People v. Esqueda (1993)

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[No. D016035. Fourth Dist., Div. One. Jul 22, 1993.]

THE PEOPLE, Plaintiff and Respondent, v. JOSE OSCAR ESQUEDA, Defendant and Appellant.

(Superior Court of San Diego County, No. CR124019, Melinda J. Lasater, Judge.)

(Opinion by Huffman, J., with Wiener, Acting P. J., and Work, J., concurring.)

COUNSEL

Alisa M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, M. Howard Wayne and Pamela K. Klahn, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HUFFMAN, J.

Jose Oscar Esqueda was jury-convicted of second degree murder (Pen. Code, fn. 1 § 187, subd. (a)) by use of a firearm (§ 12022.5) for the death of Ana Castillo and of possessing a firearm silencer (§ 12520). The trial court sentenced him to a total 23 years to life term and imposed restitution fines under Government Code section 13967 for $5,000 and $1,000 for each crime, respectively.

Esqueda appeals from these convictions and his sentence, contending the trial court erred in permitting evidentiary use of his statements obtained in [17 Cal. App. 4th 1455] violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974], in permitting evidentiary use of his coerced admissions in violation of his due process rights (Spano v. New York (1959) 360 U.S. 315, 324 [3 L. Ed. 2d 1265, 1272, 79 S.Ct. 1202]), in permitting use of Ana's inadmissible hearsay statements, in permitting use of a photographic display of his tattoos which suggested he was of bad character, in permitting the prosecutor to impeach him on collateral matters which contradicted his cross-examination trial testimony, and in separately imposing restitution fines for each count.

We affirm Esqueda's conviction for possession of a silencer, but reverse on his murder conviction and set aside the accompanying true gun-use finding. As we explain below, we do so because we are confronted here with a distressing variation of the classic "Mutt and Jeff" routine of police interrogation recognized in Miranda which, under the totality of circumstances in this case, amounts to a flagrant violation of Esqueda's Fifth Amendment rights against self-incrimination and his Fourteenth Amendment rights to due process. The court below should therefore have granted his pretrial motions to suppress his statements. Because their admission at trial was prejudicial by any applicable standard, we reverse the murder conviction in its entirety.

Factual and Procedural Summary

Around 10 p.m. on May 26, 1991, a red Toyota four-by-four truck came to a screeching halt in the parking area of a Shell gas station/minimarket in Old Town in San Diego. A large Hispanic man, later identified as Esqueda, immediately jumped out of the truck and ran into the minimarket, yelling: "Somebody help me. Call an ambulance. She's going to die."

Esqueda ran back outside, lowered the truck's tailgate and pulled the body of his live-in companion, Ana, out of the bed of the truck by her shoulders. The carpeting covering the truck bed, the tailgate and the ground below it were saturated with blood. Ana was bleeding profusely from her head. Esqueda continued yelling for help and asked a woman to take the children out of the truck's cab. Esqueda was "... kind of howling, kind of walking around, basically hysterical."

Two women bystanders at the gas station took Ayza, Esqueda's two-year-old daughter, and Azael, his three-year-old son, out of the truck and carried them into the store. Both children's clothing was splattered with blood. Someone called the police.

Officers, responding to the 10:08 p.m. call of an assault with a deadly weapon, arrived to find Esqueda sitting on the truck's tailgate holding onto [17 Cal. App. 4th 1456] Ana, who was barely alive with a bullet wound to her head. San Diego Police Officer Gerald Waclawek applied direct pressure to Ana's wound until the paramedics and ambulance arrived five to ten minutes later. He heard Esqueda say, "They were after me. They were after me."

When additional police officers arrived they found Esqueda in his blood-soaked T-shirt, pacing back and forth, acting "very irrational," hysterical, incoherent, unintelligible, agitated, crying and yelling. At this point they knew there was a gunshot victim in the back of the truck and they were trying to calm Esqueda down to find out what had happened. Esqueda kept pushing the police away and was constantly moving. Esqueda was "rambling on incoherently," but was overheard making various statements about a man in a ski mask entering his and Ana's apartment and shooting Ana instead of him. fn. 2 When he went into the store to see his children, he hugged them and told them, "It's going to be all right, ..." and "[d]on't worry, I'm going to kill them."

He was also overheard to ask why the police were called and to say he did not want to get involved or have any trouble. However, he signed a consent to search his and Ana's apartment and gave the police a key to get in, telling the officers he had guns in the apartment. fn. 3

After about 20 minutes, Ana was transported to Mercy Hospital. About 10:50 p.m. Esqueda's children were taken from the gas station to the Western police substation by two female officers. About 11:04 p.m. some police officers were directed to Esqueda's apartment to search for other victims or suspects, while the others collected evidence at the gas station and kept track of Esqueda who continued to pace and mumble. Shortly after midnight, Ana died from a single nine-millimeter gunshot wound to her head.

Meanwhile, members of San Diego Police Department homicide "Team Four" met at Esqueda's apartment for briefing and assignments. Police officers already on the scene found the apartment door was locked when they arrived and upon entering discovered the lights in the living room were on, as was a television set in the master bedroom, but no one was found inside the apartment. A more thorough examination of the apartment revealed bloodstains in the living room, on the front door, on the pavement [17 Cal. App. 4th 1457] going into the apartment and in a parking stall outside. fn. 4 Three .22-caliber rifles, a twelve-gauge shotgun, a hip holster, two silencers, a rifle scope, and assorted ammunition were found in the master bedroom.

Esqueda's truck was secured, searched and impounded. Although a ninemillimeter bullet was found in the truck, no nine-millimeter weapon was found there or in Esqueda's apartment.

About 1:30 a.m. Esqueda was taken to the Western police substation. fn. 5 From 1:40 a.m. to 2 a.m. he talked with homicide Detective Jimmy Valle. Afterwards, Renee Hill, a homicide detective assigned to interview Esqueda's children, told Valle that during the ride to the Western station, and at the station, the boy Azael had repeated several times " 'A'pa killed Ana. Ana's dead.' " She explained that the children called Esqueda "A'pa," and their mother, "Ana."

Esqueda was then transported downtown to central police headquarters (Central) by uniformed officers and taken to the homicide offices, where he was again interviewed by Valle from approximately 2:30 a.m. until 3:30 a.m. At that time homicide Detective Miguel Penalosa, who had inspected Esqueda's apartment and truck, joined the interview. Shortly thereafter, Esqueda was advised of his Miranda rights.

From about 3:30 a.m. until 6:35 a.m, and again from 7:35 a.m. to 9:50 a.m., Valle and Penalosa questioned Esqueda. fn. 6 Esqueda was not advised his interviews at Central were being taped. At various times during these interviews, Detective Hill also interrogated Esqueda based on statements allegedly made by his children. Esqueda told the detectives over and over again an unknown masked intruder had entered the apartment and shot Ana.

Between 9:50 a.m. and 1:30 p.m., Esqueda was arrested and booked for Ana's murder. From approximately 1:30 p.m. until 2:10 p.m., Penalosa again interviewed Esqueda. This time Esqueda changed his story and admitted Ana had been shot with his nine-millimeter Beretta pistol as they struggled over the gun. He said he panicked. He ran through the house carrying Ana in his arms, then took her out to the truck and put her in the back and ran back inside the apartment to get his sleeping children. After he put the children in the truck's cab with him, he drove off in search of a hospital. He claimed he dismantled the gun and threw it out of the truck's window as he drove [17 Cal. App. 4th 1458] around trying to find help for Ana. He got lost and ended up at the gas station.

After making these admissions, Esqueda accompanied the police in an effort to locate the gun, or any of its pieces. Nothing was found, however, in the area where Esqueda said he had tossed the gun.

In limine motions to suppress Esqueda's statements, to strike testimony of Ana's hearsay statements allegedly made to her sister Beatriz Johnson (Beatriz) and brothers Ernesto Castillo (Neto) and Hector Castillo (Hector) before her death, and to strike testimony about the hearsay statements allegedly made by her and Esqueda's children about the shooting were denied.

The Prosecution Case

At jury trial, Beatriz, Neto and Hector, another sister Rosa, and Ana's mother talked about Ana and Esqueda's 13-year relationship, their children, Esqueda's jealousy and how he treated Ana. fn. 7 Beatriz and Hector testified about statements Ana made before her death to show she feared Esqueda and had suffered abuse at his hands. fn. 8 Over a defense objection, Rosa was allowed to testify that in March 1991 Ana told her that some scratches on her face were caused by Esqueda when he grabbed her glasses off her face and broke them. Beatriz, Rosa and Ana's mother testified they never called the police about the threats Esqueda made against Ana because she asked them not to do anything out of her fear matters would only get worse. Neither Rosa nor Beatriz had ever seen Ana handle or shoot a gun.

