P. v. Sauceda-Contreras

Filed 2/16/11 P. v. Contreras CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE SAUCEDA-CONTRERAS,
Defendant and Appellant.
G041831
(Super. Ct. No. 07NF0170)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Richard
F. Toohey, Judge. Reversed.
Diane Nichols, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

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Jose Sauceda-Contreras appeals from a judgment after a jury convicted him
of murder. Sauceda-Contreras argues: (1) the trial court erroneously admitted his
statements to police in violation of the Fifth Amendment pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda); (2) the court erroneously denied his suppression motion
because there were not sufficient exigent circumstances; (3) insufficient evidence
supports his conviction for premeditated and deliberate murder; (4) CALCRIM No. 362
created an impermissible inference of guilt; and (5) there was cumulative error.
Sauceda-Contreras also asks this court to review sealed medical and police records to
determine whether there is any discoverable information. Because we agree the court
admitted Sauceda-Contreras‟s statements in violation of Miranda, we need not address
his other claims. We reverse the judgment.
FACTS
One afternoon, Alondra Gaona Gutierrez and her husband, Pascuel Rivera
Rodriguez, heard arguing at their neighbor‟s house. Gutierrez heard a woman say, “if he
was unable to get the money to give her, . . . let her go and get the money.” Gutierrez
heard a bang, like a person hitting a wall, she heard the woman say, “if this was all that
he had to give her more until he got tired.” Gutierrez heard the woman crying but
nothing else as she had to leave.1
The next morning, Gutierrez saw smoke and smelled burning hair, and she
called to her husband who was in the garage. Ten minutes later, she smelled burning
flesh. Gutierrez climbed a short playground ladder and saw smoke coming from the
neighbor‟s backyard. Gutierrez climbed a taller ladder and saw a large metal can with
what looked like a black ball protruding from the top. Flames and smoke were billowing
from the can that was sitting on a concrete slab. Rodriguez arrived and stood next to
1 Gutierrez told police the woman sounded like she was outside, but at trial
she testified the woman sounded to be inside and the man outside.

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Gutierrez. A man, later identified as Sauceda-Contreras, poured liquid into the can and
when the flames increased, Sauceda-Contreras backed away. There was a mattress
propped against the wall to one side of the can and a Jacuzzi cover on the other side of
the can. Gutierrez saw Sauceda-Contreras bend what appeared to be an arm and push it
into the can.
Rodriguez got into his truck and drove around the block to get
Sauceda-Contreras‟s address to call the fire department. Rodriguez saw
Sauceda-Contreras look at him from behind a car parked in the driveway. Rodriguez
drove home and called 911. When the firefighters arrived, Rodriguez, from his ladder,
saw Sauceda-Contreras throw the mattress on top of the burning can.
Anaheim Firefighter Kevin Harris and three colleagues dressed in yellow
“turnouts” and helmets responded to the call to investigate a “miscellaneous” fire. When
they arrived, they did not see fire or smoke so they walked through an open gate along
the side of the house where they met Sauceda-Contreras. Harris asked him if there was a
fire, and Sauceda-Contreras nervously said there was a fire but it was out. Harris smelled
gasoline and saw a metal trash can with smoke coming from it and a mattress laid over
the top. Harris asked Sauceda-Contreras what was burning, and he said, “[N]othing[,]
[n]o problem[,] [n]o problem, sir.” Harris walked towards the trash can, and
Sauceda-Contreras put his hands on Harris‟s chest to stop him. Harris stopped and saw a
“slight flicker of flame” from the trash can. Harris called to his captain and said he
needed police assistance, and the captain replied police had been called. The fireman and
Sauceda-Contreras walked towards the front of the house, Sauceda-Contreras stated he
bought a pig in Indio and he was cooking it in the trash can for a large party he was
having.
When the police arrived, Harris and a colleague went to the backyard and
removed the mattress and found a charred towel covering the can. Harris lifted the towel

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and saw a human skull and burned body. The firefighters placed the towel and mattress
to their original places and returned to the front yard. Harris motioned to the police
officer and the officer handcuffed Sauceda-Contreras.
Terri Powers-Raulston, a forensic specialist, processed the crime scene.
She photographed the crime scene: there was a car parked on the driveway; there was a
bedroom with a sliding glass door adjacent to the backyard; a large metal can was
partially covered with a box spring, and a spa cover lay nearby; and near the metal can
was a charred piece of wood, two pairs of work gloves, a charred saucepan, a metal rod,
and a bucket containing a liquid that smelled like gasoline and half a beer can. Inside the
metal can, Powers-Raulston saw a charred body propped away from the can wall with a
brick; the brick was from a nearby walkway. She removed a towel from the victim‟s
head. She found a garden hose with a nozzle and the water turned on full. In a trash can
located on the driveway, she found a plastic container, which smelled of gasoline and had
hair attached to it. Powers-Raulston also processed the home‟s interior. The southeast
bedroom was in disarray—the sheets were off the mattress and on a chair, and the
mattress was moved off the box spring. In the bathroom across from the southeast
bedroom, she saw a red stain on the bathroom floor. In the bathtub she found hair,
unknown stains, and a cup. There was no evidence the bathroom door had been forced
open.
Scott Flynn, a forensic specialist, photographed Sauceda-Contreras at the
police station. He had injuries to the left side of his head, and his nose, lip, chin, and
hands. He was wearing a shirt, jeans, and a belt. The jeans and belt were booked into
evidence. There was gasoline on the jeans. The belt had almost a complete tear, near the
belt buckle, and a diagonal line impression approximately 11 inches in from the buckle.
Flynn took swabs of the belt for DNA analysis. Sauceda-Contreras tested negative for
drugs and alcohol.

