People v. Ramirez CA3

Filed 9/29/20 P. v. Ramirez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C088165

Plaintiff and Respondent, (Super. Ct. No. 17FE015184)

v.

CANSIO SANTIAGO RAMIREZ,

Defendant and Appellant.

While watching a fistfight between two men, defendant Cansio Santiago Ramirez
walked up behind one of the combatants, stuck a gun in his back, and fired a single shot,
killing him. A jury found defendant guilty of first degree murder (Pen. Code, § 187,
subd. (a))1 and found true the allegation that he personally discharged a firearm causing
death (§ 12022.53, subd. (d)). The trial court sentenced defendant to an aggregate term
of 50 years to life in prison.
On appeal, defendant contends the judgment should be reversed because (1) the
trial court erred by denying his motion to suppress statements obtained in violation of his

1 Undesignated statutory references are to the Penal Code.

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rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda);
(2) the trial court erred by excluding exculpatory evidence related to his state of mind at
the time of the shooting; (3) the trial court erred by instructing the jury with a modified
version of CALCRIM No. 3472; (4) the trial court erred by failing to instruct the jury on
the lesser included offense of voluntary manslaughter based upon a sudden quarrel or
heat of passion; (5) there is insufficient evidence of premeditation and deliberation to
support a first degree murder conviction; and (6) the cumulative effect of these errors
resulted in an unfair trial. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157,
defendant also argues that the trial court erred in imposing fines, fees, and restitution
without first determining his ability to pay them.
Because we agree with defendant’s first contention, we reverse the judgment and
remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
The shooting
On the morning of August 15, 2017, defendant arrived at an auto repair shop
intending to sell various items, including a semiautomatic handgun, to mechanic R.B., an
acquaintance who worked at the shop. Although R.B. declined to purchase the items, he
agreed to give defendant $20 because he knew defendant was experiencing financial
difficulties. Taking the money but not the gun or a loaded magazine, defendant then left
the shop, explaining that he would return shortly.
About 15 minutes after defendant left, the victim, Arnulfo Soto, arrived at the
shop, accompanied by his friend, A.B. The victim had come to the shop to speak with
R.B. about a disagreement over the purchase of a truck. When the victim entered the
shop, he walked over and stood next to the vehicle on which R.B. was working. The
victim and R.B. exchanged greetings in a normal, casual conversation. As they were
talking, the victim saw defendant’s handgun, picked it up, inserted the magazine, and
playfully pointed it at R.B., stating, “ ‘I’m going to shoot you.’ ” R.B. told the victim to

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stop playing and put the gun down. As the victim did so, the gun slid and fell down into
the vehicle’s engine compartment.
At some point, the conversation between the victim and R.B. became heated and
they began arguing loudly. The victim became “very, very angry.” When R.B. refused
to give the victim any money and demanded that he leave the shop, the victim told R.B.
that he was going to shoot him and tried to reach defendant’s gun. In an effort to defuse
the situation and avoid being shot, R.B. proposed a fistfight. The victim agreed and the
two of them squared off and prepared to fight in the open area of the garage.
Just before the fight began, defendant returned to the shop. Defendant asked what
was happening and R.B. told him they were about to fight. R.B. yelled to defendant,
“ ‘Your gun, it’s already loaded. . . . Look for it and grab it.’ ” R.B. and the victim then
began fighting, striking each other with their open hands and fists. Neither man had or
used a weapon and no one else was involved in the fight.
At one point during the fight, R.B. elbowed the victim in the head and the victim
fell to the ground. While the victim was down, defendant yelled, “ ‘Fuck him over,’ ” or
“ ‘Fuck him up,’ ” which R.B. took as encouragement to “continue hitting [the victim.]”
After the victim was knocked down, the fighting became more intense. The
victim seemed angrier and more intent on hurting R.B. As the fight continued, R.B.—
who had never fought before—grew fatigued, so he hunched over, closed his eyes, and
covered his head with his hands to protect himself. As the victim continued punching
R.B., defendant racked the slide of his gun, quickly walked up behind the victim, placed
his gun in the victim’s back, and shot him. The bullet entered the victim’s midback and
moved almost horizontally from back to front, cutting his spinal cord in half, continuing
up through the chest and esophagus, piercing both sides of his heart, and exiting his chest.
The victim died shortly thereafter. The entire fight lasted approximately two or three
minutes.

