• Miranda and Spanish Language Admonishments
• Readmonishment at Successive Interviews
• Voluntariness
• Vienna Convention on Consular Relations

Miranda, Constitutional Advisal of Rights, Voluntariness and the Vienna Convention:

• • Advisal of an in-custody suspect’s Miranda rights must include the right to the assistance of an attorney before and during questioning.
  • Advisal of a Mexican citizen’s rights under the Vienna Convention is a factor to consider in determining the voluntariness of a suspect’s admissions.
  • The portion of a Miranda admonishment that an in-custody suspect is entitled to the assistance of an attorney must include the fact that this right includes before and during questioning.
  • A 14-hour break in questioning does not generally require that an in-custody suspect be readvised of his Miranda rights before the second interview so long as he was properly advised the first time and still has his rights in mind.
  • Whether an in-custody suspect’s admissions were voluntary depends upon the circumstances, including whether he (as a citizen of Mexico) was also advised of his consular rights as required by the Vienna Convention.

Case Facts
Between September, 1999, and May, 2000, defendant Victor M. Miranda-Guerrero attacked several women in the Southern California city of Huntington Beach and was convicted of five charges: kidnapping to commit rape, murder, attempted carjacking, assault with intent to commit rape and receiving stolen property:

#1: It started with the defendant kidnapping Jamie H. in the early morning hours of September 12, 1999, the victim accosted as she slept in her car. After the defendant forced his way into her car while claiming he had a gun, he drove Jamie to a residential area, where he attempted to rape her. Jamie was able to escape with the assistance of someone driving by. During the assault, she suffered abrasions on her thigh, elbow and buttocks, and a clump of her hair was pulled out. Blood on her boots was later matched to the defendant by DNA.

#2: A month and a half later, in the early morning hours of November 27, the defendant accosted Bridgett Ballas as she walked down a dark residential street. Ballas had been out drinking with friends when she started to walk home. She made it to within a tenth of a mile of her home when the defendant assaulted her, leaving her unconscious and lying in the street between two parked cars. Later discovered by neighbors, she was found with her pants pulled down and her shirt pulled up. She sustained a serious head injury, believed to be the result of blunt-force trauma from more than one blow. Ballas died two days later.

#3: On May 25, 2000, Heidi D. was out partying with three friends, after which they returned to her car in a Hunting Beach parking garage. They were met there by the drunken defendant, who, after incoherently talking with them for a few minutes, grabbed the car keys away from Heidi. Heidi and her three friends physically fought with the defendant as he forced his way into Heidi’s car. At one point, the defendant temporarily pulled one of the women into the car with him as all four unsuccessfully attempted to retrieve the keys. They were all eventually able to escape, running to a bar to get help. When they returned to the parking garage, they found the car still there and the defendant gone.

#4: About an hour later that same night, the defendant accosted Deena L. as she walked home after an evening of drinking with friends at a nearby Huntington Beach bar. Noticing that someone was following her, she attempted to return to a more populated area when the defendant ran up to her and grabbed her hair with one hand while covering her mouth with the other. As he pushed her onto the sidewalk, she bit his fingers in a vain attempt to escape. Deena almost lost consciousness as the defendant slammed her head against a brick planter as many as six times. Ultimately, she was able to escape his grasp and hit him, causing him to flee. Deena was able to get to a coffee shop where she found a Huntington Beach police officer. Checking the area with the officer, she spotted the defendant in an alley and he was arrested. DNA collected from under her fingernails and from her teeth matched the defendant’s and supported her identification of him as her attacker.

#5: The defendant also was charged with receiving stolen property after a cellphone was found in his backpack, a device that had been stolen in a September, 1999, vehicle burglary.

Interviews and Admonitions Raise Multiple Issues on Appeal

Taken to the police station, the defendant was questioned by two Huntington Beach Police detectives over the next four days in three separate interviews, the details of which require some explaining:

First Interview

Detectives first questioned the defendant about two hours after his arrest on morning of May 26, 2000. In this interview, one detective spoke to the defendant primarily in Spanish. This included, at least initially, the somewhat involved and confusing procedure of providing defendant with a Miranda advisal, step by step, first in English and then in Spanish. After advising the defendant in both Spanish and English that he had the right to remain silent, and receiving an affirmative reply (“Of course”) when asked if he understood that right, the detective then advised the defendant (in English only) that anything he said may be used against him in court.

