P. v. Anunciation

Filed 12/22/09 P. .v Anunciation CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ANUNCIATION,
Defendant and Appellant.
D054988
(Super. Ct. No. INF056054)
APPEAL from a judgment of the Superior Court of Riverside County, James S.
Hawkins, Judge. Reversed.
On retrial after a hung jury and a mistrial on a first degree murder charge, a jury
found Michael Anunciation guilty of second degree murder (Pen. Code, § 187,
subd. (a)).1 On appeal, Anunciation contends the murder conviction should be reversed
because the trial court prejudicially erred by (1) admitting expert testimony conveying a
1 All further statutory references are to the Penal Code unless otherwise specified.

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nontestifying forensic pathologist's autopsy findings, in violation of the Sixth
Amendment's confrontation clause; (2) admitting statements Anunciation contends were
obtained in violation of his Fifth Amendment rights; and (3) refusing to instruct the jury
on the lesser-included offense of voluntary manslaughter based on theories of heat of
passion and imperfect self-defense. We agree with Anunciation's contention regarding
the autopsy report testimony, and accordingly reverse.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Anunciation was acquainted with 85-year-old Garvin Shallenberger, who had
paid him a number of times for oral sex. On the day he was killed, Shallenberger —
accompanied by a weekend helper he employed to assist him around the house, Michael
Brinkmann — picked up Anunciation at a local store and brought him back to
Shallenberger's trailer home at Portola Country Club to have oral sex. Brinkmann, who
was aware of the purpose of the meeting, left Shallenberger and Anunciation at the home
after Shallenberger asked Brinkmann to go to the clubhouse pool and wait there.
More than an hour later, Brinkmann and some neighbors looked through a crack in
a sliding glass door in Shallenberger's trailer home, saw Shallenberger lying on the floor
of the living room between the couch and the coffee table, and called 911. Responding
paramedics jimmyed the sliding glass door open and found Shallenberger dead.

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Anunciation was arrested after interviews with the lead homicide investigator, Jeff
Buompensiero, in which Anunciation admitted strangling Shallenberger.2 Anunciation
told Buompensiero that after Brinkmann left the house, Shallenberger took off his
clothes, sat on the couch as Anunciation stood in front of him and performed oral sex on
Anunciation. Shallenberger started to make choking sounds, which, Anunciation said,
"grossed me out." According to Anunciation, Shallenberger had bitten his penis, after
which Anunciation pushed Shallenberger off, grabbed him and choked him until he
turned blue. Anunciation then took Shallenberger's wallet, laptop computer and
telephones, and left the house.
Anunciation was charged with first degree murder (§ 187, subd. (a)), grand theft
and robbery (§§ 487, subd. (a), 211).
In the first trial, a jury found Anunciation not guilty of first degree murder, but
was unable to reach a verdict as to second degree murder or voluntary manslaughter, and
the court declared a mistrial as to that charge. The jury found Anunciation guilty of two
counts of petty theft in violation of section 488, which was a lesser included offense of
the theft and robbery charges.
2 The trial court denied Anunciation's motion to suppress these statements in both
trials, and the prosecution showed the jury videotapes and transcripts of the interviews
with Buompensiero. As we explain in part III., post, Anunciation's contention that the
statements should have been suppressed is without merit.

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Anunciation was retried on a second degree murder charge. On retrial, as in
Anunciation's first trial, the prosecution introduced autopsy findings regarding
Shallenberger's injuries and the circumstances, manner and cause of his death through the
testimony of Joseph I. Cohen, chief forensic pathologist for Riverside County. The
autopsy findings were made by a contract pathologist for the county, Darryl Garber.
Garber did not testify at either trial or at any point in the proceedings. Cohen did not
supervise or participate in the autopsy, but reviewed all of the written autopsy records,
including the autopsy report, and testified at length about the injuries to Shallenberger
that the autopsy revealed.
Because the injuries to the body showed Shallenberger was beaten multiple times
while conscious, and then manually strangled to death after he was unconscious, Cohen
opined Shallenberger's killer used a significant amount of force for a sustained period of
time.3 Based on Cohen's testimony, the prosecution argued that Anunciation intended to
kill Shallenberger, or at least knew his actions were likely to kill Shallenberger, and was
thus guilty of second degree murder.
Cohen also testified Shallenberger's injuries were not consistent with a reflexive
reaction by one who was bitten while receiving oral sex. This opinion undercut the
3 Cohen described at length the findings from the autopsy report that supported this
opinion, including discoloration, bruising and abrasions on Shallenberger's head, neck
and tongue; a large amount of hemorrhaging in his eyes and the internal tissues of his
neck; and multiple fractures of his larynx and hyoid bone, which were not common in
manual strangling.

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defense's voluntary manslaughter theories, namely, that Anunciation had killed
Shallenberger in imperfect self-defense or in the heat of passion following the bite to his
penis. On retrial, the trial court refused to give the jury instructions requested by
Anunciation on voluntary manslaughter.
The jury found Anunciation guilty of second degree murder. Anunciation waived
a jury with respect to the prior conviction enhancement allegations and then admitted two
prior convictions for which he had served a prison term within the meaning of section
667.5, subdivision (b). The trial court sentenced Anunciation to prison for 15 years to
life, plus a concurrent sentence of 180 days for the convictions of misdemeanor theft, and
consecutive terms of one year for each prior conviction.
II.
DISCUSSION
The Admission of Cohen's Testimony Requires Reversal
Anunciation contends that in permitting Cohen to testify in reliance on the
findings from Garber's autopsy report, the trial court violated his right to confrontation
under the Sixth Amendment to the United States Constitution. Specifically, Anunciation
argues that he was precluded from "from cross-examining the percipient witness whose
observations of the injuries formed the basis for . . . critical conclusions" on the "key
issue" in the case, namely "whether the crime committed was murder or manslaughter."
As we explain in part II.C., post, we agree that admission of Cohen's testimony, which

