dissenting.
¶ 22 Upon learning that Hung Nguyen spoke only Vietnamese, Detective James Vacca asked police chaplain Father Dang to interpret for him,during his interrogation of Nguyen. Father Dang was not a certified Vietnamese interpreter, and Detective Vacca had never used Father Dang to translate or interpret before. The certified translation of Nguyen’s Miranda advisement reveals repeated mistranslations of both the detective’s questions and Nguyen’s responses. The trial court suppressed Nguyen’s statements, concluding that his Miranda advisement was confusing and therefore, the waiver of his Miranda rights was not knowing and intelligent.
¶ 23 In reversing the trial court’s suppression ruling, the majority focuses exclusively on the initial articulation of rights translated to Nguyen during his Miranda advisement and ignores the remainder of the exchange between Detective Vacca, Father Dang, and Nguyen when the. detective asked Nguyen if he wanted to waive his rights. A review .of the entire advisement reveals Nguyen’s confusion about the nature of his rights and his lack of understanding regarding the initial advisement. Notably, Father Dang never said to Nguyen that his statements to the detective could be used against him in court, as is required by Miranda. In addition, Father Dang’s mistranslation of Nguyen’s right to have an attorney present at no cost during questioning suggested'that if Nguyen did not already have an attorney or could not afford one, the court would appoint a “person” to represent him — not necessarily an attorney. Moreover, Father Dang later gave more confusing information to Nguyen, telling him that he could “hire” an attorney, contradicting his earlier reference to an “appointed” representative in the event that Nguyen could not afford an attorney.
¶ 24 Here, the totality of the circumstances demonstrates that Father Dang was not “capable of accurately expressing the substance of the suspect’s rights,” see People v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo. 1998), and that Nguyen did not “minimally understand” his rights such that he could validly waive thém, see People v. Aguilar-Ramos, 86 P.3d 397, 402 (Colo. 2004). Although law enforcement authorities must sometimes- “settle for less outside of-the court than-is required in court, it does not follow that outside of court, any interpretation will do.” Mejia-Mendoza, 965 P.2d at 781 (quoting United States v. Hernandez, 93 F.3d 1493, 1505 n.3 (10th Cir. 1996) (Lucero, J., concurring in part, dissenting in part)). In light of Father Dang’s repeated mistranslations and Nguyen’s apparent confusion, I conclude that' Nguyen did not knowingly and intelligently waive his Miranda rights. Accordingly, I respectfully dissent.
*842I. Applicable Law
¶ 26 “To determine if a voluntary, knowing, and intelligent waiver occurred, courts examine the totality of the circumstances surrounding the custodial interrogation, including any language barriers encountered by a defendant.” Mejia-Mendoza, 965 P.2d at 780. The prosecution must prové the validity of the waiver by a preponderance of the evidence. People v. Al-Yousif. 49 P.3d 1165, 1168 (Colo. 2002). Although we review de novo the legal question of whether the defendant sufficiently understood his rights to waive them, id. at 1167, we defer to the trial court’s findings of historical fact and will not disturb those findings on appeal when they are supported by competent evidence in the record, Mejia-Mendoza, 965, P.2d at 780.
¶ 26 In addition to being voluntary, a defendant’s waiver of his Miranda rights must also be knowing and intelligent, which means that the defendant must possess an awareness of both the nature of a right and the consequences of his decision to waive it. Id, Where there is a language barrier between the interrogator and the suspect, we have identified several considerations for determining whether a waiver was knowing and intelligent. In this situation, it is not relevant whether a defendant understood the “origin or purpose of constitutional rights, or the tactical implications of waiving them.” Al-Yousif, 49 F.3d at 1172. Rather, our analysis turns on whether the defendant understood that: (1) he did not have to talk; (2) he could have an attorney present; (3) if he could not afford an attorney, one would be appointed for him; and (4) if he did talk, his statements could be used against him. Id.; Sanchez v. People. 2014 CO 56, ¶ 12, 329 P.3d 253, 267. No-translation is perfect, Aguilar-Ramos, 86 P,3d at 401, but “a person acting as an interpreter must be sufficiently capable of accurately expressing .the. substance of the suspect’s rights,” Mejia-Mendoza, 965 P.2d at 781. Where the advisement as a whole reveals difficulties in communication and understanding, we have concluded that a suspect did not “minimally understand” his rights such that he could knowingly and intelligently waive them. See Aguilar-Ramos, 86 P.3d at 402.