The defendant showed some confusion when asked if he understood this right, to which he responded (in Spanish) with a question: “If, if I was in court before ” Apparently not sure what this meant, the detective responded merely by readvising the defendant that anything he said may be used against him in court, but this time in Spanish, to which defendant responded – without being asked again whether he understood this right – with a simple “Yeah.”

Reminding the defendant that they were going to use an English-first/Spanish-second procedure, the detective then violated his own rule by going through all the rights in Spanish before repeating them in English, and then repeating them all again in a haphazard listing of the rights in both languages, interspersing them with additional brief explanations (e.g., “Because here in the United States you have rights.”) Of significance, when explaining to the defendant his rights in Spanish, the detective told him he had “a right to an attorney,” without explaining that that right applied to both “before and during” his questioning.

Asked in the end if he understood his rights, the defendant responded with: “Mm hm.” Asked if that meant “si or no,” defendant said: “Yeah.” When then asked if he wanted to talk about the charges, defendant said: “Well yes, bu __.”

Before the questioning began, there was no mention of the defendant’s additional rights under the Vienna Convention of Consular Relations (see below). From here, a two-hour interrogation ensued, during which defendant denied any wrongdoing.

Second Interview

Shortly after midnight on May 27, the defendant was woken up and interviewed a second time, a session that lasted some seven hours. Before starting the questioning, the detective asked the defendant in “deficient Spanish” (the Court’s words): “Do you remember when we talked about the rights? That you have . . . to remain silent and all that.” After the defendant responded with, “Um-hmm,” the detective then asked in Spanish if, with those rights in mind, he wanted to talk to them again. After the defendant said yes, the interview proceeded.

The defendant was questioned about the Ballas murder at this interview. He claimed at first that he had never seen Ballas. He soon changed that story to having walked with her on the night she died, but claimed she was fine when he left her. This story eventually changed to having been with her when she was injured, but that any injuries she may have sustained were the result of an accidental fall (the position he maintained at trial). He finally admitted at the end of this interview that although he didn’t remember for sure, he “maybe” had “hit her twice.”

Third Interview

A third interview was conducted two days later, on May 29. This time the detective read the defendant his rights from a card printed in Spanish. He had the defendant read the card as well. The defendant waived his rights a third time.

In what later becomes very significant, the defendant agreed, when asked, that his current understanding of his rights was the same as he understood them when he was first interviewed after his arrest four days earlier. What, if anything, came out of this last interview was not discussed in the appeal, although it was noted that various segments of each of the three videotaped interviews were played for the jury at trial.

Trial and Appeal

The defendant was subsequently charged in state court with kidnapping to commit rape (Jamie H.), murder (Ballas), attempted carjacking (Heidi D.), assault with intent to commit rape (Deena L.), and receiving stolen property (the cellphone). Although the defendant pleaded not guilty to all counts, the defense contested only the murder and assault allegations at trial.

Pretrial, the defendant’s motion to suppress statements he made to the detectives was denied. The jury was therefore allowed to view selected segments of the videotapes of the defendant’s three interviews, including his admission to having hit Ballas “maybe…twice.” The jury convicted him of five of six charges, hanging only on a simple assault charge stemming from the Heidi D. incident. Jurors found true a special circumstance that the murder occurred during the attempted commission of rape. Sentenced to death, the defendant appealed

Decision on Appeal

A unanimous California Supreme Court affirmed the trial judgment. The primary issues on appeal were the admissibility of the defendant’s videotaped interrogations, and the legal sufficiency of the first Miranda advisal and waiver.

As noted above, Huntington Beach Police Department detectives interviewed the defendant three times over four days, May 26- 29, and that the defendant, a Mexican national, spoke very little English.