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 Defendant’s postshooting statements
Immediately after shooting the victim, defendant turned to the victim’s friend,
A.B., and, while making a sweeping gesture across his abdomen with the gun in his hand,
said, “ ‘What about you?’ ” A.B. put his hands up and over his head and said, “ ‘No,
nothing.’ ” Feeling threatened, A.B. backed out of the garage and began to flee.
Defendant briefly chased after him.
As soon as defendant left the shop, R.B. called 911. While R.B. was on the phone
with the 911 dispatcher, defendant returned to the shop, saw R.B. on the phone, and
asked, “ ‘What are you doing?’ ” R.B., too scared to tell defendant that he was speaking
with the police, said “nothing” at first, but then asked defendant, “ ‘Why did you do this?
Why would you do this?’ ” In regards to R.B. being on the phone, defendant told him he
did not “ ‘want another dead person here.’ ” Defendant asked R.B. to help him dump the
body, but R.B. refused and told defendant to leave. Before leaving, defendant warned
R.B. not to talk to the police or defendant would “fuck [him] up or kill [him].”
The police investigation
That evening, detectives interviewed R.B. and A.B., both of whom identified
defendant as the shooter.2 Around midnight, law enforcement officers located defendant
and arrested him. When defendant was arrested, he was carrying a semiautomatic
handgun, which later was identified by R.B. and A.B. as the weapon used to kill the
victim. Samples taken from defendant’s hands tested positive for gunshot residue.
The morning after his arrest defendant was interviewed by two law enforcement
officers: Detective Christopher Britton, who was leading the interview, and Detective
Carlos Cabrera, who was acting as a Spanish translator for defendant. Upon entering the
interview room around 5:00 a.m. on the morning of August 16, 2017, the detectives woke

2 A.B. also identified defendant in court.

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defendant and asked him some background questions. They learned that he was 47 years
old and born in Mexico, but had lived in the United States for more than 20 years. The
detectives asked defendant if he spoke English and if he thought he could have a
conversation in English, and defendant responded, “Yeah, no problem.”
The detectives then turned to the topic of defendant’s Miranda rights. The
detectives asked defendant if he ever had Miranda rights read to him before. Despite
having multiple criminal convictions, defendant stated that he had not. Detective Britton
asked defendant if he would prefer to have his Miranda rights read to him in English or
Spanish, and defendant requested Spanish. The following colloquy ensued:
“[Detective Cabrera]: [Spanish] Okay. As my colleague told you these are your
rights, okay? First of all you have the right to remain silent, anything you say could be
used against you and it is going to be used against you in the court of justice. You have
the right to contact an attorney and have an attorney present before and during an inte-
[sic] interrogation. If you do not have the resources to afford an attorney, one free of
charge will be assigned to you to represent you before and during the interrogation if you
want. Do you understand your rights that I just read to you?
“[Defendant]: [Spanish] Yes.
“[Detective Cabrera]: [Spanish] Okay. And having those rights in mind, uh,
would you like to talk to us regarding what we investigated today?
“[Defendant]: [Spanish] Well, what’s the thing? I didn’t steal anything, I have
never stolen anything.
“[Detective Cabrera]: He wants to know, uh, what incident are you referring to?
“[Detective Britton]: Okay. That’s fine. We could talk about that. Um . . . .
“[Detective Cabrera]: [Spanish] Okay, he is going to talk about it right now, he is
going to inform you.
“[Detective Britton]: So, is this okay if we talk?
“[Detective Cabrera]: [Spanish] Is this okay if we talk to you?

