People v. Moreno CA1/1

Filed 10/7/22 P. v. Moreno CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A165845
v.
JESUS RODRIGUEZ MORENO, (Kern County
Super. Ct. No. BF168564A)
Defendant and Appellant.

While driving drunk, defendant Jesus Rodriguez Moreno (Rodriguez)
hit a utility pole and then hit and killed a pedestrian, 39-year-old David Rico.
Rodriguez, who was 55 years old and had three prior convictions for driving
under the influence (DUI), then drove away from the scene. Soon afterward,
he was found nearby, passed out in his car. A jury convicted him of second
degree murder, gross vehicular manslaughter while intoxicated, and hit-and-
run causing death, all felonies, and driving with a suspended license, a
misdemeanor. It also found true allegations that Rodriguez fled the scene
and had prior DUI convictions. The trial court sentenced him to 20 years to
life in prison.
On appeal, Rodriguez claims that his statements to law enforcement
officials were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). We agree, because he was never adequately informed that an
attorney would be appointed for him if he could not afford one. We also

1
conclude that the error was prejudicial as to the felony convictions.
Therefore, we reverse those convictions and remand for a new trial.1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Crash and Physical Evidence
Around 8:00 p.m. on Saturday, June 3, 2017, Rico told his mother he
was going for a walk and left her home in Lamont. At approximately
9:40 p.m., a California Highway Patrol (CHP) officer, Ahearn Lucas, was
dispatched in response to a report that a vehicle had hit a utility pole on
State Route 184 (SR-184). SR-184 is a two-lane highway, running north to
south, with “a nine-foot divided section” marked by double yellow lines that
functions as a divider. Although the stretch of road at issue was not well-lit,
on the night in question the weather was “clear and calm” and there were “no
unusual conditions” such as potholes.
While Officer Lucas was en route, he received an updated report that a
vehicle had hit a pedestrian. Upon arriving at the scene at 10:07 p.m., the
officer discovered a deceased person, later identified as Rico. Rico was lying
on the dirt shoulder of SR-184’s northbound lane, several feet from the
asphalt. He “had severe head trauma,” and his leg appeared to be broken.2

1 As a result of our disposition, we need not address Rodriguez’s
numerous other arguments for reversal, most of which allege evidentiary or
instructional errors. We therefore deny his request for judicial notice of a
document related to one of those claims. Although we mention some evidence
Rodriguez claims was erroneously admitted, such as evidence of his level of
intoxication, we do not thereby express an opinion on the merits of his
challenges to that evidence.
2Rico’s death certificate, which was admitted into evidence, stated that
his cause of death was “blunt force head trauma.” There was no testimony
about his autopsy.

2
Plastic vehicle debris, including a side mirror, was scattered near his body.
The location of the debris suggested that Rico was hit while he was “on the
far right side of the shoulder” of the road, not “in the traffic lane.”
A few blocks south on SR-184 from Rico’s body, a wooden utility pole,
which stood about 14 feet away from the road’s northbound lane, had been
“[shorn] off” near the base. About two hundred feet north of this pole, a
vehicle bumper with the license plate attached was lying on the road’s dirt
shoulder near a second utility pole.3
Another CHP officer at the scene, Sergeant Cecil McKinty, discovered a
trail of vehicle fluid on the ground. The trail began around the shorn-off
utility pole, continued to the vehicle bumper, and “veer[ed] back into [SR-
184’s] northbound lane.” The trail then “traveled from the northbound lane
onto the asphalt shoulder and . . . continue[d] [to] where [Rico] was located.”
At one point, the trail went into the southbound lane, proof that the vehicle
was used to commit a traffic violation by crossing the double yellow lines.
Sergeant McKinty followed the fluid trail as it traveled down several
different streets. At approximately 10:27 p.m., less than two miles away
from the crash scene, he located the trail’s termination point under a Pontiac
Aztek SUV parked on the road’s shoulder.
“[A] large pool of . . . oil and fluid” was underneath the front of the
Aztek. It was missing its passenger’s-side mirror and its front bumper, and
its back license plate matched the license plate on the bumper at the crash
scene. The front of the vehicle, particularly its right corner, was significantly
damaged. The right side of the windshield was badly cracked, and the
damage appeared “consistent with a round object striking [it].” The vehicle’s

3There was conflicting evidence about whether the vehicle hit the
second utility pole, but this uncertainty does not affect our analysis.

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hood likewise appeared to have struck “something . . . round and solid.” DNA
testing later established that a small amount of Rico’s blood was on the
outside of the passenger’s-side B pillar, close to where it attached to the
windshield.
B. Evidence Related to Rodriguez’s Condition
After Sergeant McKinty located the Aztek, he activated his emergency
lights and parked behind it. When he approached the vehicle, he observed
Rodriguez “slouched over” in the driver’s seat and apparently “passed out.”
Rodriguez had an abrasion on his nose, likely caused by the deployed driver’s
airbag, and his blood was on the airbag. His shirt and undershirt were also
bloody.
Sergeant McKinty reached through the Aztek’s open window and shook
Rodriguez’s shoulder, but “it took [the sergeant] several seconds to get
[Rodriguez] to actually wake up and respond.” Rodriguez’s “eyes were
bloodshot and watery,” and his speech was “slurred,” to the point that
Sergeant McKinty did not know whether Rodriguez was speaking Spanish or
English. The sergeant could also smell “a strong odor of alcohol coming out of
the [Aztek].” Three Budweiser beer cans, at least one of which was full and
one of which was empty, were later discovered inside the vehicle’s cabin.
Sergeant McKinty repeatedly instructed Rodriguez in English to exit
the vehicle, but Rodriguez just leaned toward the front passenger’s seat.
Eventually, a sheriff’s deputy helped Sergeant McKinty pull Rodriguez out of
the Aztek.
Soon afterward, Officer Lucas arrived to interrogate Rodriguez. Officer
Lucas likewise observed that Rodriguez’s eyes were “red and watery,” and
Rodriguez’s breath smelled like alcohol. After the interrogation, which we