The Miranda rules are well-established: Stemming from the Fifth Amendment where it provides that “(n)o person . . . shall be compelled in any criminal case to be a witness against himself,” Miranda v. Arizona – decided in 1966 – recognized that any in-custody interrogation conducted by law enforcement naturally includes “inherently compelling pressures.” (384 U.S. 436, at p. 467.) As a result, the U.S. Supreme Court adopted a set of what is commonly referred to as “prophylactic measures,” whereby law enforcement is expected to advise a suspect under such conditions with a list of his rights as they relate to any incriminating responses he might make. Included is the right to have access to an attorney before and during questioning. It is necessary as a prerequisite to the in-court admissibility of his statements in a suspect’s trial that he both understand and waive those rights, an issue for which the prosecution has the burden of proof – i.e., by a “preponderance of the evidence.” Per the U.S. Supreme Court: “The totality (of the circumstances) approach permits – indeed, it mandates – inquiry into all the circumstances surrounding the interrogation,” including the defendant’s “age, experience, education, background, and intelligence,” and “whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights and the consequences of waiving those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 725.)

Issues Considered in Decision

First Interview: In this case, even though the defendant didn’t argue that his limited knowledge of English impeded his understanding of his rights, the Court noted that “the record raises some question about whether his English fluency was adequate for him to understand his rights when he was advised of them in English.” The Court’s concern here centered on his response to the warning proceeding the first interview that “anything (he said) could be used against him,” the defendant blurting out in response: “(I)f, if I was in court before ” Per the Court, the defendant’s illogical comment could be an indication that he did not grasp the meaning of his relatively straightforward admonition. Thus, it was his understanding of his Miranda rights in the first interview that is the issue here, and not whether he got confused during the questioning itself.

Noting some concerns about why the pre-printed Miranda advisal card used at the start of the defendant’s third interrogation wasn’t used in the first place, the Court ultimately found that the evidence taken as a whole – under the totality of the circumstances – showed that the defendant sufficiently understood his rights from the first interview on. The Court reached this conclusion despite finding that “nothing . . . in the (first) advisement explained that (the defendant’s) right to an attorney applied not just during court proceedings, but before and during any interrogation” as well.

What saved the day on this issue was the defendant’s third interrogation, when his rights – including his right to the assistance of counsel before and during his interrogation – were read to him in Spanish from a card. Upon being given his rights in Spanish in that third interview, the defendant acknowledged that these were the same rights as he understood them to be at the time of his first interrogation. The defendant’s concession that he understood his rights since his first admonishment four days earlier also served as clarification of his response, “Mm hm,” rather than something more affirmative, when asked if he understood his rights.

Lastly, the Court held that when the defendant responded with, “Well yes, bu__,” when asked if he agreed to waive his rights, that his unhesitating responses to questions from there on out showed that he did in fact freely and voluntarily agree to answer the detectives’ questions.

The Court therefore concluded +that “(u)nder these circumstances, we cannot conclude that his initial answers when asked at the first interview if he wanted to talk, standing alone, are sufficient to show he did not understand or waive his rights.” The fact that he was relatively young (22 years old), of limited education (dropping out of school when he was 11 or 12), his lack of experience with the American legal system, and his difficulty in understanding English, were not enough to change this result.

Second Interview: Rather than readvise the defendant of his rights at the beginning of the second interview, the defendant was merely asked whether he remembered his rights as given to him earlier: “Do you remember when we talked about the rights? That you have...to remain silent and all that.” This procedure brings into play the general rule that: “Readvisement is not necessary following a valid admonition and waiver when the subsequent interrogation is reasonably contemporaneous.” (People v. Spencer (2018) 5 Cal.5th 642, 668.)

But the applicability of this rule depends upon the circumstances. Factors to consider include the following: “1) (T)he amount of time that has passed since the initial waiver; 2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that the defendant subjectively understands and waives his rights.” (Ibid., quoting People v. Smith (2007) 40 Cal.4th 483, 504.)

California’s Supreme Court has upheld a delay of as long as 40 hours, under certain circumstances. (See People v. Williams (2010) 49 Cal.4th 405, 435.) In this case, the defendant’s second interview took place 14 hours after the first interview, in the same location and with the same detectives. He was also reminded, albeit briefly, of the original Miranda admonition at the beginning of the second interview. Under these circumstances, the Court held that no readvisement was required at the second interview.

