IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR M. MIRANDA-GUERRERO,

Defendant and Appellant.

S118147

Orange County Superior Court

00WF1146

November 17, 2022

Justice Liu authored the opinion of the Court, in which Chief 

Justice Cantil-Sakauye and Justices Corrigan, Kruger, 

Groban, Jenkins, and Guerrero concurred.
1

PEOPLE v. MIRANDA-GUERRERO

S118147

Opinion of the Court by Liu, J.

Defendant Victor M. Miranda-Guerrero was charged with 

six crimes and convicted of five: kidnapping to commit rape, 

murder, attempted carjacking, assault with intent to commit 

rape, and receiving stolen property. The jury could not reach a 

verdict on an additional assault charge, and it was dismissed. 

Although Miranda-Guerrero pleaded not guilty to all counts, the 

defense contested only the murder and assault allegations at 

trial. The jury found true a special circumstance that the 

murder occurred during the commission or attempted 

commission of rape, and it returned a death verdict. We affirm.

I. FACTS

A. Guilt Phase

The charged offenses occurred in Huntington Beach 

between September 1999 and May 2000.

1. September 1999 Kidnapping of Jamie H.

On September 12, 1999, Jamie H. was asleep in her car in 

a parking structure in downtown Huntington Beach when she 

was awakened by the driver’s side window breaking. 

Miranda-Guerrero was standing outside Jamie’s car, and he 

began punching her in the face. She fought back and tried to 

start the car. Miranda-Guerrero grabbed her hair and slammed 

her head into the car door. He opened the car door, pushed her 

into the passenger seat, and got into the driver’s seat. He threw 
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Opinion of the Court by Liu, J.

2

a backpack into the back seat and told Jamie in broken English 

that he had “fire,” which she took to mean that he had a gun.

Miranda-Guerrero started the car and drove to a 

residential area. He pulled over, and he and Jamie continued to 

fight. He unzipped his pants, exposed his erect penis, and told 

Jamie to get on top of him. She refused. He took a condom out 

of his pocket, put it on, and tried to kiss Jamie, but she turned 

away. He started driving again, and when he reached a stop 

sign, Jamie jumped out of the car. Miranda-Guerrero caught 

her shirt and dragged her along the street briefly before letting 

go, at which point she was able to escape with the help of a 

nearby driver.

Jamie had abrasions on her thigh, elbow, and buttocks 

from the attack, and a clump of her hair was missing. She got 

stitches on her eye and lip. A few days later, her car was found 

with a brick, broken glass, hair, keys, and blood in it. Blood 

found on Jamie’s boots after the attack matched 

Miranda-Guerrero’s DNA.

2. November 1999 Murder of Bridgette Ballas

a. Prosecution Case

On the night of November 26, 1999, Bridgette Ballas went 

out for drinks with a friend in downtown Huntington Beach. 

They went to Gallagher’s Bar for a while and then walked to 

Aloha Grill, where they met several other people. Ballas’s friend

left around 1:00 or 1:30 a.m., but Ballas stayed at the bar. Her 

friend testified that, at that point, Ballas was not staggering or 

otherwise showing significant signs of impairment. She told 

police the next day that Ballas had five or six drinks during the 

time they were together.
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Soon after her friend went home, Ballas left Aloha Grill 

with a small group of people, including an acquaintance with 

whom they had been sitting. The group walked a short distance 

to the house of Jason H., where they continued to hang out and 

drink. One woman who was part of that group testified that

Ballas did not appear drunk and was not stumbling during the 

walk to Jason’s house. Ballas told her at one point that she felt 

“kind of funny” because she did not know anyone at Jason’s, and 

she left the house after 30 or 40 minutes.

Early in the morning of November 27, Richard B. heard 

someone scream “Oh my God” three times in quick succession. 

He looked out his window but did not see anything. When he 

went outside later that morning, he found Ballas lying partially

in the street with her head on the curb. She was between two 

vehicles. Her pants were pulled down and her shirt was pulled 

up above her breasts, and she was nonresponsive when Richard

tried to speak to her. The location where he found her was about 

seven-tenths of a mile from Jason’s house and about a tenth of 

a mile from her apartment. He covered her with a blanket and 

called 911.

Ballas was breathing when Officer Juan Munoz arrived, 

so Munoz called for medical care. She was taken to Western 

Medical Center for emergency treatment. At that point, she was 

in a coma. A CT scan showed swelling of her brain and a blood 

clot on the left side of her brain, which was then surgically 

removed by Dr. Israel Chambi. Part of her temporal lobe was 

removed to provide more space for her brain to swell; it was 

damaged and soft. Dr. Chambi testified that he believed her 

injuries were consistent with blunt trauma resulting from likely 

more than one impact.
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The doctor who performed Ballas’s autopsy later came to 

a similar conclusion. Ballas also had an ear injury that 

appeared to come from pulling or tugging rather than from blunt 

trauma. No defensive wounds were found on her body, and no 

foreign DNA was found under her fingernails. Small pieces of 

gravel were found inside Ballas’s labia, and several abrasions 

were found inside her vagina that, in the opinion of the doctor 

who conducted the sexual assault examination, were consistent 

with injuries often seen in women who have been forcibly 

penetrated. Saliva collected from a swab of one of Ballas’s 

breasts matched Miranda-Guerrero’s DNA. Despite treatment, 

she died after a few days from the severity of the swelling of her 

brain.

Miranda-Guerrero presented an alternative narrative 

that Ballas fell down and hit her head on the curb after 

urinating in the street. Police swabbed an area of the street

around where Ballas was found for evidence. Part of a nearby 

gutter appeared damp in crime scene photographs, but that area 

was not swabbed. No urine was found on the swabs that were 

collected.

Over Miranda-Guerrero’s motion to suppress, several 

hours of video from his interviews with police were played for 

the jury, including a portion of the interviews in which he told 

the officers that he had hit Ballas. 

b. Defense Case

As noted, the theory of Miranda-Guerrero’s defense was 

that the brain injury that killed Ballas resulted from her falling 

and hitting her head on the curb because she was intoxicated. 

Defense counsel argued that Miranda-Guerrero had met Ballas 

after she left Jason’s house and that he was walking with her 
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Opinion of the Court by Liu, J.

5

when she stopped to urinate between the two cars where she 

was found. After urinating, she stood up and fell over. 

Miranda-Guerrero conceded that he raped her after she was 

knocked unconscious by the fall.

Jason testified that Ballas seemed intoxicated when he 

met her on the night of November 26; he said her eyes were 

glassy and her eyelids were “a little droopy.” But he said she 

did not fall down or seem unsteady on her feet during the time 

he was with her that evening. A criminalist who conducted an 

analysis of Ballas’s blood the morning she was found testified 

that she likely had a blood-alcohol level of 0.15 to 0.19 grams 

percent around 2:30 a.m. on November 27. He testified that the 

degree to which this blood alcohol level would affect a person’s 

gross motor skills depends on the individual.

An officer who arrived at the scene before Ballas was 

taken to the hospital testified that the ground underneath her 

pelvic area on the street appeared wet, and the wetness drained 

toward the gutter. He tried to smell the wet spot after Ballas 

was taken away, and he said it did not smell like urine. A palm 

print from Ballas’s right hand was also found on the tailgate of 

the car parked immediately in front of where she was found. 

The fingers on the print were pointing nearly straight up, with 

the thumb facing the street.

The radiologist who conducted the CT scan of Ballas 

testified that her injuries could have been caused by a fall from 

full height if she hit her head on the curb without breaking her 

fall. He said the injuries would also be consistent with her head 

being slammed into the curb by an attacker. And he said he had 

only seen a fall cause injuries like Ballas’s when the patient was 

geriatric or when the person fell from a height or the fall 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

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occurred during activities like bicycling, skateboarding, or 

rollerblading.

According to an officer who interviewed Richard after 

Ballas was found, Richard stated that the voice he heard yelling 

early in the morning on November 27 might have been male.

3. May 2000 Attempted Carjacking of Heidi D.

On the night of May 25, 2000, Heidi D. went out with a 

few of her friends in downtown Huntington Beach. They 

returned around midnight to the parking garage where they had 

left their car. Miranda-Guerrero approached the group as they 

got to the car. He started talking to the women, but he was 

incoherent. He tried to grab the keys from Heidi, and they 

started fighting over the keys near the driver’s side door. She

eventually let Miranda-Guerrero take the keys, and he got into 

the car.

