Filed 2/26/24 P. v. Hammond CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DARNELL JAMES HAMMOND,

Defendant and Appellant.

F083530

(Kern Super. Ct. No. BF165964A)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 1, 2024, be modified as 

follows:

1. On page 6, the first paragraph is deleted. Deletion of this paragraph will 

require renumbering of all subsequent footnotes.

2. On page 6, the second full paragraph, beginning “Surveillance footage 

showed” is deleted and the following paragraph is inserted in its place:

Surveillance footage then showed a Saturn Ion1stop in front 

of the Quality Gas market front door, facing north towards Panama 

1

It was stipulated by both the prosecution and defense “the tan Saturn Ion and the black 

Nissan Altima ... are believed to be the vehicles used in the commission of the crimes ... 

on October 14th, 2016,” and “[t]he black Nissan Altima belongs to Jim Thomas 

Langston’s girlfriend,” and that Langston’s “DNA was not located in the tan Saturn Ion, 

but it was located near the seat belt locking mechanism in the black Nissan Altima. It is 

unknown when Mr. Langston’s DNA was transferred to the black Nissan Altima.” 
2.

Street, with three masked men exiting and entering the store. One 

suspect was armed with a Mac-11 assault pistol, wearing a black 

glove and a white glove, and black and white Nike shoes. Defendant

was armed with a black nine-millimeter handgun and wore white 

gloves, white Nike shoes, and a “New York Yankees” beanie. 

Givan, the third heavy-set suspect, was not armed. Langston 

remained in the Saturn throughout the extent of the robbery and 

ensuing homicides.

3. On page 6, the third full paragraph, beginning “Upon entering the market,” 

is deleted and the following paragraph is inserted in its place:

Upon entering the market, defendant and Givan headed to the 

back of the counter where Juan was located, and the other suspect 

pointed his firearm at Heriberto, who was standing in front of the 

counter, and demanded money. During this exchange, Heriberto 

pulled out a handgun, but was shot by the other suspect. Heriberto 

fell to the ground and was also shot by defendant. Defendant then 

turned towards Juan, who was on the floor behind the counter, and 

shot him as well.2 Rigoberto fell to the ground and stayed there until 

the men left. 

4. On page 7, the first full paragraph is deleted and the following paragraph is 

inserted in its place:

The other suspect then ran out of the store and got into the 

Saturn, which sped off. Defendant and Givan then left on foot. 

However, defendant returned to pick up cash trays from inside the 

market. Moments later, defendant exited the market and was seen 

by witnesses running away from Quality Gas, armed with a pistol, 

and carrying two cash trays. He was left behind.

5. On page 7, delete the second full paragraph.

6. On page 8, line 6, the word “Hammond” is replaced with 

“defendant” so the sentence reads:

Fidel later identified defendant as the individual in his yard in a sixpack lineup.

2 Defendant, the suspect with the two white gloves, wore a dark facemask with a 

small design near his chin, dark Nike brand shoes with a white logo, and a black 

sweatshirt with a white undershirt.
3.

Except for the modifications set forth herein, the opinion previously filed remains 

unchanged. The modifications do not alter the judgment. Defendant’s petition for 

rehearing is denied.

FRANSON, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.
Filed 2/1/24 P. v. Hammond CA5 (unmodified opinion)

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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DARNELL JAMES HAMMOND,

Defendant and Appellant.

F083530

(Super. Ct. No. BF165964A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John 

Merritt, Deputy Attorneys General, for Plaintiff and Respondent

-ooOooINTRODUCTION

On September 21, 2021, a jury convicted defendant Darnell James Hammond of 

the premeditated first degree murders of Heriberto Aceves and Juan Aceves (Pen. Code, 
2.

§§ 187, subd. (a), 189, counts 1 & 2),1 and found true all enhancements and allegations.2 

Subsequently, defendant was sentenced to two indeterminate terms of life without the 

possibility of parole, plus 50 years to life, and a determinate term of 10 years. 

On appeal, defendant contends: (1) the trial court committed reversible error when 

it admitted statements to Detective Anderson after he unequivocally invoked his right to 

remain silent pursuant to Miranda,

3 during both his first and second interrogations; and 

(2) he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021-2022 Reg. 

Sess.) (Assembly Bill 333), which amended the language of section 186.22, and added 

section 1109 requiring bifurcation of the trial of gang enhancements and substantive gang 

offenses from that of the underlying offenses upon a defendant’s request. Specifically, 

defendant argues the changes made by Assembly Bill 333 require dismissal of both his 

gang enhancements (§ 186.22, subd. (b)(1)) and the gang-murder special circumstance 

allegations (§ 190.2, subd. (a)(22)). The People concede the amendments to section 

186.22 apply retroactively and that the gang enhancements (§ 186.22, subd. (b)(1)) must 

be dismissed, but argue the changes made by newly enacted section 1109 do not apply 

retroactively. Regardless, the People contend defendant is not entitled to reversal of his 

convictions because he was not prejudiced by the trial court’s failure to bifurcate the gang 

enhancements. The People further contend the changes made by Assembly Bill 333 do 

not apply to the gang-murder special circumstance (§ 190.2, subd. (a)(22)), because any 

change would constitute an unconstitutional amendment to Proposition 21. During the 

pendency of this appeal, our Supreme Court held that “Assembly Bill 333’s definition of 

‘criminal street gang’ to the gang-murder special circumstance does not

1 All further references are to the Penal Code, unless otherwise stated.

2 As we discuss further below, defendant was also convicted and sentenced to 

additional offenses and enhancements. 

3 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). 
3.

unconstitutionally amend section 190.2(a)(22).” (People v. Rojas (2023) 15 Cal.5th 561, 

580, italics added (Rojas).)

Lastly, in supplemental briefing, defendant contends this case should be remanded 

to allow for him to make a record at a Franklin4 hearing, even though he was sentenced 

to two indeterminate terms of life without the possibility of parole, and the abstract of 

judgment must be amended to strike the section 1202.45 parole revocation fine. 

We accept the People’s concession, vacate the sentence, and remand for 

resentencing. Further, based on Rojas, we conclude the entirety of Assembly Bill 333 

applies retroactively to defendant’s case and, as to all offenses, reverse the section 

186.22, subdivision (b)(1) enhancements, and as to counts 1 and 2, reverse the gangmurder special circumstance allegations pursuant to section 190.2, subdivision (a)(22). 

On remand, the People are not foreclosed from retrying defendant on both the gang 

enhancements and the gang-murder special circumstance allegations, and the trial court 

can address the Franklin issues. The other claims lack merit. In all other respects, we 

affirm the judgment.

STATEMENT OF CASE

On August 9, 2021, the Kern County District Attorney filed a first amended 

information charging defendant with two counts of premeditated first degree murder 

(§§ 187, subd. (a), 189, count 1 (Heriberto) & count 2 (Juan)) with the special 

circumstances he committed multiple murders (§ 190.2, subd. (a)(3)), he was engaged in 

the commission or attempted commission of a robbery and burglary (§ 190.2, subd. 

(a)(17)(A) & (G)), and that he was an active participant in a criminal street gang and the 

murder was committed in furtherance of the gang (§ 190.2, subd. (a)(22)); two counts of 

robbery (§ 212.5, subd. (c), counts 3 & 4); active participation in a gang (§ 186.22, subd. 

(a), count 5); possession of a firearm by a felon (§ 29800, subd (a)(1), count 6); and 

4 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
4.

unlawfully carrying a loaded firearm, to wit, a handgun in public (§ 25850, subd. (c)(3), 

count 8). As to counts 1, 2, 3, 4, and 6, the information further alleged both a gang 

(§ 186.22, subd. (b)(1)) and firearm enhancement (§§ 12022.53, subd. (d), 12022.5, subd. 

(a)). Finally, as to all offenses, the first amended information alleged a prior strike 

offense for attempted robbery (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d), 211, 664) 

and a prior serious felony offense (§ 667, subd. (a)).5 

On September 21, 2021, a jury convicted defendant on all remaining counts and 

found true all remaining enhancements and allegations. As to the alleged prior strike and 

serious felony offense, the trial court in a bifurcated trial found true that defendant 

suffered a prior conviction for a violation of section 211/664, as alleged in the 

information. On October 7, 2021, a jury in the penalty phase of the trial sentenced 

defendant to life without the possibility of parole. 

Subsequently, as to count 1, the trial court sentenced defendant to an indeterminate 

term of life without the possibility of parole, plus consecutive terms of 25 years to life for 

the firearm enhancement (§ 12022.53, subd. (d)), and five years for the prior serious 

felony offense (§ 667, subd. (a)), plus a 10-year term for the gang enhancement 

(§ 186.22, subd. (b)(1)), but stayed the 10-year term pursuant to section 654. As to count 

2, the trial court sentenced defendant to an indeterminate term of life without the 

possibility of parole, plus consecutive terms of 25 years to life for the firearm 

enhancement (§ 12022.53, subd. (d)), and five years for the prior serious felony offense 

(§ 667, subd. (a)), to be served consecutive to count 1, plus a 10-year term for the gang 

enhancement (§ 186.22, subd. (b)), but stayed this 10-year term pursuant to section 654. 

