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• The Fourth Amendment and the Use of Deadly Force
• Qualified Immunity and the Use of Deadly Force  
• The Seizure of a Passenger in a Stopped Motor Vehicle

Passengers in a motor vehicle stopped for violating traffic laws are in fact seized, for purposes of the Fourth Amendment.  Police officers who injure an innocent bystander when returning fire from a dangerous suspect are entitled to qualified immunity when sued by that bystander for a violation of his or her Fourth Amendment right to be free from the use of excessive force.

Plaintiff Rosa Cuevas was a friend of one Quinntin Castro.  One day (not specifically listed) in 2018, Cuevas allowed Castro to drive her car with her tagging along. sitting in the front passenger seat.  (Also present in the car was someone named Cameron Ware, who was in the back seat, no doubt wondering as the below-described events developed: “What the hell am I doing here?”)  Castro had the bad habit of rolling through stop signs, as noticed by Tulare Police Officer Daniel Bradley.  Officer Bradley, however, feeling charitable, decided not to pull Castro over.  But then when Castro also made a left turn without signaling and rolled through another stop sign, Officer Bradly determined that it was necessary to take action.  When Officer Bradley tried to make a traffic stop, however, Castro declined to cooperate, putting the pedal-to-the-metal instead.  So the chase was on. 

The resulting pursuit lasted some ten miles with Castro driving recklessly, resulting in multiple near collisions with other drivers.  With Castro in violation of Veh. Code § 2800.2 (Fleeing From a Police Officer in a Motor Vehicle, Disregarding the Safety of Persons or Property; a felony/wobbler), Officer Bradley decided to perform a felony hot-stop. The chase ended when Castro got stuck in the mud at the side of the road. Officer Bradley also got stuck, right behind Castro’s car.  Other officers soon arrived at the scene, including Officer Ryan Garcia with his K-9 partner, “Bane.” The officers surrounded the car as Castro continued to try to free his car from the mud, only sinking deeper and deeper.

Upon one of the officers breaking out the driver’s side window, Officer Garcia “threw (Bane) . . . through the window with a command to bite Castro.”  When he did so, Castrol grabbed a gun from the car’s center console and fired at least five shots, killing Bane.  Officer Garcia was also wounded.  Throughout all this, a “terrified” Rosa Cuevas continued to sit in the front passenger seat with her hands raised, waiting for instructions from the police.  Upon Castro shooting Bane and Officer Garcia, the other officers all began shooting into the car.  (It is unknown what Cameron Ware was doing in the back seat; likely laying flat on the floor, dodging bullets.)  The officers shot some thirty-four rounds into the vehicle. Although aiming at Castro, Rosa Cuevas was also hit several times.

Once the officers stopped shooting, Castro climbed out of the car and fired two additional rounds before collapsing and dying at the scene.  The seriously injured Rosa Cuevas later sued the City of Tulare and everyone up the Police Department’s chain of command in federal court (per 42 U.S.C. § 1983), alleging that the officers violated her Fourth Amendment right to be free from excessive force.  The federal district (trial) court granted the civil defendants’ motion for summary judgment.  In so doing, the court first held that Rosa Cuevas’s excessive-force claim failed because she was never “seized,” as this term is defined under the Fourth Amendment.? The district court also held, however, that even if the officers had seized Cuevas, it was not clearly established that the officers’ use of force under these circumstances was constitutionally excessive.? As such, the civil defendants were all entitled to qualified immunity.  The court therefore dismissed the case.  Plaintiff Rosa Cuevas appealed. 

The Ninth Circuit Court of Appeals affirmed, although not agreeing with the district court on all its conclusions.   

(1) Qualified Immunity Rules:  The rule has always been that “(q)ualified immunity protects government officials from (civil) liability under?(42 U.S.C.) § 1983?‘unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.’” (Italics added) Courts generally just skip to the first factor, looking to see whether the “unlawfulness of (an officer’s) conduct was clearly established” by prior case law, putting the officer on notice that what he or she is doing is illegal. That’s what the Court did here.   

(2) The Fourth Amendment and the Use of Excessive Force:  In agreeing with the trial court that the civil defendant’s in this case were entitled to qualified immunity, the Ninth Circuit first noted that it is well established that “(t)he Fourth Amendment?protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” The Supreme Court has interpreted this Fourth Amendment protection to include the use of excessive force.?(Citing Scott v. Harris (2007) 550 U.S. 372, 381.)  