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conveyed findings from the autopsy report prepared by Garber, constituted prejudicial
error in this case.
A. Anunciation Did Not Waive the Error Because Objection Would Have Been Futile
As an initial matter, we address the Attorney General's contention that
Anunciation has forfeited his Sixth Amendment challenge because he failed to object to
Cohen's testimony in the trial court. Anunciation admits he failed to object, but contends
that any objection would have been futile under then-controlling law. Generally, a
defendant who fails to object to the admission of evidence on the basis of the
confrontation clause waives the right to raise that issue on appeal. (People v. Burgener
(2003) 29 Cal.4th 833, 869; People v. Alvarez (1996) 14 Cal.4th 155, 186.) However, an
objection is not required where it would be futile under controlling law. (People v.
Morton (2008) 159 Cal.App.4th 239, 249.)
The controlling authority for admitting forensic testimony at the time of
Anunciation's retrial in September 2007 was the California Supreme Court's decision in
People v. Geier (2007) 41 Cal.4th 555 (Geier). Geier held that testimony about a DNA
report, laboratory notes and test results was admissible when conveyed through a
testifying supervisor, rather than the laboratory analyst who performed the tests, because
the report, notes and results were not "testimonial" evidence subject to the demands of
the confrontation clause under Crawford v. Washington (2004) 541 U.S. 36, 59
(Crawford) and subsequent Supreme Court precedent. (Geier, at pp. 602-604, citing
Davis v. Washington (2006) 547 U.S. 813, 817 (Davis).) Construing Crawford and Davis

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to require courts to focus their inquiry on how the evidence was created, Geier reasoned
that the results were not testimonial because they were recorded contemporaneously as
they were observed, even if they were prepared for use at trial. (Geier, supra, 41 Cal.4th
at pp. 606-607.)
Cohen's testimony was analogous to the laboratory supervisor's testimony that
Geier found admissible, in that Cohen was chief pathologist and he conveyed what were
apparently contemporaneously-recorded observations made by Garber during his autopsy
of Shallenberger. At the time Anunciation was retried, the trial court was thus bound by
Geier to admit Cohen's testimony. Any objection by Anunciation would have been futile.
We conclude, therefore, that Anunciation has not waived his Sixth Amendment claim.
B. The Trial Court Constitutionally Erred in Admitting Cohen's Testimony Based on
the Garber Autopsy Report
The Sixth Amendment issue raised by Anunciation's appeal is whether Cohen's
testimony conveying findings from the autopsy report authored by Garber, who did not
testify at trial or at any point in the proceedings, violated Anunciation's right to
confrontation. The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S.
Const., 6th Amend.) This right renders testimonial statements by a nontestifying witness
inadmissible unless the witness is unavailable and was previously subject to cross-
examination by the defendant. (Crawford, supra, 541 U.S. at p. 59 & fn. 9.)

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To resolve whether the Sixth Amendment provides Anunciation the right to
confront the actual author of the autopsy findings, we first determine whether the findings
were "testimonial" under Crawford, and if so, whether Anunciation's confrontation right
was satisfied by his opportunity to cross-examine Cohen, who did not participate in the
autopsy or preparation of the autopsy report, but conveyed its findings through his
testimony. In making these determinations, we must apply the United States Supreme
Court's latest decision applying the Crawford standard in the context of forensic
evidence, which was decided while this appeal was pending. (Melendez-Diaz v.
Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527; 174 L.Ed2d 314] (Melendez-Diaz).)
1. Applicable Legal Principles After Melendez-Diaz
In Melendez-Diaz, the United States Supreme Court held that certificates of
forensic drug analysis were "testimonial" under the confrontation clause because they
were formally prepared for the purpose of proving a fact at trial, and thus were " 'made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.' " (Melendez-Diaz, supra, 557 U.S.
___, 129 S.Ct. at p. 2532, quoting Crawford, supra, 541 U.S. at p. 52, and citing Davis,
supra, 547 U.S. at p. 830.)
The drug analysis certificates at issue in Melendez-Diaz were sworn statements of
chemical analysis performed by a state laboratory upon police request, as required by
Massachusetts state law. (See Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at
pp. 2530-2531, citing Mass. Gen. Laws, ch. 111, § 12 (2006).) The certificates then were

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admitted as " 'prima facie evidence of the composition, quality, and the net weight of the
narcotic . . . analyzed,' " under state law. (Melendez-Diaz, at p. 2531.) The purpose of the
affidavits was to prove a fact necessary to the prosecution, namely, that the substance the
defendants possessed was cocaine, and their sworn nature put them within the " 'core
class of testimonial statements,' " described in the high court's previous decisions. (Id. at
p. 2532.) The certificates were therefore "functionally identical to live, in-court
testimony, doing 'precisely what a witness does on direct examination.' " (Ibid., quoting
Davis, supra, 547 U.S. at p. 830.)
We are bound to apply Melendez-Diaz to determine whether the autopsy findings
at issue are testimonial. (Chesapeake & Ohio Ry. Co. v. Martin (1931) 283 U.S. 209,
220-221; General Motors Corp. v. City of Los Angeles (1995) 35 Cal.App.4th 1736,
1749.) We recognize that Melendez-Diaz conflicts to some degree with our Supreme
Court's holding in Geier that a DNA report, laboratory notes and test results, which
reflected a laboratory analyst's contemporaneous recordation of observable events, were
not testimonial and were therefore admissible through the testimony of an expert witness.
(Geier, supra, 41 Cal.4th at pp. 606-607.) Because Geier has not been overruled, we
examine whether we may decline to follow it on the ground that its reasoning cannot be
reconciled with Melendez-Diaz.4
4 We have considered the parties' supplemental briefing regarding the Melendez-
Diaz decision. The parties rely to varying degrees on the decisions of various California
appellate courts applying Melendez-Diaz, which reflect a split of authority over the extent

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Geier is based on at least three analytical premises that are addressed, and
undermined, in Melendez-Diaz. First, Geier posits that the results of scientific tests are
not accusatory, but are rather inherently neutral and reliable. A laboratory analyst who
conducts scientific analysis, and makes notes and reports analyzing the procedures used,
does so "as part of her job, not in order to incriminate the defendant." (Geier, supra, 41
Cal.4th at p. 607.)5 Ergo, the laboratory analyst is not a witness who bears testimony
"against" the defendant. (Geier, supra, 41 Cal.4th at p. 607.) Melendez-Diaz found no
support in the Sixth Amendment or case law for that idea, stating that the confrontation
clause applies to all witnesses against the defendant, not simply those who are
accusatory. The certificates in Melendez-Diaz "certainly provided testimony against [the
defendant], proving one fact necessary for his conviction — that the substance he
to which Geier remains good law. The California Supreme Court recently granted review
in these cases, and we therefore do not cite to or rely on the superseded opinions. (Cal.
Rules of Court, rule 8.1115; see People v. Gutierrez (2009) 177 Cal.App.4th 654, review
granted Dec. 2, 2009, S176620; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047,
review granted Dec. 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388,
review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202,
review granted Dec. 2, 2009, S177046.)
5 Geier specifically cites two cases involving autopsy reports in which state
appellate courts had held such reports were not testimonial, in part because they consist
of " 'routine and descriptive observations' " of the physical body. (Geier, supra, 41
Cal.4th at pp. 602, 606, citing State v. Lackey (Kan. 2005) 120 P.3d 332, 351; Rollins v.
State (Md. App. 2005) 866 A.2d 926, 954.) The Kansas Supreme Court recently
recognized that its reasoning in Lackey was "undercut" in Melendez-Diaz. (State v.
Appleby (Nov. 20, 2009, No. 98,017) ___ P.3d ___ [2009 Kan. Lexis 1080, at *76].) As
this case illustrates, and we note hereafter, although autopsy findings may be routine and
descriptive, they are nonetheless subject to the performing pathologist's discretion and
judgment (see fns. 15 & 16, post) and may be testimonial (see part II.B.2., post).