One of Heidi’s friends went to the driver’s side door and 

told Miranda-Guerrero to give her the keys. He grabbed her by 

the back of her head and pulled her into the car. This conduct 

was the basis of the additional assault charge on which the jury 

could not reach a verdict. Another of her friends opened the 

passenger door and started hitting Miranda-Guerrero and 

trying to get the keys out of the ignition. He hit her back with 

his elbow. Heidi and a third friend ran to a nearby bar to get 

help, and the other two friends soon got away and joined them. 

Miranda-Guerrero was gone by the time they all got back to the 

car.

4. May 2000 Assault on Deena L.

a. Prosecution Case

Deena L. testified that on the evening of May 25, 2000, she 

went with her boyfriend and a few friends to Gallagher’s Bar in 
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Opinion of the Court by Liu, J.

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downtown Huntington Beach. She stayed until shortly before 

midnight and then left to walk home. Her friends and boyfriend 

remained at the bar. This was within an hour of the attack on 

Heidi and her friends. Deena noticed that a man was following 

her as she walked home, and when she turned around to return 

to an area with more people, he ran and caught up to her. He 

grabbed her hair and put his other hand over her mouth, and he 

pushed her down onto the sidewalk. She bit his fingers to try to 

get him to release her.

At that point, the man started slamming Deena’s head 

against a brick planter next to the sidewalk. She testified that 

he slammed her head against the planter four to six times. She 

started to lose consciousness, but she was able to get out of the 

man’s grasp and hit him. He ran away at that point. Deena

found a police officer in a coffee shop and told him what had 

happened. When she and the officer left the coffee shop, they 

spotted Miranda-Guerrero walking in a nearby alley, and he 

was arrested.

Deena identified Miranda-Guerrero as the man who had 

attacked her. DNA collected from under Deena’s fingernails and 

between her teeth matched Miranda-Guerrero’s.

b. Defense Case

The defense theory was that the evidence was insufficient 

to show Miranda-Guerrero specifically intended to rape Deena

when he attacked her.

A security worker at Gallagher’s Bar testified that

Miranda-Guerrero had come to the bar twice on the evening of 

May 25. The worker turned him away both times because he 

was too intoxicated. The first time Miranda-Guerrero came to 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

8

the bar was around 11:30 p.m.; the second time was around 

midnight, just before the assault on Deena.

5. Receiving Stolen Property

Christine J.’s car was broken into on September 1999 

while parked in a parking structure in Huntington Beach. A 

purse and phone were taken. After Miranda-Guerrero was 

arrested, police obtained his backpack from the restaurant 

where he worked and found Christine’s phone inside.

B. Penalty Phase

The prosecutor’s case in aggravation consisted of victim 

impact testimony from Ballas’s parents and sisters. The 

prosecutor also discussed the facts of the other charged offenses 

and the circumstances of Ballas’s death.

Miranda-Guerrero’s case in mitigation consisted 

principally of testimony about his childhood in Mexico and 

testimony from five psychologists about his cognitive 

functioning. Miranda-Guerrero was one of eight children and 

grew up very poor. His father drank too much and abused 

Miranda-Guerrero’s mother. Miranda-Guerrero started 

working at a restaurant when he was about eight years old and 

left school when he was eleven or twelve.

Around the time Miranda-Guerrero stopped attending 

school, he went to work with Hector Ortega, the son of the 

woman for whom he had been working at the restaurant. He 

and Ortega manufactured leather belts in a room in the home of 

Ortega’s mother. Ortega testified that this process involved 

smearing glue onto the belts with their hands without gloves or 

masks in a room with no fans, and that they eventually made 

hundreds of belts per day. The glue had a strong odor, and they 

would get headaches as they worked with it.
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Opinion of the Court by Liu, J.

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Dr. Antonio Puente interviewed Miranda-Guerrero and 

administered a series of neuropsychological tests. He found that 

Miranda-Guerrero’s IQ was around 70, in the bottom two 

percentiles of the population, which he characterized as falling 

into “the mild mental retardation range or borderline 

retardation range.” He described Miranda-Guerrero as “highly 

compromised intellectually, somewhat compromised 

educationally, and in some ways challenged 

neuropsychologically as well.”

Dr. Robert Owen evaluated Miranda-Guerrero and 

administered a test to assess whether he showed antisocial or 

psychopathic characteristics. Dr. Owen testified that 

Miranda-Guerrero showed a much lower degree of antisocial 

and psychopathic characteristics than the general population of 

men in the criminal justice system.

Dr. Ricardo Weinstein examined Miranda-Guerrero on 

three occasions and conducted a quantitative 

electroencephalogram (QEEG) analysis, a type of 

neurophysiological measurement. Dr. Weinstein testified that 

Miranda-Guerrero had an IQ between 75 and 82 and was 

functioning at the borderline of “what we consider mental 

retardation.” He testified that Miranda-Guerrero’s cognitive 

functioning is typically equivalent to that of a person between 

the ages of six and ten, but when he is intoxicated, that level of 

functioning may deteriorate further. Dr. Barry Sterman

reviewed the QEEG data collected by Dr. Weinstein and 

testified that there was evidence of “significant brain 

disturbance,” particularly in areas related to moral judgment 

and impulse control.

Finally, Dr. Mark Cunningham reviewed various records 

and reports but did not personally examine Miranda-Guerrero. 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

10

He testified that Miranda-Guerrero has developmental 

impairments and “distinct brain abnormalities” that “provide 

some physiological basis for judgment, emotional and behavior 

disturbances.”

In addition to cross-examining the defense witnesses, the 

prosecutor called Dr. David Frecker, who described the QEEG 

test used by Dr. Weinstein and Dr. Sterman as “fraught with 

many problems” and said his practice did not use that test 

because they “find it to be unreliable.” In closing argument, the 

prosecutor played parts of the videotape of Miranda-Guerrero’s 

interviews with police and argued that his conduct during those 

interviews demonstrated that his cognitive capacities were 

greater than the doctors’ evaluations had shown.

II. GUILT PHASE ISSUES

A. Admission of Statements to Police

Miranda-Guerrero challenges the admission at his trial of 

statements he made to police officers during three custodial 

interrogations, which collectively spanned 12 hours between 

May 26 and May 29, 2000. He argues that his statements were

obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436

(Miranda) and that they were involuntary in light of the totality

of the circumstances. He expresses particular concern about the 

effect of admitting statements he made near the end of his 

second interview, in which he said he may have hit Bridgette 

Ballas “maybe two times.” We find no error.

1. Facts

Miranda-Guerrero was arrested early in the morning on 

May 26, 2000, immediately after the attack on Deena. His first 

interview began about six hours later. He was interviewed by 

two detectives of the Huntington Beach Police Department, 
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Opinion of the Court by Liu, J.

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Dave Dierking and Sam Lopez. Miranda-Guerrero’s first 

question to the officers was whether they spoke Spanish. Early 

in the interview, before Miranda-Guerrero received his Miranda

advisement, Dierking asked in which language he was more 

comfortable proceeding. Because his response — “maybe more 

I speak Spanish because maybe I don’t understand 

everything” — indicated that his command of English was 

uncertain, Lopez served as translator for the remainder of the 

interrogation.

After some preliminary questions, the detectives asked 

Miranda-Guerrero how long he had been in the United States. 

He said he had been in the country two or three years. Lopez 

then gave him an advisement as to his Miranda rights. The full 

transcript of the advisement is reproduced below as it appeared 

in the exhibits used at Miranda-Guerrero’s trial. The 

statements in brackets are translations included in the superior 

court’s exhibit that it used to evaluate whether 

Miranda-Guerrero’s statements should be suppressed.

“[LOPEZ]: Okay. Lo voy hacer dos modos, Ingles y 

Espanol, okay? You have the right to remain silent. 

Entiendes eso? [Do you understand that?]

“[MIRANDA-GUERRERO]: Of course.

“[LOPEZ]: Anything you say may be used against 

you in court. Entiendes eso?

“[MIRANDA-GUERRERO]: Si, si antes estaba en la 

corte? [If, if I was in court before?]

“[LOPEZ]: Todo que usted me dice, lo puedo usar en 

corte contra used [sic]. [Everything that you say may 

be used in court against you.]