(3) The Fourth Amendment Seizure of a Vehicle’s Passenger: Fourth Amendment excessive force claims, however, require both (1) a seizure and (2) the use of excessive force.? The Court, therefore, first considered whether Rosa Cuevas was “seized” under the circumstances of this case.  The trial court held that she was not.  The Ninth Circuit disagreed.  First, setting out the basic rules, the Court noted that “(t)here are two types of?Fourth Amendment?seizures. ‘[A]n officer seizes a person when he uses force to apprehend her.’ . . .  An officer can also seize a person through a ‘show of authority’ that ‘in some way restrain[s] the liberty’ of a person. . . . For this latter type of stop, ‘there is no seizure without actual submission.’”  (Citing Torres v. Madrid (2021) 592 U.S. 306, 309; Terry v. Ohio (1968) 392 U.S. 1, 19, fn16; Brendlin v. California (2007) 551 U.S. 249, 254; and California v. Hodari D. (1991) 499 U.S. 621, 626.)  In the traffic stop situation, the driver is obviously seized.  But contrary to the trial court’s conclusions, a passenger is a vehicle stopped for a traffic violation is also seized along with the driver merely by virtue of being in the stopped car.  (Brendlin, supra, at pg. 251.) Also, “‘a passenger struck by a bullet intended to stop the driver of a vehicle’ has been seized.”?(Villanueva v. California (9th Cir. 2021) 986 F.3rd 1158, 1165.)  Based upon this, the Court held that Rosa Cuevas was in fact “seized” under the Fourth Amendment at some point after Castro got the car stuck in the mud and when Cuevas was struck by the officers’ bullets fired into the car; the exact point at which such seizure occurred not being important, per the Court. The federal district court was therefore overruled on this point.   

(4) Qualified Immunity: The district court held that no prior case law “clearly established” that the officers could not return fire at Castro, collaterally hitting Cuevas.  The Ninth Circuit agreed.  And because the Court has the authority to find the “clearly established prong” dispositive, the Court exercised its discretion to resolve the case only on this ground, bypassing the option of determining whether the officers here did in fact violate Cuevas’s Fourth Amendment rights.  In so ruling, the Court rejected the plaintiff’s argument that cases she cited “clearly established” her contention that her Fourth Amendment rights were in fact violated.  The Court also rejected the plaintiff’s argument that the constitutional violation was obvious, with or without any prior case law supporting her argument.  While agreeing that the U.S. Supreme Court has recognized that some constitutional violations are so obvious with or without prior supporting case law that qualified immunity is inappropriate, it has only done so in?Eighth Amendment?cases.  And while the Ninth Circuit has itself found an obvious constitutional violation in at least one Fourth Amendment excessive-force case (citing Estate of Aguirre v. County of Riverside (9th Cir. 2022) 29 F.4th 624, 626-27, 629.), it did so only where officers killed a man who, the Court determined, posed “no immediate threat.”?Ultimately, the Court held that the officers’ returning fire was not obviously unconstitutional, even though the officers also hit Cuevas with their gunfire. The alternative would be untenable, per the Court. Officers would have to either not defend themselves when shot at, or risk liability if they accidentally hit a bystander when they returned fire. The officers are therefore entitled to qualified immunity. 

When in the Army, we used to refer to innocent bystanders getting injured or killed in what we would call a firefight as “collateral damage.”  Collateral damage in an actual war is something that although expected to be kept at a minimum, was recognized as an unavoidable product of fighting a war.  Police officers, on the other hand, are expected to be more careful to avoid such “collateral damage” when using deadly force.  As an example, officers are expected to pay attention to what (or who) is downrange when responding to a suspect’s use of deadly force, or any other time when shooting a suspect is otherwise deemed to be legal and necessary.  As an obvious example, shooting at a dangerous and resisting murder suspect is generally justified.  However, doing so when that suspect is standing in a crowded elementary school hallway would be hard to justify given the likelihood of also killing a bunch of innocent children in the process.

Turning to the actual facts in this new case, the constitutionality of returning fire in the direction of a suspect sitting in a car even though other non-participating passengers are also known to be in that car would have been an interesting issue for the Court to decide. Certainly, other visible non-participating passengers in a suspect’s car is a factor that cannot be ignored.  As such, it would have been interesting had the Court in this case continued on and decided the issue of whether Rosa Cuevas’ Fourth Amendment protections against the use of excessive force had in fact been violated. (Noting, however, that the Court came very close to so ruling, commenting that returning fire when shot at, even though other non-participating persons were close by, “was not obviously unconstitutional.”)  But the issue here being only whether the officers were entitled to qualified immunity, and not whether shooting into the car did in fact violate Cuevas’ Fourth Amendment rights, we’ll have to wait until some court in another case decides to consider that issue. 

• Use of a Police K-9 to Subdue
• The Fourth Amendment and Excessive Force

Police officers violate the?Fourth Amendment?when they allow a police dog to continue biting a suspect who has fully surrendered?and is under the officers’ control.