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possessed was cocaine." (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at
p. 2533.) Therefore, the laboratory analysts who prepared the certificates were witnesses
"against" the defendant. (Id. at p. 2534.)
Melendez-Diaz also rejects the contention that evidence of scientific testing is
inherently reliable, noting that "[f]orensic evidence is not uniquely immune from the risk
of manipulation," particularly because in most forensic laboratories, the laboratory
administrator reports to the head of a law enforcement agency. (Melendez-Diaz, supra,
557 U.S. at p. ___, 129 S.Ct. at p. 2536.) Melendez-Diaz emphasizes that cross-
examination is not only a useful means of assuring accurate forensic analysis, but also is
the only means that is guaranteed under the confrontation clause. " 'To be sure, the
Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than
a substantive guarantee. It commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of cross-examination.' "
(Melendez-Diaz, at p. 2536, quoting Crawford, supra, 541 U.S. at pp. 61-62.)6 Thus,
contrary to the since-rejected theory established under Ohio v. Roberts (1980) 448 U.S.
6 "Confrontation is designed to weed out not only the fraudulent analyst, but the
incompetent one as well," and "an analyst's lack of proper training or deficiency in
judgment may be disclosed in cross-examination." (Melendez-Diaz, supra, 557 U.S. at
p. ___, 129 S.Ct. at p. 2537.) The Court noted chemical analysis, for example, "requires
the exercise of judgment and presents a risk of error that might be explored on cross-
examination." (Ibid.)

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56,7 the courts may not substitute a test for reliability or trustworthiness for the right of
confrontation. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2536; see also
id. at p. 2533.)
Second, Geier construed Crawford and Davis as holding that a statement was not
testimonial if it represented the contemporaneous recordation of observable events. (See
Geier, supra, 41 Cal.4th at pp. 606-607.) Focusing on how the statement was made, then,
Geier concluded that where a laboratory analyst who performed scientific tests
contemporaneously recorded the results, the statement of results was not testimonial.
(Ibid.) Melendez-Diaz, on the other hand, minimized the weight to be given to
contemporaneity in confrontation clause analysis. Melendez-Diaz emphasized that courts
must focus instead on whether the statements were " ' "made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial." ' " (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct.
at p. 2532.)
Finally, Geier favorably reviewed decisions from other states holding that forensic
test results are admissible as business records. (Geier, supra, 41 Cal.4th at p. 606.)
However, Melendez-Diaz observed that statements in official records produced for use at
7 In Crawford, supra, 541 U.S. 36, the United States Supreme Court abrogated the
prior rule of Ohio v. Roberts, supra, 448 U.S. 56, under which a hearsay statement made
by an unavailable witness could be admitted without violating the confrontation clause if
the statement contained adequate guarantees of trustworthiness or indicia of reliability.

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trial or records of a business whose "regularly conducted business activity is the
production of evidence for use at trial" may only be admitted subject to the demands of
the confrontation clause. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at
p. 2538.)8 Under Melendez-Diaz, documents prepared for use at trial may not be
admitted under the hearsay exceptions for business or public records without offending
the defendant's right to confrontation. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.
Ct. at pp. 2538-2540.)9
Given that Melendez-Diaz so thoroughly displaces the analytical reasoning
underlying Geier, we conclude we must apply the principles set forth in Melendez-Diaz,
and not those in Geier, to determine (1) whether the Garber autopsy report and its
findings are testimonial, and (2) whether the introduction of the autopsy findings through
Cohen's testimony violated the confrontation clause.
8 In this light, Melendez-Diaz specifically noted that in American jurisprudence,
coroners' reports historically were not admissible without the opportunity for
confrontation. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2538.)
9 Crawford and Melendez-Diaz establish that documents that qualify as business and
official records do not, for that reason, escape confrontation clause analysis, thereby
implicitly overruling those prior California cases holding that autopsy reports were
admissible as reliable and trustworthy business and official records without violating the
confrontation clause. (E.g., People v. Beeler (1995) 9 Cal.4th 953, 979-980 [admission
of autopsy report under business records exception did not violate defendant's right of
confrontation]; People v. Clark (1992) 3 Cal.4th 41, 158 [admission of testimony
regarding autopsy report deemed official record did not violate the confrontation clause].)

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2. The Garber Autopsy Report and Its Findings Are Testimonial
Applying Melendez-Diaz in determining whether the Garber autopsy report and its
findings are testimonial, we focus our inquiry on whether the report and findings were
prepared for the purpose of proving a fact " ' "under circumstances which would lead an
objective witness reasonably to believe that it would be available for use at a later
trial." ' " (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2532.)
The purpose of an autopsy is established under California law. Where a death is
potentially criminally related, the county coroner must determine the circumstances,
manner and cause of the death, and must document in permanent form the detailed
medical findings from the autopsy. (Dixon v. Superior Court (2009) 170 Cal.App.4th
1271, 1277; Gov. Code, §§ 27491, 27491.4.)10 That official inquiry by the coroner into
a criminally related death is "certainly part of law enforcement investigation." (Dixon v.
Superior Court, supra, 170 Cal.App.4th at p. 1277.)
10 Government Code section 27491 provides in pertinent part: "It shall be the duty
of the coroner to inquire into and determine the circumstances, manner, and cause of all
violent, sudden, or unusual deaths; . . . known or suspected homicide . . . ; . . . deaths due
to . . . strangulation . . . ; death in whole or in part occasioned by criminal means;
. . . deaths under such circumstances as to afford a reasonable ground to suspect that the
death was caused by the criminal act of another. . . . Inquiry pursuant to this section does
not include those investigative functions usually performed by other law enforcement
agencies." Government Code section 27491.4, subdivision (a) requires "[t]he detailed
medical findings resulting from an inspection of the body or autopsy" to be "reduced to
writing" or otherwise permanently preserved. (Ibid.)