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Detectives Robert Blazek and Julissa Trapp interviewed
Sauceda-Contreras. Trapp, who was bilingual in English and Spanish, translated.
Sauceda-Contreras stated he had lived at the residence with family members about one
and a half years. He said he worked two jobs but that day and the previous day were his
days off.
Sauceda-Contreras explained that eight years prior he lived in Long Beach
with Martha Mendoza and her five children. He said she would leave her children with
him and she would find men and use drugs. He claimed she would bring men to his
house when he was at work. Sauceda-Contreras loved her but eventually he left her and
the government took away her children. He stated that about one and a half years prior,
she found him and told him she wanted to move in with him because he had a house and
money. He told her that he did not want anything to do with her because she was never
going to change. Mendoza contacted him the previous day. He stated they argued, she
scratched him, and he told her to leave. Sauceda-Contreras said that after she calmed
down, they went to a video store. She seemed nervous, like she needed drugs, and he
told her that he loved her, but he could not be with her. Sauceda-Contreras said he told
her that he would not give her money and to go to sleep.
Sauceda-Contreras said the next morning Mendoza was nervous and he told
her that he would not give her money because he knew she would use it for drugs. He
stated she told him that she lost everything she had, him, her children, and her mother,
and no one loved her. He said she did not want to be on the streets earning money to live
day by day. He claimed she made him promise that when she died that he would burn
her, keep her ashes, and take care of the ashes as if she were alive. He said she told him
to buy some things for her children and tell them she left and he did not know anything
else. He stated he told her she was crazy and he continued gathering his laundry.
Sauceda-Contreras claimed he had not seen her for awhile and he got nervous because
she often stole things. He stated he found her lying in the bathroom.

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Sauceda-Contreras asserted he thought about calling the police but he
remembered what she had told him. He thought about all the years he supported her and
tried to change her. He stated it hurt him so much as he watched her burn because his life
was going with her and he would never forget her. He said he bought her a car and
opened a bank account for her, but she spent all the money and she was stopped by police
with drugs. He stated that over the last six months she stopped by the house a couple
times a month.
When asked, Sauceda-Contreras said Mendoza arrived the prior morning at
eight and she spent the night but no one saw her because he had his own bedroom and
bathroom. He stated crystal methamphetamine was Mendoza‟s drug of choice but she
did not use any that day because he would not let her. He denied drinking or using drugs,
and later tested negative for both.
Sauceda-Contreras said they went to bed around nine the prior night and
awoke at eight that morning and lay in bed until they heard everyone leave. He claimed
she was very nervous and that is when she asked him to burn her. He stated that as he
prepared the laundry he thought she went to take a shower because she was naked. He
said that he went to look for her because she had stolen things from him in the past. He
said the bathroom door was open and he found her lying in the bathtub not breathing. He
said he hit her to try to wake her up because he did not know how to resuscitate her. He
said she was “cold, cold, cold.” He said she was out of his sight for approximately one
and a half hours but he was not sure.
When Sauceda-Contreras said he could help the officers arrest “someone
that‟s big,” Blazek asked him how he got the scratches. He explained the prior afternoon
Mendoza saw his Ipod and got mad because he never bought her anything. Mendoza
asked for $100 or $200 and when he refused to give it to her, she scratched him.

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When Blazek asked him whether there was any medication in the
bathroom, Sauceda-Contreras replied only Alka-Seltzer. He said he did not know how
Mendoza did it, but he saw bubbles coming from her mouth and she was really cold.
When Blazek said it takes more than an hour and a half to get cold, Sauceda-Contreras
said there were times she was sweating and times she was cold.
Sauceda-Contreras stated that when he found Mendoza in the bathtub, he
felt anger and sadness because he wasted so many years of his life on her and he loved
her very much. He said he moved her and yelled at her to wake up. He stated he took
her out of the bathtub and hugged her. He said he considered calling the police but
remembered what she had told him. He told her that she was not going anywhere to do
bad things and she was going to stay there with him.
Sauceda-Contreras explained he put wood in the bottom of the trash can
and put Mendoza in the trash can. He said he used gasoline and a match to start the fire.
He stated he had gas in a can but he put gasoline into a pot to pour into the trash can. He
claimed he wanted to take Mendoza out but the fire got really big. He stated he did not
burn his hands because he was wearing gloves. He said he heard the sirens and decided
to cover her with the mattress so they would not see her. He admitted lying to the
firefighters.
When Blazek told him neighbors heard him arguing with Mendoza the
previous day, Sauceda-Contreras said it must have been in the afternoon but it was minor.
When Blazek told him the neighbors heard him yelling, he responded the window on the
neighbor‟s side of the house was open. He explained Mendoza was yelling at him that he
did not give her any money, and he told her to “shut up.” He added, “Whatever happens
. . . even if you judge me . . . I‟m going to be at peace here because I didn‟t do anything
to her.” He stated the argument was “small” compared to other arguments he had with
her. He denied arguing with her that morning.

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Blazek asked him why he waited an hour and a half if he was concerned
Mendoza might steal from him. He said he looked for her but oftentimes she just leaves.
When Blazek asked him why he did not call 911, Sauceda-Contreras replied Mendoza
told him not to. He added he was afraid because she had died in his house and the police
had never helped him before and why would they help him now. He stated the police
never believed him because he cannot speak English. He claimed he did not know there
were places where you could take a body to be cremated. He repeatedly denied hitting or
choking Mendoza or doing anything to cause her death.
Later, after a break, Blazek asked Sauceda-Contreras whose car was on the
driveway. He responded it was his brother‟s car, and when asked he denied he drove the
car that morning. Eventually, he stated he was not going to lie anymore and explained he
moved the car onto the driveway so nobody would see what he was doing. He said that if
he called the police they would think he killed Mendoza and he burned her because she
told him to. He stated the gas can burned and he was pouring gas with a small plastic
container. When Blazek asked him about the events that morning, Sauceda-Contreras
repeated his story about gathering laundry and added details about eating and cleaning
the kitchen before looking for and finding Mendoza in the bathtub. Blazek said his story
did not make sense and accused him of lying. Blazek said Sauceda-Contreras had told
“six different stories” and to slow down and tell the truth. He repeated his version of the
events leading up to where he entered the bathroom. Blazek said Mendoza‟s body would
not be cold in the time between her leaving and him finding her in the bathroom and his
story made no sense and he was lying.
Sauceda-Contreras explained Mendoza killed herself with the belt he was
wearing in the bathroom on the bathtub faucet. He claimed he loosened the belt from her
neck and tried to revive her but her body was purple and she was warm. He repeated he
thought about calling the police but decided to do what Mendoza told him to do.
Sauceda-Contreras explained he “scorned her real badly” before her death. He told