4
discuss in more detail below, Officer Lucas conducted three field sobriety
tests. Rodriguez showed signs of alcohol impairment during all three tests.
A computer check revealed that Rodriguez was on DUI probation and
his driver’s license was suspended. Officer Lucas then administered two
preliminary alcohol screening (PAS) tests to Rodriguez. The first test, which
was performed at 11:21 p.m., showed that Rodriguez’s blood-alcohol content
(BAC) was .24 percent. The second test, which was performed four minutes
later, showed his BAC was .25 percent.
Officer Lucas arrested Rodriguez for DUI and gave him the option of
submitting to a blood test or an official breath test. Rodriguez elected a blood
test, requiring his transport to a hospital. The blood sample, which was
drawn at 1:30 a.m. the following morning, showed his BAC was .251 percent.4
C. Rodriguez’s Statements to Law Enforcement
Rodriguez was questioned by CHP officers three times, and all three
interrogations were recorded and played for the jury. The first interrogation
was recorded from a distance by a patrol vehicle’s mobile video audio
recording system (MVARS), and the recordings of the other two
interrogations were audio only.
1. First interrogation
After Rodriguez was removed from the patrol vehicle where he was
waiting, Officer Lucas interviewed him. Officer Daniel Dinsing, who spoke
Spanish but was not certified to translate it by the CHP, served as translator.
Rodriguez said he was at a friend’s house earlier that night and was
driving by himself to his sister’s house when he dropped his cell phone on the

4 A criminalist testified that the PAS tests, which indicated that
Rodriguez had approximately the same BAC as the blood test showed he had
two hours later, could have underestimated Rodriguez’s true level of
intoxication.

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Aztek’s floor. As he was trying to retrieve the phone, he hit a pole. He
continued to his sister’s house because he saw no reason to stay at the scene,
and he decided to sleep in the car so he would not disturb his sister.
Rodriguez indicated that he did not have any physical problems or
impairments and did not hit his head during the crash.
Rodriguez denied several times that he hit a person, both before and
after the CHP officers informed him a pedestrian was killed. When told there
was blood on the outside of the Aztec, Rodriguez claimed it was his. He said
it got there when he got out to inspect the damage, wiped blood from his nose,
and touched the vehicle.
Rodriguez admitted that beginning around 2:30 p.m., he drank six to
seven Bud Light beers. He agreed that six to seven hours had passed since
his last drink. Although he acknowledged that he knew he could kill
someone if he drove while drunk, he consistently denied that he was drunk
during the crash, and he denied drinking alcohol after it.
2. Second interrogation
Approximately 30 minutes later, upon arriving at the hospital for the
blood draw, Rodriguez was interviewed by Officer Lucas and another officer,
who was certified as a Spanish translator by the CHP. Rodriguez repeated
much of what he said before, including that he was alone in the Aztek, that
he crashed into the pole because he was looking for his dropped cell phone,
that he did not hit a person and any blood on the car was his, that he was not
drunk during the crash, and that he was not “injured or sick.” He also again
confirmed that he knew that “when you’re driving under the influence of
alcohol, you can kill someone,” stating that it “would be a disgrace” to do so.

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 3. Third interrogation
Two days after the crash, Officer David Cabrera, who was certified by
the CHP as a Spanish translator, questioned Rodriguez in Spanish at the jail.
Rodriguez reported that his cell phone rang, he dropped it, and when he bent
down to get it, he “hit a post.” He stated, “[A]fter I hit the post I became
nervous and I started bleeding. . . . I said, ‘I’m gonna look for help.’ After
that, I ran to my sister’s house to call an ambulance, but then I found an
officer and there I was assisted by them[, t]hank God.” Although the fluid
trail showed that Rodriguez followed an indirect route, requiring six turns, to
get to his sister’s house, he told Officer Cabrera that he took a different route
that would have required only two turns.
Consistent with his prior statements, Rodriguez denied that he hit a
pedestrian. Attempting to explain the blood on the outside of the Aztek, he
stated, “When I reached my sister’s house I washed my face and went to see
the impact that I gave it (unintelligible). So I stayed there sitting down and
. . . I leaned back like this on . . . the car and placed my hand like this and left
a big blood stain, but it was mine because I didn’t hit any other person.”
Rodriguez again confirmed that he knew if he drank and drove he could
kill someone. He also confirmed that he drank six beers before the crash and
did not consume any alcohol after it. This time, however, he stated that he
began drinking at around 5:00 p.m., not 2:30 p.m., and that he had the last
drink when “it was already getting dark.”
D. Procedural History
Rodriguez was charged with second degree murder, gross vehicular
manslaughter while intoxicated, and hit-and-run causing death, all felonies,