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Here, Shallenberger's autopsy was performed during the homicide investigation by
Garber, a contract forensic pathologist who worked for the coroner's office on an
as-needed basis. A homicide detective investigating Shallenberger's death was present at
the autopsy.11 As required under California law, Garber determined the circumstances,
manner and cause of Shallenberger's death, and documented his detailed medical findings
in a report.
Garber's autopsy findings, conveyed to the jury through Cohen's testimony at trial,
described in detail the nature and scope of the injuries observed on Shallenberger's body,
including bruising of the head and neck, bleeding within the eyes and neck tissues, and
fractures of bones within the neck. Cohen testified these injuries showed Shallenberger
was beaten five to 10 times and then manually strangled to death with significant force.
The prosecution presented no other evidence of the injuries to Shallenberger's body, apart
from one photograph showing injury to his head.
11 California law requires the express consent of the coroner for any person to be
present during the performance of an autopsy. (Gov. Code, § 27491.4, subd. (a).)
Melendez-Diaz and Geier both underscore that circumstances indicating the participation
of law enforcement in making a statement are significant in determining whether that
statement is testimonial. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2536
[noting that most forensic laboratories are administered by law enforcement agencies and
"[a] forensic analyst responding to a request from a law enforcement official may feel
pressure — or have an incentive — to alter the evidence in a manner favorable to the
prosecution"]; Geier, supra, 41 Cal.4th at p. 605 [concluding that statement must be
"made to a law enforcement officer or by or to a law enforcement agent" in order to be
testimonial].)

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Using the autopsy findings, the prosecution argued repeatedly that "based on the
very, very extensive injuries that Garvin Shallenberger suffered — the extensive beating
to his face, his forehead, his mouth, and . . . the bleeding around the esophagus" showing
significant force was used — Anunciation intended to kill Shallenberger or at least "[h]e
knew that what he was doing was dangerous to human life."
From this, we conclude that the Garber autopsy findings were prepared as part of a
homicide investigation for the purpose of proving a fact for criminal prosecution —
namely, that the injuries to Shallenberger's body show he was killed with malice.
Therefore, like the certificates at issue in Melendez-Diaz, the findings in the autopsy
report are " ' "a solemn declaration or affirmation made for the purpose of establishing or
proving some fact," ' " and were " ' "made under circumstances which would lead an
objective witness reasonably to believe that [it] would be available for use at a later
trial." ' " (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2532.) We therefore
conclude that the Garber autopsy report and the medical findings contained therein are
testimonial.12
Having concluded that the autopsy report findings here are testimonial, we next
consider whether Anunciation's Sixth Amendment rights were violated when the findings
were conveyed to the jury through Cohen's testimony.
12 The Attorney General contends that the autopsy report was not introduced into
evidence because of Anunciation's failure to object, and that therefore it is impossible for
us to evaluate whether it is testimonial. For the reasons discussed above, we disagree.

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3. Admitting Cohen's Testimony Conveying Garber's Autopsy Findings
Violated the Sixth Amendment's Confrontation Clause
The Attorney General contends Anunciation's confrontation right was not violated
because Anunciation was permitted to, and did, cross-examine the chief forensic
pathologist Cohen. We disagree.
Where an expert witness for the prosecution discloses the testimonial autopsy
findings of a nontestifying pathologist, and relies on the independent truth of those
findings in rendering his opinions, the confrontation clause requires that the defendant
have the opportunity to confront the pathologist or medical examiner who conducted the
autopsy. Substituted cross-examination is not constitutionally adequate. (Melendez-
Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2536 [while there may be "other ways —
and in some cases better ways — to challenge or verify the results of a forensic test . . . ,
the Constitution guarantees one way: confrontation" (fn. omitted)].) As the United
States Supreme Court noted in Melendez-Diaz, where the results of forensic analysis are
introduced in a criminal prosecution, the failure to call the performing analyst as a
witness prevents the defense from exploring the possibility that the analyst (here, the
contract pathologist performing the autopsy) lacked proper training or had poor
judgment, or from testing the analyst's "honesty, proficiency, and methodology."
(Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2538.)
Crawford and Melendez-Diaz make clear that no hearsay exception or rule of
evidence permits the introduction of testimonial hearsay in violation of the confrontation

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clause. (Crawford, supra, 541 U.S. at pp. 51-56; see also Melendez-Diaz, supra, 557
U.S. at p. ___, 129 S.Ct. at pp. 2538-2540.) The confrontation clause "trumps"
evidentiary rules where testimonial evidence is involved. Therefore, an expert's
testimony conveying autopsy findings that are both testimonial and being introduced for
their truth may only be admitted where the right of confrontation is satisfied.13
In this case, although the autopsy report was not admitted, Cohen conveyed its
findings regarding the injuries to Shallenberger's body to the jury and relied upon the
truth of those findings in rendering his expert opinion. He was asked to testify in great
detail, injury by injury, about what was observed during the autopsy by "another doctor,"
and he relayed how the injuries were "described," "noted" and "documented" in the
13 As we will explain, in this case Cohen's testimony about the autopsy findings were
clearly introduced for the truth of the findings and therefore could not have been properly
admitted as the basis for his opinion under Evidence Code section 801, subdivision (b).
California law prohibits a court from admitting out-of-court statements as the basis for an
expert opinion where the jury is allowed to consider them for the purpose of proving the
matter asserted. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1525
["Although experts may properly rely on hearsay in forming their opinions, they may not
relate the out-of-court statements of another as independent proof of the fact."].)
Therefore, we do not apply those cases finding no violation of the confrontation clause
where the materials on which an expert bases his or her opinion are not introduced for the
truth of their contents. (E.g., People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see
Cal. Evid. Code, § 801, subd. (b); Crawford, supra, 541 U.S. at p. 59, fn. 9 [the
confrontation clause "does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted"], citing Tennessee v. Street (1985) 471
U.S. 409, 414.)

