate the credibility” of Dr.
Chambi before calling him as “a critical expert witness.” He
does not claim a Brady violation, but he suggests that the
prosecutor’s failure to investigate supports his request for
remand to reconsider his new trial motion.
We are not persuaded by Miranda-Guerrero’s claim that
he is entitled to reconsideration of his new trial motion because
of the prosecutor’s failure to investigate Dr. Chambi. He argues
that if the prosecutor had investigated Dr. Chambi’s credibility,
the prosecutor “would have found” the Court of Appeal opinions
that Miranda-Guerrero presents in his request for judicial
notice. Again, these opinions would not have supported his new
trial motion because they were available at the time of the trial.
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PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
(See Pen. Code, § 1181, subd. 8.) He further suggests that the
prosecutor’s investigation might have revealed “information at
the Medical Board of California about the professional status of
its witness, Dr. Chambi.” But he does not provide any such
records, nor does he claim that the prosecutor’s failure to
uncover this information violated Brady or that there is a
Brady-based duty to investigate witness credibility.
In sum, Miranda-Guerrero does not argue that the court
abused its discretion in denying that motion on the basis of the
record before it, and he has not demonstrated that the evidence
he now proffers to support his new trial motion was unavailable
at the time of trial. In light of the limited scope of our review of
a trial court’s decision to deny a new trial motion,
Miranda-Guerrero is not entitled to a remand for further
proceedings on his motion.
Finally, Miranda-Guerrero argues in passing that the fact
that the impeachment evidence against Dr. Chambi was not
introduced at trial made the proceedings “fundamentally unfair
and violated appellant’s rights to due process, to confront and
cross-examine witnesses, to the effective assistance of counsel
and to a reliable penalty determination.” Again, he does not
claim a Brady violation, nor does he claim that the trial court
improperly limited his impeachment of Dr. Chambi. In the
absence of argument to support these constitutional claims, we
conclude they supply no basis for relief.
F. Prosecutorial Misconduct
Miranda-Guerrero claims that two groups of statements
made by the prosecutor constituted misconduct and deprived
him of a fair trial: comments about the police investigation,
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PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
which Miranda-Guerrero claims amounted to improper
vouching, and derogatory comments directed at defense counsel.
During opening and closing argument, the prosecutor
mentioned the quality of the work of the police officers who
investigated Miranda-Guerrero’s case. At the time these
statements were made, Miranda-Guerrero did not clearly object
or ask for a jury admonition. Midway through the prosecutor’s
closing argument, after almost all of these statements had
occurred, defense counsel asked to speak with the court and
prosecutor outside the presence of the jury and expressed
concern that “we’re getting into the area of improper personal
vouching for the police department.” Counsel noted that the
defense had “not objected this far, but I think we’re getting a
little bit astray.” Counsel’s statement was insufficient to
preserve a claim of prosecutorial misconduct. The defendant
must generally object “in a timely fashion — and on the same
ground,” and must “request[] that the jury be admonished to
disregard the impropriety.” (People v. Samayoa (1997) 15
Cal.4th 795, 841.) Because defense counsel did neither,
Miranda-Guerrero has forfeited this claim.
Miranda-Guerrero also argues that his trial was tainted
by two parts of the prosecutor’s closing argument in which he
discussed defense counsel’s conduct: questions about why
defense counsel had elicited evidence regarding Ballas’s liver
and a kiss she shared with Jason on the night in question, and
statements that an argument made by defense counsel was
“ ‘intellectually dishonest’ ” and “ ‘an insult’ ” to the jury’s
intelligence. The questions about the defense’s evidence
immediately prompted the sidebar at which defense counsel
mentioned concerns about vouching. Before raising the issue of
improper vouching, counsel expressed concern that the
37
PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
prosecutor had been “insinuati[ng] that the defense is doing
something underhanded.” Defense counsel further expressed
that the prosecutor’s comments could not “go any further
without running some serious risks in the case in terms of
potential misconduct.” After the prosecutor said he did not
intend to go further, the court told the attorneys that it had “not
noted any error by the district attorney.”
Later in the prosecutor’s argument, defense counsel
objected to the statement that part of the defense’s argument
had been “intellectually dishonest,” though counsel did not
reiterate that objection when the prosecutor subsequently said
the argument was insulting to the jury. Counsel did not state
the basis for the objection, and in context it is not clear that the
objection was about the disparagement of the defense’s position.
In any event, even if these comments and the discussion of the
defense’s evidence strayed beyond appropriate commentary on
the strength of the defense’s argument into personal
commentary on defense counsel, they were not so egregious that
they made the trial unfair, nor is it reasonably probable that the
jury would have come to a different outcome if the prosecutor
had not made these statements. (See People v. Dykes (2009) 46
Cal.4th 731, 760, 772.
G. Instructional Errors
Miranda-Guerrero raises a number of claims concerning
the guilt phase jury instructions, each of which we have rejected
previously. First, he argues that it was error for the superior
court to instruct the jury on theories of first degree murder and
felony murder because the information charged him only with a
violation of Penal Code section 187, which he says describes only
second degree murder. We have rejected this claim when it has
38
PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
been brought in the past. (See, e.g., People v. Contreras (2013
58 Cal.4th 123, 148 (Contreras).) We decline to reconsider our
precedent on this issue.