Voluntariness and the Vienna Convention: The defendant argued on appeal that his statements made to the detectives were involuntary because the detectives used coercive methods, which included the failure to advise him of his consular rights under the Vienna Convention on Consular Relations.

On the issue of voluntariness, it is a rule that involuntary statements to police are inadmissible for all purposes. (People v. Peevy (1998) 17 Cal.4th 1184, 1193.) Statements are involuntary when they are not the product of a rational intellect and free will. (People v. Maury (2003) 30 Cal.4th 342, 404.) It is the prosecutor’s burden to prove voluntariness by a preponderance of the evidence. (People v. Peoples (2016) 62 Cal.4th 718, 740.)

In this case, the defendant complained that the second interview raises concerns about the voluntariness of his admission relative to hitting Ballas. Specifically, the defendant complained that they woke him up just after midnight and then questioned him for more than seven hours, culminating in his admission that he “might have hit Ballas twice.” The defendant argued that in the videotaped interview, it was evident that he “showed some signs of fatigue,” telling the detectives at one point that he was “very sleepy.” Further, the detectives repeatedly emphasized the defendant’s isolation and referred to the absence of any relationships in his life and the distance from his family as reasons why he might have attacked Ballas. 

In repeated accusations over the course of the night and morning, the detectives asserted dozens of times that he “beat,” “hit” or “punched” Ballas. In comparing these circumstances with prior court decisions, the Court did not find anything that occurred here to be unduly coercive. The defendant complained, however, that his admissions relative to striking Ballas were nonetheless involuntary because the detectives failed to advise him of his right under article 36 of the Vienna Convention on Consular Relations to have the Mexican consulate notified of his detention. On this issue, the U.S. Supreme Court has recognized that “(a) consular notification claim may be raised as a part of a broader challenge to the voluntariness of a confession.” (People v. Leon (2020) 8 Cal.5th 831, 846.)

However, in this case, the court found that the detective’s failure to advise the defendant of this right, even when combined with the other complained of voluntariness issues, was insufficient to find that the defendant’s admissions were involuntary.

Other Issues Raised on Appeal: The court also rejected the defendant’s complaint that he had been unconstitutionally excluded from various trial proceedings (i.e., (1) a meeting on juror misconduct; (2) discussions regarding spectator misconduct; (3) a meeting concerning the portions of his police interview to be played at trial; (4) a conference on jury instructions; and (5) a proceeding regarding a response to a jury question), finding that the Sixth Amendment did not require his presence at any of these proceedings.

Conclusion:

The Court unanimously upheld his conviction and sentence.

Issues Law Enforcement Should Consider

Despite this being a unanimous decision, which included the often obstreperous Justice Goodwin Liu (who authored this decision), I can’t help but feel like the police dodged a bullet here.

The initial recitation of rights given from memory by the detective, in both English and Spanish, was so disjointed and confusing that I literally spent hours trying to figure out whether all the required elements of a Miranda admonishment were really there, and then trying to put into writing a (hopefully) coherent summary of what the defendant was told.

Had the Court found that the first admonition was legally insufficient, it would have poisoned the defendant’s incriminating admission about hitting Ballas made during the second interview.

I cannot question the detective’s good intentions when he attempted to provide the defendant with an admonition in both English and Spanish. But those good intentions aren’t helpful, given the almost indecipherable results.

Also, it was unnecessary to do any more than read the defendant his rights in Spanish – his primary language – as done in the third interview. Attempting to do more only complicated the problem and made for a valid appellate issue.

If it wasn’t for the defendant’s agreement in the third interview that the properly administered recitation of rights as given four days later was as he understood his rights all along, prosecutors could have lost that important incriminating admission. And as mentioned by the Court, it would have been much easier just to read the defendant his rights from a card, written in Spanish, as was finally done in the third interview.

As I’ve warned innumerable times before: Whether in English or Spanish, use that damn card your department gives you! It’s irrelevant that you know the Miranda admonishment by heart and can recite it in your sleep. It eliminates so many unnecessary issues when you can later testify that you read those rights from the card. Had that been done here, this would have been a much simpler case.

Note: If you don't already have an English/Spanish Miranda card, you can order one online through Blue to Gold training by clicking here