Officers from the San Jose Police Department, including one with his K-9 partner, responded to a domestic violence call on September 10, 2019, at the home of Zachary Rosenbaum; plaintiff in this lawsuit.  Upon arrival, Rosenbaum’s domestic partner told the officers that the plaintiff was under the influence of alcohol or narcotics.  She also told them that he had previously owned firearms although she believed that they had since been destroyed in a fire.  The officers were further informed that plaintiff had fought with the police during a prior domestic violence incident and that he was trained in mixed martial arts and boxing (allegations plaintiff later denied).  (Neither the details of this particular alleged “domestic violence” incident, nor whether they were relayed to the officers, not being in issue, were not mentioned in the decision.  However, the officers apparently believed they had enough information to arrest the plaintiff.)  

Presuming that the plaintiff might offer some resistance, the officers carefully entered the house, first announcing their presence at the front door and using the K-9 to precede them and clear the downstairs area of the house.  After determining that plaintiff was not downstairs, the officers positioned themselves at the bottom of the stairwell leading to the second floor “with firearms drawn and pointed upward.”  Plaintiff was observed at this time at the top of the stairs.  Over the next six minutes, the officers—still at the bottom of the stairs—told plaintiff, who remained that the top, that he was under arrest and commanding him to come down and surrender. Plaintiff declined, repeatedly questioning the officers as to why he was being arrested. Plaintiff was warned that if he did not comply, the police dog would be sent upstairs and would bite him.   

When plaintiff continued to refuse to cooperate, the K-9 “Kurt” was released, closely followed by the officers.  When the officers reached the top of the stairs at the second floor landing, an unarmed plaintiff was found seated on the floor with his back against a wall and Kurt biting his right forearm.  Plaintiff later alleged in the ensuing lawsuit that the K-9 officer deployed Kurt to attack and bite him even though he was unarmed and had his hands visibly raised in a surrender position. Plaintiff further alleged that he was not trying to evade arrest and posed no threat to the officers.  Approximately five seconds after the officers reached the second floor, Kurt dragged the unresisting plaintiff away from the wall and onto his stomach.  With at least one of the officers having his gun drawn and pointed at the plaintiff, another officer stood on plaintiff’s legs as the plaintiff yelled out for his partner, trying to tell her that “he’s bleeding me out.” One officer then took ahold of plaintiff’s left arm and moved it to behind his back while Kurt pulled plaintiff’s right arm above his head.  As this occurred, a third officer planted his foot on plaintiff’s right shoulder. During all this, Kurt continued to pull plaintiff’s right arm over his head, giving one last forceful shake before the K-9 officer finally commanded the dog to let go.   

All of this—as recorded on the officers’ bodycams—took about 20 seconds.  In short (as noted by the Court), “the video evidence supports (plaintiff’s) allegation that a police dog bit him for more than twenty seconds after he had surrendered and lay prone on his stomach with arms outstretched.”   

Plaintiff was taken to the hospital for treatment of multiple puncture wounds and lacerations.  As a result, he required several surgeries, later claiming that he has permanent damage to his arm. He was later charged in state court with two counts of felony assault by means of force likely to produce great bodily injury (Pen. Code § 245(a)(4)), stemming from the domestic violence situation that occurred before the officers’ arrival.  Plaintiff pled no contest and served 90 days in jail. Plaintiff subsequently sued the San Jose Police Department and all the officers involved in his arrest in federal court pursuant to 42 U.S.C. § 1983, alleging that the the officers used excessive force, violating his Fourth Amendment rights.  The civil defendants filed for summary judgment, arguing that they were entitled to qualified immunity from civil liability.  The federal district (trial) court denied the motion, declining to dismiss the lawsuit.  The defendants appealed. 

The Ninth Circuit Court of Appeals affirmed.  Assuming the truth of the plaintiff’s factual allegations (as it must at the qualified immunity stage), the Court held that this is a case that must be resolved by a jury. As discussed in many prior case briefs, the Court noted that it is required to affirm the district court’s denial of the civil defendant’s motion for qualified immunity if, after resolving all factual disputes and drawing all inferences in the plaintiff’s favor, the civil defendants’ conduct “(1) violated a constitutional right (2) that ‘was clearly established at the time of the officer[s’]?alleged misconduct.’” “A right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’”?(Rivas-Villegas v. Cortesluna (2021) 595 U.S. 1, 5.) Law enforcement officers “are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”?(Kisela v. Hughes (2018) 584 U.S. 100, 104)  In this case, the Court ultimately held that assuming the truth of the allegations (as largely supported by the bodycam evidence), the civil defendants did in fact violate the plaintiff’s Fourth Amendment rights by exposing him to the use of excessive force.  As relevant to this case, it has clearly been held in prior cases that “(a)” police officer violates the?Fourth Amendment?when he or she allows a police dog to continue biting a suspect who has fully surrendered and is under officer control.”  (See Mendoza v. Block (9th Cir. 1994) 27 F.3rd 1357 ;?Watkins v. City of Oakland (9th Cir. 1998) 145 F.3rd 1087; Miller v. Clark County (9th Cir. 2003) 340 F.3rd 959.)?On the other side of this coin, prior case law has also clearly established that “an officer does not act unreasonably (Italics added) in deploying a police dog to detain a suspect where the officer releases the dog from its bite as soon as he determines that the suspect is unarmed” and no longer a danger.?(See?Miller, supra, at pp. 960-961.)  Rejecting the civil defendant’s allegations that the rule relevant to this case was not clearly established, the Court here held that it was clearly established, and that “a reasonable jury could find that (the officers) exceeded the force reasonably necessary to effectuate an?arrest by allowing Kurt to continue biting (the plaintiff) for more than twenty seconds after he had fully surrendered and was under officer control. Accepting (the plaintiff’s) version of events, Kurt continued to bite him even as he was in an ‘obviously helpless’ situation, lying prone with arms outstretched, multiple officers immobilizing his arms and legs, and another officer pointing a firearm at him. . . . (The K-9 officer) did not immediately release Kurt from the bite as soon as he determined that (the plaintiff) was unarmed. . . . The (bodycam) video instead shows Kurt continuing to bite (the plaintiff) for more than twenty seconds after (the officers) reached (the plaintiff) near the second-floor landing and he slid down onto his stomach in a prone position.”  As such, plaintiff raises an issue as to the lawfulness of the force used upon the officers’ failure to command the K-9 to immediately stop.  The civil defendants’ motion for summary judgment, therefore, was properly denied by the district court. 

