Filed 11/5/13 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE PEREZ,

Defendant and Appellant.

 B242119

 (Los Angeles County

 Super. Ct. No. LA064981)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Michael K. Kellogg, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle 

and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
2

Appellant Jose Perez challenges his convictions for kidnapping to commit 

rape, attempted kidnapping to commit rape, and other offenses. He contends the 

trial court erred in declining to suppress his statements to police, arguing that he 

asserted his right to remain silent and his right to counsel under Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda). We reject the contentions and affirm. 

RELEVANT PROCEDURAL BACKGROUND

On July 1, 2011, an 11-count information was filed, alleging that appellant

committed offenses against five victims. The information charged appellant with 

attempted forcible rape and kidnapping to commit other crimes regarding Emily 

M. (Pen. Code, §§ 261, subd. (a)(2), 209, subd. (b)(1); counts 1 and 7); attempted 

kidnapping to commit another crime regarding V.M. (Pen. Code, §§ 209, subd. 

(b)(1), 664; count 2); lewd acts upon a child regarding Kaylie S. (Pen. Code, § 288, 

subd. (c)(1); count 3); kidnapping to commit another crime regarding Debbie F. 

(Pen. Code, § 209, subd. (b)(1); count 4); and attempted kidnapping to commit 

another crime regarding Jessica F. (Pen. Code, §§ 209, subd. (b)(1), 664; count 5).1 

Furthermore, with respect to each victim, the information charged appellant with 

assault with intent to commit a felony (§ 220, subd. (a); counts 6, 8 through 11). 

Accompanying counts 1, 7, and 8 were allegations that appellant inflicted great 

bodily injury (§ 12022.8). Appellant pleaded not guilty to all the counts and 

denied the special allegations. Prior to trial, the charge of lewd acts upon a child

(count 3) was dismissed.

At the beginning of the trial, the court denied appellant’s motion to suppress 

certain statements that he made to Los Angeles Police Department (LAPD) 

detectives, and later denied his motion for reconsideration of the ruling. A jury 

1 All further statutory citations are to the Penal Code. 
3

found appellant guilty as charged on all counts, with the exception of count 10. 

Regarding count 10, the jury found appellant guilty of the lesser included offense 

of assault against Kaylie S. The jury also found true the great bodily injury 

allegations asserted in connection with counts 1, 7, and 8. The trial court 

sentenced appellant to two terms of life imprisonment plus 17 years. 

FACTUAL BACKGROUND

A. Prosecution Evidence

1. Offenses Against Emily M. (Counts 1, 7, and 8) 

Emily M. was born in May 1993. On March 19, 2009, at approximately 

5:55 p.m., she was seated in a secluded outdoor area of the Sherman Oaks Center 

for Enriched Studies, studying for a test. She saw a Hispanic man standing nearby, 

watching children on a playing field. He looked into the school windows, and then 

jumped over a brick wall. Moments later, he placed his hands over Emily’s mouth 

and said, “Shut up.” When she resisted, he punched her face. As she retreated 

from him, his punches made her fall, but she repeatedly got back up on her feet. 

She eventually found herself on the ground in some bushes, where he choked her

and tried to remove her pants and underwear. Emily held onto her clothes and 

kicked the man, who eventually ran out of the school yard. 

After the incident, Emily’s left eye orbital was determined to be fractured. 

DNA material found on Emily’s top matched appellant’s DNA. 

 

2. Offenses Against Jessica F. (Counts 5 and 6)

On May 8, 2009, at approximately 5:30 p.m., Jessica F. was walking home 

from school. She was then 15 years old. She noticed a man driving a silver 

Volkswagen up and down the street, and thought that he might be looking for a 

street corn vendor. The man parked near a corn vendor, and walked past her. 
4

From behind her, he put an arm around her neck, placed a hand on her mouth, and 

dragged her toward his car, whose rear passenger door was open. Jessica noticed 

that there was a tattoo on the man’s right forearm. In an effort to escape, Jessica 

hit the man in the head with a water bottle that she had been holding. The blow 

caused the man to fall and release her. He ran to his car, closed the rear passenger 

door, and drove away.