Ana's family members testified that their family was very close, saw each other often, and that in March 1991 Ana had started working with Beatriz at a family business in National City. On May 26, 1991, the day Ana was shot, [17 Cal. App. 4th 1459] she and her children had spent the afternoon at a family gathering at Beatriz's house with Rosa, Hector, Ana's mother and her sisters' children. While there, Ana had tried on a blouse in front of Beatriz and Rosa and neither sister had observed any bruises on Ana. Esqueda had dropped Ana and the children off at Beatriz's and Hector had driven them and Ana's mother home later that evening. He said it was about 8 p.m. when he helped Ana carry her two sleeping children into her apartment and place them on the living room couches.

Neto testified he and Esqueda were friends. At about 9 p.m. on May 26, 1991, Esqueda had stopped by to talk with him at a friend's house. Esqueda, seeming upset and angry, asked Neto who Ana was seeing. Neto told him no one. Esqueda then kissed Neto on the cheek, told him he loved him and that he would not be seeing him for a while, and left.

Concerned about Esqueda's behavior, Neto then telephoned Beatriz, asking Ana's whereabouts. Beatriz said Ana was with their mother, but attempts to reach Ana were in vain.

Neto further testified he had told Ana several weeks before he thought Esqueda was sleeping with another woman. He also stated he knew Esqueda to usually carry a nine-millimeter handgun, although he had never seen him point it at anyone or use it.

The jury then heard about Esqueda's arrival at the gas station with Ana's bleeding body in the back of his truck and their children in the cab. Testimony of the women who cared for the children, fn. 9 of the minimarket clerk, and of police officers on the scene that night apprised the jurors of the facts set out above.

In addition, two of Ana's neighbors testified they heard a noise as if something fell against a wall or off a shelf sometime after 8 p.m. on the night of the shooting and saw Esqueda's truck parked with its lights on between 9:30 and 10 p.m. that night behind the parking spaces of their apartment complex parking lot. [17 Cal. App. 4th 1460]

Also, medical examiners testified about the results of Ana's autopsy, fn. 10 and homicide detectives testified about Esqueda's interviews fn. 11 and his and the children's statements. Over defense objection, edited versions of the audioand videotapes of Esqueda's interviews were played for the jury. fn. 12 Also over a defense objection, the jury was shown a picture of Esqueda taken 14 hours after the shooting in his bloody clothing, showing that he had tattoos up and down both arms.

The Defense Case

Before testifying in his own defense, and in support of his "accident" defense, Esqueda called various witnesses to establish Ana was a jealous woman who knew how to take care of herself and to challenge the credibility of the evidence offered against him.

A neighbor testified he heard nothing from Esqueda's apartment the night of the shooting. A medical doctor testified the bruises on Ana's body at the time of her death were consistent with someone pulling or lifting her body and with bouncing around in a fast-moving vehicle where the body was hitting the truck sides.

Esqueda's mother testified Esqueda had visited with her the day of the shooting and left her house at about 9:45 p.m. after having dinner and several beers. Esqueda's ex-girlfriend and current friend Dolores Carranza testified Ana had telephoned her a month before her death and accused her of sleeping with Esqueda. Dolores said she denied the accusations even [17 Cal. App. 4th 1461] though Esqueda was visiting her once a week. Dolores said Ana seemed very upset and threatened to pull her hair and Esqueda "by his balls" if she found out they were seeing each other.

Esqueda's sister, Estella Avila, testified she was very close to Ana, babysitting for her when she worked, and listening to her problems. About a month before her death Ana told her Esqueda was seeing Dolores again and she hoped God would strike Esqueda dead. Ana also told her she wished they would all die in a car crash and that she had plans to leave Esqueda by the end of August if he did not get a job.

Estella said Ana knew how to use a gun as Esqueda had showed them both how to use one during a trip to Mexico to shoot rabbits. Estella said Ana and Esqueda always argued and that Esqueda had frequently pushed Ana. Ana told her she bruised easily and denied any bruises Estella saw were caused by Esqueda. Ana told her Esqueda pulled a gun on her one time when they argued, but told her she could handle him. Ana also told her she wanted to die because Esqueda caused such a scene when he got jealous of her when she talked with other men.

Detective Hill was also called as a defense witness to testify about the inconsistent statements made by Esqueda's son Azael during his interviews. Hill read from her written report of the interviews as the tapes and notes she had made at the time of those interviews had been destroyed. fn. 13 The court admonished the jury these statements were admitted only for the limited purpose of impeachment, to go to Azael's credibility, and not for the truth of what Azael said. fn. 14

Esqueda testified on his own behalf. After giving a brief history of his and Ana's relationship and families, Esqueda outlined the events of May 26, 1991. After dropping Ana and his children off at her sister Beatriz's house, he bought a 12-pack of beer and went to his mother's house where he spent the afternoon drinking and visiting with his oldest son (by another woman), his sister and mother. After it got dark outside, he stopped by a friend's [17 Cal. App. 4th 1462] house to see Ana's brother Neto. He said he wanted to know how Ana got home from her sister's house as she had told him Neto would drive her and the children home. Esqueda admitted he was a jealous man. fn. 15

Esqueda said he asked Neto what was up with Ana; he denied asking him, "Who's fucking Ana?" He also denied kissing Neto, telling him he loved him, or that he would not be seeing him anymore. He said he borrowed some money for gasoline from the friend, then returned to his mother's for dinner and later drove home. Although he said he had five or six beers, he denied being drunk.

Because Ana did not like him to drink, and even though she granted him permission this time to drink with his family, Esqueda parked his truck in front of the parking spaces with the parking lights on before going to the apartment to check on her. He planned to leave to go back to his mother's since it was still early.

As he did not have his key to the apartment, he knocked. When Ana opened the door she said she was tired of his "shit" and pulled out the ninemillimeter Beretta with both hands. Esqueda said he then pushed her hand and threw her to the couch. He said he pinned her down around her neck and asked. "What the hell is wrong with you?" He then got up and told her to go ahead and shoot him if she wanted to. Ana then put the gun to her own head as if she were going to shoot herself. Esqueda said he immediately jumped at her to get the gun and pushed her to try to pull the gun away from her and it went off.

Esqueda said he "freaked out after the gun went off." He shook Ana to try to awaken her and then ran to check on his children, grabbing a rag from the closet to put around Ana's head. He picked Ana up and put her in the back of the truck. He then ran back into the apartment to get the children before driving off to take Ana to a hospital.

Esqueda said he was not thinking; he did not call 911. He said he could not explain how he felt. He picked up the gun from the floor and took it with him to show the doctors what type of weapon Ana had been shot with. [17 Cal. App. 4th 1463] However, as he was driving he started thinking about Ana and worrying that people would think badly of her, so he threw the gun out the window. fn. 16

Esqueda said he was driving "real fast" and got lost trying to find the hospital. He did not remember what freeway he was on or how he got there. Nor did he remember the traffic or the lights. He said he was attempting to hold onto and awaken Ana, whose body had hit up against the window between the truck bed and the cab, as he was driving. When he realized he did not know where he was driving, he pulled off at some lights to try to get help. That is when he ran into the gas station/minimarket asking the people to "call 911, the police, the ambulance or anything." He then ran back outside to the truck, pulled Ana from the back and held her until the police came, and asked "those ladies to take care of my kids so they wouldn't see anything."

When the authorities did arrive, Esqueda "made up a story" about a man in a ski mask shooting Ana because he did not want people "to talk bad about her." He told the intruder story to the police and tried to go to Ana, but the police and paramedics would not let him. They then took Ana away and later took him to a police station.

At the Western substation he was put in a room and told to stay there because a detective was coming to talk with him. Esqueda said he asked about Ana and if he could leave to go to the hospital, but was told "no." He could not remember who talked with him at the substation or who he had talked with at the gas station. He said it seemed like "forever" before he was moved downtown to another room. During this time he was told nothing about Ana.

Esqueda said he did not know he was being taped during the interviews with the detectives. He merely told them the same story as he told the police at the gas station. He felt he "had to say something" as he did not "want nobody to really know what happened." Although he wanted to change the story, he could not bring himself to do it for Ana's sake. Even though the detectives told him some bad things about Ana, he "wasn't about to say anything."

After some time the detectives put him in a holding tank and then in another room to take pictures. When one of the detectives started talking to him again he "just decided to tell them what happened." Esqueda said in [17 Cal. App. 4th 1464] telling the detective the truth he only lied about "taking the gun away from Ana or pulling it from her." He didn't say she was trying to shoot herself. He lied because he didn't want to "dirty her name." He said that although he wanted to tell the detectives the truth when they suggested the shooting might be an accident, he did not do so until later when he felt they would understand.

In regard to the guns and silencers found at his apartment, Esqueda said he denied "nothing about the guns." He said he bought one silencer and made the other. Esqueda said he had taught Ana how to use all of his guns, either during a rabbit hunting trip to Mexico, or at home for the purposes of her protection. He knew Ana had fired some of his guns before in Mexico and at New Year's. Although he liked guns, Esqueda denied he ever carried them with him on his person or in a car.

