Filed 6/17/15 P. v. Hernandez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
ANTONIO HERNANDEZ,
Defendant and Appellant. B256234
(Los Angeles County Super. Ct. No. TA128347)

APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J. Webster, Judge. Affirmed in part and reversed in part. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Stephanie C. Brenan, Supervising Deputy Attorney General, and Brendan Sullivan, Deputy Attorney General, for Plaintiff and Respondent.

________________ _____________2 A detective urged the defendant to expl ain the motivation for a shooting, telling
the defendant several times that probation was better than servin g up to 20 years in state prison, expressly stating on multiple occasions that the case was going away, indicating there would be no prosecution be cause the victim was not co operative and did not care, and that the detective might simply write up his report and not even submit it to the district attorney. We conclude that, unde r the totality of the circumstances, the defendant’s tape recorded confession was motivated by these express and implied promises of leniency and therefore involunta ry. We further conclude admission of the involuntary confession was not harmless beyond a reasonable doubt, and reverse the
three counts related to the confession. Defendant and appellant Antonio Hernandez was conv icted by the jury of the following offenses: count 1 – willful, deliberate, premed itated attempted murder, in
violation of Penal Code sections 664 and 187 1 ; count 2 – assault w ith a firearm, in violation of section 245, subd ivision (a)(2); and counts 3 a nd 4 – possession of a loaded and unregistered firearm, in vi olation of section 25850, subd ivision (a). The jury found true various firearm use allegations in counts 1 and 2. 2 The trial court sentenced defendant in count 1 to life in prison, enhanced by 20 years for use of a firearm within the meaning of section 12022.53, subdivision (b ). Sentence in count 2 was imposed and stayed pursuant to section 654. One year concurrent terms were imposed in counts 3 and
4.
Defendant raises three issues in his tim ely appeal from the judgment. First, he argues he did not knowingly, vol untarily, and intelligently waive his right to remain silent prior to questioning. Second, he contends hi s confession was involuntary under the Fifth

1 All statutory references are to the Penal Code, unless otherwise indicated.

2 The jury found not true a llegations that the shooting wa s motivated by race, that the offenses were for the benefit of a criminal street gang, and that the victim suffered great bodily injury.3 Amendment because it was induced by promises of leniency. Third, defendant argues the sentence in count 3 for carryi ng a loaded and unregistered firearm should have been stayed under section 654, becau se the conviction arose out of the same course of conduct as the attempted murder in count 1. We agree with the conten tion that defendant’s confession was involuntary, and reverse the convictions in counts 1, 2 and 4. 3 The
conviction in count 3 is unaff ected by the involuntary confession and affirmed. Because substantial evidence of guilt ex ists independent of the invol untary confession, we remand
the cause to the trial court for furt her proceedings on counts 1, 2 and 4.

FACTS 4

Prosecution Evidence

The Shooting of Dejuan Becker

Dejuan Becker was shot af ter leaving his house in the area of Belhaven and 113th Street on April 17, 2012. 5 Before the shooting he heard someone inside a green or black car say, “Fuck blacks.” 6 He saw two young Hispanic male s, one with long hair, inside the car, but Becker was not sure if the driver or passenger was shooting. He saw the passenger with guns but cannot say if the driver had a g un and never saw the driver

3 Because we reverse the convictions in co unt 1, we need not address defendant’s contention that the sentence in count 3 should be stayed un der section 654.

4 The factual summary omits the testimony relating to the gang, hate crime, and great bodily injury allegations, all of which were found not true by the jury.

5 All dates are in 2012, unless otherwise stated.

6 The first time Becker mentioned heari ng someone yell, “Fuck blacks,” was at the preliminary hearing, 10 m onths after the shooting.4 holding a gun. He thinks over ten shots were fired. One of the shots struck and shattered Becker’s right elbow, resulting in him spendi ng four or five days in the hospital. Shortly after the shooting Officer Andr ew Chambers saw the injured Becker sitting on a porch at Belhaven an d 113th Street. Becker said he saw two Hispanic males in a green Camaro. Becker to ld Officer Chambers that he was riding his bicycle when the driver, who had long hair, fired about seven shots. Becker was interviewed in the hospital by Detective Freddy Lilomaiava on April 19. Becker, who has a history of criminal convictions and spent time in state prison,
testified that he is an associate of the Be lhaven Bounty Hunter Bloods gang, although other compelling evidence, such as Becker’s gang tattoos, de monstrated that he is an active member of the gang. Becker’s trial testimony that he had no idea who shot him was impeached with Detective Lilomaiava’s testimony that B ecker told him he was shot by the driver of the green Camaro. The driver was a young Hispanic male with long hair. Detective Lilomaiava also impeached Beck er’s testimony denying that he told the
detective that he had seen the shooter before and that the shooter was the little brother of “T,” someone he used to smoke with and w ho was killed at a party three years earlier.
Becker told Detective Lilomaiava he could identify the shooter.