7
and a misdemeanor count of driving with a suspended license.5 The count of
gross vehicular manslaughter was accompanied by allegations that Rodriguez
had three prior DUI convictions and fled the scene of the crime.6 The jury
found him guilty of all counts and enhancements as charged.
On May 21, 2019, the trial court sentenced Rodriguez to a total term of
20 years to life in prison, composed of a term of 15 years to life for gross
vehicular manslaughter while intoxicated and a consecutive term of five
years for the fleeing-the-scene enhancement. A concurrent term of 180 days
in county jail was imposed for driving with a suspended license, and a term of
15 years to life for murder and the upper term of four years for hit-and-run
causing death were imposed and stayed.
Rodriguez immediately appealed. Due to numerous extensions of time
sought by both parties, the matter did not become fully briefed until
October 2021. On August 9, 2022, the appeal was transferred from the Fifth
District Court of Appeal to this court for decision.
II.
DISCUSSION
Rodriguez claims that his statements during the three interrogations
were admitted in violation of his Miranda rights. We agree.

5 The charges were brought under Penal Code sections 187 (murder)
and 191.5, subdivision (a) (gross vehicular manslaughter), and Vehicle Code
sections 20001, subdivision (b)(2) (hit-and-run), and 14601.2, subdivision (a)
(driving with suspended license). All further statutory references are to the
Vehicle Code unless otherwise noted.
6 The allegation of prior DUI convictions was made under Penal Code
section 191.5, subdivision (d), based on 2008, 2015, and 2017 convictions for
violating section 23152, subdivision (a). The fleeing-the-scene allegation was
made under section 20001, subdivision (c).

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 A. Additional Facts
At the outset of the first interrogation, Officer Lucas read Rodriguez his
Miranda rights, with Officer Dinsing translating, as follows:7
OFFICER LUCAS: Listen[,] you have the right to remain
silent. Do you understand?

OFFICER DINSING: Okay. You have the right to remain
silent. Do you understand?

[RODRIGUEZ]: (Unintelligible.)

OFFICER LUCAS: Anything you say may be used against
you in court. Do you understand?

OFFICER DINSING: Anything you say may be used against
you in court. Do you understand? Say
yes or no (unintelligible).

[RODRIGUEZ]: Yes.

OFFICER LUCAS: You have the right to the presence of an
attorney before and during any
questioning. Do you understand?

OFFICER DINSING: You have the right to call an attorney
before, during interrogation. Do you
understand?

[RODRIGUEZ]: Yes.

OFFICER LUCAS: If you cannot afford an attorney one will
be appointed for you free of charge before
any questioning if you want. Do you

7 The exchange is quoted from the transcript of the videotaped
interview. Instead of reproducing Rodriguez’s and Officer Dinsing’s
statements in Spanish, the transcript contains translations of those
statements back into English. The parties do not dispute that the
translations are accurate.

9
 understand?

OFFICER DINSING: If you cannot pay an attorney one will be
called for you free of charge before the
interrogation if you said. Do you
understand?

[RODRIGUEZ]: (Unintelligible.)

OFFICER DINSING: Yes? Say yes man – man. (Unintelligible.)
Rodriguez was not read his Miranda rights at the second interrogation,
which occurred only a short time later. At the outset of the third
interrogation, Officer Cabrera read Rodriguez his rights again as follows:8
OFFICER CABRERA: [B]efore I talk to you, I want to let you
know that you have been arrested. You
already know that you have been
arrested. Your rights, you have the right
to remain silent, a- any declaration that
you give may be used against you. You
have the right to speak to an attorney, to
have an attorney present while we ask
you questions.

[RODRIGUEZ]: Very well.

OFFICER CABRERA: Do you understand your rights?

[RODRIGUEZ]: Yes. I understand them.

OFFICER CABRERA: Okay, sir. After understanding your
rights, do you want to talk to me?

[RODRIGUEZ]: Of course. Why not? (Unintelligible.)

8We quote from the transcript of the audio interview, which contains
English translations of Rodriguez’s and Officer Cabrera’s original Spanish
statements. Again, the parties do not dispute the translations’ accuracy.

10
 Before trial, Rodriguez moved to exclude his interrogation statements
under Miranda. In regard to the first interrogation, Rodriguez’s trial counsel
argued that Officer Dinsing did not “fully translate Miranda properly,”
explaining, “There’s a big difference between you can call an attorney,” which
Officer Dinsing said in Spanish, “and you have the right to the presence of an
attorney,” which Officer Lucas originally said. (Italics added.) Also, while
Officer Lucas said that if Rodriguez could not afford an attorney, “one [would]
be appointed for [him] free of charge,” Officer Dinsing translated the latter
part of that statement as “one [would] be called for [him] free of charge.”
(Italics added.) The prosecutor responded that defense counsel was
“nitpick[ing] Spanish words and what they mean as being defective for
Miranda.”
In regard to the third interrogation, Rodriguez’s counsel contended, and
the prosecutor agreed, that Officer Cabrera “did not give the full Miranda
advisement” because the officer did not ask whether Rodriguez understood
that he was entitled to have an attorney appointed for him if he could not
afford one. Defense counsel argued that because two days had passed since
Rodriguez was originally read his Miranda rights, he should have been
readvised “in full.” The prosecutor responded that even if “best practices”
were not used, Rodriguez was read his full Miranda rights at the first
interrogation, and he clearly waived his right against self-incrimination on
that occasion.
The trial court ruled that “the necessary Miranda advisals were given”
during the first interrogation. Although Officer Dinsing’s translation
contained “some differences in words,” those differences did not “dissipate,
minimize, nor incorrectly advise [Rodriguez] of these necessary rights.” The
court also found that Rodriguez “impliedly waived those rights knowingly,