As to count 3, the trial court imposed the upper term of five years, doubled to 10 years 

5 Prior to the jury trial, the People dismissed both count 5 (§ 186.22, subd. (a)) and 

count 8 (§ 25850, subd. (c)(3)) in the furtherance of justice. Further, as to count 6, the 

People dismissed the firearm enhancement (§ 12022.5, subd. (a)) for insufficient 

evidence. 
5.

because of the prior strike, plus 25 years to life for the firearm enhancement (§ 12022.53, 

subd. (d)) and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this 

sentence pursuant to section 654. As to count 4, the trial court imposed the upper term of 

five years, doubled to 10 years because of the prior strike, plus 25 years to life for the 

firearm enhancement (§ 12022.53, subd. (d)) and 10 years for the gang enhancement 

(§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. As to count 6, 

the trial court sentenced defendant to the upper term of three years, doubled to six years 

because of the prior strike, plus four years for the gang enhancement (§ 186.22, subd. 

(b)(1)), but stayed this sentence pursuant to section 654. The trial court also imposed a 

parole revocation fine of $300 pursuant to section 1202.45, but suspended the fine 

pending successful completion of parole. 

SUMMARY OF FACTS

I. The Prosecution Case-in-Chief

Heriberto and his two sons Juan and Jesus ran the Quality Gas, gas station and 

market, on the southwest corner of Main Street6 and Panama Road in Lamont, southwest 

of Bakersfield. Rigoberto,7 a friend of Jesus, also worked at Quality Gas. 

A. The Robbery/Murders and Subsequent Getaway8

On Friday morning, October 14, 2016, at approximately 9:30 a.m., codefendant 

Langston entered the Quality Gas market, and was observed on surveillance footage 

cashing his payroll check and then leaving. Langston wore a black hat with a white 

cursive “W.” 

6 Main Street is also referred to as Weedpatch Highway. 

7 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names or initials. No disrespect is intended.

8 The underlying facts of the robbery and murders are from both testimony and 

surveillance footage admitted during the trial.
6.

Shortly after leaving the store, Langston saw a dark colored Saturn Ion with three 

occupants following him and he eventually stopped. They asked if he would drive them 

to Quality Gas in exchange for $200. The three individuals were later identified as 

defendant Hammond, “Tiny,” and “Baby Goo.”9 Langston later told officers the three 

individuals threatened him and were armed. He admitted he was asked to “[b]asically” 

be their getaway driver. He agreed to drive the three to Quality Gas. Langston also told 

officers he left his Nissan parked on Collision Avenue, about four blocks north of Quality 

Gas, and drove the three suspects in the Saturn Ion10 to Quality Gas. 

Surveillance footage showed the Saturn stop in front of the Quality Gas market 

front door, facing north towards Panama Street, with three masked men exiting and 

entering the store. The suspect referred to as “Tiny” was armed with a Mac-11 assault 

pistol, wearing a black glove and a white glove, and black and white Nike shoes. 

Hammond was armed with a black nine-millimeter handgun and wore white gloves, 

white Nike shoes, and a “New York Yankees” beanie. Givan, the third suspect, was not 

armed. Langston remained in the Saturn throughout the extent of the robbery and 

ensuing homicides. 

Upon entering the market, Hammond and Givan headed to the back of the counter 

where Juan was located, and Tiny pointed his firearm at Heriberto, who was standing in 

front of the counter, and demanded money. During this exchange, Heriberto pulled out a 

handgun, but was shot by Tiny. Heriberto fell to the ground and was also shot by 

9 Detective Richard Anderson testified “Baby Goo” or “Big Dirt” was Myron 

Givan. Law enforcement believed Givan was the heavy-set suspect seen in the 

surveillance footage. We will refer to “Baby Goo” as Givan throughout this opinion. 

10 It was stipulated by both the prosecution and defense “the tan Saturn Ion and the 

black Nissan Altima ... are believed to be the vehicles used in the commission of the 

crimes ... on October 14th, 2016,” and “[t]he black Nissan Altima belongs to Jim Thomas 

Langston’s girlfriend,” and that Langston’s “DNA was not located in the tan Saturn Ion, 

but it was located near the seat belt locking mechanism in the black Nissan Altima. It is 

unknown when Mr. Langston’s DNA was transferred to the black Nissan Altima.” 
7.

Hammond. Hammond then turned towards Juan, who was on the floor behind the 

counter, and shot him as well.11 Rigoberto fell to the ground and stayed there until the 

men left. 

Tiny then ran out of the store and got into the Saturn, which sped off. Hammond 

and Givan then left on foot. However, Hammond returned to pick up cash trays from 

inside the market. Langston eventually picked up Givan and drove him and Tiny to 

Collision Street to switch cars. 

Moments later, Hammond exited the market and was seen by witnesses running 

away from Quality Gas, armed with a pistol, and carrying two cash trays. He was left 

behind. 

During this incident, Jose N. and Modesto N. were stopped at a red light at the 

corner of Main Street and Panama Road when they heard gunshots coming from the 

convenience store. Jose told Modesto he “heard gunshots, and he was like, ‘I did too.’ 

[They] glanced everywhere to see where it was and [they] couldn’t see until [they] s[aw] 

the people coming out of the store.” Two or three people exited the convenience store 

and Jose observed one individual “running on Panama.” Jose called 911 and followed 

the individual who ran “eastbound on Panama and northbound on Carnation [¶] ... [a]nd

then turned left on Lana Street.” The individual wore a black hoodie sweatshirt and “had 

a gun on his [¶] [l]eft hand” and a cash register “in the other hand.” Jose then observed 

the individual take off his black hoodie sweatshirt and “thr[o]w it in the yard” of the 

house at “the corner of Carnation and Lana Street.” 

Fidel C. lived at a residence on Panama Road in Lamont. On the morning of the 

robbery, Fidel observed an African-American man trying to hide in middle of his front 

yard. The man wore “all black ... a black hoodie and a white tank top.” “[H]e was, like, 

11 Hammond, the suspect with the two white gloves, wore a dark facemask with a 

small design near his chin, dark Nike brand shoes with a white logo, and a black 

sweatshirt with a white undershirt. 
8.

scared or trying to hide, trying to get away.” “He [then] just walked around the yard, and 

then he got in one of the cars that were parked out front” — a black Lexus. Fidel’s 

stepfather then came out and told the man to leave. The man wanted Fidel to hide him, 

“but [he] told him [he] couldn’t.” Subsequently, the man “took of his sweater and he 

threw it on the ground and he left[,]” but eventually came back and took the sweater with 

him. The man then ran eastbound. Fidel later identified Hammond as the individual in 

his yard in a six-pack lineup. 

B. Police Investigation 

Law enforcement personnel arrived on scene shortly after the shootings and found 

“several subjects were pointing eastbound down Panama Road yelling, ‘He’s going that 

way.’ ” Deputies began searching the area for the suspects and were notified by a 

resident at a Lana Street address “that they had seen or saw a subject running into that 

yard.” Deputies arrived at the residence and located a shed next to a detached garage. 

Defendant was found hiding inside the shed “squatting on his hands and knees.” He was 

arrested. He was unarmed, wore a white tank top with dark colored pants, and was not 

wearing shoes. However, deputies located a pair of Nike shoes next to defendant.12 

Further, deputies located over a thousand dollars “in a rolled up mesh – piece of mesh” 

inside the shed. One of the $100 bills had either “a blood stain or a blood drop.”13 

Deputies also searched the inside of the market and located both Heriberto and 

Juan’s bodies.14 Further, deputies found a payroll check made payable to codefendant 

Langston for $137, and two pistols. The first pistol, a nine-millimeter caliber semi12 Lieutenant Richard Anderson testified the suspect in the surveillance with the 

white gloves and handgun was the only suspect wearing the Nike shoes seized next to 

defendant. 

13 Criminalist G. Sugimoto analyzed the blood and testified that it was highly 

probable the DNA found on the bill belonged to Juan Aceves. 

14 Both Heriberto and Juan died from multiple gunshot wounds. 
9.

automatic SIG Sauer, was found next to Heriberto’s body. It was believed this ninemillimeter pistol was the firearm use by Heriberto to defend himself. The second pistol, 

a .25-caliber Beretta handgun, was located in a holster inside an office next to the 

checkout area. Deputies also located three spent bullets and 17 shell casings from the 

scene.15 Behind the store, deputies located a dark blue beanie with a New York 

Yankees’ logo.16 

Deputies also searched the surrounding area and located two white gloves, one of 

which had a cash tray discarded next to it. The gloves were stained and spotted with 

blood; the blood contained Juan Aceves’s DNA. Further, both gloves were tested for 

DNA, and it was highly probable the gloves contained defendant’s DNA.17 

C. Defendant’s First Interview18

Around midnight of defendant’s arrest, Detective Richard Anderson and Detective 

Tommy Robins interviewed defendant in custody at the sheriff’s department. Detective 

15 Firearms Analyst C. Snow analyzed the three bullets and testified “they shared 

similar class characteristics but [he] could not ID them as being fired by the same firearm 

or by the firearm that [he] received.” Further, as to the shell casings, he “found all of 

those shell casings to be inconclusive[;] [he] didn’t have enough individual 

characteristics to be able to ID them.” 