.¶ 27..When upholding, a trial court’s suppression order, we have emphasized that the totality of circumstances governs this analysis: “[The defendant] did not make a knowing and intelligent waiver of his Miranda rights because of the combined effects of the translator’s inadequate translation, the substantial miscommunication between the parties, and [his] cultural background and limited intellectual functioning.” People v. Redgebol, 184 P.3d 86, 92 (Colo. 2008) (emphasis added). For example, we have concluded that a defendant did hot sufficiently understand his rights where it took multiple attempts for a detective to learn a suspect’s name; where the suspect responded “yes” when-asked if he understood his rights, but similarly responded “yes” at other, inappropriate moments; and where the “disjointed nature of the questions and answers” throughout the interrogation revealed difficulties in communication. Aguilar-Ramos, 86 P.3d at 402. We have also held that a suspect’s waiver was not knowing and intelligent where an-interpreter provided misleading and confusing statements to the suspect. Mejia-Mendoza, 965 P.2d at 781. Notably, the interpreter in Mejia-Mendoza was untrained in translation or assisting law enforcement in explaining Miranda rights. See id.
II. The Advisement Did Not Reasonably Convey Nguyen’s Miranda Rights
¶ 28 Viewed in its entirety, the advisement here did not reasonably convey Nguyen’s Miranda rights, I therefore conclude that Nguyen did not knowingly and intelligently waive his rights. First, I disagree with the majority’s conclusion that the advisement, as translated, informed Nguyen that his statements could be used in court against him. See maj. op. ¶¶2, 11-16. Next, I also disagree with the majority’s conclusion that the advisement adequately conveyed Nguyen’s right to have an attorney appointed prior to questioning, See' id. at- ¶¶ 2, 17-19. Finally, I disagree with the majority’s analysis as a whole because it' addresses the mistranslations in 'isolation and fails to consider the totality of the circumstances in determining whether Nguyen knowingly and intelligently waived his rights.
¶ 29 Nguyen first argues that Father Dang’s translated advisement failed to ade*843quately convey that Nguyen’s . statements could be used against him at trial. Detective Vacca asked Nguyen, “Anything you say can be used as evidence against you in court. You understand that?” Father Dang translated this as, “All you say will and may be used as evidence in court, understand?” Later in the advisement when Detective Vacca sought to clarify Nguyen’s understanding, he asked, “[D]o you understand that if you talk to me that anything you say I. will use in court against you?” Father Dang again omitted the word “against,” and mistranslated this question as, “Knowing that Hung knows that today what Hung talks to the police will and may be use[d] in court, understand?”
¶ 30 The majority concludes that this mistranslation reasonably conveyed to Nguyen that anything he said would be used against him in court, even though the translation does not expressly state this. See id. at ¶¶ 2, 12. I disagree. The majority reasons that by informing Nguyen that his statements could be “used in court,” the translation “included the concept that the statements could be used against him (as well as for him) in court,” thus reasonably conveying the Miranda warning that anything he said could be used against him in court. See id. at ¶ 2. The .majority, frames the problem as one of potential overinelusion, not underinclusion. See id. at ¶12. Instead, it is a problem of specificity: Nguyen was never actually informed that his responses could be used against, .him, yet Miranda plainly requires that this aspect of the warning be fairly communicated. Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.... [Tjhis warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system— that he is not in the presence of persons acting solely in his interest,’’(emphasis added)).