11
voluntarily, and intelligently before participating in [the] interview.” Finally,
the court confirmed that because the second interrogation occurred only
30 minutes later, “a second advisal was unnecessary.” Thus, Rodriguez’s
statements during the first two interrogations were admissible.
The trial court ruled that another Miranda advisement was required
before the third interrogation because it was custodial and two days had
passed since the first interrogation. The court also agreed with the parties
that Officer Cabrera’s “advisement was inadequate.” Although the court
“would, without hesitation, exclude [Rodriguez’s] statements” during the
third interrogation if that were the first time he was advised under Miranda,
the court determined it would be “remiss if it were not to consider that the
initial Miranda advisement given . . . was an adequate advisement as
previously found.”
Thus, the trial court addressed the issue of “what effect, if any, . . . an
inadequate advisement [has] when it follows an adequate advisement.”
Relying on People v. Duren (1973) 9 Cal.3d 218 (Duren), the court concluded
that “based on the proper advisal two days earlier and, just as importantly,
[Rodriguez’s] waiving his rights knowingly, intelligently, and voluntarily [at
that time], . . . [Rodriguez] nonetheless did participate voluntarily in an
interview with Officer Cabrera still under the guise of the Miranda advisal
previously given.” Therefore, the court ruled that Rodriguez’s statements
during the third interrogation were also admissible.
B. The Admission of Rodriguez’s Statements Violated Miranda.
“The Fifth Amendment to the United States Constitution, which
applies to the states by virtue of the Fourteenth Amendment, provides that
no person may be compelled to be a witness against himself or herself.”
(People v. Linton (2013) 56 Cal.4th 1146, 1170–1171.) Miranda held that a

12
suspect must be warned prior to any custodial interrogation “that [the
suspect] has the right to remain silent, that anything [the suspect] says can
be used against [the suspect] in a court of law, that [the suspect] has the
right to the presence of any attorney, and that if [the suspect] cannot afford
an attorney one will be appointed . . . prior to any questioning if [the suspect]
so desires.” (Miranda, supra, 384 U.S. at p. 479; Linton, at p. 1171.) “[A]
defendant’s statement is inadmissible unless all four warnings were given to
the defendant prior to the interrogation, regardless of the defendant’s
understanding of [those] rights.” (People v. Bradford (2008) 169 Cal.App.4th
843, 852.)
We review de novo “a trial court’s granting or denial of a motion to
suppress a statement under Miranda insofar as the trial court’s underlying
decision entails a measurement of the facts against the law.” (People v.
Waidla (2000) 22 Cal.4th 690, 730.) To the extent the ruling relies on factual
findings, we review those findings for substantial evidence, but we “examine[]
independently the resolution of a pure question of law . . . [and] the resolution
of a mixed question of law and fact that is predominantly legal.” (Ibid.)
1. The first interrogation
Rodriguez claims the first Miranda advisement “did not convey the
right to an attorney to be appointed free of charge.” He argues that because
he was informed in Spanish that he had “the right to call an attorney before,
during interrogation” and that if he could not “pay an attorney one [would] be
called for [him] free of charge before the interrogation,” the latter warning
“suggest[ed] that the call would not cost [him], without addressing whether

13
the lawyer would be provided at no charge.” We agree that Rodriguez was
inadequately advised of this right at the first interrogation.9
Although “[t]he four warnings Miranda requires are invariable,” the
United States Supreme Court “has not dictated the words in which the
essential information must be conveyed. [Citations.] In determining whether
police officers adequately conveyed the four warnings, . . . reviewing courts
are not required to examine the words employed ‘as if construing a will or
defining the terms of an easement. The inquiry is simply whether the
warnings reasonably “conve[y] . . . [the suspect’s] rights as required by
Miranda.” ’ ” (Florida v. Powell (2010) 559 U.S. 50, 60; People v. Wash (1993)
6 Cal.4th 215, 236–237.) In other words, “no talismanic incantation [is]
required to satisfy [Miranda’s] strictures” so long as “ ‘a fully effective
equivalent’ ” is given. (California v. Prysock (1981) 453 U.S. 355, 359–360,
italics added (Prysock).)
The purpose of the advisement at issue is to inform indigent people,
who are those “most often subjected to interrogation,” that they “too ha[ve] a
right to have counsel present.” (Miranda, supra, 384 U.S. at p. 473.)
“Without this additional warning, the admonition of the right to consult with
counsel would often be understood as meaning only that [a suspect] can
consult with a lawyer if [the suspect] has one or has the funds to obtain one.”
(Ibid.) To be effective, this advisement must make clear that a suspect has a
“right to the presence of appointed counsel prior to and during interrogation,”
not merely at “a future point in time after . . . interrogation.” (Prysock, supra,
453 U.S. at p. 360.) In assessing whether the advisement of this right was

9 As a result, we need not address Rodriguez’s alternative argument
that he did not knowingly and intelligently waive his right to remain silent at
the first interrogation.