“[MIRANDA-GUERRERO]: Yeah.
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Opinion of the Court by Liu, J.

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“[LOPEZ]: Okay, primero Ingles y entonces Espanol, 

okay? [[F]irst English and then Spanish.] Usted 

tiene el derecho . . . usted tiene el derecho, uh . . . [You 

have the right . . . you have the right, uh . . .] or, or 

you have the right to remain silent. Anything you 

say may be used against you in court. You have the 

right to the presence of an attorney before and 

during any questioning. If you cannot afford an

attorney, one will be appointed for you free of charge 

before any questioning if you want.

“De primero. Usted tiene el derecho para meser [sic]

silencio. [First of all, you have the right to remain 

silent.] Usted no tienes que decir nada si quieres. 

Entiendes eso? Porque aqi [sic] en este los Estados 

Unidos tene [sic] derechos. Todo que usted me dice, 

lo puedo user . . . usar en corte contra used [sic]. 

Entiendes eso? [You do not have to say anything if 

you want. Do you understand that? Because here 

in the United States you have rights. Everything 

that you tell me can be used, used in court against 

you. Do you understand that?] Okay.

“Usted tiene el derecho a tener un abogado. Y si no 

tienes dinero para un abogado, el corte de [sic] da uno 

gratris [sic] de costa. Entiendes eso? Eh, eh . . . usted 

tiene el derecho obtener un abogado durante unos . . . 

unas preguntas. Entiendes eso? Si o no? Digame si. 

[You have the right to have an attorney. If you do 

not have money for an attorney, the court will 

provide one free of charge. Do you understand that? 

Eh, eh . . . you have the right to obtain an attorney 
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Opinion of the Court by Liu, J.

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during the, the questions. Do you understand? Yes 

or no? Tell me . . . yes.]

“[MIRANDA-GUERRERO]: Mm hm.

“[LOPEZ]: Okay, porque es importante [because it’s 

important].

“[DIERKING]: Just so I know, I speak a little, is 

that a si or no?

“[MIRANDA-GUERRERO]: Yeah.

“[LOPEZ]: Si. Si no tienes dinero por un abogado, 

el corte te da una gratis de costa. Entiendes eso? El 

corte te da uno. Entiendes eso? [If you do not have 

money for an attorney, the court will give you one 

free of charge. Do you understand that? The court 

will give you one. Do you understand that?]

“[MIRANDA-GUERRERO]: Mm hm.

“[LOPEZ]: Entonces con estos derechos en mento, 

quieres hablar con nosotros . . . sobre los cargos? 

[Then, with these rights in mind, do you want to talk 

with us . . . about the charges?]

“[MIRANDA-GUERRERO]: Pues no se . . . como de 

que? [Well, I don’t know . . . like about what?]

“[LOPEZ]: Si o no? Quires [sic] hablar sobre los 

cargos? Quires [sic] hablar con nosotros? [Yes or no? 

Do you want to talk about the charges? Do you want 

to talk with us?]

“[MIRANDA-GUERRERO]: Pues si pe — [Well yes, 

bu —]

“[LOPEZ]: Okay.

“[DIERKING]: Okay, do you understand those? 

Okay? Now you, you sorta indicated that you were 

just walking?”
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Opinion of the Court by Liu, J.

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The interview proceeded for about two hours without 

further advisement. As the parties agreed during the superior 

court’s hearing on Miranda-Guerrero’s suppression motion, the 

officers did not inform him of any rights he may have had under 

the Vienna Convention on Consular Relations, and “the subject 

of consular consultations did not come up.”

Miranda-Guerrero’s second interview began when 

Dierking and Lopez woke him up shortly after midnight that 

evening. At the start of the interview, Lopez asked 

Miranda-Guerrero the following question: “Te acuerdas cuando 

hablamos de los derechos? Que tienes . . . permanecer silencio y 

todo eso.” The superior court’s exhibit indicates that Lopez’s 

Spanish was deficient, but it translates his question as “Do you 

remember when we talked about the rights? That you have . . . 

to remain silent and all that.” Miranda-Guerrero replied “Umhmm.” Lopez then asked in Spanish if Miranda-Guerrero 

wanted to talk to them again with those rights in mind. He said 

yes, and the interview proceeded.

The third interview was conducted two days later. At the 

beginning of the interview, Lopez read Miranda-Guerrero’s 

rights to him from a card on which they were correctly 

translated into Spanish. He had Miranda-Guerrero read the 

card as well.

Although various statements Miranda-Guerrero made 

during his interviews were introduced at trial, the most 

incriminating statement regarding his murder charge came 

during the second interrogation. Miranda-Guerrero’s 

explanation of the circumstances of Ballas’s death changed over 

the course of his interviews. He claimed at first that he had 

never seen Ballas, then that he was walking with her on the 

night she died but that he left before she was hurt, and 
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Opinion of the Court by Liu, J.

15

eventually that she fell and hit her head, the position he 

maintained at trial. At the end of his second interview, which 

spanned more than seven hours, he told the officers that he may 

have hit Ballas twice. On further questioning, he said he could 

not recall any other details with certainty. Asked when he hit 

her, he said, “Maybe when she had fallen down . . . . Maybe . . . 

maybe that’s when maybe I . . . when maybe I hit her. Because 

I hadn’t remember [sic] that I had hit her.” Asked if he now 

remembered hitting her, he responded, “Well . . . you’re saying 

(I did). But I . . . . Really, I . . . . Well, I haven’t remembered, 

but . . . but like, like, you’d say that (. . . ?) . . . no, no, no.” When 

the officers asked again if he remembered hitting Ballas, he 

responded, “No man. But if I hit her maybe it was two. But no, 

I don’t remember.”

About three hours of video from the interviews were 

played during the trial. The prosecutor discussed 

Miranda-Guerrero’s statements and changing story,

emphasizing them particularly in rebuttal to the defense’s 

closing argument. As he told the jury, “[i]t took hours and hours 

and hours of questions. . . . He didn’t admit anything.” The 

prosecutor pointed out that the first thing Miranda-Guerrero

said when asked if he knew what had happened to Ballas, at a

time when he was still denying that he had ever seen her, was 

“[p]erhaps she was killed.” “What innocent person in the 

position of the defendant would ever say that?” he asked. “He 

repeatedly tells the police he never saw her fall,” the prosecutor 

said. “And then only four hours into the second interview, six 

hours total, he finally tells the police the truth. And he tells the 

police, perhaps he hit her twice.”
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Opinion of the Court by Liu, J.

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2. Miranda Analysis

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.” To safeguard a suspect’s 

Fifth Amendment privilege against self-incrimination 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). “A suspect who has heard and understood these 

rights may waive them,” but the prosecutor “ ‘bears the burden 

of establishing by a preponderance of the evidence that the 

waiver was knowing, intelligent, and voluntary under the 

totality of the circumstances.’ ” (People v. Leon (2020) 8 Cal.5th 

831, 843 (Leon).) “The totality approach permits — indeed, it 

mandates — inquiry into all the circumstances surrounding the 

interrogation,” including the defendant’s “age, experience, 

education, background, and intelligence,” and “whether he has 

the capacity to understand the warnings given him, the nature 

of his Fifth Amendment rights, and the consequences of waiving 

those rights.” (Fare v. Michael C. (1979) 442 U.S. 707, 725.) 

“A statement obtained in violation of a suspect’s Miranda

rights may not be admitted to establish guilt in a criminal case.” 

(People v. Jackson (2016) 1 Cal.5th 269, 339.) 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. (Ibid.)

Miranda-Guerrero challenges the adequacy of the Miranda
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Opinion of the Court by Liu, J.

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advisory and waiver only with respect to the first two of his three 

interviews, although he also challenges the voluntariness of his 

statements from the third interview.

Miranda-Guerrero did not argue before the trial court that 

his Miranda rights were violated due to a lack of English 

comprehension. But the record raises some question about 

whether his English fluency was adequate for him to 

understand his rights when he was advised of them in English. 