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Mendoza that he had seen her “selling herself on the streets of Long Beach” and leaving
motel rooms with men. He stated he told her that she had ruined her life and the lives of
the people who loved her. He admitted calling her “trash” and yelling profanities at her
and this is what the neighbors heard. He said Mendoza was distraught and pleaded with
him to hit her instead of calling her those names.
Sauceda-Contreras admitted they had sexual intercourse that evening.
Sauceda-Contreras denied choking her with his belt. He explained “for eight years, it has
hurt me to know that I‟m eating . . . and know that she is out on the street doing who
knows what things.” He stated Mendoza told him that morning she wanted to move in
with him and he said no because he knew she would never change. He stated he was in
the country illegally and that morning Mendoza called him a “stupid Mexican” and a
“wetback” and threatened to have him and his family deported and they would lose the
house. He said he told Mendoza to leave, she left the bedroom, and later in the bathroom
he heard her crying and what sounded like hitting. He said he gathered the laundry and
cleaned the house, and “a lot of time [went] by.” He claimed he knocked on the
bathroom door, went outside and knocked on the bathroom window, and went back
inside and again knocked on the door. He said he finally used a key to open the door.
Sauceda-Contreras insisted he did not kill Mendoza, said she was dead
when he burned her, and claimed it was painful to watch her burn. Blazek asked him
how she killed herself. He responded she was lying in the bathtub and she had the belt
wrapped around her neck and looped over the bathtub faucet. He said she was holding on
to the long end of the belt with her hands.2
An information charged Sauceda-Contreras with murder (Pen. Code, § 187,
subd. (a)). Before trial, Sauceda-Contreras filed a motion to suppress evidence that was
argued during the preliminary hearing. The trial court denied the motion.
2 DVDs of the interview were played for the jury. Transcripts of the
interview were provided to the jury but not admitted into evidence.

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Sauceda-Contreras renewed his suppression motion, and filed a motion to dismiss. The
prosecutor opposed both motions. After hearing argument, the trial court denied both
motions.
After the trial court empanelled the jury, Sauceda-Contreras moved to
exclude his statements to officers pursuant to Miranda, supra, 384 U.S. 436. Defense
counsel argued Sauceda-Contreras made an unequivocal and unambiguous invocation of
his right to speak with counsel. Defense counsel contended that after Sauceda-Contreras
invoked his right to counsel, Trapp violated his rights by asking him additional questions.
Defense counsel asserted that after Sauceda-Contreras invoked his right to counsel, Trapp
confused him by telling him maybe he did not understand his rights. Defense counsel
said Sauceda-Contreras demonstrated he understood his rights by asking for a lawyer
before he told the officers what had happened.
In ruling on the motion, the trial court stated: “And the court would note
that I was able to view [Sauceda-Contreras] in his interaction with [Trapp] and [Blazek]
and, the court knows there were clarifying questions. And at one point, it indicated „the
choice is yours.‟ And later questions „you want to speak with him now?‟ The answer
was „yes.‟ [¶] The court finds that [Sauceda-Contreras] was appropriately Mirandized
and there was a knowing, intelligent waiver of his constitutional rights.” (Italics added.)
At trial, the prosecutor offered the testimony of Maria Rodriguez,
Mendoza‟s sister. Rodriguez testified she knew Sauceda-Contreras approximately six to
seven years. She stated that during the prior three years she had heard Sauceda-Contreras
threaten Mendoza on more than one occasion. She stated that one evening, within nine
months of her sister‟s death, Mendoza spent the night at her house. Rodriguez said
Sauceda-Contreras banged on her door and when Mendoza went to speak with him, he
threatened to beat up Mendoza if she did not go with him. Rodriguez stated that on
another occasion, Sauceda-Contreras told her that he would never leave Mendoza alone,

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and he would rather see her dead than lose her. On cross-examination, Rodriguez
admitted that during her interview she did not tell the police Sauceda-Contreras said he
would rather see Mendoza dead than lose her.
Annette McCall, a forensic scientist with expertise in DNA analysis,
testified concerning the swab evidence.3 McCall stated Sauceda-Contreras could not be
excluded as a contributor to the DNA found on the car‟s steering wheel and Mendoza
could be excluded. She also said Mendoza was a major contributor to the DNA found in
the blood on the bathroom floor but Sauceda-Contreras could be excluded. Other swabs
taken from the bathroom revealed Sauceda-Contreras or Mendoza were contributors to
the DNA but nearly all were inconclusive. With regard to the DNA recovered from
Sauceda-Contreras‟s belt, McCall testified to the following: Mendoza could not be
excluded as a major contributor and Sauceda-Contreras could not be excluded as a minor
contributor to the DNA near the belt buckle; testing on the belt‟s center was inconclusive;
and Mendoza and Sauceda-Contreras could not be excluded as equal contributors to the
DNA near the belt‟s end. On cross-examination, McCall testified she did not know
whether the belt buckle corresponded to the labeled left or right side of the belt. She
stated DNA could be transferred by touch so that it was possible for someone to hold
someone‟s hand and transfer DNA to an object.
The prosecutor also offered the testimony of Dr. Anthony Juguilon, a
forensic pathologist, who performed the autopsy. After removing Mendoza from the
trash can, Juguilon conducted an external and internal examination, and from internal
organs determined the body to be a female. During the external examination, Juguilon
found significant thermal injury to the body—nearly all the skin was burned off and at
3 The parties stipulated the DNA profiles used as the known DNA profiles of
Sauceda-Contreras and Mendoza were in fact from Sauceda-Contreras and Mendoza.