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 “[Defendant]: [English] Yeah, [Spanish] but, (unintelligible). I don’t know, the
reason is that I have not stolen anything—I have not stolen anything.
“[Detective Cabrera]: Says he hasn’t stolen anything.
“[Detective Britton]: Okay. That’s fine.
“[Detective Cabrera]: [Spanish] Um, okay. Can we talk to you or not? Because
you just—just said something about an attorney.
“[Defendant]: [Spanish] Well, yes, I would like to have one to know what is
going on because I really don’t know what’s going on or what . . . .
“[Detective Cabrera]: Since he doesn’t know what’s going on or why he’s here,
um . . . .
“[Detective Britton]: I wanna explain that to him.
“[Detective Cabrera]: [Spanish] That’s—that’s what we want to explain to you.
“[Defendant]: [Spanish] Should the attorney be present or not?
“[Detective Cabrera]: [Spanish] Excuse me?
“[Defendant]: [Spanish] Should the attorney be present in case I want one?
“[Detective Cabrera]: [Spanish] You—that’s—that’s your choice. That’s the
choice and right that you have. But as my colleague told you we want to explain to you,
uh, some things.
“[Defendant]: [Spanish] Is it okay without an attorney?
“[Detective Cabrera]: [Spanish] That’s your choice. [English] He’s, uh, asking
if it’s okay to speak without an attorney.
“[Detective Britton]: Yeah, it’s absolutely okay, um, it’s his choice, um, of
course, you know, we would love to talk to him. If he wants to talk, let’s talk. Um, at
any time if he doesn’t want to answer my questions he doesn’t need to.
“[Detective Cabrera]: [Spanish] It’s—it’s very easy (unintelligible). If you want
to talk to us, we want to talk to you, uh, but you don’t have to—that’s your right to
remain silent if—you can talk without the attorney being present, you [sic]. And at any

6
point of the interview if you don’t want to talk anymore or you don’t want to answer
some of the questions you don’t have to answer the . . . .
“[Defendant]: Okay.
“[Detective Cabrera]: Okay.
“[Defendant]: [Spanish] Let’s see what—I did not steal anything.
“[Detective Cabrera]: He said, ‘Yes, let’s talk.’
“[Detective Britton]: Okay.
“[Detective Cabrera]: He wants to know what this is all about.
“[Detective Britton]: All right. Perfect. So, um, I’ll just get right to it. Um, when
you woke up to day [sic], where’d you go?”3
The detectives then proceeded to interview defendant about the shooting. During
the interview, defendant denied being present when the shooting happened and denied
shooting or killing anyone. Defendant told the detectives that he only heard about the
shooting from a friend, that he acquired the gun after the shooting had occurred, and that
he shot the gun into an empty field.
Before trial, defendant moved to suppress his statements to the police on the
grounds they were obtained in violation of Miranda because the detectives continued to
question him even after he unequivocally asked for an attorney.4 In ruling on the motion,

3 The transcripts of the interrogation that are part of the record on appeal do not
indicate which portions of the interrogation were in Spanish or English. However, since
there is no dispute between the parties on this issue, we accept and use the designations
set forth in the parties’ briefs. Because the parties’ briefs do not align in their description
of nonverbal acts, we have not considered that information in reaching our decision.
However, we have considered exhibits 1 and 1A, which were included in the record on
appeal pursuant to California Rules of Court, rule 8.224.
4 Although defendant failed to renew the objection when the evidence was offered
at trial, defendant argues, and we agree, that his motion to suppress was sufficient to
preserve the issue for appellate review. (People v. Morris (1991) 53 Cal.3d 152, 189-

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the trial court reviewed both the transcript and the videotape of the interrogation.
Although the court indicated it was a “hard decision,” after extensive argument from the
parties and deliberation by the trial court, it ultimately affirmed its tentative decision to
deny the motion, concluding that defendant had not unequivocally and unambiguously
asserted his right to counsel. The prosecution subsequently relied on defendant’s false
statements to the police to show consciousness of guilt, and to show that defendant’s
claimed defense of another was false and that defendant’s true motive for the shooting
was to ensure R.B. did not lose the fight.
The defense
Defendant did not testify and the defense presented no witnesses. The defense
conceded that defendant shot the victim, but argued that he did so in defense of R.B.
Verdict and sentencing
The jury found defendant guilty of a single count of first degree murder (§ 187,
subd. (a)) and found true the allegation that he intentionally and personally discharged a
firearm causing death in violation of section 12022.53, subdivision (d). The trial court
declined to strike the firearm enhancement. Defendant was sentenced to 50 years to life
in prison, consisting of 25 years to life for the murder and a consecutive 25 years to life
for the firearm enhancement. The court ordered defendant to pay $12,623.50 in direct
victim restitution (with an additional amount to be determined for funeral and mental
health expenses); a $10,000 restitution fine under section 1202.4, subdivision (b), with a
like amount (stayed) under section 1202.45; a $30 court facilities assessment under
Government Code section 70373; a $40 court operations assessment under section
1465.8; and $544.27 in booking and classification fees under Government Code section
29550. Defendant timely appealed.