16 Criminalist B. Ramirez tested the beanie for DNA and it contained as least three 

contributors, but defendant “could not be excluded as a potential contributor to the DNA 

profile.” She testified Langston, Myron Gibbons, Heriberto, and Juan were excluded as a 

potential contributor, and calculated that “a match between this item and [defendant] is ... 

12 trillion times more likely for the African-American population.” 

17 The first glove revealed “at least four people contributing their DNA” and 

defendant “could not be excluded as a potential contributor to the DNA profile.” 

Specifically, it was 230 trillion times more likely defendant’s profile matched the sample 

than some random person in the African-American population. As to the second glove, 

there were four different contributors, but defendant’s DNA could not be excluded. 

Specifically, it was 1.5 billion times more likely defendant’s profile matched the sample 

than some random person in the African-American population. 

18 We provide a more exhaustive description surrounding these two interviews in our 

discussion regarding the alleged Miranda violations. 
10.

Anderson read defendant his Miranda rights; defendant acknowledged he understood 

these rights. 

Throughout the interview, defendant denied being involved in the robbery and 

instead claimed he consumed drugs, and that everything was just a “blur” that day. 

Although he admitted he was a member of the Country Boy Crips (CBC) gang, he denied 

being with any of his gang associates the day of the robbery. At the conclusion of the 

interview, Detective Robins collected defendant’s buccal swab.

D. Defendant’s Second Interview

Approximately 36 hours later, Detective Anderson interviewed defendant a second 

time at the jail. Defendant again indicated he understood his Miranda rights. Defendant 

admitted the group’s goal was to steal money from the convenience store, but maintained, 

“I’m no killer.” He did not plan to shoot anyone “[b]ut the two started shooting at 

[him].” Defendant then shot back by firing “anywhere.” 

E. Gang Evidence

Both parties stipulated to the following:

“The [CBC] are a criminal street gang as defined by Penal Code [s]ection 

186.22.

“On May 24th, 2012, an incident occurred that led to [defendant] getting 

convicted of Penal Code [s]ections 25400(c)(6), which is the unlawful 

possession of a firearm as a felony. And [section] 186.22(a), active 

participation in a criminal street gang as a misdemeanor.

“On November 7th of 2014, an incident occurred that led to [defendant] 

getting convicted of Penal Code [s]ection 29800(a)(1), felon in possession 

of a firearm as felony. And Penal Code [s]ection 186.22(a), active 

participation in a criminal street gang as a misdemeanor.” 

1. Prior Contacts

On May 24, 2012, Officer Brian Holcombe of the Bakersfield Police Department 

(BPD) was patrolling a CBC area when he contacted defendant. Defendant stated “[h]e 

was aware of where he was, as far as being in the traditional boundaries of the [CBC] and 
11.

that there were people present that were associated with that gang.” Defendant was 

arrested earlier that evening for possession of a firearm “which [officers] had seen him 

discard earlier that evening.” 

In December 2014, BPD Sergeant Chad Garrett contacted defendant while they 

were responding to a call for service. Sergeant Garrett observed “numerous tattoos,” 

specifically, “tattoos of deceased notable members of the [CBC]” and “a large ‘T’ and a 

‘B’ which stood for his known moniker of Teeter Bob, among others.” 

2. Gang Expert Testimony

BPD Lieutenant Nathan McCauley testified as an expert in the CBC gang. He 

testified the CBC’s primary activities are “[s]hooting, homicides, narcotic sales, auto 

theft, burglaries, [and] witness intimidation.” McCauley knew defendant and testified 

defendant’s tattoos established his loyalty to the CBC gang. He opined defendant “was 

an active member of the [CBC]” gang “based ... on his history of involvement in gang 

related crimes, admissions to being a gang member, tattoos on his person, and contacts 

with other gang members.” Lastly, McCauley opined the underlying crimes were “done 

as a combination of in association with, the benefit of, and at the direction of the [CBC] 

criminal street gang.” 

II. Defense Case-in-Chief

Defendant testified in his defense. He testified he intended to commit a robbery, 

but stated he did not want anyone to get hurt. Defendant also testified he admitted he was 

inside the convenience store because he “went by everything [that Detective Anderson] 

said” because the officer would not have believed him if he had told “the truth.” Overall, 

defendant testified Detective Anderson scared him during the second interview, which 

resulted in him admitting things that were not true. 
12.

Trial counsel also called Brian Leslie who was “an expert in coercive 

interrogation.” Leslie reviewed the interviews and testified the detectives used coercive 

techniques against defendant. 

DISCUSSION

I. DEFENDANT DID NOT UNEQUIVOCALLY INVOKE HIS MIRANDA RIGHT 

TO REMAIN SILENT. 

Before trial, defendant moved to exclude his two statements pursuant to Miranda. 

Defendant contends the trial court committed reversible error when it admitted his 

statements to Detective Anderson, after he unequivocally invoked his right to remain 

silent pursuant to Miranda. Specifically, defendant argues that his first interview his 

statements, “Are we done?” constituted an invocation of his right to remain silent. 

Additionally, as to his second interview, defendant argues he unequivocally invoked his 

right to remain silent on three separate occasions by telling Detective Anderson, “I can’t 

talk right now.” As to both claims, we disagree.19 At the Evidence Code section 402 

hearing, the trial court reviewed the recordings of the two hearings. 

A. First Interview

As noted above, defendant was read his Miranda rights and stated he understood 

his rights. During the interview, defendant repeatedly denied his involvement in the 

underlying crimes. After several minutes, defendant asked Detective Anderson, “Are we 

done?” Anderson responded by continuing to question defendant and defendant then 

asked two more times, “Are we done?” Anderson pushed back until defendant asked a 

19 At the outset, both parties agree defendant validly waived his Miranda rights at the 

beginning of the first interview, however there is dispute as to whether Detective 

Anderson was required to readvise defendant of his Miranda rights before initiating the 

second interview. (See People v. Ramirez (2022) 13 Cal.5th 997, 1106–1107 (Ramirez), 

citing to People v. Mickle (1991) 54 Cal.3d 140, 170–171.) As we discuss in detail 

below, Detective Anderson was not required to provide defendant with a readvisement of 

his Miranda rights before initiating the second interview at the jail. 
13.

fourth time, “Are we done?” Anderson responded, “Uh, that’s up to you. Are we done?” 

and defendant replied, “Yeah.” At this point, the interview ended. 

B. Second Interview

Defendant was interviewed a second time approximately 36 hours later and 

nodded his head in affirmation he understood his Miranda rights.20 Detective Anderson 

repeatedly asked defendant, “What happened?” and defendant continued to reply, “I’m 

no killer. I’m no killer.” Anderson told defendant, “This is your only time that you’re 

gonna be able to help yourself” and defendant replied, “I can’t talk right now, sir. I can’t 

talk right now.” 

Detective Anderson continued to question defendant. Eventually, the following 

relevant exchange occurred:

“[DETECTIVE ANDERSON]: I’m giving you an opportunity to tell the 

truth and do the right thing, [defendant]. It’s up to you to take it. Not up to 

me. I can’t – I can’t force you. It’s up to you, [defendant].

“[DEFENDANT]: (Unintelligible) I can’t talk right now. My head hurts. 

My hair itches.”21 

Defendant then admitted to being in the convenience store at the time of the robbery. 

Specifically, defendant explained, “We just trying to go in get some money[,]” “[b]ut the 

two started shooting at [him].” He continued by stating the individual “was trying to grab 

the gun[,]” [¶] “[a]nd he shot. I didn’t even mean to shot — I just (unintelligible) I just 

shot anywhere.” At the end of the interview, defendant stated he would “rather talk to a 

20 Specifically, in the audio file, Detective Anderson is heard asking defendant, “You 

understand your Miranda rights I read to you at the substation, right? At the 

headquarters? Is that a yes? You’re nodding your head yes?” 

21 Although People’s Exhibit 6A indicates that defendant said, “That’s — my air 

hurts, sir,” it is clear in the recording (People’s Exhibit No. 111) defendant told Detective 

Anderson, “My head hurts. My hair itches.” 
14.

lawyer[,]” and Detective Anderson replied, “Okay ... You’re free to go back, man.” The 

interview ended. 

C. The Evidence Code Section 402 Hearing 

Both the prosecutor and trial counsel called witnesses at the evidentiary hearing. 

1. Detective Richard Anderson’s Testimony

Detective Anderson, who is six feet, four inches tall and weighs 300 pounds,

testified for the People. He testified he was trained to stop an interview if the suspect 

clearly invoked his right to remain silent or obtain representation. However, he was also 

trained to continue interrogating the suspect, even after a suspect invokes their right to 

remain silent, so that their statements can be used for impeachment in the event the 

suspect testifies in their own defense. 