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some places there was burning to the bone. Mendoza‟s scalp had been incinerated and
her skull was fractured, which is common with burn victims. She had other thermal
fractures throughout her body. The eyelids, lips, and nose were incinerated, and the brain
and eyes were severely damaged. Mendoza‟s right hand had been incinerated. During
the internal examination, Juguilon found the organs to be dehydrated or desecrated. He
stated that although severe thermal injuries inhibit the ability to determine a cause of
death, he was fairly confident she was dead before being burnt. Juguilon ruled out as the
cause of death blunt force trauma such as a gunshot or stab wound. He also ruled out
natural causes as the cause of death. Because of the severe burning to the head and neck,
Juguilon could not determine whether Mendoza was strangled but he could not rule it out.
He explained blood and tissue samples from the brain and liver demonstrated elevated
levels of methamphetamine but because the thermal injuries caused dehydration, the
concentration of methamphetamine in the tissue could be altered. He stated the blood
was too damaged to analyze. Juguilon could not determine Mendoza‟s cause of death.
On cross-examination, Juguilon testified the amount of methamphetamine found in the
brain and liver was fatal had it not been for the thermal injuries. On redirect examination,
he testified neither he nor a toxicologist could say with any certainty what affect the
thermal injuries had on the methamphetamine levels.
At the close of the prosecutor‟s case-in-chief, Sauceda-Contreras moved for
an acquittal. The trial court denied the motion. After deliberating for nearly 18 hours,4
the jury convicted Sauceda-Contreras of first degree murder. The trial court sentenced
Sauceda-Contreras to 25 years to life in prison.
4 The jury asked four questions during deliberations.

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DISCUSSION
Sauceda-Contreras argues the trial court erroneously admitted his
statements to police because unequivocally and unambiguously invoked his Fifth
Amendment right to counsel and silence pursuant to Miranda, supra, 384 U.S. 436. We
agree.
Legal Principles
“Under Miranda and the long line of cases following it, a suspect cannot be
subjected to custodial interrogation unless there has been a knowing and intelligent
waiver of the rights to remain silent, to the presence of an attorney, and, if indigent, to the
appointment of counsel; and „police interrogation must cease once the defendant, by
words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult
with an attorney.‟ [Citations.] [¶] No particular manner or form of Miranda waiver is
required, and a waiver may be implied from a defendant‟s words and actions. [Citations.]
In determining the validity of a Miranda waiver, courts look to whether it was free from
coercion or deception, and whether it was „“made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it.”‟
[Citations.] Both aspects are tested against the totality of circumstances in each case,
keeping in mind the particular background, experience and conduct of the accused.
[Citation.] [¶] On review of a trial court‟s decision on a Miranda issue, we accept the
trial court‟s determination of disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were obtained in violation of
Miranda. [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 585-586 (Davis).)
“„Miranda holds that “[t]he defendant may waive effectuation” of the rights
conveyed in the warnings “provided the waiver is made voluntarily, knowingly and
intelligently.” [Citation.] The inquiry has two distinct dimensions. [Citations.] First,
the relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception.

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Second, the waiver must have been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation” reveals both an uncoerced
choice and the requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived. [Citations.]‟ [Citations.]” (People v. Smith (2007)
40 Cal.4th 483, 501.)
“„[T]he rule that interrogation must cease because the suspect requested
counsel does not apply if the request is equivocal; „[r]ather, the suspect must
unambiguously request counsel.”‟ [Citations.]” (Davis, supra, 46 Cal.4th at p. 587.)
“[I]f the defendant‟s invocation of the right to remain silent is ambiguous, the police may
continue questioning for the limited purpose of clarifying whether he or she is waiving or
invoking those rights, although they may not persist „in repeated efforts to wear down his
resistance and make him change his mind.‟ [Fns. omitted.]” (People v. Peracchi (2001)
86 Cal.App.4th 353, 360 (Peracchi).) Whether a suspect has invoked the right to counsel
“„is an objective inquiry.‟” (Davis, supra, 46 Cal.4th at p. 588.) The prosecution “must
demonstrate the voluntariness of a confession by a preponderance of the evidence.
[Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
The Interview
Here, as relevant to this issue, the following colloquy occurred between
Blazek, Trapp, and Sauceda-Contreras:
“[Trapp]: Hello, good afternoon I am Detective Trapp.
“[Sauceda-Contreras]: Good afternoon how are you?
“[Trapp]: I‟m going to translate for you okay?
“[Sauceda-Contreras]: Okay that‟s fine.
“[Blazek]: We‟d like to talk to you.
“[Trapp]: The detective would like to speak with you.

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“[Blazek]: But because you‟ve been handcuffed and transported in a police
car . . .
“[Trapp]: But because you‟re handcuffed and they brought you in the
police car . . .
“[Blazek]: [W]e have to advise you of some rights.
“[Trapp]: I want to advise you of some of the rights you have.
“[Blazek]: Okay?
“[Sauceda-Contreras]: Okay.
“[Trapp]: You have the right to remain silent. Do you understand?
“[Sauceda-Contreras]: A huh, yes.
“[Trapp]: Whatever you say can be used against you in a court of law. Do
you understand?
“[Sauceda-Contreras]: Yes.
“[Trapp]: You have the right to have a lawyer present before and during
this interrogation. Do you understand?
“[Sauceda-Contreras]: Yes I understand.
“[Trapp]: If you would like a lawyer but you cannot afford one, one can be
appointed to you for free before the interrogation if you wish. Do you understand?
“[Sauceda-Contreras]: Yes I understand.
“[Trapp]: Having in mind these rights that I just read, the detective would
like to know if he can speak with you right now?
“[Sauceda-Contreras]: If you can bring me a lawyer, that way I I [sic] with
who . . . that way I can tell you everything that I know and everything that I need to tell
you and someone to represent me.
“[Trapp]: Okay, perhaps you didn‟t understand your rights. Um . . . what
the detective wants to know right now is if you‟re willing to speak with him right now
without a lawyer present?