His response to the warning that what he said could be used 

against him — “if, if I was in court before?” — indicated that he 

did not grasp that relatively straightforward admonition. At 

several points, he struggled with questions put to him in 

English, for instance responding “Uh, it’s where?” when asked 

with whom he lived, and answering “My brother?” when asked 

if he had ever had problems with women. When Dierking 

thanked him for cooperating with the officers during the first 

interview and said that the case would be given to the district 

attorney, Miranda-Guerrero admitted to Lopez that he didn’t 

understand what Dierking had said. When asked where he first 

saw Deena L., he answered, “Oh because, because she’s angry 

and because she said it.” At some points, however, MirandaGuerrero did respond appropriately and was able to ask 

clarifying questions.

We need not decide whether the Miranda advisement 

given in English was sufficient. Recognizing the language 

barrier, Lopez advised Miranda-Guerrero in Spanish as well. 

Some translation difficulties made the Spanish advisement 

suboptimal; it is not clear why the officers, who had access to a 

printed card with properly translated Miranda advisements, 

chose to advise Miranda-Guerrero at the first interview with a 

Spanish translation developed on the fly. However, we conclude 
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Opinion of the Court by Liu, J.

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that under the totality of the circumstances, the Spanish 

admonition adequately informed Miranda-Guerrero of his 

rights.

As to the right to remain silent and the right to court 

appointment of counsel, Lopez’s Spanish advisement was 

sufficient. He explained that Miranda-Guerrero had the right 

to silence, that he did not have to say anything if he did not want 

to, and that whatever he said could be used against him. He 

instructed Miranda-Guerrero twice that he had the right to a 

court-appointed attorney if he could not pay for counsel, and he

took steps to phrase the right in clear and simple terms.

It is a closer question whether Lopez adequately advised

Miranda-Guerrero of his right to consult with an attorney prior 

to his interrogation and to have an attorney present throughout

the interview. Miranda admonitions require no “talismanic 

incantation,” but they must contain each of the mandatory 

warnings, either as the high court set them out in Miranda itself 

or by some “ ‘fully effective equivalent.’ ” (California v. Prysock

(1981) 453 U.S. 355, 359–360 (per curiam), quoting Miranda, 

supra, 384 U.S. at p. 476.) Notifying a suspect that he or she 

has the right to a court-appointed attorney without explaining 

that this includes the right to have an attorney present before 

and during any custodial interviews is an insufficient 

admonition. (Duckworth v. Eagan (1989) 492 U.S. 195, 205.)

According to the translation in the superior court’s exhibit, 

Lopez instructed Miranda-Guerrero that “you have the right to 

obtain an attorney during the, the questions.” He did not specify 

which “questions” he was referring to, and nothing else in the 

advisement explained that Miranda-Guerrero’s right to an 

attorney applied not just during court proceedings, but before 

and during any interrogation. Nor did Lopez take any steps to 
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Opinion of the Court by Liu, J.

19

clarify the ambiguous admonition, instead immediately asking 

Miranda-Guerrero to declare whether he understood the right.

In context, however, it would be reasonable for a suspect 

in Miranda-Guerrero’s position to presume that “the questions”

to which Lopez referred were the questions that the detectives 

were about to ask him. And while Miranda-Guerrero may not 

have understood every aspect of the Miranda advisement he 

was given in English, the full and accurate recitation of his 

rights in English may have helped clarify any ambiguity about 

what questions Lopez was referencing in the Spanish 

admonition. Perhaps most significantly, Miranda-Guerrero 

agreed at the beginning of the third interview that the rights he 

was advised of then — which included the right to have counsel 

present, explained multiple times and in accurate Spanish —

were the same as the rights the detectives had discussed with 

him during the first interview. Considering the totality of the 

circumstances, we conclude that the admonition at the first 

interview was adequate to advise Miranda-Guerrero of his right 

to the presence of an attorney during the interrogation.

Miranda-Guerrero argues that even if he was adequately 

advised of his rights, he did not understand or waive them. He 

says he did not understand his rights because his initial 

response when asked if he understood them was “Mm hm” 

rather than something more affirmative. But when advised of 

his rights at the third interview, Miranda-Guerrero clearly 

indicated not only that he understood his rights, but that they 

were the same rights of which he had been advised at the first 

interview. Miranda-Guerrero similarly says he did not waive 

his rights because his initial response when asked if he wanted 

to talk to the detectives was “Pues si pe —,” which the court’s 

transcript translates as “Well yes, bu —.” But he proceeded 
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Opinion of the Court by Liu, J.

20

immediately to speak with the officers, answered their questions 

without hesitation, and said nothing “ ‘that could be construed 

as an invocation of his’ ” Miranda rights. (People v. Flores (2020) 

9 Cal.5th 371, 417.) Under these circumstances, we cannot 

conclude that his initial answers when asked at the first 

interview if he wanted to talk, standing alone, are sufficient to 

show he did not understand or waive his rights. (See ibid. [“ ‘A 

suspect’s expressed willingness to answer questions after 

acknowledging an understanding of his or her Miranda rights 

has itself been held sufficient to constitute an implied waiver of 

such rights.’ ”].)

Miranda-Guerrero also argues that the totality of the 

circumstances suggests he did not knowingly and intelligently

waive his rights, notwithstanding the proper advisement,

because of his relative youth and limited education, his lack of 

experience with the American legal system, and his difficulty 

understanding English. As noted, he also claims he did not 

sufficiently express to the officers that he understood his rights 

because he answered “Mm hm” rather than something more 

affirmative when first asked whether he understood the 

advisement at his initial interview.

Miranda-Guerrero was 22 years old at the time of his 

police interviews, and he had left school when he was eleven or 

twelve. In Leon, we upheld the waiver of a defendant of similar 

age who had failed sixth grade, “consistently performed in the 

borderline range on intelligence tests,” whose “knowledge of the 

legal system came mainly from Mexican soap operas,” and who 

answered “ ‘uhm-hm’ ” when first asked if he understood his 

rights. (Leon, supra, 8 Cal.5th at pp. 840–841.) Certain aspects 

of the record in Leon were more indicative of a knowing and 

intelligent waiver than the evidence before us here. In 
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Opinion of the Court by Liu, J.

21

particular, the Spanish advisement in that case was given from 

a pre-printed form, and the interviewer, a native Spanish 

speaker, took care to give the advisement in a Spanish dialect 

with which the defendant was familiar. (Id. at p. 840.) But

there are additional, affirmative indications in this case that 

Miranda-Guerrero understood the advisement he was given. 

Most notably, Miranda-Guerrero made clear at the start of the 

third interview that his understanding of the rights Lopez read

him then from an accurately translated Spanish-language form 

was the same as his understanding from the first interview. We 

conclude that under these circumstances Miranda-Guerrero’s 

waiver at the first interview was knowing and intelligent.

The Attorney General does not dispute that 

Miranda-Guerrero was not fully advised of his rights at the 

beginning of the second interview; the sole admonition provided

was the question, in what the translator termed deficient 

Spanish, “Do you remember when we talked about the rights? 

That you have . . . to remain silent and all that.” However, no 

readvisement was required.

Readvisement is not necessary following a valid 

admonition and waiver when the “subsequent interrogation is 

reasonably contemporaneous.” (People v. Spencer (2018) 5 

Cal.5th 642, 668.) “In determining whether a subsequent 

interrogation is reasonably contemporaneous, we consider the 

totality of the circumstances. Relevant considerations include: 

‘1) the amount of time that has passed since the initial waiver; 

2) any change in the identity of the interrogator or location of 

the interrogation; 3) an official reminder of the prior 

advisement; 4) the suspect’s sophistication or past experience 

with law enforcement; and 5) further indicia that the defendant 
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Opinion of the Court by Liu, J.

22

subjectively understands and waives his rights.’ ” (Ibid., 

quoting People v. Smith (2007) 40 Cal.4th 483, 504.)

We have held that interrogations taking place as long as 

40 hours after a Miranda warning and waiver do not require 

readvisement when conducted by the same officers in the same 

location with an experienced defendant who “evinced no 

reluctance to be interviewed.” (People v. Williams (2010) 49 

Cal.4th 405, 434–435.) Miranda-Guerrero did not have 

experience with the criminal justice system at the time of his 

interviews, and he expressed some hesitation about proceeding 

when he was advised of his Miranda rights at the first 

interview. But his second interview took place fourteen hours 

after the first interview, in the same location and with the same 

detectives. He was also reminded, albeit briefly, of the original 

Miranda admonition at the beginning of the second interview. 