Rebuttal

Over defense objections, Police Officer Joseph Howie testified in rebuttal he had arrested Esqueda in 1985 for possession of a sawed-off shotgun found under the front passenger seat of a car Esqueda was driving. Although the passenger was found to have ammunition in his pocket for that gun, Esqueda admitted the gun was his.

Other rebuttal testimony tested the credibility of Esqueda's sister's statements about Ana talking with Dolores, and showed it would have been impossible for Esqueda to hold onto Ana as he said he did during the drive to the hospital.

At the close of all testimony, the court denied Esqueda's motion for acquittal to first degree murder. The court then instructed the jury on the law in the case and counsel gave closing arguments.

The prosecutor's arguments centered mainly on Esqueda's statements made to Detectives Valle and Penalosa. He stressed that Esqueda had told three stories: story number one about the masked intruder, story number two about struggling with Ana for the gun and now at trial, story number three about Ana attempting to take her own life. He opined Esqueda made up all the stories and that the truth was Esqueda committed premeditated first degree murder.

Defense counsel argued Esqueda's statements were merely a cover-up for Ana and that Ana's killing was an excusable homicide since it was accidental and unintentional. [17 Cal. App. 4th 1465]

The jury found Esqueda guilty of second degree murder. It also found he used a firearm to commit the murder and was guilty of possessing silencers.

After the trial court sentenced Esqueda for his convictions, he filed this appeal challenging only the murder conviction and his sentence.

Discussion

Esqueda's Statements

During the course of in limine proceedings, Esqueda brought motions to suppress his statements and admissions made during his interviews at Central. In one he challenged the failure of Detective Valle to advise him of his Miranda rights until after the first hour of taped questioning at Central. In the other he challenged the voluntariness of his statements and admissions made after he was given the Miranda warnings. The trial court heard the motions together, taking evidence and reviewing the audioand videotapes of Esqueda's interviews, the transcripts of those tapes, and the transcript of the preliminary hearing. The court denied his pretrial motions to suppress evidentiary use of his statements, finding that although he was a "suspect" from the start of questioning by Valle the first hour at Central, he was not "in custody" for Miranda purposes until Penalosa joined the interview and he was advised of his rights. The court found those rights were voluntarily waived and that Esqueda talked freely with the detectives. It also found Esqueda's statements and admissions made after the Miranda waiver were voluntary and not the product of any coercion or promises. The court found the People had met its burden of proving Esqueda's statements and admissions were voluntary, as well as the Miranda warning and waiver, both by a preponderance of the evidence and beyond a reasonable doubt.

During trial Esqueda renewed his objections to the evidentiary use of his statements made during the taped interviews on both the Miranda and involuntariness grounds. The objections were overruled.

On appeal Esqueda again renews his challenges to the trial court's rulings. Because the facts are uncontroverted, we independently review the Miranda and voluntariness issues to determine whether the trial court erred. (People v. Boyer (1989) 48 Cal. 3d 247, 263 [256 Cal. Rptr. 96, 768 P.2d 610].) Because our analysis of each issue depends upon the "totality of the circumstances," we first set out those circumstances and then separately examine the law pertinent to each issue.

Background Summary of Esqueda's Statements

At the pretrial hearing on Esqueda's motion to suppress his statements during the interviews on May 27, 1991, the following testimony was adduced. Detective Valle testified he contacted Esqueda in an interview room [17 Cal. App. 4th 1466] at Western police substation where Esqueda had been placed at about 1:40 a.m. that day. Valle introduced himself and explained to Esqueda his role as an interviewer and tried to develop some rapport with him. At that point Esqueda was traumatized and Valle considered him a victim of Ana's death and the "only witness to the offense." Valle talked with Esqueda at Western for about 15 to 20 minutes before recontacting him downtown in an interview room at the homicide offices located on the fourth floor of Central.

Valle, who was in civilian clothing for the interviews, did not take any notes of his interview with Esqueda at Western. Valle said Esqueda was emotionally upset, i.e., "distraught, whining, crying, whimpering, shaking," and continually asked about Ana, his live-in companion. Because there was no equipment for recording at Western, Valle decided to move the interview downtown. Esqueda agreed to go to Central. However, before being transported downtown by uniformed officers, gunshot residue swabbings were taken from Esqueda's hands. Valle stated swabbings were taken from witnesses as well as from suspects to help clear them of any involvement in a crime and to establish the truth.

Valle did not consider Esqueda a suspect, although he knew before talking with him downtown that Ana had died and that his children had made statements to the officers with them that Esqueda had shot and killed Ana. Valle placed little credence on the children's statements because he believed Esqueda's representation the children were sleeping at the time of the shooting and because his prior experience in working with children on child abuse cases was that "they're barely talking to the age of 14."

Upon contacting Esqueda at Central, Valle activated videoand audiotaping machines located in another room, but he did not tell Esqueda his conversation was being taped. Due to an oversight, Valle only pushed the button for the audiotaping during the first hour. He explained it was the interviewing detective's discretion whether to tape a witness or not. Because Esqueda was the only witness to this crime Valle felt it was important to tape the interview with him; he did not want to "take any chance of missing anything he was telling us regarding that incident."

Valle reiterated Esqueda's story, as first presented.

"Esqueda told me that he had just returned. He knocked on the front, on the apartment door; knocked twice. The victim at that time opened the door. As he was walking into the apartment, he felt something.... [¶] As he stepped into the apartment, he noticed to his right what he believed to be a person against the wall right at the doorway. [¶] ... What he said is he [17 Cal. App. 4th 1467] believed he saw a silhouette, or someone to his right. [¶] He immediately grabbed the victim face-to-face, bear hug. [¶] He recalls hearing one shot. At that time he thought he was shot, only he knew he wasn't. [¶] So he ran with [ ] the victim in his arms through the kitchen, the hallway, and into the master bedroom. [¶] At that point he was trying to decide what to do. [¶] He then, with the victim in his arms, exited the bedroom, went through the kitchen again, out the front door, placed her in the back of a pickup truck that he was driving. [¶] He returned back into the apartment, picked up his two children that were asleep on his bed in master bedroom bed, picked them up, brought them outside, placed them in the passenger side in the front of the truck. [¶] At that point he was trying to get to a hospital.... [¶] He said he got lost and ended up in the Old Town area where he pulled off of Interstate five into a gas station."

During the first hour before Penalosa motioned Valle out of the interview room, Esqueda repeated this same story over and over again with little variation, although he did later mention the man in the apartment was wearing a dark mask with cutouts for eyes. Valle's purpose was to try to go over the story with Esqueda in an attempt to get as much information and detail as possible so that the police could find the murderer. He was looking for details and not inconsistencies.

Valle described the interview room as a small room, approximately five by eight or nine, with a table and two or more chairs, on the fourth floor of the downtown police headquarters building. To get to the room one had to take an elevator which could only be activated by using certain security measures, which Valle could not divulge. Although it was difficult to get up to the homicide floor, it would be easy to get out because of compliance with fire codes.

Valle stated Esqueda continued to be upset throughout the interview, asking numerous times about Ana's condition and about his children. At one point in the interview, when Esqueda's children could be heard in the background, Esqueda became concerned, asking if they were okay or if someone was messing with them. Valle said he was continually trying to calm Esqueda down. Valle could not recall whether Esqueda asked to go to the hospital.

After questioning Esqueda for almost an hour, Penalosa, who had just come from the crime scenes, advised Valle that physical evidence at the apartment did not jibe with what Esqueda had told Valle. Esqueda's version of how he was holding the victim was inconsistent with the bullet wound. It was then that Esqueda became a suspect and it was determined he should be read his Miranda rights. [17 Cal. App. 4th 1468]

When Valle read him those rights, Esqueda answered he understood them and was willing to continue talking.

On cross-examination, Valle admitted Esqueda had not told him about his children being asleep at the time of the shooting before the downtown interview. Rather he learned that information, as well as Esqueda's initial story, at a briefing at Esqueda's apartment when an officer there told the assembled homicide team what Esqueda said at the gas station.

Valle also admitted he lied to Esqueda about not knowing Ana's condition during that first hour. Valle said he did not answer such questions, or make any accusatory statements, until after Esqueda had been given his rights and had waived them. Valle lied because he felt if he told Esqueda the truth, "I truly believed I would have lost him. He would have gone off the deep end." Valle felt Esqueda would not give any more information, or would refuse to talk any further. He also said he lied when he interviewed people because suspects were not always honest.

In response to whether Esqueda was free to leave the interview room, Valle stated: "If he wanted to get up and walk away, I couldn't hold him unless I arrested him." Valle thus surmised Esqueda was free to walk out. Valle, however, stated Esqueda was initially either put in a holding tank as a matter of procedure and security while he was activating the tape machine for the interview, or he was placed in some lobby chair in the interview room guarded by a patrol officer until Valle could enter the room.