14
effective, courts may consider whether the immediately preceding advisement
about the right to counsel in general was “clearly conveyed” and, if so,
whether the advisement at issue “suggested any limitation on the right to the
presence of appointed counsel different from” the general right. (Id. at
pp. 360–361.)
Applying these principles here, we conclude that Officer Dinsing’s
translation did not adequately convey that Rodriguez was entitled to
appointed counsel before and during the interrogation. Officer Dinsing
informed Rodriguez that if he could not afford an attorney, one would be
“called for [him] free of charge before the interrogation.” This statement is
ambiguous, because it could mean that an attorney would be summoned for
Rodriguez free of charge, but it could also mean that an attorney would be
contacted by telephone for him free of charge. Particularly given the popular
understanding of an arrestee’s right to make telephone calls, including to an
attorney (see Pen. Code, § 851.5), a reasonable person could arrive at the
latter interpretation.
The Attorney General implicitly concedes that if the statement is
interpreted to mean that a telephone call to an attorney would be free, then it
did not adequately inform Rodriguez that he was entitled to the presence of
appointed counsel. The Attorney General claims “[t]his interpretation makes
little sense,” however, because Rodriguez was informed that his “right to
have an attorney ‘called for [him] free of charge’ only arises ‘[i]f [he] cannot
pay an attorney.’ ” The Attorney General contends that since “it would be
illogical to provide a suspect a free telephone call to an attorney [the suspect]
could not afford,” it is more reasonable to interpret “the ‘free of charge’
language [as] referr[ing] to the cost of an attorney” generally, not the cost of a
telephone call.

15
 We might find this argument more convincing were it not for the
immediately preceding advisement, which compounded the ambiguity.
Officer Dinsing’s translation of that warning informed Rodriguez that he had
“the right to call an attorney”—not “the right to the presence of an attorney”
as Officer Lucas stated—before and during the interrogation. (Italics added.)
Not only did this translation also contain the ambiguous word “call,” it did
not clearly express that the attorney had to be physically present during the
interrogation if Rodriguez wished. (See Miranda, supra, 384 U.S. at p. 469.)
Thus, even if the warning at issue otherwise reasonably conveyed that
Rodriguez was entitled to appointed counsel without charge, it was still
deficient because his general right to counsel was not adequately
communicated. (Cf. Prysock, supra, 453 U.S. at pp. 360–361.)
In short, the Miranda advisement before the first interrogation was
inadequate to inform Rodriguez of his right to appointed counsel. As a result,
his statements during that interrogation were inadmissible. In turn, because
Rodriguez was not readvised of his Miranda rights before the second
interrogation, his statements during that interrogation were necessarily
inadmissible as well.
2. The third interrogation
Rodriguez also claims the trial court erred by concluding that Officer
Cabrera’s failure to advise him of the right to appointed counsel before the
third interrogation was cured because he was properly advised of that right
before the first interrogation. We again agree.
“Where a subsequent interrogation is ‘ “reasonably contemporaneous” ’
with the prior waiver, and the prior waiver was ‘knowing and intelligent,’
police need not undertake a Miranda readvisement.” (People v. Spencer
(2018) 5 Cal.5th 642, 668.) In People v. Mickle (1991) 54 Cal.3d 140 (Mickle),

16
our state Supreme Court explained that when determining whether
readvisement is necessary, “courts examine the totality of the circumstances,
including the amount of time that has passed since the [initial] waiver, any
change in the identity of the interrogator or the location of the interview, any
official reminder of the prior advisement, the suspect’s sophistication or past
experience with law enforcement, and any indicia that [the suspect]
subjectively understands and waives [the suspect’s] rights.” (Id. at p. 170.)
To begin with, as discussed above, the advisement before the first
interrogation was inadequate because it did not clearly convey Rodriguez’s
right to appointed counsel. For this reason alone, the omission of an
advisement about that right before the third interrogation rendered
Rodriguez’s subsequent statements inadmissible.
Even if the first advisement had been adequate, we would agree with
Rodriguez that his statements during the third interrogation were
inadmissible. After explicitly concluding that a Miranda readvisement was
required at the third interrogation and that the readvisement Rodriguez
received was inadequate, the trial court nonetheless concluded that under
Duren he “did participate voluntarily [at the third] interview still under the
guise of the Miranda advisal previously given.” But Duren does not support
the proposition that a later, inadequate advisement can be cured by an
earlier, adequate advisement even if the later interrogation was “an entirely
separate session” requiring readvisement. (People v. Spencer, supra,
5 Cal.5th at p. 670.) Rather, although not couched in such terms, Duren
implicitly concluded that the two interrogations at issue there were
reasonably contemporaneous, noting that they occurred the same day and
that the officers who insufficiently advised the defendant confirmed with him
that another officer had previously given him the proper advisement. (Duren,