Law enforcement’s use of police dogs is an amazingly effective tool, reducing the danger to officers in some otherwise very dangerous and difficult situations, and often bringing such situations to an almost immediate stop.  But the use of a police dog has been determined by some courts to be “deadly force” (See Smith v. City of Hemet (2005) 394 F.3rd 689; overruling prior authority to the contrary and defining deadly force as “force that creates a substantial risk of death or serious bodily injury.”), depending upon the circumstances.  (See Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154.)  As such, just like an officer’s firearm, the use of a police dog must be limited to those circumstances when absolutely necessary, and even then, for only as long as necessary.  The issue in this current case, as must be resolved by a civil jury, is whether it was reasonable to continue to allow Kurt to keep biting Rosenbaum for up to an additional 20 seconds after the officers got to him and found him unarmed and compliant.  Note again that the allegations in this case are as alleged by the plaintiff, and not necessarily true.  But the Court noted more than once that the officers’ videocams appeared to “generally support” Rosenbaum’s allegations.  If the civil jury agrees, the City of San Jose will find itself in the awkward position of having to pay out some of its citizens’ hard-earned “taxpayer” money to a person who couldn’t be less deserving; i.e., a person who has a tendency to beat on his domestic partner.  Doesn’t seem right, but that’s how it works.      

• Photographic lineup identifications 
• Potentially prejudicial in-court identifications 
• Miranda invocations and reinitiation of an interrogation 
• A criminal defendant’s right to testify and the Sixth Amendment 
• Constitutional and statutory speedy trial rights 
• The California Racial Justice Act of 2020 

(1) Showing a crime victim a “sixpack” photo lineup, instead of showing the photos sequentially, and where the investigator showing the lineup knows who the suspect is instead of administering a “blind” lineup, is constitutionally permissible.  

(2) An in-court witness identification of a defendant is legally sufficient so long as it is based upon the witness’ “independent recollection.”  

(3) When an in-custody suspect freely reinitiates communication with law enforcement, resulting incriminating statements are admissible against him in court despite an earlier invocation of his Miranda rights.  

(4) A criminal defendant has the right to testify, even over the objection of his attorney. However, that decision has to be made known to the trial court before the end of the trial, thus allowing the court to counsel the defendant concerning his or her rights.  

(5) A criminal defendant is entitled to both a statutory and a constitutional right to a speedy trial. Despite this right, the defendant’s criminal case may be delayed upon a wavier of the parties and/or a showing of “good cause.” A defense attorney’s need to work for other clients is valid basis for overriding a defendant’s speedy trial rights.  

(6) The California Racial Justice Act of 2020 is intended to eliminate racial bias from California’s criminal justice system. However, whether the RJA benefits the defendant in this case, absent a showing of “good cause,” is best litigated via a writ of habeas corpus as opposed to remanding the case to the Superior Court pending appeal.  

In early 2000, defendant Javance Mickey Wilson concocted an interesting way to make money:  stealing it from cabdrivers while cold-bloodedly executing them. On Jan. 7, 2000, Wilson was picked up by cabdriver James Richards in downtown San Bernardino. Wilson had Richards drive him to Bloomington, about 20 minutes away. Once there, Wilson directed Richards to stop on a rural, dimly lit road. He then pulled out a small caliber handgun and robbed Richards, taking an undetermined amount of cash. Wilson forced Richards to get out of the cab and onto his knees. He then put his gun into Richards’ mouth and pulled the trigger. When the gun jammed, Richards got up and fled to a nearby house from where he called the police. Wilson fled the area in Richards’ cab.  