Detective Hill also testified at the suppression hearing. She told Valle about the children's statements that Esqueda killed Ana, while they were at the Western substation shortly before 2 a.m. She then took the children downtown and taped an interview with Esqueda's son. Hill played part of the son's taped interview on a hand-held recorder she took into Esqueda's interview later that morning. At that time she yelled at Esqueda and made accusations about him not being a man or not having any balls "if [ ] not coming clean with us." Hill was personally upset with Esqueda for involving his children in Ana's shooting death.

Other police officers testified about the crime scene, about the children's statements, and about statements made by Esqueda at the gas station. fn. 17 Further information about the crime investigation was related to Penalosa about 3:30 to 4 a.m. An evidence technician who arrived at Esqueda's apartment around 12:45 a.m. found bloodstains on the carpet, wall and living [17 Cal. App. 4th 1469] room couch, but none in the bedrooms. He entered the apartment after the homicide detectives had had their briefing at the scene. The technician returned to Central to take photographs of Esqueda at 12:30 p.m. the next afternoon. Penalosa did not testify.

The transcript of the audiotape of the interview between Valle alone and Esqueda showed it started at 2:25 a.m. with Esqueda being asked general personal data information such as his name and date of birth. Esqueda was then asked about what had happened. After Esqueda gave the same intruder story as he had given police at the gas station, Valle reverted to general background questions.

In response, Esqueda revealed prior police contact and his past street name of "Night Owl" in the Market Street Gang, but denied any current gang involvement. He stated he was 29 years old and had had 7 years of education. Interspersed among the background questions and answers, Esqueda continued to ask Valle about Ana's condition and about his children.

Valle's questioning then turned to Ana and whether she had any enemies. He also asked Esqueda whether anyone had any beefs with him and asked him to discuss the events of that day before the shooting.

In recounting them, Esqueda said he had had five or six beers at his mother's before going home, but denied being intoxicated. He also denied any involvement with drugs. He said he drove around the old neighborhood for a while after leaving his mother's house before going home.

Valle then returned to Esqueda's story, slowing him down and asking him questions about every detail. Esqueda was confused. Valle told him it was okay and acknowledged Esqueda was still upset.

At various points during the interview, Valle left the room for a few minutes, telling Esqueda he was going to check on Ana's condition for him. Each time he returned he said something about the detective with that information would be there shortly.

Valle then had Esqueda stand up and demonstrate his story of how the shooting occurred. Detective Penalosa then arrived at the interview room.

Contrary to Valle's testimony at the hearing, the transcript shows Esqueda was not advised of his Miranda rights at the time Penalosa came into the interview room, and shows the tenor of the questioning changed to accusations even before Esqueda was read his rights. [17 Cal. App. 4th 1470]

After Penalosa was introduced to Esqueda, Valle told him what Esqueda had said so far about what had happened that night. Penalosa asked Valle if he had admonished Esqueda yet. Valle told him "no." The following colloquy then occurred:

"Penalosa: I just came from the hospital here and ah from what I, the detective is telling me, obviously you have not told the whole truth, okay. Now ...

"Esqueda: I told him everything.

"Penalosa: Okay. Um, I know what happened, okay? And the way you told us, it's not. But I think before we talk about what happened, ah I think we should go ahead and admonish you and give you your rights.

"Esqueda: For what?

"Penalosa: Okay. Ah ...

"Esqueda: I'm [sic] want to know how she is.

"Penalosa: Well I'll tell you how she is okay? But ah first I'm gonna go ahead and admonish you. All right, ah from what, from what he's telling me, ... you didn't tell him the truth of what happened. Okay, ah ...

"Esqueda: (Unintelligible)

"Penalosa: Because of, because the way that he described that you told him what happened, it's impossible, first of all. Ah second of all, um we talked to the kids, okay. I know that you loved Ana very much. Okay? And I know you have a lot of problems with Ana and the family because of your relationship. Ah and that's one of the reasons why you moved away from ... the barrio. Okay, from Market Street, okay. Ah what we're interested in ... is just the truth. Okay, that's all we're interested in. Okay? Okay, ... I know that things happen, people get angry, people make mistakes. Okay, and you're a big enough man to ...

"Esqueda: I'm a man to admit things, you know.

"Penalosa: To admit things, okay.

"Esqueda: And I'm a man to (unintelligible).

"Penalosa: You got to think about, you gonna have to think about, about your family, about your kids. Okay? [17 Cal. App. 4th 1471]

"Esqueda: (Unintelligible)

"Penalosa: You make them ... in a moment of anger, we're capable of doing all kinds of things....

"Esqueda: Yeah but shh ...

"Penalosa: Okay?

"Esqueda: I'd really like to know ...

"Penalosa: Yeah, okay. And ah we don't like women to be pushing us, slapping us, ah hitting us in the face, and it makes us angry. And sometimes we'll react. Accidents happen, you know. Accidents happen. You know, that's ... the way it is. You were there, she was there, okay.

"Esqueda: It was accident from me [sic].

"Penalosa: Okay. All right but before we talk about this ...

"Valle: (Unintelligible) the card.

"Penalosa: Huh?

"Valle: Let me have the card. It's up to you. It appears though we're gonna be asking you some ... hard detailed questions, okay? I'm gonna go and advise you of your constitutional rights before we do this. Okay, you have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to speak with an attorney and to have ... the attorney present during questioning. If you so desire and cannot afford one, the attorney will be appointed for you without charge before questioning. Do you understand each of these rights that I've explained to you? I need an answer.

"Esqueda: Yes I do.

"Valle: Having in mind and understanding your rights as I have told you, are you willing to talk with us?

"Esqueda: I already did.

"Valle: Okay. Do you mind going over it again? Do you mind talking to us?

"Esqueda: Not if you're gonna blame me. [17 Cal. App. 4th 1472]

"Valle: Well ...

"Esqueda: I don't know what to do, you know.

"Valle: All we're after ... is the truth. And that's what I think, what you've been telling me, isn't it? Are you willing to go over this again.?

"Esqueda: If you want to.

"Valle: Is that all right with you? Is that okay with you? Come on, hang in there. Is that okay?

"Esqueda: I don't know; why am I being (unintelligible)?

"Valle: I don't know. I don't know right now. I've been with you ... all night. Apparently maybe Detective Penalosa has some information here. I want to find out myself. Are you willing to talk with us?

"Esqueda: Yeah, shh.

"Valle: Okay

"Penalosa: ...

"Valle: [Penalosa], you may have to (unintelligible)

"Esqueda: (Unintelligible) for you to tell me so ...

"Valle: Yeah, he's real concerned about ... Ana.

"Penalosa: I'll be straight with you man, okay? Ana passed away." Upon hearing of Ana's death, Esqueda cried.

The transcript shows that throughout the remaining interview sessions, which were videotaped as well as audiotaped, Valle continued to play, for the most part, the role of a nice guy, while Penalosa became the inquisitor, or bad guy.

Penalosa continually accused Esqueda of killing Ana and immediately brought up his past life of crime and gangs, and the fact Penalosa knew him from before as a "big man [who] can take whatever comes your way."

At numerous points Penalosa brought up Esqueda's religious and ethnic background, pleading with God and talking to Esqueda in Spanish. He said [17 Cal. App. 4th 1473] God knew and made references to Mexicans having guns and liking to show them to friends. He said he would be talking with Ana's brother about Esqueda's nine-millimeter gun in the closet. He attacked Esqueda's manhood, his pride and his family relationships. He told Esqueda he would burn in hell and prevent Ana from resting in peace if he did not admit the killing or tell who did it.

Penalosa told Esqueda Ana had made statements before she died saying he had shot her. He also told him his children were not asleep when the shooting occurred and that they said he and Ana had gotten into an argument, that he had gotten the gun from the closet and the shooting was an accident. Penalosa professed to know the truth, and pleaded with Esqueda for "once in a lifetime-[to] tell the truth." Penalosa wanted to know why Esqueda had shot Ana.

However, for over six hours, Esqueda denied any involvement in the shooting and said he had already told the truth to Valle.

Penalosa persisted to grill Esqueda. Intermittently, Valle joined in on the questioning. He asked about Ana's statements made before she died, noting most dying declarations were truthful. At one point he commented he could still smell alcohol on Esqueda. He also interjected the police had a witness-some man near the dumpster of his apartment, or his truck-who said he saw only Esqueda go into the apartment that night.

Esqueda muttered "She can't be dead." He said he did not do it and that he was getting sick.

Penalosa told Esqueda he was facing first degree murder. He then delineated the various degrees and types of murder, advising Esqueda the charges would not be up to him or Valle. Valle chimed in again about Ana going to the grave telling the truth and Penalosa pleaded with him to be man enough to do something, to admit it, for his children.