190, overruled in part on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830,
fn. 1.)

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 DISCUSSION
I
Violation of Miranda
Defendant argues the trial court erred in refusing to suppress the statements he
made during his police interview because they were obtained in violation of Miranda.
Defendant asserts that he unequivocally invoked his right to counsel and that, as soon as
he did so, all questioning should have ceased. Defendant also argues that he did not fully
understand his Miranda rights and therefore did not knowingly and intelligently waive
them. Based upon our independent review of the record, and the totality of the
circumstances, we agree that the statements were obtained in violation of Miranda and
therefore should have been suppressed. We further conclude the error was prejudicial
and requires reversal of the judgment.
In Miranda, the United States Supreme Court established a number of
prophylactic rights designed to protect the privilege against self-incrimination during
custodial interrogations. (Davis v. United States (1994) 512 U.S. 452, 457-458 [129
L.Ed.2d 362, 370-371] (Davis); Miranda, supra, 384 U.S. 436.) Under Miranda, a
suspect may not be subjected to custodial interrogation unless the suspect has been
apprised of his or her rights and has knowingly, intelligently, and voluntarily waived
them. (People v. Bacon (2010) 50 Cal.4th 1082, 1104-1105 (Bacon).)
The right to counsel is one of the prophylactic rights recognized in Miranda to be
sufficiently important to require the “ ‘special protection’ ” of the knowing and intelligent
waiver standard. (Davis, supra, 512 U.S. at p. 458.) If a suspect knowingly and
voluntarily waives his right to counsel after having that right explained to him, law
enforcement officers are free to question the suspect. (Ibid.; see also Berghuis v.
Thompkins (2010) 560 U.S. 370, 384 [176 L.Ed.2d 1098, 1113] [“Where the prosecution
shows that a Miranda warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the right to remain

9
silent”].) But when a suspect has invoked a right to have counsel present during an
interrogation, a valid waiver of that right cannot be established merely by showing that
the suspect responded to further interrogation. (Edwards v. Arizona (1981) 451 U.S. 477,
484 [68 L.Ed.2d 378, 386].) When a suspect has expressed a desire to deal with police
only through counsel, the interrogation must cease until either counsel has been made
available or the suspect reinitiates the conversation. (Id. at pp. 484-485; Davis, at p. 458;
Bacon, supra, 50 Cal.4th at p. 1105.)
The rule that the interrogation must cease applies only when there has been a clear
invocation of the right to counsel. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124
(Gonzalez); Davis, supra, 512 U.S. at pp. 460-461.) An officer is not required to stop
questioning a suspect when a suspect makes a reference to an attorney that is ambiguous
or equivocal. (People v. Flores (2020) 9 Cal.5th 371, 417; People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 217-218 (Sauceda-Contreras); Davis, at pp. 459, 461; see also
People v. Carey (1986) 183 Cal.App.3d 99, 103 [the “ ‘clarification rule’ ” requires
ambiguity as a precedent].)
Whether a defendant has invoked the right to an attorney is an objective inquiry
that asks what a reasonable officer would have understood the nature of the suspect’s
request to be under the circumstances. (Sauceda-Contreras, supra, 55 Cal.4th at pp. 217-
218; Davis, supra, 512 U.S. at p. 459.) Although a suspect “ ‘need not “speak with the
discrimination of an Oxford don,” [citation], he must articulate [the] desire to have
counsel present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney.’ ” (Gonzalez, supra, 34
Cal.4th at p. 1124.)
Context is important. In certain situations, words that would be plain if taken
literally actually may be equivocal in the context of the request or the circumstances
leading up to it. (Sauceda-Contreras, supra, 55 Cal.4th at p. 218.) However, in
determining whether a request for counsel is ambiguous, a suspect’s subsequent