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"findings" of the autopsy report.14 The prosecution used that testimony, which was the
only detailed evidence of Shallenberger's injuries, to argue — again in graphic detail —
that the injuries showed Anunciation had beaten and strangled Shallenberger with malice.
The record leaves no doubt Garber's findings were admitted for their truth. The
jury was instructed to determine whether the findings, as "the information on which
[Cohen] relied," were "true and accurate." In considering the weight to give the findings,
the jury needed to consider Garber's credibility, perceptions and abilities — not those of
Cohen — because autopsy findings are the product of the performing pathologist's
observation and discretion.15 As we have explained, Garber's findings were critical to
14 Cohen expressly relied on, conveyed and quoted the findings from the autopsy
report in his testimony. He did not state that he reached any conclusions or opinions
independent from the findings of the autopsy report, and the record contains no
foundation for his opinions other than those findings. Given this record, we need not
address whether it would have been permissible to admit Cohen's expert opinions based
solely on the autopsy photographs or other data, or without admitting the findings
themselves. (See, e.g., Commonwealth v. Avila (Mass. 2009) 912 N.E.2d 1014, 1029-
1030 [substitute medical examiner may give opinions but may not testify on direct
examination about the underlying factual findings of a nontestifying medical examiner
contained in an autopsy report].)
15 As the standards for autopsy performance recognize, a forensic pathologist
performing an autopsy exercises discretion to determine the need for additional dissection
and laboratory tests, and is responsible for formulating all interpretations and opinions as
well as obtaining all necessary information to do so. (Nat. Assn. of Medical Examiners,
Forensic Autopsy Performance Stds., American J. of Forensic Medicine & Pathology
(Sept. 2006) vol. 27, issue 3, stds. B4, B5, pp. 200-225.) Likewise, the record here
supports the conclusion that the autopsy findings by the performing pathologist reflected
discretion and judgment that could have been explored on cross-examination. (See
fn. 16, post.)

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20
establish an element of the prosecution's case.16 Garber, the performing pathologist who
made the observations and wrote the findings, became a nontestifying "witness" for
purposes of the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct.
at p. 2532.)
Under these circumstances, we conclude that the right to confront Garber — the
person making the autopsy findings — could not be satisfied by cross-examining Cohen.
The prosecution's failure to call Garber as a witness at trial deprived Anunciation of the
opportunity to test the accuracy of the autopsy findings and, absent a showing that Garber
was unavailable and that Anunciation had a prior opportunity to cross-examine him,
violated his right to confrontation. (Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct.
at p. 2538.)17
16 For example, Cohen explicitly relied on the report's findings of bruising showing
blunt force injuries to infer that Shallenberger was beaten before he was strangled, which
helped show malice and refute the defense's theory that Anunciation choked
Shallenberger in the heat of passion or in self-defense. However, the bruising described
in the autopsy report overlapped areas of Shallenberger's skin colored by postmortem
lividity, which was due solely from the pooling of blood after death. In order to
distinguish the two, pathologists "look at . . . the degree of the visible finding, the
distribution of the discoloration, and . . . how well defined the discolorations are," among
other things. Cohen did not actually make each of these findings, and he did not have
photographs to support every one. Cohen necessarily relied on Garber's finding that the
bruising was "nearly confluent," about which he could not effectively be cross-examined.
17 Since Melendez-Diaz, appellate courts in three states have held that because
autopsy reports are testimonial, expert testimony based upon them is inadmissible. (E.g.,
State v. Locklear (N.C. 2009) 681 S.E.2d 293, 304-305 [opinion testimony based on an
autopsy report, including forensic pathology and dental analyses, was "testimonial" in

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21
Relying on the California Supreme Court's decision in Geier, the Attorney General
contends that the trial court properly admitted Cohen's testimony about Garber's autopsy
findings because Cohen was available for cross-examination about the autopsy process
and results. We disagree. As we explain above, Melendez-Diaz, together with Crawford,
make clear that because the confrontation clause is a procedural guarantee, a trial court
may not admit expert testimony about testimonial autopsy findings for their truth, even
where those findings are reliable or the defendant may "test" their reliability through
means other than confronting the pathologist who made them. (Melendez-Diaz, supra,
557 U.S. at p. ___, 129 S.Ct. at p. 2536 ["We do not have license to suspend the
Confrontation Clause when a preferable trial strategy is available."]; Crawford, supra,
541 U.S. at pp. 61-62.) Indeed, in the case of autopsy findings, it would be impossible
nature and violated a defendant's right to confrontation where the state failed to show that
the pathologist and dentist were unavailable or that defendant had prior opportunity to
cross-examine them]; Wood v. State (Tex. Ct. App., Oct. 7, 2009, No. 03-08-00257-CR)
2009 Tex. App. Lexis 7882; see also Long v. State (Tex. Ct. App., Aug. 20, 2009,
No. 11-07-00319-CR) 2009 Tex. App. Lexis 6577 [results of toxicology tests performed
as part of autopsy were testimonial and therefore improperly admitted]; Commonwealth
v. Avila, supra, 912 N.E.2d at pp. 1029-1030 [substitute medical examiner testifying as
expert witness may not testify about the underlying factual findings of the unavailable
medical examiner contained in autopsy report].) In contrast, one court has held the
admission of a chief medical examiner's testimony about an autopsy performed by
another pathologist did not violate the confrontation clause where the testifying examiner
reviewed and discussed the findings and the wording of the autopsy report with the
performing pathologist at the time of the autopsy and cosigned the report. (State v. Lui
(Wash. Ct. App., Nov. 23, 2009, No. 61804-1-I) 2009 Wash. App. Lexis 2892.)

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22
for a defendant to repeat the autopsy and test the process or results by doing so.
(Melendez-Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2536, fn. 5.)
The Attorney General's reliance on Geier as authority for permitting a substitute
witness to testify to testimonial autopsy findings is inapposite in at least two respects.
First, the Geier court held that a DNA report, laboratory notes and results were
admissible through a testifying laboratory supervisor — rather than the laboratory analyst
who performed the tests — because the report, notes and results were not testimonial.
(Geier, supra, 41 Cal.4th at p. 607.) Geier does not suggest that the defendant's
confrontation right would have been satisfied had the underlying report, notes and results
been testimonial, as we have concluded the autopsy findings are in this case. (Ibid.)
Second, in Geier, the testifying laboratory supervisor had cosigned the report of the
testing results, providing an opportunity for the defendant to cross-examine the individual
who issued the results. (Id. at p. 596.) Here, on the other hand, Cohen neither
participated in the autopsy, nor certified or signed the autopsy report, precluding any
opportunity for Anunciation to test the underlying process and findings.
Because the autopsy findings were testimonial and the prosecution failed to
establish the performing pathologist Garber was unavailable and that Anunciation had a
prior opportunity to cross-examine him,18 the trial court's admission of Cohen's
18 A witness generally is not considered unavailable under the confrontation clause
"unless the prosecutorial authorities have made a good-faith effort to obtain [the
witness's] presence at trial." (Barber v. Page (1968) 390 U.S. 719, 725.) The Attorney