Penalosa called Esqueda a disgrace and told him his story looked "awfully foolish." Valle again asked about Ana's dying declaration, accusing Esqueda of sending Ana to the grave with his "bullshit." Penalosa told him Ana's head was burned with powder and went up in a big flame. Valle told him if he wasn't man enough to tell them, it would be first degree murder.

Penalosa questioned why Esqueda would not take a lie detector test, saying people would say he was hiding something if he did not submit to one. He said the locals on the streets would say he "had an opportunity to [17 Cal. App. 4th 1474] come clean" and didn't. Penalosa told him to leave the street stuff behind and reassured him his family would understand Ana's killing was an accident, that it was done in a moment of anger.

Penalosa told Esqueda to quit being so selfish, to think of Ana and his children. He wanted him to think of how she thought of him now, how she would be able to rest in peace.

Valle then changed his stance, telling Esqueda he was lying. He asked if it was possible Ana took her own life, and noted Esqueda looked away when he asked this question. He then said maybe the gun accidentally discharged. If so, that would be a "hell of a lot better than murder one."

Valle continued talking about the fact Ana would not get up tomorrow to be with him or the children. He said if Esqueda honestly cared and loved her and truly and honestly loved his children and himself, he would admit what he had done. He told Esqueda he could not let Ana go to her grave with this mess, that he had to let her go in peace.

Penalosa jumped on the bandwagon, stating Ana was "history," and accusing Esqueda of not caring about the safety of his children. He said if it were an accident, or she took her own life, or he and Ana were scuffling, "that's what we have to hear." He then matter-of-factly stated they would be removing the bullet from Ana's head the next day.

At this point in the interrogation, Esqueda asked, "Is she gone?" When Valle said, "She's dead," Esqueda said he was going to be sick. Valle yelled at him, "How can you sit there?" and said he was "gonna keep asking you and keep asking you and keep asking you until you tell me." Esqueda again said he was going to be sick and then vomited. Valle gave him some water and something to wipe his mouth and told him it was all right, "[y]ou're a man-hang on," and "[l]et's straighten out this story."

Without a break, the detectives continued to question Esqueda. Valle told Esqueda to make "believers" out of them, to be man enough to tell them, and that he must right the injustice to Ana if he loved her. Penalosa told him this matter could go either way, "positive" or "negative." He told him that by not talking it only "makes it worse for you."

Penalosa then described the autopsy that would be performed on Ana and told Esqueda that's what would happen because of him. He then reminded Esqueda that Ana's dying words, in "her last breath," were that Esqueda was a killer. Penalosa also said Esqueda's children would not lie, that Esqueda [17 Cal. App. 4th 1475] was selfish to put them through this. He played upon Esqueda's honor and pride saying the "only way [to] make it right for [Ana] is to tell the truth." Penalosa reiterated he knew Esqueda did it, he just wanted to know "why." He begged Esqueda to tell out of loyalty to the woman he loved, made love to and had children with.

Penalosa said there were no guarantees that there would be "[a] tomorrow." He told Esqueda they had to get his statements to the district attorney and that if he refused to say anything, then that's what they'll get. Penalosa said he was not there to send Esqueda to the electric chair or to put him away in prison for the rest of his life. He just wanted a credible story that goes with the facts. He said that would be in Esqueda's favor. He told Esqueda that by covering up, it looked premeditated.

Valle asked Esqueda, "[H]ow come you want to hang for first degree murder?" When Esqueda did not reply, Valle commented that Esqueda was allowing them to talk to him so he must be trying to tell them something. When Esqueda still did not respond, Valle said it "doesn't matter [to you]"; that if it mattered Esqueda would talk, and by not doing so all Valle could see was premeditated murder. He told Esqueda, "You can't even defend yourself now."

Esqueda then asked if they were going to take him to jail or what. Valle asked him if he wanted to go. Esqueda did not respond.

At that moment, Detective Hill entered the interview room and began yelling at Esqueda, telling him what his son had said and questioning whether he loved his children. Hill said Esqueda did not "give a shit about [his] kids." Esqueda asked what she wanted him to say. Hill said he was calling his son a liar; that he was pathetic and not a man, and that he didn't have "the balls to accept what he'd done."

At the same time that Hill was yelling at Esqueda, Valle was reminding Esqueda again of the man by the dumpster and Ana's dying declaration. He said Esqueda had to convince them. He told Esqueda that they were just beginning to question him, that there was more to come. He said Esqueda's family would want him to tell who killed Ana. He then said they had been there too long and the detectives left the room, leaving Esqueda there for almost an hour.

The transcript shows that the interview continued with Hill playing the tape she had recorded of the interview with Esqueda's son. After hearing the tape Valle said, "[Y]our own kids ... Jesus, Lord have mercy." He then [17 Cal. App. 4th 1476] said to Esqueda, "Don't stop.... Turn around and face us." He told Esqueda things now looked bad for him with his son and daughter as witnesses-that that was strong enough evidence. Valle told Esqueda not to stop now, "keep coming," that it was important to continue. He told him to trust them and to talk to them.

When Esqueda continued to turn away from Valle, he told Esqueda not to avoid him, to look at him, to say something. He said, "You're avoiding me because you don't want to ... say something. We need for you to say something." He also pleaded with Esqueda to "[c]ome on. Talk, man, talk. Come on. I'm not gonna stop until you tell us.... That's the right thing to do.... We're gonna do it by getting to your emotions because that's what you have to do."

The transcript then showed that Valle touched Esqueda saying, "Touching you all over now. Come on, wake up. You got a brain; let's use it.... I didn't want your head going left and right anymore. I want it up and down. Okay?"

Valle also told Esqueda that out there he had the whole world to run, but "[l]ocked up, you got no place to go." He then asked if Esqueda wanted to leave his children without both a mother and a father. He said, "Now our job is [to] convince you that by talking to us, you'll have a better chance all the way around to have those children protected." He said if Esqueda were locked up he could not do anything for the children. When Esqueda continued to shake his head no, Valle said, "I don't want to see that.... If we have to be here two days straight, we'll be here ...." He told Esqueda that they were not going to give up. He said if Esqueda would tell them who did it, "We'll be out of your face in a minute." He told Esqueda, "Your decision to stay quiet [is] not the right decision ...."

Penalosa and Valle then talked about the neighborhood and the rumors that would be flying about Ana's death and about Esqueda. Esqueda said he could not do it. Valle replied that after six hours Esqueda was finally making sense-implying that Esqueda must mean he could not tell who did the shooting, but that he knew who did it. He asked Esqueda if they needed six more hours to get him to talk. He told Esqueda it was his job to get more information.

The detectives continued to go through Esqueda's story, talking about his family and the need for him to talk. Penalosa left the room to update his information from other investigating detectives. Valle then talked about the "street code" and asked if it would take 10 or 12 more hours. Valle noted that Esqueda was getting tired and appealed to Esqueda's love of his family. [17 Cal. App. 4th 1477]

When Penalosa returned, he took the inquisitor's position again, telling Esqueda his time was up. Penalosa had received more information from the crime scene and the laboratory people and it was definite now that Esqueda had done it. He said Esqueda could "go all the way up to state prison saying, 'I didn't do it.' " He continued to press Esqueda on why he did it. He questioned him about his guns and went through his story again. This time Esqueda admitted he struggled with the man in the apartment for the gun and it went off, hitting Ana; he would not say who the man was.

Penalosa again appealed to Esqueda's manhood, saying it would take a real man to tell who killed Ana. He also stated that once Esqueda went through processing and to county jail it would be all over.

At this point the transcript shows Valle left the room while Penalosa questioned Esqueda alone. Penalosa spoke to Esqueda some more in Spanish, and again mentioned his family, the neighborhood, and his manhood. When Valle returned he said Esqueda's story did not go with what the expert at the scene had found. He said the only person Esqueda could have scuffled with was Ana, which would account for the burns to her head and the blood splattered in the apartment. Valle stood up close to Esqueda's face and said he now believed the shooting was intentional. Esqueda continued to deny he shot Ana. Valle continued to tell him he wanted the truth, saying Esqueda was going to take the rap for this; he was going to go to jail, to court and face the jury.

Penalosa then resurrected Ana's dying statements, asking why she would say such a thing if it weren't true. When Esqueda would not answer, Valle stated: "Huh, you know, there ain't nothing to discuss anymore. Those guys, experts, over there know what they're doing. [Esqueda] has no idea what he's doing. His stories are so far out, he's [making] so many holes in his story-Everything you told us, nothing proves out. Nothing. If he wants to go down for premeditated, for first degree murder; he wants to make a fall for that, that's your business. You'll have plenty of time to think about it. There's a big difference between premeditated planning and accidental, man. You know that. This is it. That's it. The guys, the expert out there knows what they're talking about. [Esqueda] does not know what he's talking about. I need to know why, I need to know-And I know. But you've got to tell me that it was an accident and not premeditated."

Esqueda said, "It was an accident but I didn't do it." Valle, however, continued to tell Esqueda he did it and tore apart his denials. He told him his story was no good.