At trial, Jessica identified appellant as her assailant, and appellant showed 

the jury his right forearm, which bore a tattoo that read “Destinee.”2 

3. Offenses Against V.M. (Counts 2 and 9) 

V.M. was born in February 1996. On November 11, 2009, at approximately 

2:00 p.m., she was walking to a friend’s house when she noticed a Hispanic man in 

front of her on the sidewalk. He grabbed her and tried to push her into a nearby 

car, whose rear door was open. Her screams attracted the attention of two 13-yearold boys, Chris May and Connor Mcaree, who tried to assist her. V. resisted the 

man, slipped out of his grip, and ran from him. The man then drove away. At 

trial, May and Mcaree identified appellant as V.’s assailant. 

4. Offense Against Kaylie S. (Count 10)

On April 26, 2010, at approximately 4:25 p.m., Kaylie S. -- then 14 years 

old -- was waiting in front of her younger brother’s elementary school. She 

planned to meet her brother and ride home with her parents. Appellant drove past 

her in a gray Volkswagen Jetta, made a U-turn, and parked his car. He left the car 

and asked Kaylie whether she had seen a certain small child. She noticed that he 

2

Jessica acknowledged that after the attack, she identified a different man as her 

assailant in a photographic lineup.
5

had the name “Destinee” tattooed on one of his arms. Appellant asked her several

questions, including whether he could have her phone number, and then grabbed 

her left breast with his hand. Kaylie pushed him away, entered the school, and 

phoned 911. When police officers arrived, she gave them the Jetta’s license plate 

number. The officers later determined that appellant was a registered owner of the 

Jetta. 

5. Offenses Against Debbie F. (Counts 4 and 11)

Debbie F. was born in November 1991. On April 28, 2010, at 

approximately 3:30 p.m., she was walking from her high school to her father’s 

house. As she neared the house, she entered an alley and saw a parked white SUV. 

A man left the SUV and opened the vehicle’s rear door. As Debbie began to 

unlatch the gate to the yard of her father’s house, the man grabbed her legs, lifted 

her off the ground, and threw her onto the SUV’s rear seat. Debbie then heard 

shouts from her uncle, Douglas Sanchez. She fled from the SUV, which drove 

away. 

Sanchez noted the SUV’s license plate number, and provided it to the police 

officers who responded to his 911 call. Shortly afterward, appellant was detained 

while driving a white SUV bearing the reported license plate number. Appellant 

was later determined to be a registered owner of the SUV. 

6. Police Interviews

On April 28, 2010, LAPD Detectives Alvarez and Cole interviewed 

appellant regarding the attempted kidnapping of Debbie F. After Alvarez advised 

appellant of his Miranda rights, appellant agreed to the interview and denied any 

misconduct regarding Debbie F. 
6

The next day, on April 29, 2010, LAPD Detectives Doerbecker and Blizzard

interviewed appellant. At the beginning of the interview, Doerbecker reminded 

appellant that Alvarez and Cole had advised him regarding his Miranda rights, and 

that he had waived them before speaking to Alvarez and Cole. Appellant agreed to 

talk to Doerbecker and Blizzard. 

Appellant said that when he saw Debbie F., she winked at him. He 

maintained that he only wanted to scare her, and that he had no plan to rape or kill 

her. He stopped his car, picked her up off the ground, and tried to put her in his 

car. When “some guy came out,” he drove away. 

Appellant further stated that he saw Kaylie S. near an elementary school 

while driving his girlfriend’s Jetta. He parked the car, approached her, and 

grabbed her breast, but left when she told him to stop.

Regarding Emily M., appellant stated that he was walking around the 

campus of the Sherman Oaks Center for Enriched Studies when he began talking 

to her. A fist fight between them ensued, and after a while, he walked away. He 

denied that he intended to kill Emily, but admitted that he wanted to have sex with 

her. 

Appellant acknowledged that he grabbed V.M., but denied any recollection 

of the incident involving Jessica F. He further stated that he had attacked as many 

as ten victims. After the attacks, he went home and masturbated. He said that his 

fantasy was to be able to rape somebody, and that he had once paid a prostitute to 

act out a rape fantasy. 