10
responses to continued police questioning may not be used to cast retrospective doubt on
the clarity of the initial request. (Smith v. Illinois (1984) 469 U.S. 91, 99-100 [83
L.Ed.2d 488, 496] (Smith).) “Where nothing about the request for counsel or the
circumstances leading up to the request would render it ambiguous, all questioning must
cease.” (Id. at p. 98.) In these circumstances, the accused’s subsequent statements are
relevant only to the distinct question of waiver. (Ibid.)
In reviewing a trial court’s Miranda ruling, we independently determine from the
undisputed facts, and facts properly found by the trial court, whether the challenged
statement was illegally obtained, and where what the defendant said during the interview
is undisputed, we review de novo the legal question of whether the statement at issue was
ambiguous or equivocal. (Bacon, supra, 50 Cal.4th at p. 1105; People v. Cunningham
(2001) 25 Cal.4th 926, 992.)
Here, defendant argues that he unambiguously and unequivocally requested an
attorney to help him understand what was happening during the interview. We agree.
Immediately after confirming that defendant understood the Miranda advisement,
detectives asked him if he would like to talk to them regarding the incident they were
investigating. At that point, the detectives had not yet told defendant the nature of what
they were investigating, except that it was an “incident” in which “somebody was
seriously hurt.” Defendant’s response indicated his confusion about what incident was
being investigated: “Well, what’s the thing? I didn’t steal anything.”
Detective Cabrera replied that they would explain if defendant agreed it was okay
to talk. Defendant answered, “Yeah, but,” and then apparently said “something about an
attorney,” which was not directly translated by Cabrera. Detective Cabrera then asked
defendant, “Can we talk to you or not? Because you . . . just said something about an
attorney.” To that, defendant responded, “Well, yes, I would like to have one to know
what is going on . . . .”

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 The People argue that defendant’s response was ambiguous because he “actually
answered ‘yes’ to the only pending question: ‘Can we talk to you or not?’ ” We are
unpersuaded.5 Construed in context, the objectively reasonable interpretation of the
detective’s question was: “Can we talk or [do you want an attorney]?” In response to
this question, defendant answered that, “[Y]es, [he] would like to have one.”
Defendant’s request for counsel differs markedly from responses that have been
found to be ambiguous or equivocal. Defendant did not say he “might” want an attorney,
that he “thinks” he would like an attorney, or that “maybe” an attorney should be present.
(Cf. Bacon, supra, 50 Cal.4th at p. 1104 [“ ‘I think it’d probably be a good idea for me to
get an attorney’ ” was ambiguous or equivocal]; Davis, supra, 512 U.S. at pp. 461-462
[“ ‘Maybe I should talk to a lawyer’ ” was ambiguous or equivocal].) He did not say that
he would “ ‘feel more comfortable’ ” with a lawyer present. (People v. Molano (2019)
7 Cal.5th 620, 659.) And his request for counsel was not contingent on a future event.
(Cf. Gonzalez, supra, 34 Cal.4th at pp. 1119, 1126 [defendant’s statement that he wanted
a lawyer if he was going to be charged was conditional]; People v. Suff (2014) 58 Cal.4th
1013, 1068-1069 [same]; People v. Clark (1992) 3 Cal.4th 41, 120-121, abrogated on
another ground as recognized in People v. Edwards (2013) 57 Cal.4th 658, 704-705
[expressed desire to have attorney present in future coupled with unequivocal willingness
to talk in the interim].) Immediately after Detective Cabrera referred to an attorney,
defendant responded, “[Y]es, I would like to have one.” We do not find this request to be
equivocal or ambiguous.
Our conclusion finds support in the United States Supreme Court’s decision in
Smith, supra, 469 U.S. 91. In Smith, after a detective advised the defendant of his right to
have a lawyer present during questioning and asked if he understood that right, the

5 Nor are we persuaded that defendant’s response was ambiguous because he denied
stealing anything before requesting an attorney.

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defendant responded, “ ‘Uh, yeah. I’d like to do that.’ ” (Id. at p. 93, italics omitted.)
Instead of immediately terminating the questioning, the interrogating officers finished
reading the defendant his Miranda rights and asked him if he wished to talk without a
lawyer being present. (Smith, at p. 93.) The defendant responded, “ ‘Yeah and no, uh, I
don't know what’s what, really.’ ” (Ibid., italics omitted.) Officers then told the
defendant, “ ‘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,’ ” to which defendant responded, “ ‘All right. I’ll talk to you
then.’ ” (Ibid., italics omitted.)
Based on these facts, the Supreme Court concluded that the trial court erred in
refusing to suppress the defendant’s custodial statements. (Smith, supra, 469 U.S. at pp.
91-92.) Finding no ambiguity in the defendant’s initial request for counsel, the court held
that the questioning should have ceased. (Id. at pp. 97-98.) The court held that the
accused’s postinvocation statements could not be used for the purpose of injecting
ambiguity into the invocation statement. (Id. at p. 100.)
The facts of Smith, supra, 469 U.S. 91 are closely analogous to the facts here.
Here, as in that case, in response to a question referring to an attorney, defendant stated
that he “would like” one. Nevertheless, because the translating detective failed to
translate this portion of his response, or halt the interrogation himself, the other detective
pressed forward with additional questioning. As in Smith, defendant’s responses to
continued questioning ultimately were used for the purpose of retroactively injecting
ambiguity into his earlier invocation.6