Penalosa then began asking questions again, this time playing the nice guy. He had Esqueda go over his story again. Detective Hill then returned to [17 Cal. App. 4th 1478] the interview room and Valle left the room. Hill and Penalosa took turns quizzing Esqueda about his and Ana's relationship, his family, his drinking. They then talked about him struggling with the man to get the gun. They then said it was Ana and he who struggled over the gun. Esqueda said they did not believe him, and asked "What can I say then?" Hill suggested it was not his fault-that it was an accident.

Valle returned to the interview room, bringing in new information that Esqueda had talked with Ana's brother Neto at around 9:30 p.m. the night before and had asked him, "Who is Ana fucking?" Esqueda said that was "bullshit." Valle also said the rumor was that "Ana was fucking [his nephew] Bat." Esqueda admitted he saw Neto, but denied the rest of the information was true. He said he only asked Neto what was happening with his sister.

Valle got in Esqueda's face and said things were getting hot now, that they were now getting into premeditation. He told Esqueda the game was over. All three detectives then questioned Esqueda on whom he scuffled with, asking if it was a family member, or why would he not say. At one point he said he did not want his family to be hurt, that "it'll [be] better if I don't talk man."

Valle then shared new information from the laboratory about the rag Esqueda had had in his hands at Western substation that he kept twisting and the police took away. He said it tested positive for gun powder residue and asked Esqueda to account for that. Valle went on about how if residue showed up on the rag, it would probably show up on the truck's steering wheel. He then said to Esqueda, "Oh boy, I tell you. Um, um, um, um. Come on man. Premeditation ... versus accident man. Let's do it. Let's do it. Let's do it." He said Esqueda had to decide whether to take the rap for premeditation and planning or accident.

Penalosa then gave an example of a guy who was caught with a lot of evidence and he said he did not know or did not remember and professed he did not do it and "that's the way the guy's gonna go to the joint."

Valle then brought up rumors from the "hood" (neighborhood) that Esqueda was a hit man and had some involvement in Manuel "Kiki" Rodriguez's death. He asked Esqueda why he was willing to "even take the chance on first degree murder when it seems like you were upset, she was upset, and it was an accident. There's a big difference man." Esqueda said, "I'm just not gonna say nothing."

Valle continued to ask why Esqueda forgot to tell them about going to Neto's. Esqueda said he just forgot some things. Valle told him "you got to [17 Cal. App. 4th 1479] talk to us now about saving yourself .... Whether you premeditated, you planned this, or whether it was an accident man. It's your only ticket out of here right now."

Esqueda still said he did not do it. Nor would he say who did. Penalosa told him he was not helping his family or anybody by not saying anything. Finally, at 9:50 a.m., Valle told him they had heard enough of his denials and told him to get ahold of them if he had something to say. The interview session then ended so Esqueda could be processed.

The transcript began again after the processing with Esqueda standing up and handcuffed. Penalosa told him the detective was back from the morgue with the autopsy report. He said everything Esqueda had told them just did not jibe. He told Esqueda there were prints on Ana's neck where Esqueda tried to choke her. He showed him a picture with Ana's lip busted and asked why Esqueda did it. Esqueda continued to deny he did it and denied he cut Ana's lip.

Penalosa said that when they talked before, he did not have this information, but that this stuff was going to put him away. Esqueda said that Penalosa wanted to call it an accident. Penalosa told him to tell him. Esqueda then changed his story.

Esqueda said Ana got a gun from the closet, told him she was tired of his shit, pulled the gun and said, "How do you like it?" He said he did not want to make Ana's name look bad, but she pointed the gun at him and when he tried to take it from her, it went off. He said she was on the couch and he must have grabbed her by the neck and pushed her down in his attempt to get the gun. He admitted the gun was his nine-millimeter Beretta. He said he threw it away, he did not know where. He said he panicked when the gun went off. He did not tell what happened before because he did not want to dirty Ana's name.

Penalosa then told Esqueda to sit down and said he would get him a cigarette. Esqueda went over the part about the gun and throwing it out of the truck while driving to the hospital. He recounted the events of the day again and mentioned his visit with Neto. He cried while telling this story. Penalosa told him he understood and that it was okay to cry.

Penalosa took his handcuffs off when he asked him to demonstrate how Ana was holding the gun when he came into the apartment. After answering further questions, Esqueda cried some more and begged Penalosa not to dirty Ana's name. After making more statements about the gun and the bullets, [17 Cal. App. 4th 1480] and going over his story again, Esqueda repeated he did not want to dirty Ana's name. He said he had now told the whole truth.

When asked if his statements were made of his own free will, he said "yeah." He said he would rather hurt because he loved her, but he would not ask for her forgiveness as it "wasn't my fault you know." He then apologized for lying and asked for some water. End of interview and end of transcript.

Testimony in the preliminary hearing transcript was also included for the trial court's review for the suppression motion. It showed that Valle testified similarly to his testimony at the motion hearing. It also showed that Valle accompanied Esqueda during the time he was processed as a jail inmate and his medical examination conducted. Valle also said that Esqueda's condition at the time he talked with Penalosa during the afternoon session of May 27, 1991, after processing, was "very exhausted." He said it had been a "long night and a long morning." Valle said Esqueda "never asked to terminate [the interviews] and he never asked for an attorney." He said "he never told us he wanted to stop speaking to us and that's why we continued and held him for so long in speaking to him."

Also pertinent to the suppression motion, the police officer who obtained Esqueda's consent at the gas station to search his apartment, Officer Thomas Gardenhire, testified at the preliminary hearing. Gardenhire said that when he arrived at the station Esqueda was wringing his hands and talking very loudly; he was tense and almost "irrational." Esqueda was "crying and moaning and appeared very distressed." He made statements about "it should have been him that they shot and not ... her"; and he said the "they" was "a person in his house wearing a ski mask that had shot her." Esqueda was reluctant at first to answer questions and to give a consent to search; "[h]e just stood there and cried." After Gardenhire said he needed to check to see "if what he had told me was true about the gunman and the ski mask, we would need to get in there for evidence," Esqueda gave consent, saying he had weapons in the house.

1) Miranda

The requirements of Miranda are well established. [1] To assure protection of the Fifth Amendment privilege against self-incrimination, "a suspect may not be subjected to an interrogation in official 'custody' unless he has previously been advised of, and has knowingly and intelligently waived, his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent. Even if the suspect initially waives these rights and [17 Cal. App. 4th 1481] responds to interrogation, he may reinvoke them at any time. If he does so 'in any manner and at any stage of the process,' his request to terminate the questioning or obtain counsel must be 'scrupulously honored.' [Citation.] Statements obtained in violation of Miranda are not admissible to establish his guilt." (People v. Boyer, supra, 48 Cal.3d at p. 271.)

[2] To invoke the protections of Miranda, a suspect must be subjected to a "custodial interrogation," i.e., he must be "taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda v. Arizona, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706].) "[T]he ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125 [77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517], quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495 [50 L. Ed. 2d 714, 719, 97 S. Ct. 711].) Where no formal arrest has taken place, the pertinent question is "how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L. Ed. 2d 317, 336, 104 S. Ct. 3138], fn. omitted.)

[3] As our Supreme Court recently noted in People v. Morris (1991) 53 Cal. 3d 152, 197 [279 Cal. Rptr. 720, 807 P.2d 949]: "Whether custody has occurred short of a formal arrest depends upon the totality of the circumstances, including such factors as: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning. No one factor is dispositive. [Citation.] And, ... the mere fact that [a person] was a suspect does not establish custodial interrogation.... '... Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." ' [Citations.]" (People v. Morris, supra, 53 Cal.3d at p. 197, italics omitted.)

[4a] Applying the above factors in this case, we conclude that under the totality of the circumstances a reasonable person in Esqueda's position would have understood his freedom of movement was significantly restricted such that he was "in custody" at the beginning of questioning by Valle at Central.

First, the site of the interrogation by Valle was initially at the Western substation and then at the downtown central police headquarters. Esqueda was transported to both places by uniformed police officers. The downtown interview room was only accessible by security code. When Esqueda was taken there, one officer was left to guard him either in a lobby of the interview room or a holding tank until Valle arrived to take over. [17 Cal. App. 4th 1482]

Although Valle testified Esqueda agreed to come downtown for questioning from the Western substation, no evidence was presented to show he willingly agreed to go to Western from the gas station. Esqueda was already in an interview room at Western when Valle arrived there. The trial court's finding that Esqueda willingly agreed to go to Western is thus not supported in the record.

Further, Esqueda reluctantly consented to a search of his apartment after he was told the police needed to check out his story to see if it were true. fn. 18 Although Esqueda was allowed to roam around the gas station until he was transported by two uniformed officers to Western, he was not allowed to accompany his live-in companion to the hospital or to leave Western to go to the hospital. Moreover, he was separated from his children and not given any information about Ana's condition when requested.