 

B. Defense Evidence

LAPD Detective Katherine Gosser testified that on March 19, 2009, she 

spoke to Emily M. in a hospital in Tarzana. Emily said that her assailant covered 

her face with his hands and said, “Sh,” which Emily understood to mean, “Don’t 
7

say anything.” He then pushed her to the ground, and repeatedly kicked and 

punched her. When she tried to stand up, he shoved her back down. She moved 

away from him, but he followed her. Eventually, he pushed her into some bushes 

and began choking her. He also tried to rip her clothing off. She resisted furiously 

and broke his grip on her. 

LAPD Detective Scott Crowe testified that after the incident involving V.M., 

he interviewed Chris May. According to Crowe, May said that he could not 

identify V.’s assailant because he saw him at a distance. 

LAPD Officer Jusef Kassis testified that when he interviewed Jessica F., she 

recalled no tattoos on her assailant.3 

DISCUSSION

Appellant contends the trial court erred in denying his motions to suppress 

his statements during the April 29, 2010 interview with Detective Doerbecker and 

his colleagues. As explained below, we disagree.

A. Governing Principles 

In Miranda, the United States Supreme Court “adopted a set of prophylactic 

measures to protect a suspect’s Fifth Amendment right from the ‘inherently 

compelling pressures’ of custodial interrogation. [Citation.] . . . [¶] To counteract 

the coercive pressure, Miranda announced that police officers must warn a suspect 

prior to questioning that he has a right to remain silent, and a right to the presence 

of an attorney. [Citation.] After the warnings are given, if the suspect indicates 

3

In rebuttal, the prosecution presented testimony from Paula F., Jessica F.’s sister. 

According to Paula, after the attack, Jessica said that her assailant had a tattoo on his right 

arm. 
8

that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, 

if the suspect states that he wants an attorney, the interrogation must cease until an 

attorney is present. [Citation.] Critically, however, a suspect can waive these 

rights. [Citation.]” (Maryland v. Shatzer (2010) 559 U.S. 98, 103-104.)

Once suspects have waived their Miranda rights, in order to halt police 

questioning after it has begun, suspects must “unambiguously” assert their right to 

counsel or silence. (Davis v. United States (1994) 512 U.S. 452, 459 [right to 

counsel] (Davis); Berghuis v. Thompkins (2010) 560 U.S. 370, __ [130 S.Ct. 2250, 

2260] [right to silence] (Berghuis).) Thus, after a suspect’s Miranda rights have 

been waived, if the suspect makes an ambiguous or equivocal statement 

concerning the right to counsel or silence, the police are not required to end the 

interrogation, or ask questions to clarify whether the suspect wishes to invoke his 

or her Miranda rights. (Davis, supra, 512 U.S. at pp. 461-462; Berghuis, supra, 

130 S.Ct. at pp. 2259-2260; People v. Martinez (2010) 47 Cal.4th 911, 947-948 

(Martinez).) The invocation of the right to counsel or silence is assessed by 

reference to how a reasonable police officer would understand the suspect’s 

remarks. (Davis, supra, 512 U.S. at p. 459; see Berghuis, supra, 130 S.Ct. at 

p. 2260; People v. Nelson (2012) 53 Cal.4th 367, 376-378 (Nelson).) 

“In reviewing Miranda issues on appeal, we accept the trial court’s 

resolution of disputed facts and inferences as well as its evaluations of credibility if 

substantially supported, but independently determine from undisputed facts and 

facts found by the trial court whether the challenged statement was legally 

obtained.” (People v. Smith (2007) 40 Cal.4th 483, 502.)
9

B. Interviews 

1. First Interview

On April 28, 2010, LAPD Detectives Alvarez and Cole interviewed 

appellant regarding the incident involving Debbie F. Shortly after the interview 

began, Cole advised appellant of his Miranda rights, and appellant affirmed that he 

understood those rights:

“Detective Cole: . . . You have the right to remain silent. Do you 

understand?

“[Appellant]: Yes.

“[Detective Cole: Anything you say may be used against you in court. Do 

you understand?

“[Appellant]: Yes.

“Detective Cole: You have the right to the presence of an attorney before 

and during any questioning, Do you understand?