Defendant’s Arrest for Possession of a Firearm and the Reinterview of Becker

Officer Jonathan Vander Lee arrested de fendant on September 16. Defendant was in possession of a loaded and unregistered .45 caliber handg un. A cell phone recovered from defendant contained a text message stating, “Hey have you used da [ sic ] .380 to see if it jambs and how much for the .45?” Defenda nt consented to a search of his residence,
which lead to the seizure of a loaded .3 57 Smith and Wesson chrome revolver, marijuana and associated paraphernalia. Becker was in custody on a parole vi olation on September 17, the day after defendant was arrested for posse ssion of the firearms. Det ective Lilomaiava showed him a six pack of photographs, one of which was of defendant. Becker laughed after looking5 in the direction of defendant’s photograph, stating that he did not want to be labeled a snitch while in custody and he needed to talk to his mother before deciding whether he
will talk to Detective Lilomaiava. Be cker was shown a still photo captured from surveillance video from the day of the shooti ng, depicting a green Camaro, which Becker
identified as the exact car used in the shooting. Becker de nied telling the prosecutor and
Detective Lilomaiava that the driver shot at him, but was impeached with his prior statement to the contrary. Becker did not re cognize a photograph of Heriberto Genis, a member of the Mid City Stoners, a rival gang to the Bloods, but he had heard of him and
had been arrested for Genis’ s murder but not charged.
Genis was murdered near defendant’s home on December 21 by members of the
Bloods.

Initial Interview of De fendant Regarding his Arrest for Firearm Possession

Detective Lilomaiava condu cted an in-custody inte rview of defendant on September 17. The initial portions of the interview were tape recorded. Detective Lilomaiava explained that he was handling defe ndant’s arrest for possession of a firearm, he was going to put the case together to present to the district attorney, 7 and that he did
not have much information other than what was in the report he had read. Detective
Lilomaiava told defendant that he tries to talk to the person arrested so he can present the whole story, because presenting both sides of the case can help determine at an early stage whether probation is granted or a time-se rved disposition is reached. According to the detective, often people who have been ar rested previously do not want to talk, but sometimes they do and admit their mistake, and the distri ct attorney decides to “just []
leave it as is.”

7 The detective at first stat ed he would present the case to defense counsel and the court, but then corrected himself by sta ting he would go to the prosecutor.6 Detective Lilomaiava advi sed defendant of his constitu tional rights as defined in
Miranda. 8 Defendant said he understood each of th e rights and proceeded to answer the detective’s questions. Defendant said he kn ew why he had been arrested. Detective
Lilomaiava noted that defendant and defendan t’s father had been cooperative regarding a search of defendant’s room, where marijuana and a gun were found. Defendant admitted the gun found in the search was his and that he had it for about a year. Defendant also admitted he was in possession of a gun when arrested. Detectiv e Lilomaiava said “there’s been a lot of shit going on in that little area,” and de fendant said that one of his friends had been killed by the Blacks. Defend ant said he had obtaine d the gun within the last few months for protection.
Detective Lilomaiava said he also wanted to talk to defendant about the murder of
defendant’s friend. The detective told defe ndant he knew defendant’s brother was killed at a party when defendant was younger. Dete ctive Lilomaiava asked if defendant wanted to write a statement about what happened when defendant was arrested or if he wanted
the detective to write a brief statement. De fendant asked the detective to write a brief

statement.

Initial Questioning Regarding the Shooting of Becker

When Detective Lilomaiava finished hi s questioning about defendant’s September 16 arrest, he told defendant that he had been working on a case involving an April shooting in the area where de fendant lived. Before ques tioning defendant about that shooting, Detective Lilomaiava again read defendant his Miranda rights, which defendant
stated he understood.
Detective Lilomaiava said he had info rmation that defendant might have been involved in the April sh ooting. He said he understood that Black guys were shooting at Hispanics and then it goes back and forth. He told defendant that a Black male was shot

8 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).7 while walking after “you guys drove up on hi m.” Detective Lilomaiava said the victim
survived and identified defendant as the shooter. 9 Defendant was shown a screen capture from a surveillance video, whic h showed defendant driving a green Camaro five minutes before the shooting. Detectiv e Lilomaiava stated he knew he had the right person. Detective Lilomaiava said that before he pres ents that case to the district attorney he
wants to talk to defendant to s ee what defendant has to say.
Defendant said he did not remember the shooting incident with the Black male. Detective Lilomaiava said he wanted to put th is case together and pres ent it to the district attorney, which is why he asked defendant about the guns. Defendant was told to keep in mind he had been identified by a couple of people. 10
Detective Lilomaiava said defendant did not have much of a record and he is trying to put “this thing” together and presen t it to the district a ttorney. If defendant wants to talk about the shooting the detec tive would write it up a nd send it through and see what they say. Detective Lilomaiava explained that is hard with people having
identified defendant as the shooter and “t here’s the difference between being on probation . . . and being 15, 20 years in jail, in prison. And I don’t want you to be sitting in prison, uh, 5, 10 years from now and figure out, say hey you know what? Maybe I should’ve said something to the, uh, to the dete ctive when he was talking to me that day.” Detective Lilomaiava said a lot of people sit there and figure that out too late, “and I don’t want that to happen to you, man. You’re pretty young, man. And you don’t have a whole lot, uh, in your rap sheet.”