17
supra, 9 Cal.3d at p. 242.) If it were the case that a defendant’s legitimate
waiver of Miranda rights during one interrogation established the defendant
effectively waived those rights for any future interrogation without regard to
the contemporaneousness requirement, readvisement would never be needed.
Apparently recognizing that the admissibility of Rodriguez’s
statements during the third interrogation turns on the contemporaneousness
requirement, the Attorney General does not defend the trial court’s reasoning
but instead argues that readvisement was unnecessary in light of the Mickle
factors. We disagree. It appears that approximately 36 hours passed
between the first and third interrogations.10 This is a substantial time
period, even if decisions cited by the Attorney General establish it is not too
long as a matter of law. (See People v. Pearson (2012) 53 Cal.4th 306, 317
[interrogations were reasonably contemporaneous where there was a 27-hour
gap between them]; People v. Williams (2010) 49 Cal.4th 405, 434–435 [same
for 40-hour gap]; Mickle, supra, 54 Cal.3d at p. 171 [same for 36-hour gap].)
Moreover, the third interrogation was conducted by a different interrogator
in a different location, and there was no “official reminder of the prior
advisement.”11 (Mickle, at p. 170.) These factors weigh against a finding of
contemporaneousness and distinguish this case from the cited decisions. (See
Pearson, at pp. 316–317 [two jailhouse interrogations by same officer who

10Documentation in the record suggests the third interrogation was at
12:15 p.m. on June 5, 2017.
11The Attorney General claims that Officer Cabrera “did remind
[Rodriguez] of his Miranda rights by re-advising [Rodriguez] of [those] rights,
while inadvertently leaving out that counsel would be provided free of
charge.” But there must be a reminder that the first, proper advisement
occurred, not merely an incomplete reiteration of the rights themselves, to
support the conclusion that readvisement was unnecessary. (See Mickle,
supra, 54 Cal.3d at p. 170.)

18
confirmed at second interrogation that defendant “remembered his Miranda
rights”]; Williams, at p. 435 [interrogations conducted at same location and
same investigator participated in them]; Mickle, at p. 171 [interrogations in
different locations but conducted by same two officers, who reminded
defendant of earlier interaction].)
The record also contains affirmative evidence that Rodriguez did not
“subjectively understand[]” his right to appointed counsel. (Mickle, supra,
54 Cal.3d at p. 170; cf. People v. Pearson, supra, 53 Cal.4th at p. 317
[observing nothing in record “suggesting . . . that [the] defendant had
forgotten or no longer understood his rights”].) At the end of the third
interrogation, Rodriguez said, “I don’t know if the county is going to provide
someone or if I have to get a private one or . . . .” Officer Cabrera responded,
“However you’d like.” Rodriguez stated, “It’s that I don’t have money,” and
the officer replied, “If you don’t have money, they can appoint you an
attorney.” The Attorney General attempts to minimize Rodriguez’s first
statement as a “more procedural” question about “the mechanics of how and
when he would get counsel.” But the statement can also be interpreted to
mean Rodriguez was wondering whether he would be appointed counsel for
free or would “have to” retain private counsel at his own expense. Under this
interpretation, his statements suggest he did not understand his right to
appointed counsel while Officer Cabrera was questioning him.
Finally, the Attorney General notes that Rodriguez “had a long
criminal history” and was presumably “quite familiar with the criminal
justice system.” Although a suspect’s previous experience with that system
may be relevant (Mickle, supra, 54 Cal.3d at p. 170), it does not offset the
numerous other factors in this case weighing against contemporaneousness.
Moreover, Rodriguez’s limited command of English and his apparent

19
misunderstanding of his right to appointed counsel cast doubt on whether he
actually understood his Miranda rights from his past interactions with law
enforcement.
In sum, readvisement was required before the third interrogation, not
only because the first advisement was itself inadequate but also because the
third interrogation was not reasonably contemporaneous with the first
interrogation. Thus, the statements Rodriguez made during the third
interrogation were inadmissible as well.
C. The Error in Admitting Rodriguez’s Statements Was Prejudicial.
Having concluded that Rodriguez’s statements during all three
interrogations were admitted in violation of Miranda, we turn to whether the
error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Flores (2020) 9 Cal.5th 371, 439–440; In re Matthew W. (2021)
66 Cal.App.5th 392, 410 (Matthew W.).) Although there was strong evidence
supporting the convictions, we cannot conclude beyond a reasonable doubt
that the admission of Rodriguez’s statements was harmless.
To assess whether a Miranda error was prejudicial, we must
“determine ‘whether the error was harmless beyond a reasonable doubt—that
is, whether it is clear beyond a reasonable doubt that use of the statement[s]
did not contribute to the verdict. [Citation.] Under this test, the appropriate
inquiry is “not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.” ’ ”
(Matthew W., supra, 66 Cal.App.5th at pp. 410–411, quoting People v.
Quartermain (1997) 16 Cal.4th 600, 621.) “[T]he evidence that remains after
[the challenged] statements are excluded must not only be sufficient to
support the verdict, but must overwhelmingly establish [the defendant’s]