“[Appellant]: Yes.

“Detective Cole: If you cannot afford an attorney, one will be appointed for 

you free of charge, before any questioning, if you want. Do you understand?

“[Appellant]: Yes.” 

Following the advisements, appellant agreed to “talk about what happened.” 

Throughout the interview, appellant repeatedly denied that he attempted to kidnap 

Debbie F. 

Near the midpoint of the interview, Detective Sanchez joined Detectives 

Alvarez and Cole. Sanchez told appellant: “So, again, let me emphasize. The 

reason you are here is to give your side of the story. . . . If you don’t want to say 

anything, that’s fine. That’s your right. Be quiet. Don’t answer any questions and 

we’ll go off. We’ll all leave. You go to jail and you go to court sometime in the 

future. . . .” Appellant replied, “Okay.” 
10

Shortly afterward, Alvarez told appellant that his public defender would 

explain that “an attempt” was the same as “completing the act,” and Sanchez urged 

appellant to “give a statement.” The following colloquy then occurred: 

“[Appellant]: I’m not going to say anything no more. You guys can’t make 

me say anything. I’m not going to say --

“Detective Sanchez: What’s that?

“[Appellant]: I’m not going to say anything no more.

“Detective Sanchez: You don’t want to answer any more questions?

“[Appellant]: No more questions.”

“Detective Sanchez: All right.” 

When the detectives asked appellant to stand up and relax, the following 

exchange took place:

“Detective Sanchez: Are you willing to take a lie detector test?

“[Appellant]: Yeah.

“Detective Sanchez: Yes? Good. We’ll get that set up for you.

“[Appellant]: All right.” 

After appellant agreed to the polygraph test, the interview ended.

2. Second Interview

The next day, appellant was interviewed by Detectives Doerbecker and 

Blizzard. At the beginning of the interview, Blizzard reminded appellant that he 

had talked to detectives the previous night. The following dialogue then occurred:

“Detective Blizzard: . . . And I know that the detectives admonished you of 

your Miranda rights.

“[Appellant]: Yes.

“Detective Blizzard: Of your rights.

“[Appellant]: Yes.
11

“Detective Blizzard: And you waived your rights and you agreed to speak to 

them.

“[Appellant]: Yes.

“Detective Blizzard: Okay. So you want to talk to my partner and I as well?

“[Appellant]: Okay.

“Detective Blizzard: It that okay?

“[Appellant]: Yeah.” 

When Blizzard urged appellant to describe what had happened regarding 

Jessica F., appellant initialed the following dialogue:

“[Appellant]: Can I ask a question?

“Detective Blizzard: Yes.

“[Appellant]: How come I haven’t talked to a, like, attorney or something?

“Detective Blizzard: How come what?

“[Appellant]: That I haven’t talked to, like to an attorney or something like 

that?

“Detective Blizzard: Because --

“Detective Doerbecker: You’ll -- you’ll get assigned an attorney when 

you’re arraigned if you -- if you want one free from the state. They’ll give you one 

then. If you want to hire one, you can hire one whenever you want[,] but that’s 

why.” 

Appellant made no further references to an attorney. In response to the 

detectives’ questions, he admitted his participation in several of the offenses 

charged against him. 

C. Underlying Proceedings 

Prior to trial, appellant filed a motion to suppress his statements during the 

second interview, arguing that Doerbecker and Blizzard failed to re-advise him of 
12

his Miranda rights, and questioned him after he invoked his right to counsel. In 

denying the motion, the trial court concluded that during the first interview, Cole 

gave “clear and sufficient” advisements regarding appellant’s Miranda rights, and 

that at the beginning of the second interview, Doerbecker and Blizzard provided an 

“implied readvisement” of those rights. The court further determined that during 

the second interview, appellant did not invoke his right to counsel when he asked 

why he had not spoken to an attorney. Although the trial court remarked that 

Doerbeker’s response to appellant’s question was “troubling,” it found no defect of 

“constitutional dimension[]” that mandated suppressing appellant’s statements. 