Anderson first interviewed defendant around 11:00 p.m. or midnight on the same 

day as the shooting. During this interview, Anderson informed defendant he was under 

arrest and advised him of his Miranda rights; defendant acknowledged he understood his 

rights. During that first interview, defendant continued to deny involvement in the 

robbery and Anderson testified he ended the interview because “talking to [defendant] 

any further would have been pointless” and he “didn’t see that pushing him would be 

fruitful.” 

Two days later, Detective Anderson interviewed defendant a second time. 

Anderson testified he continued to question defendant after he said, “I can’t talk to you 

right now. I can’t talk to you right now” because he did not understand these statements 

as a clear invocation to remain silent. He did admit that during this interview he 

slammed his hand down on the table and began “yelling” at defendant causing defendant 

to cry. 

2. Dr. Kimberly Fenn’s Testimony

Dr. Kimberly Fenn testified for the defense as an expert on sleep deprivation’s 

effects on memory and cognitive function. She is a psychology professor at Michigan 
15.

State University, and before testifying she reviewed other expert reports and listened to 

the recordings of both interviews. 

Dr. Fenn testified a lack of sleep reduces an individual’s inhibitions, and according 

to studies the brain tends to over-emphasize rewards, which leads to riskier decisions. 

Further, she testified a lack of sleep can distort memories and the ability to retrieve or 

recall them. In experimental settings, “after sleep deprivation individuals are four times 

more likely to falsely confess to an act they did not commit than if they had slept the 

night before.” Dr. Fenn opined defendant was sleep deprived during his first interview. 

3. Brian Leslie’s Testimony

Brian Leslie, a former police officer and consultant, testified for the defense as an 

expert on interrogation techniques. He reviewed audio and video from both interviews 

and opined that Detective Anderson used both “minimization” and “maximization” 

techniques, which could be coercive. 

4. Supplemental Briefing

 Defense counsel filed a supplemental brief where he argued defendant had 

unambiguously invoked his right to silence multiple times during the first interview when 

he asked Detective Anderson, “Are we done?” Further, he argued Anderson “reasonably 

believe[ed]” defendant had unequivocally invoked his right to remain silent because the 

detective ended the interview after he clarified defendant was “done speaking with the 

officer.” 

As to the second interview, defense counsel, citing Edwards v. Arizona (1981) 451 

U.S. 477 (Edwards), argued this prior invocation was still effective because he did not 

reinitiate contact with the police. Further, counsel stated the interview improperly 

continued because defendant told Detective Anderson three times, “I can’t talk right 

now,” which constituted an unequivocal invocation to remain silent. 

The prosecutor responded that defendant validly waived his Miranda rights and 

the statement, “We’re done” was not a clear invocation to remain silent. Further, the 
16.

prosecutor argued Edwards only applies to situations where a suspect unambiguously 

invokes the right to counsel. Lastly, the prosecutor argued a reasonable officer would not 

have understood defendant’s statements, “I can’t talk right now” as unambiguous 

assertions of his right to remain silent. 

5. The Trial Court’s Ruling

After hearing additional argument, the trial court concluded that defendant’s 

statements, “Are we done?” made during the first interview were not clear invocations of 

the right to remain silent. Specifically, the trial court stated the following:

“The first issue on [defendant] -- I’m going to take them sequentially 

– is whether or not [defendant] entered a knowing and voluntary waiver to 

the rights that were given to him in his first interview. I think the knowing 

and voluntary waiver comes in in two forms. One is the fatigue issue that 

was brought up through expert witnesses. And second, whether or not there 

was an audible response on the waiver that was given -- that was recited to 

him. Whether he affirmatively responded that he understood one of the 

particular advisals. [¶] ... [¶]

“The next question we address is whether or not the defendant 

invoked at the end of his rights -- end of the questioning. That is, in -- he 

asked the question to the detective. I believe it was Anderson. Are we 

done? To me that is clearly not an affirmative assertion or desire to end the 

interview and not a clear invocation of his rights to end the interview. And 

based upon the tone of the question and the circumstances of the 

questioning, where there was really no new information being offered to the 

questions of law enforcement and the context of the conversation, I think it 

was an expression of frustration by the defendant, if anything, that, you 

know, this is sort of pointless. It wasn’t saying, I’m done.

“The response by Detective Anderson was interesting because it did 

essentially in a disbelieving approach summarize the story the defendant --

the statements that the defendant had given with the sort of impression that, 

you expect me to believe this, what you’ve told me? And the detective then 

went on to say, you know, are we done? Do you expect me to believe this? 

You tell me are we done. And at that point the defendant said, we’re done.

“Do I see this as a clear invocation of assertion of rights? No. I 

think it has reached a loggerhead in the interview and the interview 

essentially came by mutual agreement to termination.
17.

“But I certainly see the point the defense has argued in this, that 

when you have the repetition in this way and the defendant eventually 

saying, yeah, we’re done, that that’s an assertion of his rights. But in the 

overall context of how this interview played out, again, I side with 

Detective Anderson’s interpretation of it.

“The next step that we have is the re-interview being proper 

regardless of the invocation of the defendant. The Court does wish to 

comment a little bit about the defendant’s sophistication and understanding 

of criminal processes.

“We know that based upon his statements in the initial interview he 

was recently released from parole within a few months time. He has a 

significant criminal history that I think has been covered in other motions 

that we have addressed. And obviously has some contact -- significant 

contact with law enforcement, as well as, to me, apparent gang 

identification. If by no other means, then -- while we haven’t heard a gang 

expert on it, his tattoos and previous contact with law enforcement, as well 

as his probationary status not to have gang contact. That’s a common term 

and condition of parole -- or probation. I would assume parole as well on a 

gang -- a case involving a gang allegation conviction.

“The defendant in the first interview, one argument is that he was 

fatigued and tired and not fully competent. The other one is that he was 

very relaxed in his interview. Did not appear to be overly stressed. And 

obviously, I think, was well aware of his rights and not intimidated by the 

situation or by the detective. And 33 hours, I think we have by mutual 

understanding, was passed, though there was some testimony it was the 

next afternoon and maybe 11 or 12 hours later, but I think everyone agrees 

factually that it was a longer period of time. If there is a dispute on that, I 

would invite some further information to clarify that. But I do think that’s 

a significant point.” 

As to the second interview, the trial court concluded defendant’s statements, “I 

can’t talk right now” was not an invocation of his right to remain silent. Specifically, the 

trial court stated the following: 

“The detective confirmed that he remembered his Miranda rights. 

And I would just comment societally, Miranda rights are somewhat 

engrained into society. I can’t -- the number of times I’ve heard someone 

accused of a crime comment, I wasn’t read my rights, who was not a 

criminal. In other words, someone that got stopped for driving under the 

influence or driving on a suspended license and was complaining to me in 
18.

some fashion whether as a judge or as an attorney, that the cops never gave 

me my rights. 

“So I think it’s appropriate for the Court to note that in our modern 

society, we even have a verb now that didn’t exist before, Mirandized, 

regarding the advisal of Miranda, which part of American slang.

“With that, the termination of the second interview, the statement by 

[defendant], I can’t talk right now. I believe [trial counsel] accurately 

summed up the context of the statement by [defendant]. That is, I can’t talk 

right now. My head hurts and my hair itches. But again, to me, this is not a 

clear invocation. It’s a statement of a physical condition which indicates 

that he is not in a position to talk. But again, it’s not an invocation. And 

while making this, he continued to engage in conversation with the officers. 

As such, I do find that statement is admissible.” 

D. Applicable Law

The Fifth Amendment to the United States Constitution provides that “[n]o person 

... shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., 

5th Amend.) To safeguard a suspect’s Fifth Amendment privilege against selfincrimination from the “inherently compelling pressures” of the custodial setting 

(Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of prophylactic 

measures requiring law enforcement officers to advise a suspect of his right to remain 

silent and to have counsel present prior to any custodial interrogation (id. at pp. 444–

445). 

“When a suspect knowingly and intelligently waives the Miranda rights, ‘law 

enforcement may interrogate, but if at any point in the interview [the suspect] invokes the 

right to remain silent or the right to counsel, “the interrogation must cease.” ’ [Citation.] 

Once the suspect has invoked, ‘a valid waiver of that right cannot be established by 

showing only that he responded to further police-initiated custodial interrogation ....

[There is to be no] further interrogation by the authorities ... unless the accused himself 

initiates further communication, exchanges, or conversations with the police.’ (Edwards, 

supra, 451 U.S. at pp. 484–485, fn. omitted; accord, People v. Gamache (2010) 48 
19.

Cal.4th 347, 384.) ‘In the absence of such a bright-line prohibition, the authorities 

through “badger[ing]” or “overreaching” — explicit or subtle, deliberate or unintentional 

— might otherwise wear down the accused and persuade him to incriminate himself 

notwithstanding his earlier request [to remain silent or] for counsel’s assistance.’ ” 

(Ramirez, supra, 13 Cal.5th at pp. 1103–1104.)