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“[Sauceda-Contreras]: Oh, okay that‟s fine.
“[Trapp]: The decision is yours.
“[Sauceda-Contreras]: Yes.
“[Trapp]: It‟s fine?
“[Sauceda-Contreras]: A huh, it‟s fine.
“[Trapp]: Do you want to speak with him right now?
“[Sauceda-Contreras]: Yes.
“[Trapp]: I explained to him, he said, about the attorney, I would tell you
everything. I have no problem talking to you. And I said well I want to make sure that
you did understand me correctly. The detective wants to know if you want to talk to him
right now without an attorney present and he said yes.”
Legal Analysis
Sauceda-Contreras argues his invocation of Miranda rights was
unambiguous and unequivocal and Trapp should have ceased questioning him and ended
the interview. The Attorney General counters Sauceda-Contreras‟s response was
ambiguous and equivocal, Trapp was entitled to clarify whether he was invoking his
Miranda rights, and Sauceda-Contreras repeatedly stated he would speak with the
officers. Based on our review of the transcript of the interview, we conclude a reasonable
police officer should have known Sauceda-Contreras was invoking his right to the advice
of counsel and Trapp and Blazek should have ended the custodial interrogation. Instead,
Trapp ignored Sauceda-Conteras‟s response and asked him another question.
In Smith v. Illinois (1984) 469 U.S. 91 (Smith), the United States Supreme
Court addressed the issue we have before us here. After detectives asked defendant
whether he was aware of an armed robbery and defendant implicated his cousin, a
detective advised defendant of his Miranda rights. The detective stated, “You have a
right to consult with a lawyer and to have a lawyer present with you when you're being
questioned. Do you understand that?” The defendant replied, “Uh, yeah. I’d like to do

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that.” The detective completed advising defendant of his Miranda rights and asked
defendant whether he wanted to speak with him without an attorney. After defendant
said “yeah and no,” the detective said, “You either have [to agree] to talk to me this time
without a lawyer being present and if you do agree to talk with me without a lawyer
being present you can stop at any time you want to.” (Id. at p. 93.) Defendant agreed to
speak with the detectives without an attorney. The Supreme Court held that all
questioning must cease after a clear and unequivocal request for an attorney and
defendant‟s statement, “„I‟d like to do that,‟” was neither indecisive nor ambiguous. (Id.
at p. 97.) The Court explained that the lower courts construed defendant‟s request for
counsel as “„ambiguous‟” only by looking to defendant‟s “subsequent responses.” (Id. at
p. 97.) The court noted, “„No authority, and no logic, permits the interrogator to proceed
. . . on his own terms and as if the defendant had requested nothing, in the hope that the
defendant might be induced to say something casting retrospective doubt on his initial
statement that he wished to speak through an attorney . . . .‟ [Citation.]” (Id. at p. 99.)
The Court explained the “postrequest responses to further interrogation may not be used
to cast retrospective doubt on the clarity of the initial request itself.” (Id. at p. 100.)
Tellingly, the Attorney General ignores Smith and claims “the question was
clearly asked for the purpose of clarifying whether [Sauceda-Contreras] was willing to
talk to them at that time without an attorney.” Clarification was unnecessary as
Sauceda-Contreras clearly and unequivocally told Trapp that he wanted an attorney so he
could tell them what had happened.
Trapp advised Sauceda-Contreras that he had the “right to have a lawyer
present before and during this interrogation.” (Italics added.) After Sauceda-Contreras
said he understood, Trapp advised him an attorney would be appointed if he could not
afford an attorney. After Sauceda-Contreras said he understood, Trapp asked him
whether, having his rights in mind, Blazek could speak with him. Sauceda-Contreras

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answered, “If you can bring me a lawyer, that way I I [sic] with who . . . that way I can
tell you everything that I know and everything that I need to tell you and someone to
represent me.” After being advised it was his right to have a lawyer present during the
interrogation, Sauceda-Contreras essentially responded—bring me a lawyer and I will
talk. “No particular form of words or conduct is necessary to invoke the Fifth
Amendment privileges.” (People v. Smith (1995) 31 Cal.App.4th 1185, 1190, fn. 4;
see In re H.V. (Tex. 2008) 252 S.W.3d 319, 326 [“While police often carry printed cards
to ensure precise Miranda warnings, the public is not required to carry similar cards so
they can give similarly precise responses”].) Sauceda-Contreras did not say, “„Maybe I
should talk to a lawyer‟” (Davis v. United States (1994) 512 U.S. 452, 455, 462, 466), or
“„I think I should talk to a lawyer‟” (People v. Martinez (2010) 47 Cal.4th 911, 952), both
responses courts have found to be equivocal and ambiguous.
At this point, Trapp should have terminated the interrogation, but she
ignored Sauceda-Contreras‟s response and continued the interview, and intentionally or
not, confused Sauceda-Contreras about the nature of his constitutional rights. After
Sauceda-Contreras unequivocally invoked his right to counsel, Trapp stated, “Okay,
perhaps you didn‟t understand your rights.” Sauceda-Contreras clearly understood his
right to counsel and invoked it. His straightforward and clear response did not require
clarification.
It is true police may seek clarification of a suspect‟s ambiguous response to
a Miranda admonition. But the response must be equivocal and ambiguous. If the
suspect‟s response is unequivocal and unambiguous, the interrogation must stop. Police
may not seek clarification of a suspect‟s response in an attempt to change the suspect‟s
mind after an invocation of Miranda rights. (Peracchi, supra, 86 Cal.App.4th at p. 360.)
Nor may police continue with the interrogation in an attempt to confuse a suspect about
the nature of his constitutional rights.