Later, appellant asked the court to reconsider its ruling, arguing that he 

invoked his right to remain silent at the end of the first interview. The court 

concluded that appellant made no “clear invocation of his right to remain silent,” 

noting that appellant immediately agreed to a polygraph test, which necessarily 

involved further questioning, and later agreed to talk to Doerbecker and Blizzard 

after they reminded him that he had heard and waived his Miranda rights. 

D. Appellant’s Contentions 

Appellant contends he unequivocally invoked his right to silence at the end 

of the first interview, and unequivocally invoked his right to counsel during the 

second interview. 

1. No Invocation of Right to Silence

We agree with the trial court that appellant did not invoke his right to silence 

during the first interview. After the suspect has waived his right to silence, officers 

are not obliged to stop their questioning absent an unambiguous invocation of that 

right. (Berghuis, supra, 130 S.Ct. at p. 2260.) This “bright-line rule” permits 

officers to continue questioning unless the suspect clearly invokes the right to 
13

silence, as determined under the reasonable-officer standard. (Nelson, supra, 53 

Cal.4th at p. 377.) Although it is often “good police practice” for officers to make 

clarifying inquiries when the suspect makes an ambiguous or equivocal statement,

there is no duty to do so. (See Davis, supra, 512 U.S. at p. 461; Nelson, supra, 53

Cal.4th at p. 377.)

Under these principles, remarks that facially suggest a desire to halt police 

questioning do not, in fact, invoke the right to silence if they are reasonably viewed 

as unclear or equivocal. (Berghuis, supra, 130 S.Ct. at p. 2260; Nelson, supra, 53 

Cal.4th 367.) In People v. Stitely (2005) 35 Cal.4th 514, 534, the defendant denied 

his complicity in the underlying crime and said to the interrogating officer, “I think 

it’s about time for me to stop talking.” However, when the officer responded, 

“You can stop talking,” the suspect continued to deny that he committed the crime. 

(Ibid., italics omitted.) Our Supreme Court determined that a reasonable officer 

would have concluded that the suspect’s remark expressed only “apparent 

frustration,” rather than an unequivocal desire to stop the interrogation. (Id. at 

pp. 535-536.) In so holding, the court noted that the officer gave the suspect a 

clear opportunity to invoke his right to silence by stopping the interview and 

reminding him of his right to “‘stop talking.’” (Id. at pp. 535-536.) 

In People v. Jennings (1988) 46 Cal.3d 963, 977, the defendant said to the 

interrogating officers, “I’ll tell you something right now. You’re scaring the living 

shit out of me. I’m not going to talk.,” and “I’m not saying shit to you no more, 

man. You, nothing personal man, but I don’t like you. You’re scaring the living 

shit out of me. . . . That’s it. I shut up.” Shortly thereafter, the defendant 

apologized for his remarks and continued to answer questions. (Id. at p. 979.) In 

view of the defendant’s conduct and the circumstances surrounding the 

interrogation, our Supreme Court concluded that his statements did not invoke the
14

right to silence, but expressed “only momentary frustration and animosity” toward 

one of the interrogating officers. (Id. at pp. 978-979.) 

Again, in Martinez, a detective issued Miranda advisements to the 

defendant, who agreed to an interview regarding a specific assault. (Martinez, 

supra, 47 Cal.4th at pp. 944-945.) When the defendant said, “‘That’s all I can tell 

you,’” the detective ended the interrogation. (Id. at p. 944.) The next morning, 

two other detectives met with the defendant, reminded him that he had previously 

waived his Miranda rights, and interrogated him regarding the assault and other 

crimes. (Id. at pp. 944-946.) During the interrogation, the defendant said, “‘I 

don’t want to talk anymore right now.’” (Id. at p. 945.) In response, the detectives 

announced that they intended to take a break, urged the defendant to “‘think about 

it,’” and said that they would come back and talk to him. (Id. at pp. 951-952.) The 

defendant replied, “‘Okay,’” and the detectives resumed their questioning after a 

break. (Id. at 952.) 