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23
testimony violated Anunciation's right of confrontation. Anunciation is therefore entitled
to a reversal of the conviction for murder, unless that error was harmless. (Melendez-
Diaz, supra, 557 U.S. at p. ___, 129 S.Ct. at p. 2542, fn. 14 [noting that, despite finding
admission of the affidavits violated the defendant's confrontation clause rights, the
resulting error was subject to harmless error review].) We thus next address whether the
error in admitting Cohen's testimony conveying, and relying on the independent truth of,
the autopsy findings was prejudicial.
C. Admission of Cohen's Testimony Conveying and Relying on Findings of the
Nontestifying Pathologist Was Not Harmless
In determining whether a confrontation clause violation is prejudicial, we employ
the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Cage (2007) 40 Cal.4th 965, 991-992.) Under the Chapman standard, "an
otherwise valid conviction should not be set aside if the reviewing court may confidently
say, on the whole record, that the constitutional error was harmless beyond a reasonable
doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) In making this inquiry, we
consider "the importance of the witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
General does not contend any effort was made to have Garber testify. In addition, the
Attorney General does not contend Anunciation had any previous opportunity to cross-
examine Garber, and the record shows no such opportunity.

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24
examination otherwise permitted, and, of course, the overall strength of the prosecution's
case." (Id. at p. 684.)
Cohen's testimony conveying Garber's findings was the primary evidence that
enabled the prosecution to argue to the jury that Anunciation intended to kill
Shallenberger, or at least knew that his actions were likely to kill him. The findings were
therefore pivotal to the prosecution's proof of malice — an element necessary for
conviction of second degree murder. The prosecution argued at length in closing
argument that "based on the very, very extensive injuries that Garvin Shallenberger
suffered, the extensive beating to his face, his forehead, his mouth, and . . . the bleeding
around the esophagus," there was no way "that man could have done that to
Mr. Shallenberger and say, but I didn't intend to kill him." The prosecution then argued,
based on the same evidence, that at the very least Anunciation "knew that what he was
doing was dangerous to human life."19 Given the importance of Cohen's testimony
conveying Garber's findings, we cannot conclude beyond a reasonable doubt that a
rational jury would have found Anunciation guilty of second degree murder had it been
19 As we have previously noted, by testifying that the injuries observed by Garber
were not consistent with having been inflicted by a reflexive reaction, Cohen's testimony
also undercut the defense theory of voluntary manslaughter, although the trial court did
not instruct the jury on that theory. (See fn. 16, ante.)

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25
excluded.20 We therefore conclude the error was not harmless, and Anunciation's
conviction must be reversed.
III.
The Trial Court Did Not Err in Denying Anunciation's Motion to Suppress
Anunciation contends the trial court prejudicially erred in denying his motion to
suppress the statements obtained from him by Buompensiero in violation of the Fifth
Amendment. Although we reverse Anunciation's murder conviction for the reasons
discussed in part II., ante, we address this contention to provide guidance to the trial court
in the event of a retrial.21
A. Factual and Procedural Background of Anunciation's Interviews
After Shallenberger's killing, Investigator Buompensiero identified Anunciation as
a suspect from phone records and store surveillance videotapes showing Anunciation
20 As we have previously explained, Cohen's testimony conveyed the autopsy
report's findings, and he relied on the independent truth of the findings contained in the
report in rendering his opinions. Cohen did not state, and we find no indication in the
record, that any of his opinions or conclusions could have been or were reached
independently of the report. (See fn. 14, ante.)
21 On appeal, Anunciation also contends the trial court erred in refusing to instruct
the jury on voluntary manslaughter, but we need not address this issue in light of our
reversal of his conviction on Sixth Amendment grounds. Because the instructions to be
given at any retrial necessarily depend on the issues raised by the evidence, we are unable
to provide guidance on that issue in this appeal. (People v. Moye (2009) 47 Cal.4th 537,
548.)

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26
using Shallenberger's credit cards after the killing. Buompensiero told Anunciation's
former girlfriend, Mia Fletcher, that Anunciation was a suspect and that he should call
Buompensiero. Anunciation called Buompensiero the next day, 11 days after
Shallenberger's death, and agreed to come to the station to answer questions. He asked
for a ride and Buompensiero sent detectives to pick him up.
Two detectives (in plain clothes with holstered guns) met Anunciation at Fletcher's
house, and Anunciation voluntarily agreed to accompany them to the sheriff's station.
Anunciation sat in the front seat of their sedan and was not handcuffed.
The interview, which was videotaped, was held in a small, carpeted room with two
chairs at the Palm Desert Sheriff's Station. The only other person in the room was
Buompensiero, who interviewed Anunciation. The interview began with Buompensiero
reading Anunciation his Miranda rights.22 Anunciation responded that he would like to
have a lawyer. Buompensiero left the room for 15 minutes and when he returned, before
questioning, he reminded Anunciation that he had come voluntarily, and that he was free
to leave and was not under arrest. Buompensiero told Anunciation that he could leave at
any time during the questioning. Anunciation acknowledged that he understood, and that
he knew how to leave the room and the building.
Buompensiero then asked Anunciation about his use of Shallenberger's credit
cards. Anunciation admitted he had met with Shallenberger on the day he was killed,
22 Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).

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27
was "whacked out" on "speed" and just wanted some money. Anunciation stated that
Shallenberger had paid him on multiple occasions for oral sex, but claimed that on the
day of the killing he did not want to have oral sex with Shallenberger. Annunciation said
Shallenberger became irate, and Anunciation took Shallenberger's wallet, credit cards,
laptop computer and telephones, and he left.
After about 45 minutes of questioning, Anunciation asked Buompensiero if he was
"busted" for taking Shallenberger's credit cards and property. Buompensiero said that
they would wait to see what the district attorney wanted to do, and then asked
Anunciation where he would be staying. Anunciation said he could be reached at his
mother's, telling Buompensiero, "I'm not going nowhere." Anunciation left the station,
alone, after waiting approximately 20 minutes in the lobby of the station for a detective to
give him a ride.
A short time later, the detective who was to give Anunciation a ride found
Anunciation at a bus stop, some distance from the station. The detective asked
Anunciation if he wanted a ride, and he accepted. As the detective drove Anunciation
toward his mother's house, Buompensiero called the detective's cell phone and asked him
to see if Anunciation would return to the station to answer more questions. Anunciation
agreed to return.
Anunciation's second interview, which was also taped, lasted 34 minutes.
Buompensiero began the interview by stating that Anunciation was not under arrest and
was free to leave at any time, as before. Anunciation said he understood that, and knew