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The Dissent
We agree with our dissenting colleague that the law does not prohibit an
officer from clarifying a suspect‟s response when nuances in the response render it
ambiguous or equivocal. Our disagreement arises in our colleague‟s application of this
legal principle to the facts before us. We also conclude our colleague‟s reliance on
People v. Williams (2010) 49 Cal.4th 405 (Williams), is misplaced.
In Williams, supra, 49 Cal.4th 405, after the officer advised defendant of
his Miranda rights, the officer asked defendant if he understood the rights that had been
explained to him, and defendant replied in the affirmative. The officer asked defendant if
he wished to give up his right to remain silent. Again, defendant answered in the
affirmative. The officer asked if defendant wished to give up “the right to speak to an
attorney and have [an attorney] present during questioning?” Defendant answered with a
question, “You talking about now?” The officer responded, “Do you want an attorney
here while you talk to us?” Defendant answered, “Yeah.” The officer responded, “Yes
you do.” Defendant replied, “Uh huh.” The officer asked, “Are you sure?” Defendant
answered, “Yes.” A second officer interjected, “You don‟t want to talk to us right now.”
Defendant answered, “Yeah, I‟ll talk to you right now.” The first officer stated, “Without
an attorney.” Defendant responded, “Yeah.” (Williams, supra, 49 Cal.4th at p. 426) An
officer later testified that at the outset, defendant seemed to understand his rights but was
confused concerning the availability of counsel. The officer attempted to resolve the
confusion, and defendant appeared to understand the officers‟ explanation and displayed
eagerness to speak with them. (Williams, supra, 49 Cal.4th at p. 423.)
In rejecting defendant‟s claim the officers violated his Miranda rights, our
Supreme Court reasoned, “In the present case, defendant had indicated to the officers that
he understood his rights and would relinquish his right to remain silent. When asked
whether he also would relinquish the right to an attorney and to have an attorney present
during questioning, defendant responded with a question concerning timing. In light of

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defendant‟s evident intent to answer questions, and the confusion observed by [the
officer] concerning when an attorney would be available, a reasonable listener might be
uncertain whether defendant‟s affirmative remarks concerning counsel were intended to
invoke his right to counsel. Furthermore, under the circumstances, it does not appear that
the officers were „badgering‟ defendant into waiving his rights; his response reasonably
warranted clarification. [Citations.]” (Williams, supra, 49 Cal.4th at p. 429.)
We find Williams inapposite for a number of reasons. Unlike defendant in
Williams, Sauceda-Contreras did not clearly indicate he would relinquish his right to
remain silent before the colloquy occurred between him and Trapp. Immediately after
advising Sauceda-Contreras of his rights and confirming that he understood those rights,
Trapp asked a single question: “Having in mind these rights that I just read, the detective
would like to know if he can speak with you right now?” Unlike in Williams,
Sauceda-Contreras did not respond with a question. Rather, he responded, “If you can
bring me a lawyer, that way I I [sic] with who . . . that way I can tell you everything that I
know and everything that I need to tell you and someone to represent me.” Our
dissenting colleague suggests Sauceda-Contreras‟s response was in fact two questions.
“He asked whether a lawyer could be brought and he impliedly also asked whether one
could be provided right now.” (Italics added.) Our dissenting colleague then applies the
reasoning in Williams.
Suffice it to say, we do not interpret Sauceda-Contreras‟s response as
posing the questions our colleague suggests. Nor do we conclude Trapp interpreted the
response as an interrogatory. Trapp did not attempt to explain whether a lawyer could be
brought to the interrogation or when a lawyer would be provided should
Sauceda-Contreras wish to speak with one before questioning. Rather she stated, “Okay,
perhaps you didn‟t understand your rights. Um . . . what the detective wants to know
right now is if you‟re willing to speak with him right now without a lawyer present?”
Having failed to initially secure a waiver, the officer simply asked the question more

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forcefully, by suggesting Sauceda-Contreras did not understand the rights he had just
demonstrated he understood. The facts here simply do not support an application of the
Williams rationale.
Our dissenting colleague suggests the majority‟s analysis would compel a
different result in Williams, supra, 49 Cal.4th 405. Not so. In Williams, after validly
waiving his right to remain silent, the officer asked defendant if he wanted to give up “the
right to speak to an attorney and have him present during questioning.” Defendant
answered with a question. The officer responded in an attempt to eliminate defendant‟s
apparent confusion concerning the availability of counsel. Such an exchange is not
prohibited because it is an attempt by the officer to provide clarification.
The dissent makes much of Sauceda-Contreras‟s use of the word “if.” Our
dissenting colleague suggests the use of the word “if” renders Sauceda-Contreras‟s
response ambiguous and likens it to the circumstance of a defendant saying he wants an
attorney “if” he is going to be charged with a crime. We disagree. Here, Trapp asked a
compound question calling for a waiver of both the right to silence and the right to
counsel. Sauceda-Contreras responded by asking for a lawyer to be brought to him. Had
Trapp found the response ambiguous, we would expect her to have followed up with
clarifying questions. She did not. The only objectively reasonable inference that can be
drawn from Sauceda-Contreras‟s response is that he was invoking his right to counsel
and would only speak with the detectives if he was provided with a lawyer who could
represent him during the questioning.
Finally, the dissent concludes Sauceda-Contreras was not subjected to the
badgering evident Smith, supra, 469 U.S. 91. The Smith Court affirmed “all questioning
must cease after an accused requests counsel. [Citation.]” (Id. at p. 98.) The Court
opined absent a rule requiring questioning to cease after an accused requests counsel, “the
authorities through “badger[ing]” or “overreaching”—explicit or subtle, deliberate or
unintentional—might otherwise wear down the accused and persuade him to incriminate

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himself notwithstanding his earlier request for counsel‟s assistance. [Citations.]” (Ibid.)
We note the Williams court also referenced badgering, and distinguished badgering by
the police from seeking reasonably warranted clarification. Both courts held badgering is
prohibited, but we do not read either Smith or Williams to hold a Miranda violation
cannot occur absent badgering by the authorities.
Harmless Error Analysis
When a statement obtained in violation of Miranda is erroneously admitted
into evidence, the conviction may be affirmed if the error is harmless beyond a
reasonable doubt. Applying the standard announced in Chapman v. California (1967)
386 U.S. 18, 24, we conclude the error was not harmless beyond a reasonable doubt.
(Peracchi, supra, 86 Cal.App.4th at p. 363.) We note the Attorney General fails to
respond to Sauceda-Contreras‟s contention he was prejudiced by admission of the
interviews.
Here, the evidence of Sauceda-Contreras‟s guilt absent his statements was
not overwhelming. The jury heard Mendoza‟s sister testify that Sauceda-Contreras had
threatened Mendoza, but she was not the most credible witness as she did not report the
threats to law enforcement officers when they interviewed her. There was evidence
Sauceda-Contreras‟s neighbors heard arguing and a loud thump like someone hitting a
wall the day before Mendoza‟s body was found burning in the large, metal trashcan.
Although the jury heard Sauceda-Contreras testify he set Mendoza ablaze, Juguilon, the
forensic pathologist, could not confirm the manner or cause of death because of the
severe thermal injuries. Juguilon stated he was fairly confident Mendoza was dead
before she was burned, but he ruled out blunt force trauma and natural causes as being
the cause of death. Juguilon testified that because of the severe burning to the head and
neck he could not determine whether Mendoza was strangled but he could not rule it out.
Juguilon also testified Mendoza had lethal doses of methamphetamine in her system, but
the thermal injuries could have affected the levels.