A defendant who has waived their Miranda rights must make a “clear assertion” 

of the right to silence or counsel before officers must cease questioning. (Davis v. United 

States (1994) 512 U.S. 452, 460 (Davis).) “The applicability of the ‘ “rigid” prophylactic 

rule’ of Edwards requires courts to ‘determine whether the accused actually invoked his 

right[s] ....’ ” (Id. at p. 458, italics omitted.) “Ambiguous or equivocal references to an 

attorney or the right to silence do not require cessation of questioning. [Citations.] 

Whether the defendant made an invocation is analyzed from the perspective of a 

reasonable officer (Berghuis v. Thompkins (2010) 560 U.S. 370, 381), and takes into 

consideration the context of the statement [citation]. If ‘a reasonable officer in light of 

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

right,’ then the officer need not cease all questioning immediately.” (Ramirez, supra, 13 

Cal.5th at p. 1104, italics omitted.) 

“ ‘A statement obtained in violation of a suspect’s Miranda rights may not be 

admitted to establish guilt in a criminal case.’ [Citation.] When evaluating the 

admissibility of a defendant’s statements on appeal, we accept the trial court’s resolution 

of disputed facts if supported by substantial evidence, and we independently determine 

from the undisputed facts and the facts properly found by the trial court whether the 

statements were illegally obtained.” (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 

16.) “The erroneous admission of statements obtained in violation of the Fifth 

Amendment is reviewed under the Chapman standard (Chapman v. California (1967) 

386 U.S. 18, 24 [(Chapman)]). [Citation.] That test requires the People ‘to prove beyond 

a reasonable doubt that the error complained of did not contribute to the verdict 
20.

obtained.’ [Citation.] The standard is satisfied only if ‘[t]here is no reasonable 

possibility that the verdict would have been more favorable to defendant had [the] 

statements not been admitted.’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1029.) 

E. Analysis

1. The First Interview

Here, as noted above, a defendant who has waived the Miranda rights must make 

a “clear assertion” of the right to silence or counsel before officers are required to cease 

questioning (Davis, supra, 512 U.S. at p. 460), and if “a reasonable officer in light of the 

circumstances would have understood only that the suspect might be invoking the right,” 

then the officers need not cease all questioning immediately. (Id. at p. 459, italics in 

original.) For example, in Ramirez, our Supreme Court held the “[d]efendant did not 

clearly and unequivocally invoke his right to silence at the end of the ... interview ... 

[when he] responded, ‘I don’t have nothing else to say to you guys.’ ” (Ramirez, supra, 

13 Cal.5th at p. 1104.) The court found “defendant willingly participated in a long 

interview with the officers[,]” and he “remained steadfast in his denials and did not 

complain of the absence of an attorney, or interpose a request for one.” (Ibid.) 

Therefore, “[v]iewed in context, a reasonable officer would have understood [the] 

defendant’s statement to mean that he had nothing to add to his claims of innocence, not 

that he was invoking his right to silence.” (Ibid.)

Additionally, in People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas), the 

court held the defendant’s statement, “ ‘I ain’t talking no more and we can leave it at 

that,’ ” was not an unambiguous invocation of his right to remain silent. (Id. at p. 1006, 

italics omitted.) Rather in context, “it was merely an expression of momentary 

frustration both with the detectives’ failure to accept [the defendant’s] repeated insistence 

that he was not present during the shootings and with [the deputy’s] immediately 

preceding statement [that the defendant] was ‘hiding something.’ ” (Ibid.) The court 

explained the transcript of the interview showed the defendant “repeatedly expressed 
21.

frustration during the interview” (ibid.), and “[w]hen viewed in conjunction with his 

earlier expressions of frustration during the interview,” the purported invocation “was 

another expression of momentary frustration and, at most, was an ambiguous invocation 

of the right to remain silent.” (Id. at p. 1007.) 

Here, defendant did not clearly and unequivocally invoke his right to silence at the 

end of the first interview. Defendant was advised of Miranda, waived these rights, and 

then willingly participated in an hour-long interview with detectives. He repeatedly 

denied involvement in the robbery and claimed to have been under the influence of drugs 

at the time the crimes occurred. Detective Anderson continued to press defendant 

regarding the underlying offenses, but defendant remained steadfast in his denials. 

However, towards the end of the interview, Anderson specifically asked defendant about 

the robbery, and defendant replied, “Are we done?” Detective Anderson continued to 

probe and defendant continued to engage and stated that killing two people for money 

“doesn’t mean that he’s a[n] evil person”and that it is hard for the detectives to really 

understand what’s going because the detectives “didn’t grow up how [h]e grew up.” 

Defendant then asked a second and third time, “Are we done?” and Anderson gave him 

the option of “say[ing] you don’t wanna answer it[,]” but defendant continued to engage. 

Anderson asked defendant if he was sticking to his story, “ ‘I don’t remember’ ” and 

defendant continued to deflect. Anderson ended the interview after asking defendant, 

“Are we done?” and defendant replied, “Yeah.” 

The statement, “Are we done?” was not a clear invocation of the right to silence. 

Although Detective Anderson ended the interview after the statement was made for the 

third time, he testified during the evidentiary hearing that “talking to [defendant] any 

further would have been pointless” and he “didn’t see that pushing him would be 

fruitful.” (See People v. Martinez (2010) 47 Cal.4th 911, 944, 950 (Martinez) [The 

statement “ ‘That’s all I can tell you’ ” was interpreted to mean “ ‘[t]hat’s all the 

information [the defendant] had for [the officer],’ ” rather than the defendant invoking his 
22.

right to silence].) Similar to Thomas, the statement “Are we done?” was not an 

invocation of his right to remain silent, but rather “an expression of momentary 

frustration” that Detective Anderson was not accepting his repeated insistence he had no 

memory of the robbery. (Thomas, supra, 211 Cal.App.4th at p. 1006.) Considering the 

context of when the statements were made, defendant continued to engage with Detective 

Anderson and insist he was under the influence of drugs and had no memory of the 

robbery. Further, the statement could also be interpreted to mean that defendant was 

simply asking Detective Anderson whether he had any additional questions for him. 

Accordingly, we conclude that after defendant validly waived his Miranda rights, he did 

not invoke his right to remain silent because the statement, “Are we done?” constituted 

an “[a]mbiguous or equivocal reference[] ... to silence [and thus] d[id] not require 

cessation of questioning.”22 (Ramirez, supra, 13 Cal.5th at p. 1104.) 

Nonetheless, defendant cites to People v. Villasenor (2015) 242 Cal.App.4th 42, in 

support of his contention that “[e]ven if [his] reply to the detective’s question could 

reasonably be viewed as an ‘expression of frustration,’ as the trial court concluded 

[citation omitted], it was also an unambiguous invocation of his right[.]” (Italics 

omitted.) However, Villasenor is clearly distinguishable. In Villasenor, the defendant 

“told [the detective] to take him home 13 times within a matter of 14 minutes. During 

this short span of time, he also tried to take his cell phone from the detective to call his 

parents to pick him up [and] [w]hen this did not work, he repeatedly told the detective to 

call his parents.” (Id. at p. 65.) “At one point, [the] defendant even tied his demands to 

be taken home and to have his parents called to his ‘rights,’ saying, ‘I know my rights,’ 

prompting the detective to respond, ‘I know your rights, too, partner,’ and to which [the] 

defendant replied: ‘So take me home then.’ ” (Ibid.) The court concluded that “[t]he 

only right [the] defendant could possibly have been referring to is his right to end the 

22 Compare with “We are done.”
23.

interrogation [and] [a]lso within this 14-minute span of time, [the] defendant asked how 

long he could be held without charges being filed and then asked – three times – to wait 

out the 48 hours so he could then go home.” (Ibid.) Accordingly, the court held “a 

reasonable officer in [the detective’s] position would have understood [the] defendant’s 

repeated demands to be taken home, to have his parents called to pick him up, and to wait 

out the 48 hours, to be an unambiguous invocation of his right to end the interrogation.” 

(Ibid.)

Here, as noted above, the only statement defendant made that could even be 

considered “at most ... an ambiguous invocation of the right to remain silent” (Thomas, 

supra, 211 Cal.App.4th at p. 1007), was the statement, “Are we done?” Other than this 

one statement, defendant responded to questioning and gave no other indication to 

Anderson he wanted to end this interview. Unlike in Villasenor, defendant made no 

repeated and unequivocal demands, but rather gave ambiguous responses, which became 

even more ambiguous after he continued to engage with Anderson. Therefore, defendant 

did not invoke his right to remain silent under Miranda.

2. The Second Interview

At the outset, Detective Anderson was not required to provide defendant with his 

Miranda rights before initiating this second interview with defendant. Our Supreme 

Court has held “ ‘readvisement is unnecessary where the subsequent interrogation is 

‘reasonably contemporaneous’ with the prior knowing and intelligent waiver. [Citations.] 