Second, Miranda-Guerrero argues that the Sixth and
Fourteenth Amendments to the federal Constitution, as
interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466,
require more specificity in the charging instrument. We have
rejected this claim as well (People v. Nelson (2016) 1 Cal.5th 513,
555) and decline to revisit our precedent.
Third, Miranda-Guerrero contends that six jury
instructions used during his trial undermined the requirement
of proof beyond a reasonable doubt. We have previously rejected
this claim as to all of the instructions he identifies. (People v.
Nelson, supra, 1 Cal.5th at pp. 553–554 [CALJIC Nos. 2.01,
2.02, 2.21.2, 2.22, 2.27]; People v. Carey (2007) 41 Cal.4th 109,
130 [CALJIC No. 2.21.1].) Miranda-Guerrero presents no
persuasive reason why we should reconsider our holdings on
this issue.
Fourth, he argues that the superior court erred by not
requiring the jury to come to a unanimous verdict about which
theory of first degree murder applied (premeditated murder or
felony murder), so long as the jury unanimously concluded that
he was guilty of first degree murder under some theory. As he
acknowledges, we have rejected this claim before. (People v.
Jones (2013) 57 Cal.4th 899, 973.) He presents no persuasive
reason why we should reconsider our past holdings on this issue.
H. Cumulative Error
Miranda-Guerrero contends that the cumulative effect of
the errors he claims occurred at the guilt phase warrants
reversal even if no individual error does so. The only potential
39
PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
errors, such as the possibility that a few comments by the
prosecutor exceeded the bounds of appropriate argument, were
minor. The cumulative effect of these errors does not rise to the
level of prejudice necessary to reverse any of his convictions.
III. PENALTY PHASE ISSUES
Miranda-Guerrero argues that the admission of the
statements he made in his police interviews requires reversal of
his death sentence because the prosecutor used his statements
to counter evidence of his cognitive impairments. Because we
find no error in the admission of his statements, we need not
consider their effect on the penalty verdict.
Miranda-Guerrero also argues that the death sentence is
grossly disproportionate to the crime of felony murder absent a
showing of some particular mens rea as to the killing. We have
rejected this argument before (Contreras, supra, 58 Cal.4th at
p. 163), and we do so again here. He also argues that imposing
the death penalty for felony murder violates international law
and that this international law principle is binding on our state
because of the supremacy clause of the federal Constitution. We
have rejected this claim as well. (Contreras, at pp. 165–166.
Miranda-Guerrero argues that various other aspects of
California’s death penalty scheme are unconstitutional, while
noting that our court has rejected these arguments in the past.
He argues that our death penalty statutes are
unconstitutionally overbroad because of the number of potential
special circumstances; that the aggravating factor related to the
circumstances of the crime is overbroad as well; that the lack of
jury instruction regarding a burden of proof in the weighing of
aggravating and mitigating factors undermined his
constitutional rights; that the phrase “so substantial” in the jury
40
PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
instruction on the weighing of aggravating and mitigating
circumstances is impermissibly vague; that the jury should have
been instructed to find whether death is “appropriate” rather
than whether it is “warranted”; that the jury should have been
instructed that there is a presumption favoring a sentence of life
without the possibility of parole; that the jury should have been
required to make written findings during the penalty phase;
that the use of adjectives such as “extreme” and “substantial” in
the sentencing factors creates an improper barrier to the
consideration of mitigating evidence; that the jury should have
been instructed as to which of the factors were mitigating and
which were aggravating; that intercase proportionality review
is required; and that equal protection requires more procedural
protections for capital defendants than California law provides.
We have rejected all of these arguments. (Contreras, supra, 58
Cal.4th at pp. 169–170, 172–173.
He also argues that the jury should have been instructed
that it must return a sentence of life without the possibility of
parole if the mitigating factors outweighed the aggravating
factors, and he says that California’s use of the death penalty as
a “regular form of punishment” violates international norms.
We have rejected these arguments as well. (People v. Jackson,
supra, 1 Cal.5th at pp. 373–374.
Miranda-Guerrero further claims that California’s death
penalty scheme is constitutionally deficient because it does not
require unanimous jury findings as to the aggravating
circumstances and does not require the jury to find beyond a
reasonable doubt any aggravating factors except prior felony
convictions or violent crimes that did not result in a conviction.
We have rejected these claims in the past (People v. McDaniel
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PEOPLE v. MIRANDA-GUERRERO
Opinion of the Court by Liu, J.
(2021) 12 Cal.5th 97, 142–143; People v. Anderson (2001) 25
Cal.4th 543, 601) and decline to revisit our precedent here.
Finally, because we find no error in the penalty phase, we
reject Miranda-Guerrero’s claim that cumulative error infected
the penalty determination.
IV. CONCLUSION
The judgment is affirmed.
LIU, J.
We C oncur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
42
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Miranda-Guerrero
Procedural Posture (see XX below
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S118147
Date Filed: November 17, 2022
Court: Superior
County: Orange
Judge: Francisco P. Briseño
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the
Supreme Court, Denise Kendall, Assistant State Public Defender, and
Evan Young, Deputy State Public Defender, for Defendant and
Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Holly D. Wilkens, Kristine A. Gutierrez and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Denise Kendall
Assistant State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
Meredith S. White
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9069
Opinion Information
| Date: | Docket Number: |
| Thu, 11/17/2022 | S118147 |