In concluding that the defendant did not invoke his right to silence during 

the initial interrogation, the Supreme Court determined that the defendant’s 

remark, “That’s all I can tell you,” was reasonably viewed as merely meaning, 

“‘That’s my story, and I will stick with it.’” (Martinez, supra, 47 Cal.4th at 

pp. 949-950.) The court further concluded that the detectives conducting the 

second interview were not obliged to re-administer Miranda advisements, as the 

defendant’s response to their reminder showed his understanding of the Miranda

rights. (Id. at p. 950.) The court also held that the defendant’s statement during 

the second interview did not invoke his right to silence, remarking that the 

detectives employed “‘good police practice’” aimed at clarifying the defendant’s 

statement by proposing a break and encouraging him to “‘think about it.’” (Id. at 

pp. 951-952, quoting Davis, supra, 512 U.S. at p. 461.) 
15

We conclude that appellant never invoked his right to silence during the first 

interview. To begin, the record shows that appellant was clearly apprised of that 

right and understood it. In addition to the Miranda advisements administered by 

Cole, Sanchez told appellant: “So, again, let me emphasize. . . . If you don’t want 

to say anything, that’s fine. That’s your right. Be quiet. Don’t answer any 

questions and we’ll go off. We’ll all leave. You go to jail and you go to court 

sometime in the future. . . .” In replying “Okay,” appellant manifested his 

understanding that he was entitled to end all questioning. 

The record also establishes that appellant never invoked that right, as 

determined under the “bright-line rule” (Nelson, supra, 53 Cal.4th at p. 367). 

Appellant said, “I’m not going to say anything no more. You guys can’t make me 

say anything,” and later, “No more questions.” (Italics added.) In response, the 

detectives halted their questioning. However, in view of the italicized phrase, it 

was reasonable for Sanchez to clarify whether appellant’s statements expressed 

transitory frustration toward the detectives, rather than a unequivocal desire to end 

questioning, by asking whether appellant would take a polygraph test. Because

appellant agreed to the test, he necessarily approved further questioning. 

Furthermore, the next day, appellant agreed to questioning by Doerbecker and 

Blizzard after they reminded him of his Miranda rights. 

Appellant’s reliance on Michigan v. Mosley (1975) 423 U.S. 96 and People 

v. DeLeon (1994) 22 Cal.App.4th 1265 is misplaced. In each case, the defendant

was advised of his Miranda rights and clearly invoked them regarding a specific 

crime, but agreed to a second interview regarding other crimes after receiving a 

fresh set of Miranda advisements. (Michigan v. Mosley, supra, 423 U.S. at 

pp.104-105; People v. DeLeon, supra, 22 Cal.App.4th at p. 1268.) The courts held 

that the second interview did not contravene the defendant’s invocation of his 

Miranda rights because it concerned different crimes. (Michigan v. Mosley, supra, 
16

at pp. 105-106; People v. DeLeon, supra, at pp. 1268-1272.) In contrast, appellant 

never unequivocally invoked his right to silence during the first interview. 

2. No Invocation of Right to Counsel

We also agree with the trial court that appellant did not invoke his right to 

counsel during the second interview. Generally, to invoke that right, “[t]he suspect 

must articulate sufficiently clearly his or her desire to have counsel present so that 

a reasonable officer in the circumstances would understand the statement to be a 

request for an attorney. [Citation.] ‘[I]f a suspect makes a reference to an attorney 

that is ambiguous or equivocal in that a reasonable officer in light of the 

circumstances would have understood only that the suspect might be invoking the 

right to counsel, our precedents do not require the cessation of questioning.’

[Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 432 (Williams), quoting 

Davis, supra, 512 U.S. at p. 459.)

An instructive application of these principles is found in Williams and 

People v. Davis (2009) 46 Cal.4th 539. In Williams, the defendant agreed to an 

interview with the interrogating detectives, who suggested that he was complicit in 

a murder. (Williams, supra, 49 Cal.4th at pp. 431-432.) The defendant said, “‘I 

want to see my attorney cause you’re all bullshitting now,’” but denied that he 

participated in the crime. (Id. at p. 431.) When a detective asked, “‘Do you want 

your attorney now or do you want to talk to us?,’” the defendant replied, “‘I’ll talk 

to him,’” but nonetheless agreed to continue the interview on the condition that one 

of the detectives remained silent. (Ibid., italics omitted.) The Supreme Court 

concluded that viewed in the totality of the circumstances, the defendant’s 

references to an attorney constituted an expression of frustration, rather than an 

invocation of the right to counsel. (Id. at pp. 432-433.) 