20
guilt beyond a reasonable doubt.” (People v. Villasenor (2015)
242 Cal.App.4th 42, 69, italics added.)
The People have the burden to demonstrate “ ‘beyond a reasonable
doubt that the error did not contribute to the verdict.’ ” (In re Loza (2018)
27 Cal.App.5th 797, 805.) “The proper test for prejudice requires [us to]
consider[] . . . not only the evidence that would support the judgment, but
also the impact of the inadmissible evidence on the final outcome.” (People v.
Gonzalez (2012) 210 Cal.App.4th 875, 884.) We pay special attention to the
prosecution’s closing arguments, as “[a] prosecutor’s reference to evidence
that should not have been presented to the jury increases the potential for
prejudice flowing from the error.” (People v. Diaz (2014) 227 Cal.App.4th 362,
384; Loza, at p. 805.)
Initially, we review the elements of the felonies of which Rodriguez was
convicted.12 The jury was instructed under CALCRIM No. 2140 that the
offense of hit-and-run causing death required proof that (1) Rodriguez was
involved in a vehicle accident while he was driving; (2) the accident caused
someone else’s death; (3) he “knew that he had been involved in an accident
that injured another person or knew from the nature of the accident that it
was probable that another person had been injured”; and (4) he willfully
failed to perform a duty under sections 20003 or 20004, such as providing
reasonable assistance to any injured person. (See § 20001, subd. (b)(2).)

12 In closing, Rodriguez’s trial counsel conceded that Rodriguez was
guilty of the misdemeanor count of driving with a suspended license. Given
this concession, as well as the Department of Motor Vehicles record admitted
into evidence showing his license was suspended and the other evidence that
he drove the Aztek, we conclude beyond a reasonable doubt that he would
have been convicted of the misdemeanor even if the interrogations were
excluded.

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 The jury was instructed under CALCRIM No. 590 that Rodriguez was
guilty of gross vehicular manslaughter while intoxicated if he (1) drove while
under the influence of alcohol; (2) committed an infraction while doing so;
(3) committed the infraction with gross negligence; and (4) caused the death
of another person through his grossly negligent conduct. (See Pen. Code,
§ 191.5, subd. (a).) Acting with gross negligence was defined as acting “so
different[ly] from the way an ordinarily careful person would act in the same
situation that [the] act amounts to disregard for human life or indifference to
the consequences of that act.”
Finally, the jury was instructed under CALCRIM No. 520 that
Rodriguez was guilty of second degree murder if he committed an act causing
a person’s death with malice aforethought. (See Pen. Code, § 187, subd. (a).)
The instruction further provided that he acted with express malice if he
“unlawfully intended to kill” and that he acted with implied malice if (1) he
intentionally committed an act; (2) the act’s natural and probable
consequences were dangerous to human life; (3) “[a]t the time he acted, he
knew his act was dangerous to human life”; and (4) “[h]e deliberately acted
with conscious disregard for human life.”
The Attorney General argues that the error was harmless because
“[t]he prosecution . . . could readily prove every element” of the charges
“without using any of [Rodriguez’s] statements.” According to the Attorney
General, “[a]t most, [Rodriguez’s] statements provided some additional proof
that [Rodriguez] was driving the vehicle that night, that he was intoxicated,
and that he knew the dangers of drunk driving,” but “these facts . . . were
overwhelmingly established by other evidence.”
We acknowledge there was compelling evidence supporting the charges.
The physical evidence left no reasonable doubt that the Aztek hit the utility

22
pole and hit and killed Rico. In addition, even apart from Rodriguez’s
admissions during the interrogations, it was clear that Rodriguez was driving
during the crash, since his blood was on the driver’s-side airbag. In turn, the
numerous tests showing his high BAC constituted overwhelming evidence
that he was legally intoxicated when he caused the crash.
The evidence was less overwhelming, however, when it came to
establishing Rodriguez’s mens rea. His interrogation statements were
damning in this regard. In them, Rodriguez acknowledged numerous times
that he knew that drunk driving could cause another person’s death, crucial
evidence that he acted with both gross negligence and implied malice. (See
People v. Ochoa (1993) 6 Cal.4th 1199, 1208 [defendant’s knowledge of drunk
driving’s risks is proof of gross negligence]; People v. Watson (1981) 30 Cal.3d
290, 300–301 (Watson) [same for implied malice].)
The Attorney General points out that in connection with his prior DUI
convictions Rodriguez “signed advisements pursuant to . . . Watson,” which
were introduced into evidence.13 Thus, the Attorney General claims,
Rodriguez’s statements that he was aware of the dangers of drunk driving
were “cumulative.”
As the closing arguments show, however, Rodriguez’s live, repeated
admissions in the immediate aftermath of a fatal crash were key evidence

13 Under section 23593, a trial court must give an advisement based on
Watson to a defendant convicted of various DUI offenses, including the
offense of which Rodriguez was previously convicted three times. (See
People v. Yushchuk (2018) 28 Cal.App.5th 120, 123.) The required
advisement informs a defendant that “ ‘it is extremely dangerous to human
life to drive while under the influence of alcohol’ ” and that “ ‘[i]f [the
defendant] continue[s] to drive while under the influence of alcohol . . . and,
as a result of that driving, someone is killed, [the defendant] can be charged
with murder.’ ” (§ 23593, subd. (a).)