Next, before the interview at Central, the investigation had focused on Esqueda as the suspect in Ana's murder. The trial court so found and its finding on this factor is fully supported by the record. Not only were gunshot residue swabbings taken from Esqueda's hands at Western, Valle knew before commencing the interview that Esqueda's son said, "Daddy killed Ana," that Ana had died, and that Esqueda had consented to a search of his apartment. Although Valle said he did not know any particulars about the physical evidence at the apartment until Penalosa arrived nearly an hour after Esqueda's interview at Central began, he had been at the scene for briefing before contacting Esqueda at Western, and had looked into the apartment at that time.

That Esqueda had been asked for the consent, had not been allowed to go to the hospital, had been taken to Western, had been asked to go to the downtown homicide interview rooms reached only by security measures, had been accompanied by uniformed officers to both Western and downtown, and had been guarded while in the homicide building tends to show some indicia of arrest. A reasonable person could have easily presumed under such circumstances that he or she was not free to leave. Finally, the forms of questions asked Esqueda by Valle, although not specifically accusatory, were purposefully stated in a comforting manner by Valle because he knew he would lose Esqueda to further questioning if he asked questions in an accusatory fashion. They were also asked at a time when Esqueda's mental condition was suspect. Throughout the interview Esqueda was crying, moaning, and often confused. In addition to getting personal data, such as date of [17 Cal. App. 4th 1483] birth and his address, Valle had Esqueda tell his story over and over again. Esqueda had a seventh grade education, had been drinking and was hysterical at times, asking about the condition of Ana and his children. Valle lied to him about Ana's condition, arranged to have someone pick up his children, and constantly tried to comfort Esqueda while having him repeat his story.

[5] , [4b] Although generally a trial court's ruling on a Miranda issue will not be set aside unless it is lacking substantial evidentiary support (In re Eric J. (1979) 25 Cal. 3d 522, 527 [159 Cal. Rptr. 317, 601 P.2d 549]), and we normally " 'give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence ..." (People v. Jennings (1988) 46 Cal. 3d 963, 979 [251 Cal. Rptr. 278, 760 P.2d 475]), here the totality of the uncontroverted evidence does not support the trial court's conclusion Esqueda was not in custody until Detective Penalosa entered the interview room with additional information from the crime scene that conflicted with his intruder story. Rather the evidence shows a reasonable person would have understood he or she was "in custody" at the start of the first interview with Valle at Central. The trial court thus erred in denying Esqueda's motion to suppress his statements made in violation of his Fifth Amendment rights. As we discuss later, this error was prejudicial.

2) Voluntariness

[6a] , [7] Turning to the issue of whether the trial court erred in allowing Esqueda's taped statements into evidence, we note the burden is on the prosecution to prove the voluntariness of such statements by a preponderance of the evidence. (People v. Markham (1989) 49 Cal. 3d 63, 65, 71 [260 Cal. Rptr. 273, 775 P.2d 1042].) fn. 19 [8] The use in a criminal prosecution of a confession, admission or statement which is obtained by force, fear, promise of immunity or reward is a denial of the state and federal constitutional guarantees of due process of law. (Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L. Ed. 2d 653, 658, 84 S. Ct. 1489].)

The question raised by the due process clause in cases of claimed psychological coercion, such as this one, "is whether the influences brought to bear upon the accused were 'such as to overbear [the defendant's] will to resist and bring about [statements or admissions] not freely self-determined.' [Citation.]" (People v. Hogan (1982) 31 Cal. 3d 815, 841 [183 Cal. Rptr. 817, 647 P.2d 93].) [17 Cal. App. 4th 1484]

[9] We note that the " 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent [statement or admission] involuntary.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, ' "[w]hen the benefit pointed out by the police ... is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.]' [Citations.]" (People v. Howard (1988) 44 Cal. 3d 375, 398 [243 Cal. Rptr. 842, 749 P.2d 279].)

Moreover, "[w]hile the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citations.]" (People v. Hogan, supra, 31 Cal.3d at pp. 840-841.)

[10] In determining whether admissions or statements were voluntary or coerced, we look to the totality of the circumstances, examining both the characteristics of the accused and the details of the interrogation. (People v. Hogan, supra, 31 Cal.3d at p. 841.) [6b] Having done so here, we are convinced that Esqueda's statements were not the product of a free and voluntary disclosure after a voluntary Miranda waiver. fn. 20 Rather, they, as well as the specific statements elicited during the third segment of interviewing at Central, were the product of outrageous police behavior. fn. 21 After lengthy and unlawful pre-Miranda questioning, the police, using lies, trickery and threats, coerced a "waiver" of Esqueda's Miranda rights. What followed is so reminiscent of the police conduct in the late 1950's that led the United States Supreme Court in Spano v. New York, supra, 360 U.S. 315, [17 Cal. App. 4th 1485] to strike down a confession as to cause wonder that we have come so far since then, yet progressed so little.

The police originally contacted Esqueda shortly after 10 p.m. on May 26, 1991. He was transported to Western where he talked to Valle from 1:40 a.m. to 2 a.m. on May 27, 1991. He was then transported downtown to Central and interviewed by Valle from 2:25 a.m. to 3:30 a.m. After obtaining the "waiver" of Miranda rights, Valle and Penalosa, interspersed by visits from Hill, proceeded to badger Esqueda from 3:30 a.m. until 6:35 a.m., and again from 7:35 a.m. to 9:50 a.m. The prisoner, accompanied by Valle, was then "processed" and booked beteween 9:50 a.m. and 1:30 p.m. He was questioned again from 1:30 p.m. until 2:10 p.m. before the police detectives were finally able to break his story.

Including the pre-Miranda interrogation, the police questioned Esqueda for eight hours. He, of course, received no rest during his processing and received little, if any, respite from the constant police pressure to confess.

Esqueda was hysterical at the time the interviewing started. He had been drinking and was obviously distraught. By Valle's own account, Esqueda was emotionally distraught and exhausted, yet he and the other police detectives unremittingly pressured their prey until he finally yielded.

He was continually lied to about Ana's condition for over an hour. Thereafter, he was lied to about Ana making dying declarations accusing him of the crime, about Ana's head being burned by gunfire, about finding fingerprints on Ana's neck, about his fingerprints being found on the bullet that killed Ana, about a witness by a dumpster saying Esqueda was the only person to go into the apartment that night, about being investigated for the murder of another person he had known on the streets, and about the gunshot residue evidence showing he shot Ana.

Valle and Penalosa both pleaded with Esqueda about his family, Ana and his children. They, and Hill, questioned and appealed to his manhood, his religion, and his Hispanic heritage. They suggested various mitigated and non-mitigated scenarios again and again. While this by itself could be considered merely pointing out the consequences which would "naturally flow from a truthful and honest course of conduct," here the detectives went too far. They implied questioning would only stop if Esqueda gave them the story they wanted. They told him what they wanted when he asked what they wanted him to say. At first they said they wanted the truth. Later, they said [17 Cal. App. 4th 1486] they wanted to hear only who killed Ana and suggested it would be better for him if it was an accident. They said they knew it was him and that it was only a matter of intentional or accidental killing. They told him his only way out was to say it was an accident. They implied by so saying he would not have to go to prison and would be out with his children.

The transcript of the interviews shows Esqueda really did not want to talk. We are satisfied he tried to avoid self-incrimination. Several times he indicated he did not want to talk further. At one point he turned away from his tormentors, who told him to turn around and said they were going to keep at the interrogation. They described their job as being one to convince him that he would "have a better chance all the way around to have [the] children protected" if he talked and told him that they would keep at it "[i]f we have to be here two straight days, we'll be here." Several times Esqueda expressed his desire not to talk by saying that "it'll be better if I don't talk, man" and later said, "I'm just not gonna say nothing."

Clearly, Miranda itself required the police to terminate the interrogation at any of those points. They did not. The police detectives used lies, accusations, exhaustion, isolation and threats to overcome Esqueda's resistance. Detective Hill screamed at him for his involvement of the children in this affair. As we have pointed out, the other officers appealed to his manhood, his religion, and his Hispanic heritage, and, when all else failed, clearly advised him his refusal to talk would be interpreted as evidence of premeditation and support a charge of first degree murder. They repeatedly told Esqueda that if he admitted the shooting was an accident, he would be better off, and clearly suggested to him he would avoid the more serious charge by that admission. The message was very clear. Failure to tell them what they wanted to hear would result in greater charges.

Esqueda stuck by his story for as long as he could. The continued battery of questions by the detectives finally broke through. He was exhausted, he had had nothing to eat, he had gotten sick and vomited, he had been processed, he had been shown pictures of the autopsy, and he had been told they would continue to question him until they got what they wanted. As Valle said at one point, "We're gonna do it by getting to your emotions because that's what you have to do." They got to his emotions, and he gave them a story they could finally accept. End of interview.