In People v. Davis, when the interrogating detectives accused the defendant 
17

of a kidnapping, he responded, “‘Well then book me and let’s get a lawyer and 

let’s go for it.’” (People v. Davis, supra, 46 Cal.4th at pp. 587-588.) The 

defendant further stated that he would answer what he called “routine questions,” 

but resented accusations that he participated in the crime. (Id. at p. 587.) The 

Supreme Court determined that the defendant’s remark to the detectives 

constituted the defendant’s application of a “‘challenge’” technique to deflect 

questions, rather than a request for counsel. (Id. at p. 587.) 

Here, the record establishes that appellant did not invoke his right to 

counsel. To begin, we note that appellant never expressly requested counsel, even 

when Alvarez suggested during the first interview that appellant’s public defender 

would explain to him that “an attempt” was the same as “completing the act.” 

Rather, when appellant made the pertinent reference to an attorney during the 

second interview, he framed his remark as a request for information. The record 

discloses the following dialogue: 

“[Appellant]: Can I ask a question?

“Detective Blizzard: Yes.

“[Appellant]: How come I haven’t talked to a, like, attorney or something?

“Detective Blizzard: How come what?

“[Appellant]: That I haven’t talked to, like to an attorney or something like 

that?”

Because appellant had never asked to talk to an attorney, yet used the past 

tense to express his question, Blizzard reasonably interpreted appellant to be 

inquiring how and when he might obtain representation, as no attorney had talked 

to him up to that point. That inquiry is unsurprising, in view of the fact that the 

Miranda advisements appellant received did not expressly advise him when, in the 

absence of a request for counsel, an attorney would be appointed to represent him.

In Duckworth v. Eagan (1989) 492 U.S. 195, 198, the interrogating officers issued 
18

Miranda advisements to the defendant informing him, inter alia, that he had a right 

to counsel during questioning, the right to stop questioning until he had talked to a 

lawyer, and the right to stop questioning at any time. In addition, the officers said, 

“[An attorney] will be appointed for you, if you wish, if and when you go to 

court.” (Ibid., italics omitted.) After the defendant waived his rights and 

confessed to the crime alleged against him, the Seventh Circuit concluded that the 

additional information rendered the Miranda advisements constitutionally 

defective, reasoning that it suggested that indigents lacked the right to appointed 

counsel before any interrogation. (Id. at p. 199.) The United States Supreme 

Court reversed that decision, concluding that the defendant had received adequate 

Miranda advisements, and that the additional information was merely an accurate 

statement of state procedure regarding the appointment of counsel. (Id. at pp. 203-

204.) In so holding, the high court remarked that “it must be relatively 

commonplace for a suspect, after receiving Miranda warnings, to ask when he will 

obtain counsel.” (Id. at p. 204, italics omitted.) That is the type of procedural 

information that Blizzard provided to appellant. 

Viewed in the totality of the circumstances, appellant’s inquiry did not 

constitute a clear invocation of his right to counsel under Miranda. When 

Doerbecker told appellant that an attorney would be appointed for him at his 

arraignment unless he hired a private attorney, appellant did not say he wished to 

speak to an attorney before further questioning, or even that he wanted counsel 

appointed, despite having been previously advised that if he could not afford an 

attorney, one would be appointed for him “free of charge, before any questioning.” 

Instead, appellant answered the detectives’ questions with no further reference to 

counsel, even though he had been told -- and claimed to have understood -- that he 

could end the interview at any time (see pt. D.1, ante). Because appellant’s inquiry 

was reasonably interpreted as a general procedural question regarding the 
19

appointment of counsel if he wished representation, rather than a request for 

counsel, the interrogating detectives had no duty to clarify the inquiry. (Davis, 

supra, 512 U.S. at pp. 461-462; Berghuis, supra, 130 S.Ct. at pp. 2259-2260.) In 

short, the trial court did not err in denying appellant’s motion to suppress his 

statements. 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.