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28
where the door was. A few minutes into the interview, after asking about what had
occurred on the day Shallenberger was killed, Buompensiero told Anunciation he had
some more questions for which he would read Anunciation his Miranda rights.
Buompensiero read Anunciation the Miranda warnings. Anunciation acknowledged that
he understood each of them. Buompensiero asked Anunciation about his telephone calls
to Shallenberger, told Anunciation that Shallenberger was dead, and asked him to explain
what had happened since Annunciation was the last person with him.
In response, Anunciation admitted to choking Shallenberger until he turned blue
after Shallenberger bit him during oral sex. After making these admissions, Anunciation
said to Buompensiero that he ". . . better get a lawyer now" and asked if he could go
home for the night. Buompensiero told Anunciation he would discuss "a few things here
with my boss" and left the room. When he returned, Anunciation was placed under arrest
and shackled with leg irons.
Before his first trial, Anunciation sought to exclude his statements to
Buompensiero. The trial court denied his motion to suppress after an evidentiary hearing,
ruling that Anunciation had not been in custody. The trial court found Anunciation
voluntarily went to the police station to be interviewed, and that Anunciation had
reinitiated questioning after being told he was free to go. The trial court also found
Anunciation voluntarily returned for the second interview and made his admissions about
killing Shallenberger after being read his rights and implicitly waiving them. The

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interviews were not coercive, but low-key and conversational, without heavy-handed
tactics, and Anunciation was calm and not nervous.
B. Anunciation's Fifth Amendment Rights Were Not Implicated Because He Was Not
in Custody When He Gave His Interview Statements
Anunciation contends that because he was in continuous custody during both
interviews, and asked for a lawyer at the outset of the first interview, his statements in
response to Buompensiero's questions were obtained in violation of his Fifth Amendment
privilege against self-incrimination and were therefore inadmissible at trial. Anunciation
also contends admission of his statements was improper because he never validly waived
his Miranda rights. We disagree. Based on the trial court's findings and our independent
review of the undisputed facts contained in the record, we conclude that Anunciation was
not in custody when he was questioned by Buompensiero and admitted strangling
Shallenberger. Without custody, Anunciation's request for an attorney had no legal effect
and there was no need for a waiver of his Miranda rights.
1. Pertinent Law
The scope of our review of a claim that a statement or confession is inadmissible
because it was obtained in violation of a defendant's Fifth Amendment rights is well
established. " 'We must accept the trial court's resolution of disputed facts and inferences,
and its evaluations of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed facts, and those
properly found by the trial court, whether the challenged statement was illegally

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obtained.' [Citations.] We apply federal standards in reviewing defendant's claim that
the challenged statements were elicited from him in violation of Miranda." (People v.
Bradford (1997) 14 Cal.4th 1005, 1033; People v. Buskirk (2009) 175 Cal.App.4th 1436,
1447-1448; People v. Memro (1995) 11 Cal.4th 786, 827 [trial court's assessment of
credibility of police officers and defendant's witnesses at suppression hearing must be
accepted on appeal, if supported by substantial evidence].)
The Fifth Amendment to the United States Constitution provides no person "shall
be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th
Amend.) In Miranda, the United States Supreme Court held the privilege is "fully
applicable during a period of custodial interrogation." (Miranda, supra, 384 U.S. at
pp. 460-461.) Thus, the prosecution may not use a defendant's statements obtained
during custodial interrogation by law enforcement unless, prior to questioning, the
defendant is advised of his or her rights to silence, to consult with a lawyer, to have the
lawyer with him during interrogation and to appointed counsel. (Id. at p. 471.)23 If an
individual subject to custodial interrogation requests a lawyer, the interrogation must stop
until the individual's counsel is present, unless the individual initiates further
communication, exchanges, or conversations with the police. (Minnick v. Mississippi
23 In Miranda, the United States Supreme Court explained that these warnings were
needed to safeguard the individual's Fifth Amendment privilege against the "inherently
compelling pressures" of in-custody interrogation "which work to undermine the
individual's will to resist and to compel him to speak where he would not otherwise do so
freely." (Miranda, supra, 384 U.S. at p. 467.)

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(1990) 498 U.S. 146, 153 (Minnick); Edwards v. Arizona (1981) 451 U.S. 477, 484-485
(Edwards).)
The right to counsel under Miranda does not attach and cannot be invoked outside
of the context of custodial interrogation. (Montejo v. Louisiana (2009) 556 U.S. ___ [129
S.Ct. 2079, 2090, 173 L.Ed.2d 955, 969] ["If the defendant is not in custody, then [the
Miranda/Edwards] decisions do not apply"]; see also id. at p. 2091, quoting McNeil v.
Wisconsin (1991) 501 U.S. 171, 182, fn. 3 [" 'We have in fact never held that a person can
invoke his Miranda rights anticipatorily, in a context other than "custodial
interrogation" ' "]; People v. Nguyen (2005) 132 Cal.App.4th 350, 355 [defendant who
called attorney during arrest but before interrogation did not effectively assert right to
counsel]; People v. Avila (1999) 75 Cal.App.4th 416, 422 & fn. 8 [because Miranda
rights cannot be invoked except during custodial interrogation, accused being arraigned
on one charge cannot prospectively invoke his or her Miranda rights to counsel as to
some other unrelated charge by a written "invocation of rights" form].) As both parties
recognize, the threshold issue in this case is therefore whether Anunciation was in
custody when he was questioned by Buompensiero.
A suspect is in custody for purposes of the Fifth Amendment when he is
" 'deprived of his freedom of action in any significant way.' " (People v. Mickey (1991) 54
Cal.3d 612, 648, 661; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088; Miranda,
supra, 384 U.S. at p. 444.) To determine whether a person who has not been formally
arrested is in custody, we examine, based on a totality of the circumstances, "how a

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reasonable man in the suspect's position would have understood his situation."
(Berkemer v. McCarty (1984) 468 U.S. 420, 442; see also Yarborough v. Alvarado (2004)
541 U.S. 652; People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa).) "[T]he ultimate
inquiry is simply whether there is a '. . . restraint on freedom of movement' of the degree
associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125
(Beheler); Ochoa, at p. 401.) The test is objective, and the subjective views harbored by
the interrogating officers or the defendant are not generally relevant to the determination.
(Stansbury v. California (1994) 511 U.S. 318, 323 (Stansbury).)
In determining whether a defendant is "in custody," courts consider a number of
objective criteria, such as whether contact was initiated by law enforcement; whether the
suspect voluntarily agreed to an interview; the ratio of officers to suspects during the
interview; the officers' demeanor; whether the officers informed the suspect he was under
arrest or free to terminate the interview and leave; whether the officers dominated and
controlled the course of the interrogation; whether the officers manifested a belief the
person was culpable and they had evidence to prove it; whether techniques to pressure the
suspect were employed; and whether the suspect was arrested at the close of the
interview. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera); People v.
Forster (1994) 29 Cal.App.4th 1746, 1753.) "[C]ourts [also] consider highly significant
whether the questioning was brief, polite, and courteous or lengthy, aggressive,
confrontational, threatening, intimidating, and accusatory." (Aguilera, at p. 1164.)