On the evening of Feb. 20, Wilson robbed and murdered cabdriver Andres Dominquez at the same location. Using Dominquez’s cellphone, he called for another cab. Victor Henderson responded and was robbed and killed two hours later with the same gun that was used to kill Dominquez.  

Meanwhile, investigators were working with Richards, attempting to determine who was committing these crimes. Richards described the suspect as a Black male in his 30s, with short hair and pock-marked skin, about six feet tall and 220 pounds, and wearing a light-colored ski jacket. Investigators showed Richards a “sixpack” photo lineup, which did not include Wilson. Richards could not identify anyone.  

A pile of circumstantial evidence (described in detail in the case decision) eventually led investigators to suspect that Wilson was the perpetrator. Although Wilson was a bit younger than described (25), he otherwise fit the description as provided by Richards. As a result, Richards was eventually shown another sixpack photographic lineup. In this one, Richards positively identified Wilson as his robber, telling investigators that defendant’s picture looked “exactly like the guy” and “jumped right out at me.”  

At the investigator’s suggestion, Richards circled his picture. Wilson was subsequently arrested in Ohio. Transported back to San Bernardino, detectives questioned Wilson, resulting in incriminating statements. (See “Alleged Miranda Violations,” below.)  

A live lineup was conducted, at which Richards identified Wilson. (Between when the photo for the photo lineup was taken and the live lineup, Wilson had shaved his mustache and grew a beard and soul patch. Wilson was arraigned on two counts of murder, one count of attempted murder, three counts of robbery and other related charges, plus a number of special circumstances qualifying him for the death penalty.  

When interviewed by the prosecutor prior to the preliminary examination, Richards expressed concern whether he would be able to identify Wilson in the courtroom. The prosecutor showed Richards the photo lineup with defendant’s picture circled. In the courtroom, Wilson was wearing a red jail jumpsuit and sitting at the defense table. As a result, Richards had no difficulty identifying him when testifying. Bound over for trial, a jury was unable to reach a verdict.  

A second jury, however, found Wilson guilty of all charges and allegations and, after a penalty trial, recommended death. The trial court judge agreed, sentencing defendant to death. 

Wilson’s appeal to the California Supreme Court was automatic. 

The California Supreme Court, in a 5-to-2 decision, affirmed.  

Among the issues on appeal were (1) the admissibility of Richards’ identifications of Wilson in the photo lineup and (2) at the preliminary examination, (3) the legal effect of Miranda invocations and the admission of incriminating statements Wilson made to the investigators, (4) whether Wilson’s Sixth Amendment right to testify was violated by his own attorney refusing to let him testify, (5) whether his right to a speedy trial was violated by a continuance of the trial date over his objection, and (6) the correct procedure to use in determining the possibly applicability of California’s Racial Justice Act.  

(1) Photo Lineup Identifications: Wilson challenged the admissibility of Richards’ identifications in both the second photo lineup and subsequently at the preliminary examination. As to the photo lineup, Wilson argued that the use of a photo lineup that was not “blind” violated his due process rights. A “blind” photo lineup is one where the investigator administering the lineup does not know who the suspect is, preventing him or her from inadvertently giving the witness any subtle cues. Wilson also argued that showing six photos all at once rather than sequentially can possibly lead to a victim/witness making an identification?based on the subject who looked most like the perpetrator relative to the other photos instead of by individually comparing each photo to his own memory.  

In support of this argument, the defense provided a 1998 survey of scientific literature and wrongful convictions from a subcommittee of the American Psychology/Law Society, which had found “impressive” evidence that the sequential administration technique reduces the likelihood of false identifications. The subcommittee also recommended the use of the “blind administration” technique and a photographic lineup in which the suspect does not stand out. The defense also submitted 1999 findings and guidelines prepared by the United States Department of Justice that were based on 20 years of empirical research and best practices identified by law enforcement agencies across the country. Although the Department of Justice’s recommendations did not include blind administration or a sequential showing of photographs, it did note evidence indicating that those procedures “might” enhance reliability.  

Invoking Evidence Code § 352 (probative value vs. prejudicial effect), Wilson argued that admission into evidence of Richards’ identification of defendant in the photo lineup was prejudicial, violating his due process rights, and should have been excluded. The Supreme Court disagreed.  

Basically, the court ruled that although maybe not perfect, the admission into evidence of sixpack photographic lineup identifications as were conducted in this case have been upheld by prior case law. The trial court found that Richards’ identification here was reliable, and the Supreme Court on appeal gave deference to that conclusion. Also, the prior case law has repeatedly upheld the procedures used in this case as sufficiently reliable so as to not be in violation of a defendant’s due process rights. (E.g., see People v. Lucas (2014) 60 Cal.4th 153, 237; People v. Alexander (2010) 49 Cal.4th 846, 902.)  