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Excluding Sauceda-Contreras‟s statements, evidence of his guilt consisted
of a couple threats and him burning Mendoza‟s body. Without evidence of a definitive
cause of death considering the high level of methamphetamine in Mendoza‟s system, our
confidence in the jury‟s guilty verdict is seriously undermined. Thus, based on the state
of the evidence, we cannot conclude beyond a reasonable doubt that had Sauceda-
Contreras‟s statements to Blazek and Trapp been excluded, the jury would have
convicted him of murder.
DISPOSITION
The judgment is reversed.
O‟LEARY, ACTING P. J.
I CONCUR:
IKOLA, J.

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ARONSON, J., Dissenting.
The majority bases its decision to overturn the judgment on Smith v. Illinois
(1984) 469 U.S. 91 (Smith), which, following Edwards v. Arizona (1981) 451 U.S. 477,
prohibits officers from interrogating a suspect who has “„clearly asserted‟” the right to
counsel. (Smith, supra, 469 U.S. at p. 95.) The rule is designed to prevent officers from
“„badgering‟” the suspect and attempting to “wear down the accused and persuade him to
incriminate himself notwithstanding his earlier request for counsel‟s assistance.” (Id. at
p. 98.) Here, Sauceda-Contreras sought the aid of counsel so he could tell the officers
“everything that I know and everything that I need to tell you.” (Maj. opn. ante, at p. 15.)
The majority concludes the officer violated Sauceda-Contreras‟s rights under Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda) when she then asked whether he would speak to
the investigating officer without a lawyer present. I respectfully disagree with the
majority‟s analysis.
Edwards and Smith do not prohibit an officer from clarifying a suspect‟s
response where “nuances in the request itself render it ambiguous or equivocal.” (Smith,
supra, 469 U.S. at p. 100.) Under these circumstances, “the protective purposes of the
Miranda rule [are] not impaired if the authorities are permitted to pose a limited number
of followup questions to render more apparent the true intent of the defendant.” (People
v. Williams (2010) 49 Cal.4th 405, 429 (Williams).) Here, the officer was entitled to
follow up with Sauceda-Contreras because, objectively, his statement called for a
response. In asking, “If you can bring me a lawyer . . . ,” Sauceda-Contreras asked the
officer a question. (Italics added.) Indeed, Sauceda-Contreras asked the officer two
questions. He asked whether a lawyer could be brought to him, and he impliedly also
asked whether one could be provided right now, given the officer had asked him if the
detective “can speak with you right now?” (Maj. opn. ante, at p. 15.) The majority
concludes the officer should have terminated the interview without answering Sauceda-
Contreras‟s questions but, objectively, those questions called for a response.

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The officer did not err in answering those questions in the negative. As the
Supreme Court has explained, “Miranda does not require that attorneys be producible on
call, but only that the suspect be informed, as here, that he has the right to an attorney
before and during questioning, and that an attorney would be appointed for him if he
could not afford one.” (Duckworth v. Eagan (1989) 492 U.S. 195, 204, fn. omitted.) “If
the police cannot provide appointed counsel, Miranda requires only that the police not
question a suspect unless he waives his right to counsel.” (Ibid.; Williams, supra, 49
Cal.4th at p. 429 [“authorities are not required to have an attorney on call for the purpose
of custodial interrogation”].) True, the officer did not respond expressly that she could
neither provide an attorney, nor provide one right away. But the answer was implicit in
the officer‟s reiteration that “what the detective wants to know right now is if you‟re
willing to speak to him right now without a lawyer present?” (Maj. opn. ante, at p. 15.)
Here, the record does not suggest the officer could provide counsel at the
stationhouse, assuming Sauceda-Contreras qualified for appointed counsel, nor that she
could do so immediately. (Compare Williams, supra, 49 Cal.4th at pp. 430-431
[distinguishing scenario where “in fact, there were attorneys available 24 hours a day to a
suspect who invoked the right to counsel prior to interrogation”].) Up to this point,
Sauceda-Contreras had not stated he wanted to remain silent or that he did not want to
talk with the officers. Consequently, the officer‟s question sought to resolve whether
Sauceda-Contreras wanted to invoke his right to cut off questioning altogether or waive
his right to counsel and proceed with the interview. (See Michigan v. Mosley (1975) 423
U.S. 96, 103-104 [right of cut off questioning allows suspect to “control the time at which
questioning occurs, the subjects discussed, and the duration of the interrogation”].)
Williams, supra, 49 Cal.4th 405, is instructive. There, police officers
advised the defendant, a homicide suspect, of his Miranda rights. After the defendant
declared he understood his rights, Officer Knebel asked, “„Do you wish to give up your
right to remain silent?‟ Defendant answered: „Yeah.‟ Knebel asked: „Do you wish to
give up the right to speak to an attorney and have him present during questioning?‟
Defendant answered with a question: „You talking about now?‟ Knebel responded: „Do