Considering all of the circumstances, we conclude that no 

readvisement was required at the second interview.

3. Voluntariness Analysis

Miranda-Guerrero also argues that his statements to 

officers were involuntary because the officers’ methods were 

coercive, because he was not advised of his consular rights under 

the Vienna Convention, and because of his personal 

characteristics, including his limited education, inexperience 

with the criminal justice system, and lack of English proficiency. 

Under our precedents, his confession was not involuntary.

Involuntary statements to police are inadmissible for all 

purposes. (People v. Peevy (1998) 17 Cal.4th 1184, 1193.) 

Statements are involuntary when they are not the product of “ ‘a 

rational intellect and free will.’ ” (People v. Maury (2003) 30 

Cal.4th 342, 404, quoting Mincey v. Arizona (1978) 437 U.S. 385, 
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Opinion of the Court by Liu, J.

23

398.) To use a defendant’s statements to police at trial, the 

prosecutor must prove by a preponderance of the evidence that 

they were voluntary. (People v. Peoples (2016) 62 Cal.4th 718, 

740 (Peoples).) On appeal, the voluntariness of the statements 

“is reviewed independently in light of the record in its entirety, 

including ‘all the surrounding circumstances — both the 

characteristics of the accused and the details of the 

interrogation.’ ” (People v. Benson (1990) 52 Cal.3d 754, 779.) 

We “ ‘ “examine the uncontradicted facts surrounding the 

making of the statements to determine independently whether 

the prosecution met its burden.” ’ ” (Maury, at p. 404.) When 

testimony in the record is conflicting, we “ ‘ “must ‘accept that 

version of events which is most favorable to the People, to the 

extent that it is supported by the record.’ ” ’ ” (Ibid.)

“[C]oercive police activity is a necessary predicate to the

finding that a confession is not ‘voluntary’. . . .” (Colorado v. 

Connelly (1986) 479 U.S. 157, 167.) Coercion is not limited to 

physical abuse; it may involve “more subtle forms of 

psychological persuasion.” (Id. at p. 164.) These techniques

include “ ‘repeated suggestion and prolonged interrogation.’ ” 

(People v. Hogan (1982) 31 Cal.3d 815, 843, disapproved on 

another ground in People v. Cooper (1991) 53 Cal.3d 771.) They 

also include deprivation of sleep and food (Greenwald v. 

Wisconsin (1968) 390 U.S. 519, 521 (per curiam)), as well as 

“deception or communication of false information” (Hogan, at 

p. 840).

If coercive police conduct is present, we evaluate the 

totality of the circumstances to determine whether a defendant’s 

statements were freely given. (People v. Maury, supra, 30 

Cal.4th at p. 404.) Factors that we consider include the coercion 

discussed above, as well as “the length of the interrogation and 
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Opinion of the Court by Liu, J.

24

its location and continuity, and the defendant’s maturity, 

education, and physical and mental health.” (Peoples, supra, 62 

Cal.4th at p. 740.) A defendant’s “inexperience” and “low 

intelligence” may weigh against a finding of voluntariness, as do

“deprivation and isolation imposed on [the] defendant during his 

confinement.” (People v. Neal (2003) 31 Cal.4th 63, 68.)

Miranda-Guerrero asserts that several circumstances of

the second interview raise concerns about the voluntariness of 

his confession at the end of that interview. The officers began 

interviewing him just after midnight, and the interrogation 

continued for more than seven hours until Miranda-Guerrero 

said he might have hit Ballas twice. Miranda-Guerrero notes 

that he “showed some signs of fatigue” (Peoples, supra, 62 

Cal.4th at p. 741), telling the detectives at one point that he was 

“very sleepy.” Further, the officers repeatedly emphasized 

Miranda-Guerrero’s isolation and referred to the absence of any 

relationships in Miranda-Guerrero’s life and the distance from 

his family as reasons why he might have attacked Ballas. In 

repeated accusations over the course of the night, the officers 

asserted dozens of times that he “beat,” “hit,” or “punched”

Ballas.

While these aspects of the second interrogation of 

Miranda-Guerrero are relevant, they ultimately do not 

distinguish this case from prior cases in which we have declined 

to find involuntary a confession given in response to overnight 

questioning. In Peoples, for instance, we affirmed a finding of 

voluntariness in a case involving a twelve-hour overnight 

interview in which the police questioned the defendant 

“constantly for the first 10 hours of the interview.” (Peoples, 

supra, 62 Cal.4th at p. 739.) An expert testified in that case that 

“the detectives used coercive techniques . . . over 50 times 
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Opinion of the Court by Liu, J.

25

during the 12-hour interrogation.” (Id. at p. 740.) The interview 

in Peoples was both longer and more coercive than 

Miranda-Guerrero’s second interview. Moreover, as in Peoples, 

Miranda-Guerrero “was given numerous breaks, drinks, and 

food,” and the officers “never offered him leniency for his 

confession and never threatened a harsher penalty if he 

remained silent.” (Id. at p. 741.) The defendant in Peoples also 

showed considerably greater signs of exhaustion than 

Miranda-Guerrero — “sweating, pulling out his hair, rubbing 

his skin, twitching his facial muscles, grinding his teeth, and at 

times appearing to fall asleep.” (Id. at p. 739.) 

Miranda-Guerrero says his confession was nevertheless 

involuntary because the detectives did not advise him of his 

right under Article 36 of the Vienna Convention on Consular 

Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (Article 

36) to have the Mexican consulate notified of his detention, even 

though the detectives became aware early in the interviews that 

he was likely not a citizen of the United States. Although the 

failure to notify a suspect of his or her consular rights does not 

by itself require suppression of the suspect’s statements, this 

court and the United States Supreme Court have recognized 

that “[a] consular notification claim may be raised as part of a 

broader challenge to the voluntariness of a confession.” (Leon, 

supra, 8 Cal.5th at p. 846, citing Sanchez-Llamas v. Oregon

(2006) 548 U.S. 331, 350.) But “[i]n most circumstances, there 

is likely to be little connection between an Article 36 violation 

and evidence or statements obtained by police.” 

(Sanchez-Llamas, at p. 349.) Miranda-Guerrero says he would 

have invoked his Miranda rights to counsel and to remain silent 

if he had been advised of his consular rights or received consular 

assistance. But this argument is too speculative given the 
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Opinion of the Court by Liu, J.

26

record in this case. (See Leon, supra, 8 Cal.5th at p. 847; People 

v. Vargas (2020) 9 Cal.5th 793, 833.) Considering the totality of 

the circumstances and our independent review of the video of 

Miranda-Guerrero’s interrogation, we cannot conclude that his 

confession during his second custodial interview was

involuntary.

Furthermore, the first and third interviews exhibited few

of the troubling features of the second interview. The first 

interview took place at 8:00 a.m. and lasted just over two hours. 

The third took place several days later at 10:00 a.m. and also 

lasted only a few hours. The questioning during the first 

interview was not aggressive or coercive, and while there were

periods of insistent questioning in the third interview, they were 

relatively brief. We therefore conclude that Miranda-Guerrero’s 

statements from the first and third interviews were voluntarily 

given as well.

B. Consular Notification

Miranda-Guerrero seeks a “comprehensive judicial ‘review 

and reconsideration’ of his conviction and sentence” because of 

the interviewing officers’ failure to inform him of his right to the 

assistance of the Mexican consulate under Article 36. This 

review, he says, must “ ‘examine the facts’ ” of the conviction and 

sentence, “and in particular the prejudice” resulting from the 

violation of the convention. He claims this entitlement flows

from the decision of the International Court of Justice in Avena 

and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 

(judg. of Mar. 31) (Avena), in which the court instructed that 

such review and reconsideration would be the appropriate 

remedy for violations of foreign nationals’ consular rights. (Id.

at pp. 59–60, ¶¶ 121–122.) 
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Opinion of the Court by Liu, J.

27

California codified the requirements of Article 36 in Penal 

Code section 834c. (Leon, supra, 8 Cal.5th at p. 845.) In Leon, 

we assumed without deciding that the rights found in Article 36

and section 834c are individually enforceable (Leon, at p. 846), 

and we do so here as well. But even if Miranda-Guerrero is 

authorized to enforce Article 36 and entitled to the remedy 

described in Avena, we have already found that he has not 

shown prejudice on this record from the violation of his consular 

rights. Any matters outside the record suggesting that 

Miranda-Guerrero was prejudiced may be raised in a petition 

for habeas corpus; we express no view here on the validity of 

such a claim. (See In re Carpenter (1995) 9 Cal.4th 634, 646 

[review on direct appeal “is limited to the four corners of the 

record on appeal”].) 