6 Although the additional questioning may not have amounted to interrogation
(People v. Cunningham, supra, 25 Cal.4th at p. 993), clarifying questions are permitted
only if the request for counsel was ambiguous or equivocal. (People v. Carey, supra, 183
Cal.App.3d at p. 103; Garcia v. Long (9th Cir. 2015) 808 F.3d 771, 778; see also Davis,

13
 Under the totality of the circumstances, including the translation problems, we
conclude that defendant’s statement, “[Y]es, I would like to have one,” was an
unambiguous and unequivocal request for an attorney.7 Because the officers continued to
interrogate him after he invoked his right to counsel, and it is undisputed that defendant
did not reinitiate the conversation, we conclude defendant’s custodial statements were
obtained in violation of Miranda. (Davis, supra, 512 U.S. at p. 458; In re Art T. (2015)
234 Cal.App.4th 335, 355-356.) Thus, the trial court erred in denying defendant’s motion
to suppress such evidence.8 (See People v. Neal (2003) 31 Cal.4th 63, 67, 90; People v.
Guerra (2006) 37 Cal.4th 1067, 1092, overruled on other grounds as stated in People v.
Rundle (2008) 43 Cal.4th 76, 151, overruled on other grounds as stated in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
When statements are obtained in violation of Miranda, as they were in this case,
the error is reviewed under the federal “harmless beyond a reasonable doubt” standard set
forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (In re I.F. (2018)
20 Cal.App.5th 735, 781.) Under Chapman, the test is whether it appears beyond a

supra, 512 U.S. at p. 459, Smith, supra, 469 U.S. at pp. 95-100, and People v. Gamache
(2010) 48 Cal.4th 347, 385.)
7 Given this conclusion, we find People v. Flores, supra, 9 Cal.5th 371, on which
the People rely, factually distinguishable. There, our Supreme Court held that a police
officer acted reasonably in clarifying defendant’s intent to invoke his right to counsel
after an ambiguous response to an imprecise question posed by the officer. (Id. at p.
419.) We find no similar ambiguity here.
8 This renders it unnecessary for us to decide defendant’s alternative claim that he
did not knowingly and intelligently waive his right to counsel because he did not fully
understand his Miranda rights. We also decline to consider defendant’s claim, raised
solely to preserve the issue for appellate review, that the California Supreme Court’s
decisions in People v. Markham (1989) 49 Cal.3d 63 and People v. May (1988) 44 Cal.3d
309—allowing statements obtained in violation of Miranda to be used for
impeachment—were wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)

14
reasonable doubt that the error complained of did not contribute to the verdict obtained.
(People v. Neal, supra, 31 Cal.4th at p. 86.) “ ‘To say that an error did not contribute to
the verdict is . . . to find that error unimportant in relation to everything else the [trier of
fact] considered on the issue in question, as revealed in the record.’ [Citation.]” (Ibid.)
That is to say, the inquiry is whether the verdict rendered was “ ‘ “ ‘ surely
unattributable’ ” ’ ” to the error. (People v. Penunuri (2018) 5 Cal.5th 126, 158.) The
People bear the burden to make this showing. (In re I.F., supra, 20 Cal.App.5th at p.
781.) The burden is a “heavy” one. (People v. Guzman (2000) 80 Cal.App.4th 1282,
1290.)
The People argue that any error in admitting the Miranda-violative statements was
harmless because the statements merely were indirect evidence of consciousness of guilt,
used to show that defendant killed the victim and did not act in defense of another. They
further argue that, in light of other, overwhelming evidence—including defendant’s
conduct immediately after the shooting—the custodial statements were unimportant. We
disagree.
Although there was strong evidence that defendant was guilty of some form of
criminal homicide, we cannot say beyond a reasonable doubt that the Miranda-violative
statements did not contribute to the verdict of first degree murder.
“ ‘California statutes have long separated criminal homicide into two classes, the
greater offense of murder and the lesser included offense of manslaughter. The
distinguishing feature is that murder includes, but manslaughter lacks, the element of
malice.’ [Citation.]” (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle), overruled
on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) “ ‘Malice exists, if at
all, only when an unlawful homicide was committed with the “intention unlawfully to
take away the life of a fellow creature” [citation], or with awareness of the danger and a
conscious disregard for life [citations]. In certain circumstances, however, a finding of
malice may be precluded, and the offense limited to manslaughter, even when an