The courts examine the totality of the circumstances, including the amount of time that 

has passed since the waiver, any change in the identity of the interrogator or the location 

of the interview, any official reminder of the prior advisement, the suspect’s 

sophistication or past experience with law enforcement, and any indicia that he 

subjectively understands and waives his rights.’ ” (Ramirez, supra, 13 Cal.5th at p. 1106, 

quoting People v. Mickle, supra, 54 Cal.3d at p. 170.) Here, a 36-hour gap between the 

first and second interview was reasonably contemporaneous with the prior waiver, 
24.

especially considering defendant was interviewed by the same individual, Detective 

Anderson. (See People v. Pearson (2012) 53 Cal.4th 306, 317 [Interrogations were 

reasonably contemporaneous where there was a 27-hour gap between them]; People v. 

Williams (2010) 49 Cal.4th 405, 434–435 (Williams) [same for 40-hour gap]; People v. 

Mickle, at p. 171 [same for 36-hour gap].) Accordingly, no readvisement of defendant’s 

Miranda rights were required. 

Because we conclude Detective Anderson was not required to provide defendant 

his Miranda rights before initiating this second interview with defendant, we therefore 

must determine whether the three separate statements, “I can’t talk right now” was a clear 

invocation of his right to remain silent. “However, although our cases made clear ‘ “[a] 

desire to halt the interrogation may be indicated in a variety ways,” ’ [citation], they also 

made clear that ‘the words used by the suspect “must be construed in context.” ’ ” 

(People v. Parker (2017) 2 Cal.5th 1184, 1220.) 

We find both Williams and Martinez instructive. In Williams, our Supreme Court 

viewed the defendant’s statement, “ ‘I don’t want to talk about it,’ ” in context and 

concluded it was not “an unambiguous invocation of the right to remain silent,” citing a 

number of cases standing for the proposition that “ ‘[a] defendant has not invoked his or 

her right to silence when the defendant’s statements were merely expressions of passing 

frustration or animosity toward the officers, or amounted only to a refusal to discuss a 

particular subject covered by the questioning.’ ” (Williams, supra, 49 Cal.4th at pp. 433-

434, quoting People v. Rundle (2008) 43 Cal.4th 76, 115, disapproved on other grounds 

in People v. Doolin (2009) 45 Cal.4th 390, 421; see also Thomas, supra, 211 Cal.App.4th 

at pp. 1006–1007 [viewed in the context of a number of “expressions of frustration,” the 

defendant’s single statement, “ ‘I ain’t talking no more and we can leave it at that,’ ”

could be viewed as “another expression of momentary frustration and, at most, was an 

ambiguous invocation of the right to remain silent”].) 
25.

Additionally, in Martinez, the court concluded that, in context, the statements, “ ‘I 

don’t want to talk anymore right now,’ ” and “ ‘That’s all I can tell you,’ ” did not 

amount to an unambiguous and unequivocal invocation of the right to remain silent. 

(Martinez, supra, 47 Cal.4th at pp. 949–951.) In Martinez, a detective gave Miranda

advisements to the defendant, who agreed to an interview. (Id. at pp. 944–945.) When 

the defendant said, “ ‘That’s all I can tell you,’ ” the detective ended the interrogation (id. 

at p. 944), and the next morning, two other detectives met with the defendant, they 

reminded him he had previously waived his Miranda rights, and then continued to 

interrogate him. (Id. at pp. 944–946.) During the interrogation, the defendant said, “ ‘I 

don’t want to talk anymore right now.’ ” In response, the detectives said they intended to 

take a break, urged the defendant to “ ‘think about it,’ ” and said 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 p. 952.)

Our Supreme Court concluded defendant did not invoke his right to remain silent 

during the initial interrogation because the defendant’s remark, “ ‘That’s all I can tell 

you,’ ” was reasonably viewed as merely meaning, “ ‘That’s my story, and I’ll stick with 

it.’ ” (Martinez, supra, 47 Cal.4th at pp. 949–950.) The court further concluded the 

defendant’s statement during the second interview, “ ‘I don’t want to talk anymore,’ ” 

also did not amount to a clear invocation of his right to silence. (Id. at pp. 951–952.) 

The court reasoned the context in which the statement is made matters. This statement 

came “during the course of an interrogation,” rather than at the beginning of the 

interrogation or contemporaneous to the initial Miranda advisements. (Id. at p. 951.) 

The court also observed 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.) The court reasoned the “[d]efendant could have 

responded negatively and explained that he would not be interested in talking further, 
26.

even after a break. He did not. Instead, by saying, ‘Okay,’ he in effect agreed to allow 

the detectives to return for more questioning.” (Id. at p. 952.)

Here, at the outset, the statement, “I can’t talk right now” is not an unambiguous 

invocation of the right to remain silent.23 These statements came “during the course of 

an interrogation,” rather than at the beginning of the interrogation or contemporaneous to 

the Miranda advisements (Martinez, supra, 47 Cal.4th at p. 951), and it was ambiguous 

because the statement had “ ‘more than one interpretation or reference’ or ‘ha[d] a double 

meaning.’ ” (Anderson v. Terhune (9th Cir. 2008) 516 F.3d 781, 787.) This statement 

became even more unclear when defendant continued to engage with Detective Anderson 

during the entirety of the interview by responding, “I’m no killer,” “I’m only 22 years 

old,” and “[I] [c]an’t do life in prison.” Although he began to cry at the four-minute 

mark and continued to cry while telling Anderson, “I can’t talk right now[,]” it is clear 

the emotion was related to both frustration and the feeling of remorse regarding the 

underling offenses. (Thomas, supra, 211 Cal.App.4th at p. 1006.) Additionally, 

Anderson gave him the opportunity to end the interview after defendant told him, “I can’t 

talk right now. My head hurts. My hair itches,” when he responded:

“This — I don’t have much time. I gotta go back. We have leads, 

we’re gonna be snatching up [Langston]. And then it will just – we’ve got 

other stuff trust me, but I want to see if — I’m giving you the opportunity 

to do the right thing now. You — this is the last card you got. After I leave 

you don’t have anything else. That’s it . We’re done. All right?” 

Detective Anderson, although not required to, had every right to clarify whether 

defendant was invoking his right to remain silent. (Martinez, supra, 47 Cal.4th at pp. 

951–952 [“ ‘[G]ood police practice’ ” to clarify whether a defendant wants to end the 

interview or continue speaking with the officers].) Therefore, we cannot confidently say 

defendant’s invocation of his right to silence was “ ‘unambiguous[]’ ” from the 

23 Compare with “I won’t talk right now.”
27.

perspective of a reasonable officer. (Berghuis v. Thompkins, supra, 560 U.S. at p. 381.) 

Accordingly, in light of the circumstances surrounding defendant’s, “I can’t talk right 

now” responses, we conclude a reasonable officer could have understood that defendant 

might be invoking his right to remain silent, but would not have understood whether he 

was in fact invoking his right to remain silent. (See Davis, supra, 512 U.S. at p. 459.) 

F. Harmless Error

However, even assuming a Miranda violation occurred, we conclude defendant 

was not prejudiced. As noted above, “The erroneous admission of statements obtained in 

violation of the Fifth Amendment is reviewed under the Chapman standard [citation]. 

[Citation.] That test requires the People ‘to prove beyond a reasonable doubt that the 

error complained of did not contribute to the verdict obtained.’ [Citation.] The standard 

is satisfied only if ‘[t]here is no reasonable possibility that the verdict would have been 

more favorable to defendant had [the] statements not been admitted.’ [Citation.] 

Because confessions, ‘ “[a]lmost invariably” will provide persuasive evidence of a 

defendant’s guilt ..., the improper admission of a confession is much more likely to affect 

the outcome of a trial than are other categories of evidence, and thus is much more likely 

to be prejudicial under the traditional harmless-error standard.’ ” (People v. Henderson, 

supra, 9 Cal.5th at p. 1029.) In People v. Cahill (1993) 5 Cal.4th 478 (Cahill), our 

Supreme Court acknowledged an erroneous admission of a confession “might be found 

harmless, for example, (1) when the defendant was apprehended by the police in the 

course of committing the crime, (2) when there are numerous, disinterested reliable 

eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted 

physical evidence, or (3) in a case in which the prosecution introduced, in addition to the 

confession, a videotape of the commission of the crime.” (Id. at p. 505.) Certainly, 

People v. Cahill’s list of examples is not intended to be exhaustive, but it does exemplify 

the kind of strong evidence required to satisfy the Chapman standard.
28.

Here, the evidence in this case satisfies this high standard. Most of the evidence 

presented in this case falls within the list of evidence Cahill described as establishing 

harmlessness. First, law enforcement located defendant hiding inside a shed in a 

backyard, which was in close proximity to the convenience market where the 

robbery/murders had occurred. Deputies searched defendant and located a pair of Nikes 

next to him — matching the shoes worn by the suspect who was observed in the 

surveillance footage with the white gloves and handgun. Further, deputies located over a 

thousand dollars “in a rolled up mesh” inside the shed — one of the $100 bills had Juan 

Aceves’s blood on it. 