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you want an attorney here while you talk to us?‟ Defendant answered: „Yeah.‟ Knebel
responded: „Yes you do.‟ Defendant returned: „Uh huh.‟ Knebel asked, „Are you sure?‟
Defendant answered: „Yes.‟ [Officer] Salgado stated: „You don‟t want to talk to us
right now.‟ Defendant answered: „Yeah, I‟ll talk to you right now.‟ Knebel stated:
„Without an attorney.‟ Defendant responded, „Yeah.‟” (Id. at p. 426.)
Officer Knebel then explained that if the defendant wanted the assistance of
an appointed attorney he would have to wait two days. The defendant chose to
immediately proceed with the interview. “Knebel inquired: „Ok, do you want to talk
now because you‟re free to give up your right to have an attorney here now?‟ Defendant
responded: „Yes, yes, yes.‟” (Williams, supra, 49 Cal.4th at p. 426.) The defendant
made numerous admissions in the ensuing interviews, culminating in a confession that he
robbed and kidnapped the victim, but blamed the shooting on his accomplice. (Id. at p.
419.)
Under the majority‟s analysis, the officers violated the defendant‟s Miranda
rights when they continued to question the defendant after the following exchange
between Knebel and the defendant: “„Do you want an attorney here while you talk to
us?‟ Defendant answered: „Yeah.‟ Knebel responded: „Yes, you do.‟ Defendant
returned: „Uh huh.‟ Knebel asked, „Are you sure?‟ Defendant answered: „Yes.‟”
(Williams, supra, 49 Cal.4th at p. 426.) This unambiguous colloquy followed the
ambiguity introduced by the defendant‟s question concerning the timing of when a
lawyer could be provided: “You talking about right now?” Thus, when read in strict
sequential order as the majority does in applying Smith here, the Williams defendant‟s
unambiguous and twice-repeated (“Yeah,” “uh huh”) demands for a lawyer in the
colloquy above required that the interview cease immediately. In other words, because
the defendant in Willams unambiguously asked to have a lawyer present during
questioning, the majority‟s analysis in our case would have compelled in Williams the
suppression of the defendant‟s subsequent statements because Officer Knebel continued
to ask questions, including the entreaty, “Are you sure?”

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The California Supreme Court, however, concluded that the defendant in
Williams knowingly, intelligently, and voluntarily waived his right to counsel. Here, the
majority does not reach that question, but instead concludes the officer should have
terminated the interview despite Sauceda-Contreras‟s questions about whether and when
the officer could provide an attorney. In effect, the majority inserts the word “only” into
the transcript so that Sauceda-Contreras‟s implicit questions are transformed into a
statement to the officer that he would speak to the detective only “[i]f you can bring me a
lawyer . . . .” (Maj. opn. ante, at p. 15.) Sauceda-Contreras did not say that. In my view,
the majority overstates its position in reaching the conclusion this is the only objectively
reasonable interpretation of the words Sauceda-Contreras used. To the contrary,
Sauceda-Contreras‟s statement objectively called for a followup response. As in
Williams, the officer‟s response and the colloquy as a whole between defendant and the
officer — rather than just an initial segment — bear on whether it was reasonable for the
officer to clarify Sauceda-Contreras‟s conditional response.
In Williams, the Court noted defendant had “evinced willingness to waive
his right to silence” and when he understood he either could wait for an attorney or talk
with the officers immediately, “defendant had not the slightest doubt that he wished to
waive his right to counsel and commence the interrogation.” (Williams, supra, 49 Cal.4th
at pp. 426-427.) Similarly, Sauceda-Contreras evinced a willingness to waive his right to
silence when he agreed to an attorney-assisted interview so he could tell the officers
“everything that I need to tell you.” (Maj. opn., ante, at p. 15.)
The Court in Williams found the officers did nothing impermissible in
continuing their dialogue with the defendant after he initially asked for an attorney,
finding the subsequent discussion clarified “„the suspect‟s comprehension of, and desire
to invoke or waive his Miranda rights.‟” (Williams, supra, 49 Cal.4th at p. 428.) The
subsequent dialogue between the defendant in Williams and the interrogating officers,
like that between Sauceda-Contreras and his interviewers, presented both defendants with
the same choice: Whether they immediately wanted to speak with the officer or wait for
counsel.

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The officers in Williams explained an attorney could not be provided right
away in more painstaking detail than the officer‟s response here. (See Williams, supra,
49 Cal.4th at p. 426.) But given that Sauceda-Contreras‟s conditional implicitly asked
the officer to respond to his questions, there seems little objective basis to conclude she
had to terminate the interview immediately, without a response.
Here, Sauceda-Contreras stated he wanted to speak with the officers “if”
they could “bring me a lawyer.” (See People v. Gonzalez (2005) 34 Cal.4th 1111, 1126
[suspect‟s request for an attorney “if” he was going to be charged rendered statement
ambiguous and equivocal].) The majority concludes the only inference to draw is that
Sauceda-Contreras would not speak to investigators without an attorney present. But
considering the context and phrasing of the conversation, it is not at all clear this is the
only option Sauceda-Contreras would select. Indeed, at this point, he had not exercised
his right to cut off questioning, but instead invited a response. He therefore may have
preferred to waive his right to counsel and selectively answer some or all of the officer‟s
questions. As in Williams, defendant‟s continued engagement via a question about when
an attorney might be provided “suggests to us that his willingness to waive the assistance
of counsel turned on whether he could secure the presence of counsel immediately.”
(Williams, supra, 49 Cal.4th at pp. 426-427.) In my view, the majority depart from
Williams in reaching a different conclusion here.
Here, merely asking Sauceda-Contreras whether he would waive the right
to counsel to speak with officers “right now” hardly amounts to the kind of badgering the
Smith case was designed to forestall, and is more innocuous than the entreaties used by
officers in Williams (“Are you sure?”). The officer confirmed with Sauceda-Contreras
three times that he wanted to speak to the detective right away and without an attorney
(“The decision is yours.” “It‟s fine?” “Do you want to speak with him right now?”).
(Maj. opn. ante, pp. 15-16.) Since Williams permits investigators “to pose a limited
number of followup questions to render more apparent the true intent of the defendant”
(Williams, supra, 49 Cal.4th at p. 429), I do not agree the officers violated Sauceda-

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Contreras‟s Miranda rights. I therefore respectfully dissent.
ARONSON, J.

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