C. Denial of Presence at Certain Proceedings

Miranda-Guerrero claims he was prejudicially denied his 

constitutional and statutory rights to be present during five trial 

proceedings: (1) a meeting on juror misconduct; (2) discussions 

regarding spectator misconduct; (3) a meeting concerning the 

portions of his police interview to be played at trial; (4) a 

conference on jury instructions; and (5) a proceeding regarding 

a response to a jury question. We disagree.

A criminal defendant has both constitutional and 

statutory rights to be present at certain trial proceedings. 

(People v. Cole (2004) 33 Cal.4th 1158, 1230.) “The federal

Constitution provides a defendant the right to be present if ‘ “(1) 

the proceeding is critical to the outcome of the case, and (2) the 

defendant’s presence would contribute to the fairness of the

proceeding,” ’ ” and the state constitutional right is largely 

equivalent. (People v. Caro (2019) 7 Cal.5th 463, 478–479; see 
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Opinion of the Court by Liu, J.

28

People v. Harris (2008) 43 Cal.4th 1269, 1306.) The statutory 

right is coextensive with the state constitutional right but can 

only be waived in writing. (Cole, at p. 1231; People v. Wall (2017) 

3 Cal.5th 1048, 1060.) 

Miranda-Guerrero claims that his absence from the five 

proceedings constitutes structural error, but we have said that 

“[e]rroneous exclusion of the defendant is . . . trial error that is 

reversible only if the defendant proves prejudice.” (People v. 

Perry (2006) 38 Cal.4th 302, 312.)

1. Meeting on Potential Juror Misconduct

Between the guilt and penalty phases, the court informed 

the parties, in Miranda-Guerrero’s presence, that Juror No. 11 

had told the bailiff that Juror No. 1 called her spouse after the 

verdict was reached. The following afternoon in chambers, in 

Miranda-Guerrero’s absence and without a waiver, the parties 

indicated it was unnecessary to question the jurors.

Miranda-Guerrero had no right to be present at the 

in-chambers meeting. In Harris, we held that “[t]he dismissal 

of a juror for misconduct is not a matter for which the defendant 

must be present.” (People v. Harris, supra, 43 Cal.4th at 

p. 1309.) Deciding whether to investigate misconduct cannot be 

said to be more “ ‘ “critical to the outcome of the case” ’ ” than 

deciding whether to dismiss a juror for misconduct. (People v. 

Caro, supra, 7 Cal.5th at pp. 478–479.) Miranda-Guerrero 

claims that he may “have perceived something about Juror 

No. 1” that warranted investigation or dismissal. But we have

rejected similarly speculative theories about how a defendant 

“could have contributed to the fairness of the proceedings.” 

(Harris, at p. 1307.) Moreover, any error was not prejudicial. 

Miranda-Guerrero was present when the court first announced 
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Opinion of the Court by Liu, J.

29

the Juror No. 1 issue and was aware that his counsel was given 

an option to request further investigation. He had ample 

opportunity to raise any concerns he may have had about Juror 

No. 1. “[N]othing in the record indicates” that MirandaGuerrero’s presence at the in-chambers meeting would have led 

to further inquiry or dismissal of the juror. (Caro, at p. 479.)

2. Meetings on Spectator Misconduct

During the trial, the parties and the court met in 

chambers twice without Miranda-Guerrero to discuss spectator 

misconduct. It was decided at the first meeting that the court 

would give a general admonition, and at the second meeting it 

was determined that the court would individually admonish an 

audience member. Miranda-Guerrero did not have a 

constitutional or statutory right to be present at either 

proceeding because they involved discussions on spectator 

misconduct and admonitions, which are “routine procedural 

discussions on matters that do not affect the outcome of the 

trial.” (People v. Perry, supra, 38 Cal.4th at p. 312.) Conducting

the meetings on spectator misconduct without MirandaGuerrero present was not error.

3. Conference on Interview Excerpts To Be Played at 

Trial

After the court ruled on the admissibility of MirandaGuerrero’s police interview in his presence, the prosecutor 

indicated that the parties were going to work together to select 

which portions would be played to the jury. The parties agreed 

on the selected portions and informed the court of their 

agreement at an in-chambers meeting the following afternoon

without Miranda-Guerrero present. The parties and the court 
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Opinion of the Court by Liu, J.

30

then discussed the timeline and process for verifying and 

playing the tapes to the jury.

In People v. Davis (2005) 36 Cal.4th 510, we held that a 

defendant had both a statutory and constitutional right to be 

present at a “hearing during which the contents of [a] jailhouse 

tape were discussed and agreed upon” because the defendant 

“could have assisted his attorneys in deciphering the tape” since 

he was present when it was made. (Id. at p. 531.) MirandaGuerrero argues he had a right to be present because, as in 

Davis, he was “most familiar with the contents of the 

statements” in the tape and therefore could have “assisted his 

attorneys” in selecting the excerpts. But unlike in Davis, the 

court here had already ruled on the admissibility of the tapes,

and the determination of which excerpts would be played was 

made by counsel before the in-chambers meeting. Accordingly,

Miranda-Guerrero’s presence at the meeting could not have 

“ ‘ “contribute[d] to the fairness of the proceeding.” ’ ” (People v. 

Caro, supra, 7 Cal.5th at p. 479.) Nor is it clear how a meeting 

discussing the logistics of playing preapproved portions of the 

tape could have been “ ‘critical to the outcome of the case.’ ” (Id. 

at pp. 478–479.)

In any event, no substantive decisions on the admissibility 

of the tape or its selected excerpts were made during the 

meeting. Miranda-Guerrero has not shown how excluding him 

from this logistical discussion could have “ ‘ “prejudiced his case 

or denied him a fair and impartial trial.” ’ ” (People v. Caro, 

supra, 7 Cal.5th at p. 479.) Any error in excluding him was not 

prejudicial.
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Opinion of the Court by Liu, J.

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4. Conference on Jury Instructions

At the end of the guilt phase, in Miranda-Guerrero’s 

absence, the court discussed with counsel the jury instructions 

for lesser included offenses. We have repeatedly held that 

defendants “may ordinarily be excluded from conferences on 

questions of law, even if those questions are critical to the 

outcome of the case, because the defendant’s presence would not 

contribute to the fairness of the proceeding.” (People v. Perry, 

supra, 38 Cal.4th at p. 312.) These include “conference[s] on 

jury instructions.” (Ibid.) Excluding Miranda-Guerrero from 

this conference was not error.

5. Meeting on Response to Jury Question

During jury deliberations at the guilt phase, the court and 

parties met to discuss jury questions with Miranda-Guerrero 

absent. The court read out the jury’s latest question: “When 

establishing intent in a count, may we take into consideration 

established and agreed upon intents in other counts?” The court 

directed counsel to meet and confer about a proposed response. 

When the court reconvened, still without Miranda-Guerrero

present, the court and parties settled on redirecting the jury to 

several CALJIC instructions.

In People v. Jennings (2010) 50 Cal.4th 616, 682, we held 

that a defendant “did not have a constitutional or statutory right 

to be personally present during the in-chambers discussion 

regarding how to respond to [a] jury’s question” about an issue 

of law. This is because “[t]he formulation of an appropriate 

response to this question was a legal matter,” and “a defendant 

does not have the right to be personally present during 

proceedings, held in-chambers and outside of the jury’s 

presence, concerning questions of law.” (Ibid.)
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Opinion of the Court by Liu, J.

32

Miranda-Guerrero claims Jennings is distinguishable 

because “the question and proposed response” in Jennings “were 

read in defendant’s presence.” But that is a distinction without 

a difference; our holding in Jennings turned on the fact that the 

jury’s question and the response to it involved legal issues. 

(People v. Jennings, supra, 50 Cal.4th at p. 682.) As in Jennings, 

“[t]he formulation of an appropriate response” to the jury’s 

intent question here was a legal matter. (Ibid.) Accordingly, 

Miranda-Guerrero did not have a constitutional or statutory 

right to be present at the proceeding.