The totality of the circumstances surrounding Esqueda's statements raises a strong doubt as to their voluntariness. "While no physical abuse of [Esqueda] occurred, coercion also includes 'the brainwashing that comes [17 Cal. App. 4th 1487] from repeated suggestion and prolonged interrogation ....' [Citation.]" (People v. Hogan, supra, 31 Cal.3d at p. 843.) It was repeatedly suggested by the detectives Esqueda was guilty and the only question was whether the killing was premeditated. It was repeatedly suggested he could only save himself by saying it was an accident. That is what he finally did.

On this evidentiary basis, this court cannot conclude by a preponderance of the evidence that Esqueda's statements and admissions were "freely self-determined" as required by due process. The trial court therefore erred again when it determined his statements were voluntary.

We are mindful the focal point of Miranda and of the concerns for voluntariness are protection of the accused's right of silence. Once a defendant has waived his or her right of silence, the police have some latitude to interrogate with other than Chesterfeldian politeness. Where, however, the waiver is defective, the defendant has indicated a desire for silence, and the police have taken advantage of his exhaustion, emotions, and minimal education, and have used lies and threats to achieve their result, we do not hesitate to declare such an interrogation violative of the fundamental constitutional protections guaranteed each citizen by the Fifth and Fourteenth Amendments.

3) Prejudice

[11] Nor do we have any doubt that the erroneous admission of Esqueda's statements and the playing of the taped interviews requires reversal. Their admission was not harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279 [113 L. Ed. 2d 302, 111 S. Ct. 1246]; see People v. Sims (1993) 5 Cal. 4th 405 [20 Cal. Rptr. 2d 537, 853 P.2d 992] and People v. Cahill (1993) 5 Cal. 4th 478 [20 Cal. Rptr. 2d 582, 853 P.2d 1037].) The remaining evidence of Esqueda's involvement in Ana's killing was mainly circumstantial, with the only direct evidence being the inconsistent statements of his children. On this record we cannot be satisfied beyond a reasonable doubt that the jury would have convicted Esqueda of murder had they not heard and seen his taped statements. Nor can we assume Esqueda would have testified, claiming he attempted to get the gun from Ana to prevent her from committing suicide, had his statements been suppressed. (People v. McClary (1977) 20 Cal. 3d 218, 231 [142 Cal. Rptr. 163, 571 P.2d 620].) The prosecutor heavily relied upon Esqueda's trial testimony and his statements made at the interviews during closing argument to show he fabricated both the intruder story and the story about struggling with the gun. Esqueda's murder conviction must therefore be reversed and the gun use finding on that charge set aside. [17 Cal. App. 4th 1488]

Disposition

Our disposition makes it unnecessary to address Esqueda's remaining contentions concerning his murder conviction. His contention regarding the restitution fines is moot as the one imposed for the murder charge falls. His conviction for possession of a silencer and its corresponding sentence and restitution fine are affirmed.

Wiener, Acting P. J., and Work, J., concurred.

FN 1. All statutory references are to the Penal Code unless otherwise specified.

FN 2. Esqueda was heard to say while wandering around, "Why do they have to-they came for me. Why did they have to get her?" and "It should have been me. Why didn't they shoot me? Why did they kill her? Why her? I should have been hit. I tried to stop him." He also said, "I'm going to get him. He won't get away with it. This won't happen to me again."

FN 3. The officer who obtained Esqueda's consent said Esqueda was so upset he had to have the consent form read to him. He also seemed confused, providing at first the wrong street address for his apartment.

FN 4. There was blood on the couch and loveseat in the living room, and on the wall and floor near the loveseat. No blood was found anywhere else in the apartment.

FN 5. While at Western, swabbings for gunshot residue were taken from Esqueda's hands. No mention of the swabbings was allowed in evidence before the jury.

FN 6. Esqueda was placed in a holding tank for the hour between these interview sessions.

FN 7. Ana and Esqueda were second cousins.

FN 8. Beatriz testified Ana once told her she would die young and not see her children grow up because Esqueda was always threatening to kill her. Ana told her that "[h]e points a gun to my head," and she was afraid to leave him because "he's always threatening to take Ayza away from me, or kill me, and kill some other members of the family."

Hector testified that when he last saw Ana, she told him Esqueda was still beating her without provocation and had put a gun to her temple. Ana said Esqueda had threatened to kill her if she tried to leave him and would kill all the men in their family, then her mother and then the rest of the family.

The court admonished the jury Ana's statements as related by her family members were admitted into evidence for the limited purpose of showing her state of mind and not for the purpose of proving Esqueda's conduct.

Beatriz also testified that Ana thought Esqueda was seeing another woman and told about an earlier incident where Esqueda got mad when another man looked at Ana's backside.

FN 9. The women's testimony varied in minor ways concerning the statements made by the children and as to the children's demeanor when Esqueda approached them in the mini-market.

FN 10. The autopsy revealed numerous recent bruises and contusions to Ana's face, torso, and extremities caused by blunt force such as a fist or hand. The bullet that killed Ana entered the upper right forehead, traveled downward toward the left and lodged in the back of her scalp. The bullet was from the same source as the ammunition found in Esqueda's apartment and the bullet found in his truck. Other tests showed that the gun had been fired at close range, "[p]robably well under ten inches."

FN 11. Valle stated that Esqueda was a witness during the first two interviews, the one at Western and the first hour at Central. He said Esqueda became a suspect and was Mirandized for the third interview session, which was also videotaped. The interview at Western was not taped at all and the second one (the first one at Central) was audiotaped only. Valle also said Esqueda "dry heaved" during the interview at Central.

Penalosa testified about the classic "Mutt and Jeff" interrogation used in this case and admitted he lied to Esqueda throughout the questioning. Both he and Valle stated Esqueda was tired throughout the interviews, which were lengthy and without any appreciable breaks except for the nearly three and a half hours for processing Esqueda as a county jail inmate, i.e., fingerprinting; taking blood, urine, hair and handwriting samples; photographing; changing clothing; going to a hospital for a general examination; and returning to the homicide offices.

FN 12. The edited versions deleted any mention of gangs, Esqueda's former gang name and prior record, any drug dealing, any reference to being a "hit" man, any possible allegations of child molest, and any reference to the gunshot residue and swabbings.

FN 13. Some of the statements made by Azael which were allegedly inconsistent with those admitted into evidence in the prosecution case were: "He shot her at the fence"; "She got two guns"; "Ana go after it"; "And that man get up, and I saw it at my house" and he "got killed in the head"; "Ana choked me"; Ana said "I'm going to kill him"; that he saw Ana find a gun; "My Dad called the cops. And he shot those cops." These statements read in context with the remainder of Azael's interview reveal both Ana and Esqueda may have been struggling for the gun, with each saying he or she was going to kill the other.

FN 14. The court also cautioned the jury that statements attributed to Ana by Dolores and Estella only went to a determination of Ana's state of mind.

FN 15. Esqueda admitted he got mad once at a man who looked at Ana for too long in his presence. He also stated Ana accused him of sleeping with Dolores a few weeks before the shooting.

FN 16. Esqueda said he took the clip out and threw it and the gun out the window. He did not want anyone to be able to put the gun back together. He admitted he knew if he got rid of the gun, it would not be possible to check for Ana's fingerprints to see if she held it in her hand.

FN 17. The court also used the hearing to take evidence in regard to Esqueda's motion to suppress the statements of his children.

FN 18. Esqueda was also reluctant to allow the officers to search his apartment because he had weapons there and had been arrested before for the possession of a weapon.

FN 19. The standard is the same for the issue of whether the waiver of Miranda rights is voluntary. (People v. Markham, supra, 49 Cal.3d at pp. 65-67, 71.)

FN 20. Although Esqueda did not specifically raise the issue of his waiver being involuntary, the fact that his rights were belatedly given in violation of Miranda under circumstances suggesting an ambiguous waiver is a factor to be considered in reviewing the totality of the circumstances. The record reflects when Penalosa initially made contact with Esqueda he accused him of lying, reviewed his story and got him to say Ana's shooting was an accident before Valle read Esqueda his constitutional rights. Esqueda was equivocable about waiving his rights, saying he had already talked to Valle about his story, but would be willing to talk more if the detectives did not "blame" him. He agreed to talk with Penalosa at the prompting by Valle that Penalosa was the detective that had some information about Ana for him. The "waiver" of his Miranda rights was clearly coerced by the combined effect of the unlawful interrogation that preceded it, the lies used by the officers, and the threats that were the prelude to the "admonition of rights." When asked if he was willing to talk, Esqueda said, "I already did."

FN 21. The initial questioning by Valle is perhaps best described as a method of "clever softening-up" (see People v. Honeycutt (1977) 20 Cal. 3d 150, 160 [141 Cal. Rptr. 698, 570 P.2d 1050]), where the subsequent barrage of questions from Valle and Penalosa followed the classic "Mutt and Jeff" routine, with Valle the good guy and Penalosa the bad guy.