Second, multiple surveillance videos showed the entirety of the robbery and 

shootings. In the videos, the suspect wearing the white gloves shot both Heriberto and 

Juan. These white gloves were later found by law enforcement in the surrounding area 

where defendant was located. Further, law enforcement located a dark blue beanie with a 

New York Yankees’ logo behind the convenience store, which contained defendant’s 

DNA. 

Finally, multiple eyewitness’s testimony corroborated and established defendant’s 

identity as the suspect seen in the surveillance footage. First, Jose N. and Modesto N., 

who were stopped at a red light at the corner of Main Street and Panama Road followed

the individual who ran “eastbound on Panama and northbound on Carnation [¶] ... [a]nd 

then turned left on Lana Street.” He was described as wearing a black hoodie sweatshirt 

and “had a gun on his [¶] [l]eft hand” and cash register “in the other hand.” Jose then 

observed this individual take off his black hoodie sweatshirt and “thr[o]w it in the yard” 

of the house at “the corner of Carnation and Lana Street.” Second, Fidel C. testified he 

observed defendant “t[ake] off his sweater and he threw in on the ground and left” and 

later identified defendant in a six-pack lineup — corroborating both Jose N. and Modesto 

N.’s testimony. As Cahill makes clear, “[A]lthough in some cases a defendant’s 

confession will be the centerpiece of the prosecution’s case in support of a conviction, in 
29.

many instances it will be possible for an appellate court to determine with confidence that 

there is no reasonable probability that the exclusion of the confession would have 

affected the result.” (Cahill, supra, 5 Cal.4th at p. 505.) This is one of those cases. 

Accordingly, we conclude the confession was cumulative in light of the overwhelming 

evidence establishing defendant’s culpability in the current case.

II. ASSEMBLY BILL 333

Assembly Bill 333 amended the language of section 186.22 to modify the showing 

necessary to prove gang offenses and gang enhancements (Stats. 2021, ch. 669, § 3, eff. 

Jan. 1, 2022), and added section 1109, requiring bifurcation of the trial of gang 

enhancements and substantive gang offense from that of the other underlying offenses 

upon a defendant’s request. (§ 1109, subds. (a), (b).)

A. Section 1109

Defendant contends newly enacted section 1109 should apply retroactively to his 

case and “applies to both the gang enhancement and the gang-murder special 

circumstance[,]” and therefore requires reversal of his underlying convictions. The 

People deny section 1109 should apply retroactively and that defendant’s claim is 

forfeited because “[s]ection 1109 did not change the requirement that defendant’s request 

bifurcation of gang enhancements, nor did it impose a sua sponte duty on trial courts.” 

Regardless, the People contend the lack of bifurcation constituted harmless error. 

As we explain below, we agree the trial court’s failure to bifurcate pursuant to 

section 1109 or under then existing law was harmless because there is no basis to 

conclude bifurcation would have affected the outcome of the trial. Accordingly, we need 

not consider whether section 1109 applies retroactively or the merits of defendant’s 

bifurcation motion.24

24 The issue of whether section 1109 applies retroactively to cases that are not yet 

final is currently under review by our Supreme Court in People v. Burgos (2022) 77 

Cal.App.5th 550, review granted July 13, 2022, S274743. 
30.

1. Applicable Law 

“Pursuant to section 1109, subdivision (a), upon a defendant’s request, a case in 

which a gang enhancement is charged under section 186.22, subdivision (b) or (d) must 

be tried in separate phases. Section 1109, subdivision (b) provides that ‘[i]f a defendant 

is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried 

separately from all other counts that do not otherwise require gang evidence as an 

element of the crime. This charge may be tried in the same proceeding with an allegation 

of an enhancement under subdivision (b) or (d) of Section 186.22.’ ” (People v. Ramos

(2022) 77 Cal.App.5th 1116, 1129 (Ramos).)

Section 1109 was added because:

“(e) “California courts have long recognized how prejudicial gang 

evidence is. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193.) 

Studies suggest that allowing a jury to hear the kind of evidence that 

supports a gang enhancement before it has decided whether the defendant is 

guilty or not may lead to wrongful convictions. [Citations.] The mere 

specter of gang enhancements pressures defendants to accept unfavorable 

plea deals rather than risk a trial filled with prejudicial evidence and a 

substantially longer sentence.

“(f) Bifurcation of trials where gang evidence is alleged can help reduce its 

harmful and prejudicial impact.” (Stats. 2021, ch. 669, § 2, subds. (e), (f).) 

2. Analysis

Defendant’s right to bifurcation under section 1109 is purely statutory. (Ramos, 

supra, 77 Cal.App.5th at pp. 1131–1133 [concluding section 1109 error was harmless 

under People v. Watson (1956) 46 Cal.2d 818, 836].) “ ‘Typically, a defendant who has 

established error under state law must demonstrate there is a reasonable probability that 

in the absence of the error he or she would have obtained a more favorable result.’ ” 

(People v. Anzalone (2013) 56 Cal.4th 545, 553; accord People v. Epps (2001) 25 Cal.4th 

19, 29 [where the error “is purely one of state law, the Watson harmless error test 

applies”].)
31.

Recently, in People v. Tran (2022) 13 Cal.5th 1169, our Supreme Court held the 

failure to bifurcate pursuant to section 1109 is not structural error. (Tran, supra, at pp. 

1208–1210.) The court also rejected the defendant’s argument the Chapman standard for 

federal constitutional error applies, reasoning the admission of gang evidence in that case 

was not so prejudicial that it rendered the trial “ ‘fundamentally unfair.’ ” (Tran, supra,

at p. 1209.) Instead, it evaluated the trial court’s failure to bifurcate under the Watson 

standard. (Tran, supra, at pp. 1209–1210.) 

3. Harmless Error

In assessing prejudice under Watson, “an appellate court may consider ‘whether 

the evidence supporting the existing judgment is so relatively strong, and the evidence 

supporting a different outcome is so comparatively weak, that there is no reasonable 

probability the error of which the defendant complains affected the result.’ ” (People v. 

Rogers (2006) 39 Cal.4th 826, 870, italics omitted.)

Here, defendant argues “the failure to bifurcate the gang enhancement and gangmurder special circumstance allegations damaged [his] chance of being acquitted of 

murder based on the jurors’ reasonable doubts about the reliability of [his] confession to 

have been the gunman in the robbery” and that “the failure to bifurcate reduced the 

possibility that the jurors would acquit [him] based on the weaknesses in the 

prosecution’s case.” We disagree. First, as we discussed in detail in part I.D., ante, the 

evidence of defendant’s guilt was overwhelming. Second, although defendant, argues 

“[t]he court’s failure to bifurcate ... resulted in [his] jury hearing an enormous amount of 

extremely inflammatory evidence about the [CBC] gang and [his] allegiance to it[,]” his 

gang membership was highly relevant for identity, motive, or intent under Evidence Code 

section 1101, subdivision (b). It was relevant for the jury to hear that gang members 

commit robberies because “[t]hey benefit from the financial gain potentially of the 

robbery itself” and that “[c]ommitting a crime in association with other gang members 

helps insure you have a higher likelihood of getting away it.” Further, any potential 
32.

prejudice from the gang evidence was mitigated when the trial court provided the jury 

with a limiting instruction regarding its consideration of the gang evidence, which we 

presume it followed. (People v. Pearson (2013) 56 Cal.4th 393, 414 [“We presume that 

jurors understand and follow the court’s instructions”].) 

Accordingly, we conclude defendant was not prejudiced by the failure to bifurcate 

the gang enhancement and gang special circumstance allegations. (See People v. 

Hernandez (2004) 33 Cal.4th 1040, 1051 [“Any evidence admitted solely to prove the 

gang enhancement was not so minimally probative on the charged offense, and so 

inflammatory in comparison, that it threatened to sway the jury to convict regardless of 

defendants’ actual guilt.”].) Therefore, we affirm defendant’s conviction in its entirety. 

(See People v. E.H. (2022) 75 Cal.App.5th 467, 480 [failure to bifurcate was harmless 

under Watson standard in light of “ ‘overwhelming’ ” evidence in support of robbery 

convictions, stating “[e]ven if section 1109 applied retroactively to this case — an issue 

we need not and do not decide here – E.H. cannot show it is ‘reasonably probable’ he 

would have obtained a more favorable result if his trial had been bifurcated”].)

B. Sections 186.22 & 190.2, subdivision (a)(22)

Defendant further contends he entitled to the benefit of newly amended section 

186.22 and that both the gang enhancements and gang special circumstance allegations 

must be dismissed. The People concede the amendments to section 186.22 apply 

retroactively and that “[u]nder these circumstances, remand is required.” However, the 

People disagree that the gang-murder special circumstance allegations must be dismissed 

because the Legislature could not unconstitutionally amend section 190.2, subdivision 

(a)(22), created by the voters via Proposition 21. Based on our Supreme Court’s holding 

in Rojas, we conclude defendant is entitled to a reversal of both his section 186.22 gang 

enhancements and the gang-murder special circumstance allegations (§ 190.2, subd. 