D. Juror Misconduct

Miranda-Guerrero claims that his conviction must be 

reversed because the trial court failed to discharge one of the 

jurors for misconduct and failed to hold a hearing into the juror’s 

ability to serve after a suggestion of misconduct was raised. 

Even assuming the juror’s actions were misconduct, 

Miranda-Guerrero was not prejudiced.

As noted, after the jury reached its guilt phase verdict but 

before the verdict was announced, Juror No. 1 informed her 

spouse on a phone call that she would be done later than 

expected. She also told her spouse that the jury had reached a 

verdict. The jury foreperson informed the bailiff of this call, the 

bailiff informed the court, and the court informed the parties. It 

was not clear whether Juror No. 1 told her spouse what the 

verdict was, but the court instructed the parties to assume she 

had for the purposes of deciding what to do about the issue.

In the court’s view, the actions of Juror No. 1 did not 

constitute misconduct. Its position was that there was no need 

to discuss the issue further with the jury foreperson who 

reported the conversation, but it deferred to the parties about 
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Opinion of the Court by Liu, J.

33

whether to pursue further inquiry either with the foreperson or 

with Juror No. 1. After considering the issue, the parties 

advised the court that they did not believe there was need for 

further inquiry.

“It is misconduct for a juror during the course of trial to 

discuss the case with a nonjuror.” (People v. Danks (2004) 32 

Cal.4th 269, 304.) Juror misconduct raises a “presumption of 

prejudice,” but that presumption is rebutted when the reviewing 

court determines, based on the record as a whole, that “ ‘ “there 

is no substantial likelihood that the complaining party suffered 

actual harm.” ’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1309.)

The jurors in this case were admonished not to talk about 

the proceedings with anyone outside the jury. Assuming 

without deciding that Juror No. 1 committed misconduct when 

she told her spouse that a verdict had been reached, no prejudice 

flowed from her actions. Juror No. 1 told her spouse that she 

would be done late, that a verdict had been reached, and possibly 

what the verdict was. There is no reasonable probability that 

conveying this information to her spouse biased Juror No. 1 

against Miranda-Guerrero or made her incapable of serving as 

a penalty phase juror. (See People v. Harris, supra, 43 Cal.4th 

at p. 1303.) Miranda-Guerrero also argues that the trial court 

erred by declining to hold a hearing to inquire further into the 

juror’s alleged misconduct. But “ ‘ “ ‘[a] hearing is required only 

where the court possesses information which, if proven to be 

true, would constitute “good cause” to doubt a juror’s ability to 

perform his duties . . . .’ ” ’ ” (People v. Cowan (2010) 50 Cal.4th 

401, 506.) The trial court assumed that Juror No. 1 told her 

spouse what verdict the jury had reached and properly 

concluded that Miranda-Guerrero was not harmed even under 
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Opinion of the Court by Liu, J.

34

those circumstances. It was not required to hold a hearing to 

further investigate the juror’s actions.

E. Motion for a New Trial

Shortly after the trial concluded, a newspaper article was 

published detailing various lawsuits and disciplinary actions 

against one of the prosecutor’s medical experts, Dr. Israel 

Chambi, who was the medical witness most skeptical of 

Miranda-Guerrero’s theory that a fall caused Ballas’s injury. 

Miranda-Guerrero moved for a new trial, arguing that the 

article constituted new evidence “that could have affected the 

outcome of both the guilt and penalty phase of the trial.” The 

court denied his motion. 

Miranda-Guerrero asks that we remand the matter for the 

superior court to reconsider its ruling on the motion for a new 

trial in light of additional evidence he presents here in a request 

for judicial notice. This evidence consists of two unpublished 

Court of Appeal opinions from 2002 in suits against Dr. Chambi, 

which he says substantiate “several of the incidents documented 

in the newspaper article.” We take judicial notice of the 

existence of the opinions but not the statements of fact contained 

therein. (See People v. Woodell (1998) 17 Cal.4th 448, 455.)

Under Penal Code section 1181, a new trial is warranted 

“[w]hen new evidence is discovered material to the defendant, 

and which he could not, with reasonable diligence, have 

discovered and produced at the trial.” (Pen. Code, § 1181, 

subd. 8.) “ ‘ “To grant a new trial on the basis of newly 

discovered evidence, the evidence must make a different result 

probable on retrial.” [Citation.] “[T]he trial court has broad 

discretion in ruling on a new trial motion . . . ,” and its “ruling 
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Opinion of the Court by Liu, J.

35

will be disturbed only for clear abuse of that discretion.” ’ ” 

(People v. Beck and Cruz (2019) 8 Cal.5th 548, 667.)

Miranda-Guerrero is not entitled to a remand for a further 

hearing on his new trial motion. He does not claim that the trial 

court abused its discretion in denying the motion based on the 

evidence before the court at the time. And our review on direct 

appeal “is limited to the four corners of the record on appeal.” 

(In re Carpenter, supra, 9 Cal.4th at p. 646.) We decline to 

remand on the basis of evidence not presented to the trial court.

Nor in any event would the outcome be different on 

remand as a result of the Court of Appeal opinions he presents 

in his request for judicial notice. Those opinions were available 

when the trial took place. They would not be an appropriate 

basis for a new trial because Miranda-Guerrero could, “with 

reasonable diligence, have discovered and produced” them at his 

original trial. (Pen. Code, § 1181, subd. 8.) 

Miranda-Guerrero also contends that the due process 

principles expressed in Brady v. Maryland (1963) 373 U.S. 83 

required the prosecutor “to investigate the credibility” of Dr. 

Chambi before calling him as “a critical expert witness.” He 

does not claim a Brady violation, but he suggests that the 

prosecutor’s failure to investigate supports his request for 

remand to reconsider his new trial motion.

We are not persuaded by Miranda-Guerrero’s claim that 

he is entitled to reconsideration of his new trial motion because 

of the prosecutor’s failure to investigate Dr. Chambi. He argues 

that if the prosecutor had investigated Dr. Chambi’s credibility, 

the prosecutor “would have found” the Court of Appeal opinions 

that Miranda-Guerrero presents in his request for judicial 

notice. Again, these opinions would not have supported his new 

trial motion because they were available at the time of the trial. 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

36

(See Pen. Code, § 1181, subd. 8.) He further suggests that the 

prosecutor’s investigation might have revealed “information at 

the Medical Board of California about the professional status of 

its witness, Dr. Chambi.” But he does not provide any such 

records, nor does he claim that the prosecutor’s failure to 

uncover this information violated Brady or that there is a 

Brady-based duty to investigate witness credibility.

In sum, Miranda-Guerrero does not argue that the court 

abused its discretion in denying that motion on the basis of the 

record before it, and he has not demonstrated that the evidence 

he now proffers to support his new trial motion was unavailable 

at the time of trial. In light of the limited scope of our review of 

a trial court’s decision to deny a new trial motion, 

Miranda-Guerrero is not entitled to a remand for further 

proceedings on his motion.

Finally, Miranda-Guerrero argues in passing that the fact 

that the impeachment evidence against Dr. Chambi was not 

introduced at trial made the proceedings “fundamentally unfair 

and violated appellant’s rights to due process, to confront and 

cross-examine witnesses, to the effective assistance of counsel 

and to a reliable penalty determination.” Again, he does not 

claim a Brady violation, nor does he claim that the trial court 

improperly limited his impeachment of Dr. Chambi. In the 

absence of argument to support these constitutional claims, we

conclude they supply no basis for relief.

F. Prosecutorial Misconduct

Miranda-Guerrero claims that two groups of statements 

made by the prosecutor constituted misconduct and deprived 

him of a fair trial: comments about the police investigation, 
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Opinion of the Court by Liu, J.

37

which Miranda-Guerrero claims amounted to improper 

vouching, and derogatory comments directed at defense counsel.