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2. Analysis
Substantial evidence supports the trial court's findings that Anunciation voluntarily
participated in the interviews, and reinitiated questioning after requesting a lawyer.24
The evidence shows that Anunciation called Buompensiero of his own accord, agreed to
meet with him and asked for a ride to the station. After Anunciation said he wanted a
lawyer, Buompensiero told Anunciation that he was free to leave, and Anunciation
acknowledged he was free to leave and knew how to leave. At that point, Anunciation
reinitiated the conversation, saying "What do you want to ask me?" Anunciation left the
sheriff's station after the first interview on his own. He also willingly accepted another
ride from a detective to go to his mother's house, and agreed to return to the station for
more questions. Additionally, having reviewed the videotapes and transcripts of the
interviews, we find the trial court accurately characterized the questioning as "low-key,
slow questions, no heavy-handed tactics . . . not intense, persistent, or accusatory." The
questioning remained so throughout both interviews.
Applying the law to the facts found by the trial court and to the undisputed facts
contained in the record, we conclude that Anunciation was not in custody during the
24 Because we conclude Anunciation was not in custody, we need not, and do not,
decide whether Anunciation's reinitiation of communication with Buompensiero would
be sufficient to satisfy the exception, under Edwards and Minnick, that permits
questioning by police after a defendant has requested counsel but then reinitiates
" 'communication, exchanges or conversations with the police.' " (Minnick, supra, 498
U.S. at p. 152; Edwards, supra, 451 U.S. at pp. 484-485.)

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police interviews. Anunciation called Buompensiero of his own accord and indicated he
was willing to answer questions, both before and during the interview. Anunciation was
not restrained during the interviews, which took place over a period of approximately two
hours. He repeatedly acknowledged that he understood he was free to go and he actually
left the station. He willingly accepted a ride home from officers and agreed to return to
the station to answer additional questions. The detective's questioning remained low-key
and conversational. A reasonable person in Anunciation's circumstances would have felt
free to terminate the questioning and leave. (U.S. v. Norris (9th Cir. 2005) 428 F.3d 907,
911 [defendant was not "in custody" for Miranda purposes where he voluntarily
accompanied the officers to the police station; was told that his cooperation was
voluntary, that he was free to terminate the interview at any time and that he was not
under arrest; was never restrained in any way; and, upon completion of the interview, was
taken home by the officers]; U.S. v. Kim (9th Cir. 2002) 292 F.3d 969, 974-975 ["If the
police ask — not order — someone to speak to them and that person comes to the police
station, voluntarily, precisely to do so, the individual is likely to expect that he can end
the encounter"]; Aguilera, supra, 51 Cal.App.4th at p. 1162, citing Green v. Superior
Court (1985) 40 Cal.3d 126, 131-135 [concluding a reasonable person would not have
felt in custody where defendant voluntarily accompanied officers to the station for an
interview, questioned him intermittently in a detailed way over a total period of two
hours within a locked room, saying he could leave if he wanted to]; People v. Spears
(1991) 228 Cal.App.3d 1, 22, 25 [concluding defendant was not in custody during hour-

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long interview at police station in which officers were "courteous and polite" and told
defendant at various times he was free to leave].)
Anunciation contends certain facts compel a finding he was in custody, including
that he was already the focus of Buompensiero's investigation when he was questioned
and the interview took place in the homicide unit's interrogation room at the sheriff's
station. We disagree. Even a direct statement to a person under interrogation that he is a
prime suspect is not dispositive unless it also "would have affected how a reasonable
person in that position would perceive his or her freedom to leave." (Stansbury, supra,
511 U.S. at p. 325; In re Joseph R. (1998) 65 Cal.App.4th 954, 960.) Here, although
Anunciation knew from his former girlfriend that Buompensiero considered him a
suspect, Buompensiero did not mention it during Anunciation's interviews. Given the
atmosphere of the interviews, Anunciation's voluntary cooperation, and the fact that he
came and went, a reasonable person would have felt free to leave, despite being at the
sheriff's station and under suspicion. (E.g., Beheler, supra, 463 U.S. at pp. 1122, 1125
[suspect not in custody despite being the target of a police investigation, where he had
accompanied the police willingly to station house for questioning].)25
25 Anunciation argues that because he was "released" from custody so briefly
between the first and second interviews and then "recapture[d]," it was evident that the
police statements that he was free to go were never true, and there was a "taint" that
remained from his request for an attorney that lasted through the second interview. We
disagree, given our conclusion that he was not in custody. Moreover, the cases that
Anunciation relies upon as showing custody under similar facts are inapposite. (People
v. Esqueda (1993) 17 Cal.App.4th 1450, 1482 [police took defendant immediately from

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36
Because the totality of the circumstances show Anunciation was not "in custody"
before he admitted strangling Shallenberger, the essential predicate for the application of
the Fifth Amendment under Miranda is lacking.26 Anunciation cannot show his Fifth
Amendment rights were violated when his statements to Buompensiero were admitted at
trial.
crime scene, prevented him from going to hospital with his injured wife and never told
him he was free to leave]; People v. Storm (2002) 28 Cal.4th 1007, 1021 [Cal. Sup. Ct.
did not rule on whether defendant accused of lying after flunking a polygraph
examination was in custody].)
26 Because Anunciation was not in custody when given the Miranda warnings in the
second interview, we need not address his contention that he did not validly waive his
Miranda rights by acknowledging the warnings and continuing to answer questions
thereafter. (Ochoa, supra, 19 Cal.4th at p. 401 [where suspect not in custody, " 'Miranda
simply [did] not come into play,' " and no waiver was needed].)

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DISPOSITION
Anunciation's conviction for second degree murder is reversed and the matter is
remanded. In all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.

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