(a)(22)). (Rojas, supra, 15 Cal.5th at p. 580.) However, we also conclude the People are 
33.

entitled to retry defendant on the enhancements and gang special circumstance 

allegations if they so choose.25

1. Gang Enhancements (§ 186.22, subd. (b))

As to counts 1, 2, 3, 4, and 6, the jury found true gang enhancements (§ 186.22, 

subd. (b)). At the time of defendant’s trial, “criminal street gang” was defined as “any 

ongoing organization, association, or group of three or more persons, whether formal or 

informal, having as one of its primary activities the commission of one or more of the 

criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive of 

subdivision (e), having a common name or common identifying sign or symbol, and 

whose members individually or collectively engage in, or have engaged in, a pattern of 

criminal gang activity.” (Former § 186.22, subd. (f).) Assembly Bill 333 revised the 

definition of “criminal street gang” to require that members “collectively” (no longer 

“individually or collectively”) engaged in a pattern of criminal activity. (§ 186.22, subd. 

(f); People v. Delgado (2022) 74 Cal.App.5th 1067, 1086.)

Additionally, Assembly Bill 333 redefined “ ‘pattern of criminal gang activity’ ” 

(§ 186.22, subd. (e)(1)), a necessary requirement to proving the existence of a “criminal 

25 In supplemental briefing, defendant further contends: (1) he is entitled to make a 

record that may be helpful at his future youth offender parole hearing, even though he 

was sentenced to two consecutive LWOP terms, and that distinguishing from individuals 

sentenced to a term allowing for the possibility of parole and individuals sentenced to 

LWOP violates equal protection; and (2) that the abstract of judgment must be amended 

to strike the $300 parole revocation fine “because [he] was sentenced to life 

imprisonment without [the] possibility of parole.” As we discuss in detail below, 

defendant is entitled to a reversal of the gang-murder special circumstance findings, as 

alleged in counts 1 and 2, which was the basis for the two consecutive LWOP sentence 

(§ 190.2, subd. (a)). Therefore, the trial court on remand can address: (1) whether 

defendant is entitled to make a record that may be helpful at a future youth offender 

parole hearing pursuant to section 3051 and Franklin, supra, 63 Cal.4th 261; and (2) 

whether imposition of the parole revocation fine is required. (People v. Valenzuela 

(2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to revisit all 

prior resentencing decisions when resentencing a defendant”] accord, People v. Buycks

(2018) 5 Cal.5th 857, 893 [“‘the full resentencing rule’”].)
34.

street gang” and thus a “prerequisite to proving the gang crime and the gang 

enhancement.” (See § 186.22, subds. (a), (b)(1); People v. Rodriguez (2022) 75 

Cal.App.5th 816, 823.) “ ‘The offenses comprising a pattern of criminal gang activity are 

referred to as predicate offenses.’ ” (Rodriguez, supra, at p. 822.) At the time of 

defendant’s trial, “pattern of criminal activity” meant “the commission of, attempted 

commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or 

conviction of two or more of the following offenses, provided at least one of these 

offenses occurred after the effective date of this chapter and the last of those offenses 

occurred within three years after a prior offense, and the offenses were committed on 

separate occasions, or by two or more persons.” (Former § 186.22, subd. (e).) Under this 

former definition, the prosecution only had to prove that those associated with a gang had 

committed at least two offenses from a list of predicate crimes on separate occasions 

within three years of one another. (Former § 186.22, subd. (e); see People v. Sek (2022) 

74 Cal.App.5th 657, 665.) It was unnecessary to prove the predicate offenses were gang 

related. (Former § 186.22, subd. (e); People v. Rodriguez, supra, 75 Cal.App.5th at p. 

822.) 

The amended statute made several changes to the definition and limited type of 

predicate offenses sufficient to prove the gang enhancement. “First, the predicate 

offenses now must have been committed by two or more ‘members’ of the gang (as 

opposed to any persons). [Citation.] Second, the predicate offenses must be proven to 

have ‘commonly benefited a criminal street gang.’ [Citation, italics in original.] Third, 

the last predicate offense must have occurred within three years of the date of the 

currently charged offense. [Citation.] Fourth, the list of qualifying predicate offenses has 

been reduced. [Citation.] And fifth, the currently charged offense no longer counts as a 

predicate offense.” (People v. E.H., supra, 75 Cal.App.5th at pp. 477–478; § 186.22, 

subd. (e)(1), (2).) Most notably, the new element that the predicate offenses “commonly 

benefited a criminal street gang” requires that “the common benefit of the offense is more 
35.

than reputational.” (§ 186.22, subd. (e)(1).) A new subdivision (g) was also added 

specifying that “[e]xamples of a common benefit that are more than reputational may 

include, but are not limited to, financial gain or motivation, retaliation, targeting a 

perceived or actual gang rival, or intimidation or silencing of a potential current or 

previous witness or informant.” (§ 186.22, subd. (g).) 

Here, the parties agree, as do we, that Assembly Bill 333’s amendments to section 

186.22 apply retroactively to this this case, which is not yet final on appeal, and that 

remand is required. Since the amendments to section 186.22 increase the threshold for 

conviction of a section 186.22 enhancement, defendant — whose judgement of 

conviction is not yet final — is entitled to the benefit of these changes to the law. 

(Ramos, supra, 77 Cal.App.5th at p. 1127.) Further, the jury was not allowed to consider 

whether the evidence presented at trial was sufficient to prove a “pattern of criminal 

activity” under the amended law. As noted above, the revised definition of “pattern of 

criminal activity” increased the threshold of proof for the predicate offenses necessary for 

the gang enhancement. (§ 186.22, subd. (e)(1).) This included the notable new 

requirement of a common benefit to the gang derived from the predicate offenses, and 

that benefit be more than reputational (§ 186.22, subd. (e)(1) [“ ‘pattern of criminal gang 

activity’ means ... the offenses commonly benefited a criminal street gang, and the 

common benefit of the offense is more than reputational”].) Accordingly, the gang 

enhancements (§ 186.22, subd. (b)) alleged in counts 1, 2, 3, 4, and 6 must be reversed. 

2. Gang-Murder Special Circumstance (§ 190.2, subd. (a)(22))

On counts 1 and 2, the jury also found true the gang-murder special-circumstance 

allegation (§ 190.2, subd. (a)(22)). Section 190.2, subdivision (a)(22) was enacted as a 

part of Proposition 21, an initiative measure adopted by the electorate in the March 2000 

primary election. (People v. Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2, 

subdivision (a)(22) makes first degree murder a capital crime if “[t]he defendant 

intentionally killed the victim while the defendant was an active participant in a criminal 
36.

street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried 

out to further the activities of the criminal street gang.” (Italics added.)

Prior to Rojas, the Court of Appeal was divided as to whether Assembly Bill 333 

unconstitutionally amended Proposition 21. (See, e.g., People v. Lee (2022) 81 

Cal.App.5th 232, 245, review granted Oct. 19, 2022, S275449 [Assembly Bill 333 did not 

unconstitutionally amend Proposition 21]; People v. Rojas (2022) 80 Cal.App.5th 542, 

553–558, review granted Oct. 19, 2022, S275835 [Assembly Bill 333 did 

unconstitutionally amend Proposition 21].) During the pendency of this appeal, our 

Supreme Court resolved this dispute and held that “applying Assembly Bill 333’s 

definition of ‘criminal street gang’ to the gang-murder special circumstances does not 

unconstitutionally amend section 190.22(a)(22) [Proposition 21].” (Rojas, supra, 15 

Cal.5th at p. 580.) Our Supreme Court’s rejection of the People’s argument that 

Assembly Bill 333’s changes to the definitions of “criminal street gang” and “pattern of 

criminal gang activity” unconstitutionally amended Proposition 21 requires us to vacate 

the gang-murder special circumstance findings.

Accordingly, we vacate both the gang enhancement allegations (§ 186.22, subd. 

(b)), as alleged in counts 1, 2, 3, 4, and 6, and the gang-murder special circumstance 

findings (§ 190.2, subd. (a)(22)), as alleged in counts 1 & 2, and remand the matter to 

afford the People the opportunity to retry these allegations under the current law. 

(Ramos, supra, 77 Cal.App.5th at p. 1128.) 

DISPOSTION

Defendant’s sentence is vacated, and this matter is remanded for resentencing 

consistent with this opinion. Pursuant to Assembly Bill 333, we reverse both the gang 

enhancements (§ 186.22, subd. (b)), as to counts 1, 2, 3, 4, and 6, and the gang-murder 

special circumstance allegations (§190.2, subd. (a)(22)), as to counts 1 and 2, but 

conclude the People are not foreclosed from retrying defendant on these enhancements 

and allegations on remand. The trial court shall also address whether defendant is 
37.

entitled to make a record that may be helpful at a future youth offender parole hearing 

pursuant to section 3051. Thereafter, the trial court is directed to file an amended and 

corrected abstract of judgment and transmit copies thereof to the appropriate authorities. 

In all other respects, the judgment is affirmed.

FRANSON, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.