During opening and closing argument, the prosecutor 

mentioned the quality of the work of the police officers who 

investigated Miranda-Guerrero’s case. At the time these 

statements were made, Miranda-Guerrero did not clearly object 

or ask for a jury admonition. Midway through the prosecutor’s 

closing argument, after almost all of these statements had 

occurred, defense counsel asked to speak with the court and 

prosecutor outside the presence of the jury and expressed 

concern that “we’re getting into the area of improper personal 

vouching for the police department.” Counsel noted that the 

defense had “not objected this far, but I think we’re getting a 

little bit astray.” Counsel’s statement was insufficient to 

preserve a claim of prosecutorial misconduct. The defendant 

must generally object “in a timely fashion — and on the same 

ground,” and must “request[] that the jury be admonished to 

disregard the impropriety.” (People v. Samayoa (1997) 15 

Cal.4th 795, 841.) Because defense counsel did neither,

Miranda-Guerrero has forfeited this claim.

Miranda-Guerrero also argues that his trial was tainted 

by two parts of the prosecutor’s closing argument in which he 

discussed defense counsel’s conduct: questions about why 

defense counsel had elicited evidence regarding Ballas’s liver 

and a kiss she shared with Jason on the night in question, and

statements that an argument made by defense counsel was 

“ ‘intellectually dishonest’ ” and “ ‘an insult’ ” to the jury’s 

intelligence. The questions about the defense’s evidence 

immediately prompted the sidebar at which defense counsel 

mentioned concerns about vouching. Before raising the issue of 

improper vouching, counsel expressed concern that the 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

38

prosecutor had been “insinuati[ng] that the defense is doing 

something underhanded.” Defense counsel further expressed 

that the prosecutor’s comments could not “go any further 

without running some serious risks in the case in terms of 

potential misconduct.” After the prosecutor said he did not 

intend to go further, the court told the attorneys that it had “not 

noted any error by the district attorney.”

Later in the prosecutor’s argument, defense counsel 

objected to the statement that part of the defense’s argument 

had been “intellectually dishonest,” though counsel did not 

reiterate that objection when the prosecutor subsequently said 

the argument was insulting to the jury. Counsel did not state 

the basis for the objection, and in context it is not clear that the 

objection was about the disparagement of the defense’s position. 

In any event, even if these comments and the discussion of the 

defense’s evidence strayed beyond appropriate commentary on 

the strength of the defense’s argument into personal 

commentary on defense counsel, they were not so egregious that 

they made the trial unfair, nor is it reasonably probable that the 

jury would have come to a different outcome if the prosecutor 

had not made these statements. (See People v. Dykes (2009) 46 

Cal.4th 731, 760, 772.)

G. Instructional Errors

Miranda-Guerrero raises a number of claims concerning 

the guilt phase jury instructions, each of which we have rejected 

previously. First, he argues that it was error for the superior 

court to instruct the jury on theories of first degree murder and 

felony murder because the information charged him only with a 

violation of Penal Code section 187, which he says describes only 

second degree murder. We have rejected this claim when it has 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

39

been brought in the past. (See, e.g., People v. Contreras (2013) 

58 Cal.4th 123, 148 (Contreras).) We decline to reconsider our 

precedent on this issue.

Second, Miranda-Guerrero argues that the Sixth and 

Fourteenth Amendments to the federal Constitution, as 

interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 

require more specificity in the charging instrument. We have 

rejected this claim as well (People v. Nelson (2016) 1 Cal.5th 513, 

555) and decline to revisit our precedent.

Third, Miranda-Guerrero contends that six jury 

instructions used during his trial undermined the requirement 

of proof beyond a reasonable doubt. We have previously rejected 

this claim as to all of the instructions he identifies. (People v. 

Nelson, supra, 1 Cal.5th at pp. 553–554 [CALJIC Nos. 2.01, 

2.02, 2.21.2, 2.22, 2.27]; People v. Carey (2007) 41 Cal.4th 109, 

130 [CALJIC No. 2.21.1].) Miranda-Guerrero presents no 

persuasive reason why we should reconsider our holdings on 

this issue.

Fourth, he argues that the superior court erred by not 

requiring the jury to come to a unanimous verdict about which 

theory of first degree murder applied (premeditated murder or 

felony murder), so long as the jury unanimously concluded that 

he was guilty of first degree murder under some theory. As he 

acknowledges, we have rejected this claim before. (People v. 

Jones (2013) 57 Cal.4th 899, 973.) He presents no persuasive 

reason why we should reconsider our past holdings on this issue.

H. Cumulative Error

Miranda-Guerrero contends that the cumulative effect of 

the errors he claims occurred at the guilt phase warrants 

reversal even if no individual error does so. The only potential
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

40

errors, such as the possibility that a few comments by the

prosecutor exceeded the bounds of appropriate argument, were 

minor. The cumulative effect of these errors does not rise to the 

level of prejudice necessary to reverse any of his convictions.

III. PENALTY PHASE ISSUES

Miranda-Guerrero argues that the admission of the 

statements he made in his police interviews requires reversal of 

his death sentence because the prosecutor used his statements

to counter evidence of his cognitive impairments. Because we 

find no error in the admission of his statements, we need not 

consider their effect on the penalty verdict.

Miranda-Guerrero also argues that the death sentence is 

grossly disproportionate to the crime of felony murder absent a 

showing of some particular mens rea as to the killing. We have 

rejected this argument before (Contreras, supra, 58 Cal.4th at 

p. 163), and we do so again here. He also argues that imposing 

the death penalty for felony murder violates international law 

and that this international law principle is binding on our state 

because of the supremacy clause of the federal Constitution. We 

have rejected this claim as well. (Contreras, at pp. 165–166.)

Miranda-Guerrero argues that various other aspects of 

California’s death penalty scheme are unconstitutional, while 

noting that our court has rejected these arguments in the past. 

He argues that our death penalty statutes are 

unconstitutionally overbroad because of the number of potential 

special circumstances; that the aggravating factor related to the 

circumstances of the crime is overbroad as well; that the lack of 

jury instruction regarding a burden of proof in the weighing of 

aggravating and mitigating factors undermined his 

constitutional rights; that the phrase “so substantial” in the jury 
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

41

instruction on the weighing of aggravating and mitigating 

circumstances is impermissibly vague; that the jury should have 

been instructed to find whether death is “appropriate” rather 

than whether it is “warranted”; that the jury should have been 

instructed that there is a presumption favoring a sentence of life 

without the possibility of parole; that the jury should have been 

required to make written findings during the penalty phase;

that the use of adjectives such as “extreme” and “substantial” in 

the sentencing factors creates an improper barrier to the 

consideration of mitigating evidence; that the jury should have 

been instructed as to which of the factors were mitigating and 

which were aggravating; that intercase proportionality review 

is required; and that equal protection requires more procedural 

protections for capital defendants than California law provides. 

We have rejected all of these arguments. (Contreras, supra, 58 

Cal.4th at pp. 169–170, 172–173.) 

He also argues that the jury should have been instructed 

that it must return a sentence of life without the possibility of 

parole if the mitigating factors outweighed the aggravating 

factors, and he says that California’s use of the death penalty as 

a “regular form of punishment” violates international norms. 

We have rejected these arguments as well. (People v. Jackson, 

supra, 1 Cal.5th at pp. 373–374.)

Miranda-Guerrero further claims that California’s death 

penalty scheme is constitutionally deficient because it does not 

require unanimous jury findings as to the aggravating 

circumstances and does not require the jury to find beyond a 

reasonable doubt any aggravating factors except prior felony 

convictions or violent crimes that did not result in a conviction. 

We have rejected these claims in the past (People v. McDaniel
PEOPLE v. MIRANDA-GUERRERO

Opinion of the Court by Liu, J.

42

(2021) 12 Cal.5th 97, 142–143; People v. Anderson (2001) 25 

Cal.4th 543, 601) and decline to revisit our precedent here.

Finally, because we find no error in the penalty phase, we 

reject Miranda-Guerrero’s claim that cumulative error infected 

the penalty determination.

IV. CONCLUSION

The judgment is affirmed.

LIU, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

GUERRERO, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Miranda-Guerrero

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S118147

Date Filed: November 17, 2022

__________________________________________________________

Court: Superior

County: Orange

Judge: Francisco P. Briseño

__________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the 

Supreme Court, Denise Kendall, Assistant State Public Defender, and 

Evan Young, Deputy State Public Defender, for Defendant and 

Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette, 

Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney 

General, Holly D. Wilkens, Kristine A. Gutierrez and Meredith S. 

White, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Denise Kendall

Assistant State Public Defender

1111 Broadway, Suite 1000

Oakland, CA 94607

(510) 267-3300

Meredith S. White

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9069