(2) Preliminary Examination Identification: Richards identified Wilson in court at the preliminary examination as the man who robbed and tried to shoot him. On appeal, Wilson, again invoking Evid. Code § 352, argued that allowing Richards to identify him in court was prejudicial in that defendant was the only person in the courtroom in jail clothing, while sitting at the defense table. Also, the prosecutor had shown Richards the photo lineup with Wilson’s picture circled just prior to the preliminary examination after Richards had expressed concern whether he would be able to recognize defendant.  

However, it was also noted that Richards testified that he did in fact recognize defendant “when (he) looked up at him with a distinctive smirk, the ‘same exact expression that he had when the gun didn’t go off in my mouth.’” Richards also testified that he did not think that being shown the photo lineup affected him. As such, there was sufficient evidence to show that Richards’ identification of defendant “was based on the witness' ‘independent recollection’ rather than the suggestive photo lineup.” (Italics added.) Ultimately, Wilson was free to argue to the jury that the in-court identification was tainted and unreliable, allowing the jury to make the final determination. 

(3) Alleged Miranda Violations: Wilson argued on appeal that the trial court erred in admitting into evidence a videotaped interview with the San Bernardino detectives, which he claims was conducted after he invoked his?Fifth Amendment?right to remain silent, thus violating the dictates of Miranda v. Arizona. As noted above, Wilson was originally arrested in Ohio where the San Bernardino detectives originally contacted him. After initially waiving his Miranda rights, he soon changed his mind and invoked his right to remain silent. This invocation was admittedly ignored, the prosecution later conceding at trial that anything said after this point while in Ohio was inadmissible.  

However, while en route back to San Bernardino, Wilson told a detective that he “might want to talk about the case,” asking whether anything he might say could remain confidential. Wilson was told to wait until they arrived in California. Questioning was resumed in San Bernardino. It must be assumed that he was readvised of, and waived, his Miranda rights in that Wilson does not contest the lawfulness of the detectives reinitiating the ensuing interrogation. The court noted only that in California, Wilson “recited his rights back to the detectives,” reflecting his understanding of his Miranda rights. 

During this interrogation, Wilson attempted to pump the detectives for information about how much evidence they had connecting him to the cab robbery-homicides. Unsuccessful, he again invoked his right to silence, only to follow this invocation up with indications that he wanted to continue the discussion. During the ensuing back and forth, after being told that nothing he told them would be confidential, he eventually made incriminating admissions, including that he had possessed a small caliber pistol at one point and that he had used one of the murder victim’s cellphone.  

At trial, Wilson moved to suppress all the statements he made, both in Ohio and San Bernardino. The motion was granted as to the Ohio statements made after he invoked his right to silence, but was otherwise denied. In denying the motion, the trial court noted that both sides were engaged in a “chess game,” attempting to determine how much the other side knew. It was also noted that every time Wilson seemingly invoked his Miranda rights, he would turn right around and resume their discussion concerning the alleged crimes.  

The Supreme Court upheld the trial court’s rulings on this issue, admitting Wilson’s California statements. “When a suspect freely decides to reinitiate communication, the law does not foreclose the admission of subsequent statements, notwithstanding an earlier failure to honor an invocation of the Miranda rights to silence or to counsel,” (People v. Krebs (2019) 8 Cal.5th 265, at pg. 315.) In this case, the court noted that “(a)part from (the detective’s) failure to immediately cease questioning (whenever defendant seemingly invoked), [the detective’s] interrogation techniques were not coercive.” The court also saw “no other evidence (Wilson) was unable to exercise his free will when he decided to continue speaking to the detectives.” As such, the court held that there was “no error in the trial court’s decision to admit (Wilson’s incriminating) statements.” 

(4) A Defendant’s Right to Testify Under the Sixth Amendment: After the jury returned its penalty phase verdict, Wilson filed a new trial motion in which he argued that his lawyer prevented him from testifying in violation of his?Sixth Amendment?rights. The Supreme Court upheld the trial court’s denial of this motion. This issue first came to the trial court’s attention when a probation officer documented Wilson’s complaint that he wanted to testify in the retrial but his attorney “refused to allow it.” At the defense counsel’s request, the trial court appointed alternate counsel to explore the issue.  

The alternate counsel later filed a motion for a new trial alleging that Wilson had been deprived of his right to testify. In a sworn declaration accompanying the motion, Wilson alleged that he asked to testify several times, but that his trial counsel informed him that “[his] side of the story could be told by other witnesses” and that testifying would expose him to impeachment regarding his past criminal history. Wilson also claimed that after the prosecution rested, he again expressed his desire to testify but that his attorney “told me that I couldn’t?testify and walked away, not allowing any further discussion.”  