¶31 The majority’s conclusion'that Nguyen was aware of this concept hinges on a series of inferences not supported by the record ;or the trial court’s findings. For example, the majority reasons, “it seems- unlikely that a defendant in Nguyen’s situation would understand that his responses to .the detective’s questioning would be used ‘for him’ in court in. any event,’’.and that “[a] defendant in Nguyen’s position would reasonably understand that if he gave statements that implicated him. in the stabbing, those statements would be used in court against him, not for. him.” Maj. op. ¶ 13. But nothing in, fhe record supports these appellate court findings. The trial court made no such findings, nor did Nguyen testify at the suppression hearing, To the contrary, the entire exchange, as discussed further below, sup- . ports a conclusion that Nguyen was confused both about, the. nature of his rights and the consequences of the decision to waive them. See Mejia-Mendoza, 965 P.2d at 780. To the extent that the majority’s conclusions assume that Nguyen had some background knowledge, .the record contains no information about Nguyen’s familiarity with the adversarial nature of the American legal system. We know only that he spoke only Vietnamese.
¶32 Additionally, I agree with Nguyen that the translated advisement, read as a whole, did not reasonably convey his' right to have an attorney present during questioning at no cost. Detective Vacca advised Nguyen that he Had the “right to talk to a lawyer before questioning and have him present during questioning,” which Father Dang translated as, ■ “Obviously you have right to talk to a lawyer who represents you ‘before you answer the questions or to let that person represent[ ] you ... during questioning, understand?” (emphasis added). Detective Vacca added, “If you cannot afford a lawyer one will be appointed for you without cost before questioning,” which Father Dang translated ás, “And if you do not have money to hire an attorney the court will ... appoint a person to you at no' cost to represent you before asking questions,” (emphasis added).
¶ 33 Two aspects of this advisement are .confusing and potentially misleading. First, it suggested that Nguyen could talk t.o a lawyer before questioning — but only if he already had one. Second, it suggested that if Nguyen could not afford an attorney, a “person” — not necessarily a lawyer — would be appointed to represent him! In short, Father Dang’s translation did not adequately convey that *844Nguyen could have a lawyer appointed for Mm at no cost before the detective asked him questions.
¶ 34 I disagree with the majority’s reasoning that because Father Dang previously referred to “an attorney,” the word “person” is “naturally read to refer back to ‘an attorney.’ ” Maj. op. ¶ 18. NotMng in the record supports the conclusion that Nguyen would understand that any “person” who represents him in this context would necessarily be an attorney. The exchange is all the more confusing because Father Dang tells Nguyen that a “person” would be appointed if Nguyen did not “have money to hire an attorney” — suggesting that the individual appointed free of cost would be someone other than an attorney. Given these difficulties in communication and understanding between the detective and Nguyen due to Father Dang’s incorrect translation, I cannot conclude that Nguyen “minimally understood” his right to have an attorney present during questiomng at no cost. See Aguilar-Ramos, 86 P.3d at 400-02.
¶ 35 Finally, I disagree with the majority’s analysis in general because it considers each mistranslation in isolation and ignores the confusing nature of the advisement as a whole. Under this court’s case law, we must consider the “the totality of the circumstances,” Mejia-Mendoza, 965 P.2d at 780 (emphasis added), and “the combined effects of the translator’s inadequate translation [and] the substantial miseommunication between the parties,” Redgebol, 184 P.3d at 92 (emphasis added).
¶ 36 Even if I agreed with the majority’s analysis regarding the first part of the advisement (where Detective Vacca initially advised Nguyen of his rights), the remainder of the advisement (where Detective Vacca asks Nguyen for a waiver) reveals Nguyen’s confusion about Ms rights. Father Dang likely added to tMs confusion when he mistranslated not oMy Detective Vacca’s questions and statements, but also several of Nguyen’s responses:
DETECTIVE VACCA: Ok, so the second part of the advisement is knowing my right and knowmg now what I am doing, I wish to voluntarily talk to me [sic], if you want to talk to me, you need to sign here ...
FATHER DANG: Yeah, and as I said earlier if you want to talk directly, to cooperate with the police then sign here or if you do not want to talk to the police, you want to hire an attorney to talk ...
DETECTIVE VACCA: If you ...
HUNG NGUYEN: To talk about what happened] last Mght, right?
FATHER DANG: So you want me to tell you what had happened tonight, right?
DETECTIVE VACCA: If he want[s] to
[[Image here]]
FATHER DANG: If you want ... if you do not want then let the attorney to represent you ...