15
unlawful homicide was committed with intent to kill.’ ” (Randle, supra, at pp. 994-995,
fn. omitted.)
One acting in perfect defense of another has a complete defense to a charge of
murder. A killing committed in perfect defense of another—which requires both an
actual and a reasonable belief in the need to defend another—is “neither murder nor
manslaughter; it is justifiable homicide.” (Randle, supra, 35 Cal.4th at p. 994.) In
contrast, “one who kills in imperfect defense of others—in the actual but unreasonable
belief he must defend another from imminent danger of death or great bodily injury—is
guilty only of manslaughter.” (Id. at p. 997.) Imperfect defense of another mitigates
rather than justifies the homicide by negating the element of malice, the mental element
necessary for murder. (Id. at pp. 994, 996-997; In re Christian S. (1994) 7 Cal.4th 768,
773.)
The evidence in this case established that defendant did not have an objectively
reasonable belief in the need to use deadly force. But we cannot say that defendant’s
inadmissible statements were unimportant to the question of whether defendant shot the
victim based upon an actual, albeit unreasonable, belief in the need to defend R.B.
Throughout closing argument, the prosecutor emphasized defendant’s false
statements to the police. Indeed, she began and ended her argument by noting the
inconsistency between what defendant told the detectives during his interrogation—that
he did not shoot the victim—and what defendant claimed at trial—that he shot the victim
in defense of another. The prosecutor used this evidence not merely as proof of
consciousness of guilt, but also to show that defendant’s claimed defense of another was
false and that defendant’s true motive was to ensure R.B. won the fight.
The People urge us to conclude that the illegally obtained statements played only a
minor role in the jury’s verdict. But, as defendant argues, the jury only had “one
opportunity to hear [defendant] speak,” and that one statement was shown to be a lie,
which seriously damaged the credibility of his claimed defense of another. The

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importance of this evidence was underscored in closing argument, when the prosecution
repeatedly referred the jury to the videotape of defendant’s interrogation and insisted that
defendant’s lies to the police cannot be ignored. We cannot conceive of any reason “why
we should treat this evidence as any less ‘crucial’ than the prosecutor—and so
presumably the jury—treated it.” (People v. Cruz (1964) 61 Cal.2d 861, 868; People v.
Diaz (2014) 227 Cal.App.4th 362, 384 [concluding that a prosecutor’s reference to
evidence that should not have been admitted increases the potential prejudice of that
evidence].)
We cannot say beyond a reasonable doubt that the statements obtained in violation
of Miranda did not contribute to the jury’s verdict. The People have failed to meet their
burden to prove the error was harmless. Accordingly, we conclude that the judgment
must be reversed.
II
Exclusion of Exculpatory Statement
Our determination that defendant’s murder conviction must be reversed renders it
unnecessary for us to consider his other claims of error. For guidance upon retrial,
however, we briefly address the contention that the trial court erred by excluding an
exculpatory statement made by defendant at the time of the shooting.
During trial, the prosecution elicited testimony from R.B. about a series of
incriminating statements that defendant made to R.B. shortly after the shooting, including
that defendant asked R.B. to help him move the body and threatened to harm R.B. if he
talked to the police. While the prosecution was questioning him, R.B. volunteered that at
some point during their exchange he asked defendant, “ ‘Why did you do this?’ ” But the
prosecution did not elicit defendant’s answer to this question.
Thereafter, defense counsel informed the court that he intended to elicit, on cross-
examination, defendant’s answer to R.B.’s question of why he shot the victim.
Specifically, R.B. would testify that defendant answered, “ ‘Because he was fucking you