Wilson alleged that he was not aware until after trial that he could have asserted a right to testify over his attorney’s objection. In an evidentiary hearing, however, Wilson’s defense counsel testified under oath that he had been practicing criminal law for more than 35 years, that he understood the defendant had a constitutional right to testify, and that he had never told Wilson otherwise. Counsel further denied telling Wilson “in emphatic, conclusive terms that he was not going to testify in the case,” but rather merely “recommended” he not testify.  

The law is clear on this issue. “A criminal defendant has the right to testify at trial, ‘a right that is the mirror image of the privilege against compelled self-incrimination?and accordingly is of equal dignity.’ [Citations.]?‘The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel. [Citations.] “When the decision is whether to testify...at the guilt phase of a capital trial [citation] it is only in case of an express conflict arising between the defendant and counsel that the defendant’s desires must prevail... [T]here is no duty to admonish and secure an on the record waiver unless the conflict comes to the court’s attention.” (People v. Duong?(2020) 10 Cal.5th 36, 55.)  

In this case, the court questioned whether Wilson’s claims were timely, having waited until after the jury’s verdict to raise the issue. “A trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his?Fifth Amendment?privilege against self-incrimination and is abiding by his counsel’s trial strategy.”  

Noting that this defendant had never been shy about expressing his concerns during the trial, the court determined that his attorney’s testimony to the effect that defendant never expressly insisted on testifying was more believable than the defendant’s delayed claims. As such, the court held that the trial court did not abuse its discretion when it found that defense counsel did not infringe on Wilson’s right to testify and that no conflict arose during the retrial that would have necessitated the trial court to stop the proceedings and specifically advise Wilson of his right to testify and ensure his waiver of that right.  

(5): Constitutional and Statutory Speedy Trial Rights: The U.S. Constitution, California’s Constitution, and California statutes all protect a defendant’s right to what has become known as a “speedy trial.” Specifically, the?Sixth Amendment to the federal Constitution,?and?article I, section 15 of the California Constitution, both guarantee a criminal defendant’s right to a speedy trial. How long that might be depends upon the circumstances. Statutorily, Penal Code § 1382 (a)(2)?provides a specific period, dictating that in a felony case, absent a showing of good cause, a court shall dismiss a criminal action if a defendant is not brought to trial within 60 days of arraignment. All these rights, however, are subject to (1) a waiver by the defendant (and prosecutors), as well as (2) delays based upon a showing of “good cause.”  

Death penalty cases, because of their complexity and important issues that must be thoroughly litigated, typically take longer than the statutory time limits. In a death penalty case, a two-year delay in proceeding to trial “is not inordinately long.” (People v. Lomax (2010) 49 Cal.4th 530, at p. 558.) In this case, Wilson was arrested on March 3, 2000, and arraigned “in a timely fashion” (the exact date is not specified). Several continuances of the trial date were granted with concurrent waivers of time by Wilson himself, taking them up to October, 2001. At that time, the defense counsel sought an additional 90-day continuance. The defendant objected, refusing to waive time for any more than 30 days. In keeping with Wilson’s 30-day waiver, the court set trial for December 3, 2001. But then on that date, the defense counsel sought another continuance, explaining that he was preparing the defense of another client facing capital charges and needed additional time to competently prepare Wilson’s case. Despite Wilson’s objection, the court granted the defense attorney’s motion for a continuance to March 4, 2002, finding “good cause” for the delay.  

The jury trial was in fact started on March 4, as planned. Post trial, Wilson argued that his statutory and constitutional speedy trial rights were violated when the trial court judge granted the defense counsel’s continuance motion to March over defendant’s objection, and that the case should have been dismissed. Penal Code § 1382 itself provides for a “good cause” exception to the 60-day requirement. Case law has established that factors relevant to a determination of good cause include; “(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay.” (People v. Sutton?(2010) 48 Cal.4th 533, 546.)? 

It has also been held that generally, a delay for the defendant’s own benefit constitutes good cause to continue a trial, even over his or her objection.?(People v. Lomax, supra, at p. 554.) The court also noted that a trial court has “broad discretion to determine whether good cause exists to grant a continuance of the trial.” (People v. Sutton, supra.)  

The defendant here argued that “[a]n attorney’s work for other clients cannot form a valid basis for overriding appellant's speedy trial rights.” The court disagreed. While it is true that “calendar conflicts” alone do not constitute good cause (see People v. Johnson?(1980) 26 Cal.3rd 557), the court ruled that this case did not involve a delay stemming from calendar conflicts unrelated to defendant’s best interests.?Specifically, the trial court conditioned the continuance to March on defense counsel devoting his “full efforts” to preparing Wilson’s case and found that such preparation by his attorney was in his best interests.  