23
bolstering the prosecution’s case. The prosecutor began his closing argument
by stating that Rico died because Rodriguez “made very specific choices
knowing very specific things.” The prosecutor then described the “numerous
times” throughout all three interrogations that Rodriguez said he knew he
could kill someone if he drove drunk. The prosecutor also discussed the
previous Watson advisements, but Rodriguez’s trial counsel countered that
there was reason to doubt that Rodriguez understood them, as it was unclear
whether they were translated for him, it did not appear he had counsel
present while he was advised of his rights, and people routinely sign
documents they have not read.
In rebuttal, the prosecutor emphasized that Rodriguez wanted to blame
everyone but himself for Rico’s death, arguing, “What I picked up [from the
defense’s closing argument] was it’s the [c]ourt’s fault [when giving the
Watson advisements]. It’s the interpreter’s fault. It’s the counsel on the day
of court’s fault because he didn’t know. How could he know? He doesn’t
speak English. [¶] Well, we know from the MVARS [of the first interrogation]
that he does, in fact, know[,] because he tells the officers yes, I recall that
being told to me in court.” The prosecutor proceeded to highlight evidence
that Rodriguez did understand English, including that he “[spoke] some
English in the MVARS. The fact that he speaks Spanish, even if provided an
interpreter, is not a defense.”
Thus, a substantial portion of the closing arguments was devoted to the
significance of the prior Watson advisements, and the prosecutor relied on
Rodriguez’s interrogations to prove his mens rea both directly, as he admitted
during them that he understood the dangers of drunk driving, and indirectly,
as they showed he understood English well enough to have understood the
Watson advisements. Had the interrogation statements been excluded, the

24
remaining evidence of Rodriguez’s knowledge of these dangers would have
been weaker, and the defense’s attack on that evidence would have been more
likely to succeed.
Rodriguez’s interrogations were also a rich source of information about
his post-crash behavior, which also tended to prove he acted with the
requisite mens rea for the homicide offenses. (See People v. Thompson (2010)
49 Cal.4th 79, 113 [post-crime statements and behavior may be relevant to
prove defendant had intent to kill at time of murder]; People v. Nicolas (2017)
8 Cal.App.5th 1165, 1172 [defendant’s “indifferen[ce] to the consequences of
her actions” immediately after fatal collision was evidence defendant acted
with gross negligence].) At no time after being told he hit a pedestrian did
Rodriguez ever express concern for Rico or remorse for the other man’s death.
To the contrary, Rodriguez focused on his own trauma, claiming that he was
the one who left blood on the front of the Aztek and that he left the scene
because he needed medical help for himself. This evidence resonated with
the prosecutor’s theme in closing that Rodriguez “just didn’t care” about
anyone else.
Finally, the interrogation statements helped the prosecution prove the
knowledge element of hit-and-run causing death, that Rodriguez knew or
should have known he was in a crash that injured another person. His trial
counsel argued in closing that this element was not established because the
jury was required to credit Rodriguez’s claim that he thought he hit only a
pole, not a person. But the physical evidence and other portions of the
interrogations undermined this defense and tended to prove Rodriguez did
know he injured someone else.
First, if Rodriguez was to be believed that he crashed because he
dropped his cell phone, not because he was inebriated, he should have noticed

25
that he hit a person.14 Indeed, the Aztek hit the pole, traveled a few blocks
north, and then hit Rico, so even if Rodriguez hit the pole while he was
distracted by the phone, there is no apparent reason that distraction should
have continued after the collision he admittedly did notice. Second, in
attempting to explain the blood on the outside of the Aztek, Rodriguez
admitted that he exited the vehicle to inspect the damage. This admission
was also detrimental, because as the prosecutor argued, the damage to the
front of the vehicle “clearly [came] from a human being.” In our view, a
defense involving the knowledge element would have been more likely to
succeed had none of Rodriguez’s statements been admitted, since any benefit
he derived from the statements was outweighed by their lack of credibility as
a whole. (See Matthew W., supra, 66 Cal.App.5th at pp. 410, 414 [Miranda
violation prejudicial where unlikely that juvenile court “could have evaluated
the totality of the evidence presented . . . without being influenced to some
degree by the evidence of [the minor]’s inconsistencies, lies, and evasions
during his prearrest statements to police”].)
In short, the interrogation statements helped to prove Rodriguez’s
mens rea, the primary contested issue, for all the felony charges. Since “we
are unable to confidently say that the evidence of guilt in this case was so
overwhelming” that the resulting convictions “were ‘ “surely unattributable” ’
to the admission of [the interrogation] statements,” the Miranda error
requires reversal. (Matthew W., supra, 66 Cal.App.5th at p. 415.)

14The Attorney General claims that Rodriguez actually benefited from
the admission of his statements that he crashed while distracted by the cell
phone, because this allowed him to present a defense for which there was no
other evidence. In fact, Rodriguez’s trial counsel did not rely on such a
defense in closing.

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 III.
DISPOSITION
The judgment is affirmed in part and reversed in part. The convictions
for second degree murder, gross vehicular manslaughter while intoxicated,
and hit-and-run causing death are reversed, and the sentence is vacated.
The matter is remanded for a new trial on the reversed counts. In all other
respects, the judgment is affirmed.

27
 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Devine, J. *

*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

People v. Rodriguez Moreno A165845

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