HUNG NGUYEN: To see a lawyer or to stay here now is the same ...
FATHER DANG: Ok, doesn’t matter if I see an attorney or either I just rather talk to you ...
DETECTIVE VACCA: Ok, so I just want to be clear, you understand your Miranda rights and you don’t have to talk to me, you can talk to a lawyer instead ...
FATHER DANG: Because we want you to understand that you have the right to hire an attorney to represent you and you do not need to answer us right now, understand?
HUNG NGUYEN: Understand
FATHER DANG: I don’t understand
DETECTIVE VACCA: So you’re perfectly ... you’re perfectly clear on that?
FATHER DANG: Now you understand you have the right to talk to us or do you want to let an attorney to represent you, correct?
HUNG NGUYEN: Yeah
FATHER DANG: Yeah
DETECTIVE VACCA: Ok, and you still want to talk to me?
FATHER DANG: Now do you want to cooperate and talk to us or do you want to let an attorney ...
HUNG NGUYEN: But he wants to ask about last night and I have to tell him what happened ...
FATHER DANG: If you want to ask what happened tomght I will tell you ...
*845DETECTIVE VACCA: Ok, then he has to sign here
The majority does not address this part of the advisement in full, which occurred after the parts quoted in the majority opinion.
¶ 37 Viewed in its entirety, this exchange between Detective Vacca and Nguyen contains numerous mistranslations and undermines the majority’s conclusion that Nguyen sufficiently understood his rights.
¶ 38 For example, Nguyen said, “[t]o see a lawyer or to stay here is the same.” This statement indicates that he did not understand a lawyer would be provided for him before this particular questioning, or the nature of his right to have an attorney present during questioning. Compounding this misunderstanding, Father Dang translated .Nguyen’s statement as, “Ok, doesn’t matter if I see an attorney or either I just rather talk to you.” But importantly, Nguyen did not say that he would “rather” talk to the detective, as Father Dang translated. The most that could be said of Nguyen’s actual statement is that it expressed ambivalence about talking to the detective or getting an attorney.
¶39 Additionally, when Detective Vacca asked Nguyen, “[Do] you still want to talk to me?” after trying to clarify that he understood his rights, Father Dang translated the question as, “Now do you want to cooperate and talk to us or do you want to let an attorney.” Nguyen responded, “But he wants to ask about last night and I have to tell him what happened.” (emphasis added). Nguyen’s response demonstrates that he did not understand that he had the right to remain silent, or that he had the right to an attorney. Further, Father Dang translated Nguyen’s response a's, “If you want to ask what happened last night I will tell you.” Similar to the mistranslation inaccurately suggesting Nguyen would “rather” talk with the detective, Father Dang’s inaccurate translation of this response relayed a willingness or preference to speak to the detective that Nguyen did not in fact express.
¶ 40 Finally, Father Dang confusingly referred to Nguyen’s right to have an attorney present as the right to “hire” an attorney, saying, “[0]r if you do not want to talk to the police, you want to hire an attorney to talk,” and “[W]e want you to understand that you have the right to hire an attorney to represent you....” (emphases added). Thus, even if, as the majority reasons, Nguyen initially understood that an attorney would be appointed for him prior to questioning, Father Dang’s continued mistranslation contradicted the information conveyed to Nguyen in the first part of the advisement. Although a defendant need not be advised whether he will ultimately bear any financial liability for an attorney appointed to assist him during interrogation, Miranda does require that a defendant be adequately advised that an attorney will be appointed for him if he cannot afford one. See Sanchez, ¶ 23, 329 P.3d at 261.
III. Conclusion
¶ 41 Nguyen’s responses and Father Dang’s repeated mistranslations demonstrate that “each party frequently had no idea what the other was talking about.” See Aguilar-Ramos, 86 P.3d at 402. Considering the totality of the circumstances, and the advisement as a whole, I would conclude that Nguyen did. not “minimally understand” his Miranda rights, and therefore did not knowingly and intelligently waive them. See id. I therefore respectfully dissent.
I am authorized to state that JUSTICE HOOD and JUSTICE GABRIEL join in this dissent.