Although Wilson blamed staffing shortages (a “systemic breakdown”) in the Public Defender’s Office for his counsel’s delay?in completing his preparation, the record does not contain facts about this county’s public defender system that might allow the court to evaluate this assertion.?The court held instead that the defendant’s circumstances appear more like those found to present “a classic confrontation between defendant’s statutory and constitutional rights to a speedy trial and his?Sixth Amendment?right to competent and adequately prepared counsel.” (People v. Lomax, supra, at p. 556.)? 

Balancing the interests, therefore, the court found that the circumstances favored a reasonable time for counsel to prepare for Wilson’s capital trial, noting that the duration of the delay was limited and that defense counsel sought, and the trial court granted, only one such continuance after the defendant had specifically invoked his right to a speedy trial. Under these circumstances, the court found no abuse of discretion in finding good cause for the continuance under?Penal Code section 1382, and no violation of the state constitutional protections those procedures implement.  

As far as Wilson’s speedy trial rights under the federal Constitution, the court considered the four-part balancing test established in?Barker v. Wingo?(1972) 407 U.S. 514: “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course,?the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.”  

The court determined that Wilson failed to carry his burden of demonstrating a speedy trial violation under this test. All of the continuances were at his attorney’s behest. And there was no showing of a “systemic breakdown” in the public defender system. “Whether defendant suffered prejudice as a result of the delay must be assessed in light of the interests the speedy trial right was designed to protect: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’” (People v. Williams (2013) 58 Cal.4th 197, at p. 235.) In this case, Wilson failed to “demonstrate specific prejudice resulting from the delay” and “he cannot benefit from a presumption of prejudice because the record does not show that the state was responsible for the delay.” Considering “the totality of the?Barker?factors, the court concluded that the defendant’s federal right to a speedy trial was not violated. His speedy trial objections, therefore, were overruled.  

(6) The California Racial Justice Act of 2020: After Wilson’s conviction, the California Legislature passed the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1). “The Legislature passed (The Racial Justice Act (RJA)) in 2020 with a stated aim ‘to eliminate racial bias from California’s criminal justice system’ and ‘to ensure?that race plays no role at all in seeking or obtaining convictions or in sentencing.’.. To that end, the RJA prohibits the state from seeking or obtaining a criminal conviction, or seeking, obtaining, or imposing a sentence, on the basis of race, ethnicity, or national origin.” (People v. Wilson (2024) 16 Cal.5th 874, 944-945.). 

The act provides statutory authority for criminal defendants to challenge criminal proceedings on the basis of racial, ethnic, or national origin discrimination. As later amended, the RJA applies to cases involving a death sentence, as well as to all cases in which the judgment is not yet final. (Pen. Code § 745(j))  

Should a criminal defendant be able to show that his arrest, prosecution, or sentencing was in any way affected by racial prejudice, he or she may be entitled to sanctions up to and including dismissal of the case. In this case, the defendant, as a Black man, was not seeking to litigate this issue at this point, but rather sought a stay of the proceedings and a remand of the case itself back to the superior court so that he might raise the RJA claims based upon other evidence outside of the appellate record. A majority of the court (with two dissenting opinions) held that even though the RJA does refer to a defendant’s ability to move for a stay of an appeal and remand, the statute does not establish a rule of automatic stays. The better procedure for researching and litigating this issue, absent a showing of “good cause,” is for the defendant to file a concurrent writ of habeas corpus. The majority ruled here that Wilson failed to show good cause for a stay and remand, and therefore denied his motion for a remand of the case back to the trial court. 

Conclusion:  Defendant’s conviction and death sentence was affirmed.  

I apologize for the length of this “brief.” But being a death penalty case, the written decision here is extremely lengthy (87 pages, plus 24 footnotes) and covered a lot of ground. I’ve only hit the highlights.  

The majority and dissenting opinions discussing the Racial Justice Act cover 36 pages by itself, most of which I did not even attempt to summarize. If you’re interested in the RJA (as you should be), and are a subscribing professional member of Legal Updates, you have available to you a comprehensive dissertation I’ve written on this subject in the Legal Updates Library. 

Similarly, the photographic lineup segment of this brief should be of interest to anyone in law enforcement or practicing criminal law. Also in the Legal Updates Library is an outline on the law of lineup identifications, updated to include this case’s discussion of the issues.  

The Miranda discussion is particularly confusing in this decision, with the defendant seemingly invoking his right to silence and then reinitiating his discussions with the detectives more than once. The preferred procedure is for investigators to readvise a suspect of his rights each time he expresses an intent to reinitiate the questioning and get a fresh waiver. That was virtually impossible in this case as defendant flipped back and forth several times, trying to “interrogate” (if you will) his interrogators, pumping them for how much evidence they might have against him. An updated “Miranda and the Law” legal outline is also available in the Legal Updates Library for professional subscribers.  

As for this brief, above, I might suggest you read it one section at a time, let it sink in, and save the next until another day. That’s basically what I did in writing this brief, which took me over a week to finish. If you can absorb all the information in this brief in less time than that, you’re a better person than me.