17
up.’ ” Defense counsel argued that defendant’s statement, although hearsay, was
admissible under Evidence Code section 356 or section 1240.9 The prosecution opposed
the request.10
After holding an Evidence Code section 402 hearing and receiving additional
argument, the court agreed with the prosecution and excluded defendant’s statement as
inadmissible hearsay. As a result, the jury never heard defendant’s explanation of why he
shot the victim.
On appeal, defendant argues that the trial court erred by excluding defendant’s
answer to the question why he shot the victim. He contends the statement was admissible
under Evidence Code section 356 or 1240, and that excluding the statement impaired his
constitutional right to present a defense. We agree that the statement should have been
admitted under Evidence Code section 356.
Evidence Code section 356 provides that when part of a conversation, act,
declaration, or writing, is given in evidence by one party, “the whole on the same subject
may be inquired into by an adverse party . . . .” (Evid. Code, § 356.) The purpose of the
rule is “to prevent the use of selected aspects of a conversation, act, declaration, or
writing, so as to create a misleading impression on the subjects addressed.” (People v.
Arias (1996) 13 Cal.4th 92, 156.) Under the rule, if a statement admitted in evidence
constitutes part of a conversation, the adverse party may introduce otherwise inadmissible
portions of the same conversation that have “ ‘some bearing upon, or connection with’ ”

9 Defense counsel also sought to admit the statement under Evidence Code section
1250 or 1251. The trial court ruled the statement was not admissible under those
sections. Defendant does not challenge that ruling on appeal.
10 The prosecution reminded the court that before trial, the court had tentatively
granted a motion in limine to preclude defendant’s out-of-court statements unless
defendant testified or the prosecution moved to admit them.

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the admitted statement to avoid creating a misleading impression of the conversation.
(People v. Hamilton (1989) 48 Cal.3d 1142, 1174, italics omitted.)
We review a trial court’s ruling under Evidence Code section 356 for abuse of
discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.) Here, we find an abuse
of discretion for three reasons.
First, the excluded statement was made at the same time and as part of the same
conversation with R.B. as the other postshooting statements that were admitted. This is
not a situation, as in People v. Johnson (2010) 183 Cal.App.4th 253, where the defendant
was seeking to use exculpatory statements from a later conversation to explain statements
made in a previous, separate conversation. (Id. at p. 287.)
Second, the excluded statement was on the “same subject” as the admitted
statements. The postshooting statements admitted at trial included (1) defendant asking
R.B. who he was speaking to on the phone; (2) defendant asking R.B. to help him move
the victim’s body; (3) defendant warning R.B. not to talk to the police; and (4) R.B.
asking defendant, “Why did you do this? Why would you do this?” All of these
statements were made close in time, related directly to the shooting and its immediate
aftermath, and the excluded statement was a direct response to R.B.’s question about why
defendant shot the victim.
We acknowledge that Evidence Code section 356 cannot be applied mechanically,
but our Supreme Court has cautioned that courts should not draw “ ‘narrow lines’ ”
around the subject of the inquiry. (People v. Zapien (1993) 4 Cal.4th 929, 959; People v.
Williams (1975) 13 Cal.3d 559, 565; see also People v. Harrison (2005) 35 Cal.4th 208,
239.) Following this guidance, we are persuaded that the excluded statement was on the
same subject, i.e., defendant’s postshooting conduct and statements to R.B.
Third, defendant’s explanation as to why he shot the victim had some bearing
upon, or connection with, the statements admitted in evidence, and was necessary to
avoid creating a misleading impression of the conversation. (People v. Hamilton, supra,

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48 Cal.3d at p. 1174.) The prosecution elicited the other postshooting statements partly
to establish defendant’s motive for the shooting. The prosecution relied on the statements
to show that defendant shot the victim not because he believed R.B. was in imminent
danger, but because he wanted R.B. to win the fight.
In contrast, only one part of the conversation was kept from the jury’s
consideration—the statement that answered R.B.’s question: “Why did you do this?” By
admitting all of defendant’s postshooting statements except that one, the trial court
deprived the jury of hearing the response to the question. Instead, the jury was left with
the misimpression that defendant had no answer to the question when, in fact, he did.
The jury should not have been misled into believing defendant had no response to the
question of why he shot defendant, a circumstance the jury likely took into account in
considering the prosecution’s consciousness of guilt argument. Thus, we conclude the
trial court erred in excluding it.
DISPOSITION
The judgment is reversed and the case remanded to the trial court for a new trial.

KRAUSE , J.

We concur:

ROBIE , Acting P. J.

MURRAY , J.

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