9 Becker, the shooting victim, never made an identification of defendant. 10 Detective Lilomaiava testified that no other person identified defendant as the shooter.8 Detective Lilomaiava said the firear ms were being tested and “the [DNA] evidence and all that shit’s coming.” 11 He is trying to put all these things together before any of the added on stuff “that will come b ite you in the ass. [¶] You know what I mean?” After recounting the situation, Dete ctive Lilomaiava reminded defendant it took him four or five months to put the shooting case together. He wanted to talk to defendant to see what he says and as k “why this shit happened?” Defendant replied that it was for prot ection. Detective Lilomaiava asked defendant why he thinks the detective knew about defendant’ s brother being killed. The person defendant shot was a friend of defendant’s brothe r and knew defendant. Defendant denied owning or dr iving a Camaro, stating that he only drives his father’s
trucks. Detective Lilomaiava repeated that th ere is a difference between probation and going to prison for a long time. Defendant said he understood. Detective Lilomaiava did not know the motive for the shooting, but maybe something happened before, such as one of defendant’s friends being shot. Defendant said he did not recall that incident.
Detective Lilomaiava said someone was shot in front of defendant’s house, but defendant denied knowledge of that happening.
Detective Lilomaiava asked what defend ant’s parents would think if they found out about the shooting. Defendant said they would cry. Detective Lilomaiava again said there is a difference between probation and defendant getting 15 to 20 years for this shooting. Defendant asked what the de tective meant by probation. Detective
Lilomaiava said he did not make that deci sion, but often when cases are presented the police speak to the district atto rney and they make the decision. He said there is always a motive and asked “why you carried a gun. [¶ ] To protect yourself, right?” Defendant agreed.

11 Because of the different caliber of the weapons seized from defendant and those fired at the shooting of Becke r, the seized weapons were not fired at Becker. No DNA evidence was presented at trial.9 Detective Lilomaiava said he would sa y defendant had this gun and was honest about it, because he had the gun to protect himself after hi s friend just got killed a few weeks before. The detective would say there were lots of shooti ngs between Hispanics and Blacks, not all of which were even gang re lated, and that is why defendant had a gun. Detective Lilomaiava said he is talking abou t the shooting because it gives him an idea of
what he needs to sell to the di strict attorney’s office. The detective wanted to talk about the shooting, “Just like I’m going to sell this to them.” At this point, defendant asked
Detective Lilomaiava to turn off the tape recorder.

The Unrecorded Porti on of the Interview

Because defendant asked that the record ing stop, Detective Lilomaiava took the recorder out of the room, but left it runn ing. The tape ran for 12 minutes until the recording picks up with the fi nal segment of the intervie w. Detective Lilomaiava
testified that in the unrecorded portion of the interview, defe ndant said he and his friends were hanging out in the front yard of hi s house smoking marijuana on the morning of April 17. A group of Black males from the Belhaven Bloods gang approached and asked defendant’s group where they were from, referring to gang affiliation. A fight ensued, ending with the Black males b eating defendant and his friends and stealing marijuana and

money. That afternoon defendant wa s driving in the green Cama ro within a block of his house, looking for the Black males. Defenda nt was with a passenger, who he refused to identify. Defendant saw a Black male riding a bicycle on 113th Street. Defendant pulled out a gun and shot twice. At this point in the interview, a work er at the police station brought the tape
recorder back into the interview room. Detective Lilomaia va left the recorder running for
the balance of the conversation.

Defendant’s Recorded Confession10 Detective Lilomaiava began the second ta pe recorded portion of the interview by saying that he is trying to figure out what happened and “basically try to make it go away,” which is why the detec tive needed defendant’s help. Detective Lilomaiava said, “I can make it go away with y ou talking to me and telling me what happened. [¶] You
know what I mean?” Defendant said he di d not want “that comi ng back to me” and asked if he could “have that in writing.” Detective Lilomaiava assured defendant it would be in a report, but defendant said he wanted to see paperwork stating “that thing
won’t come back.” Detective Lilomaiava said he would reco rd it and write a report, but defendant said he “got screwed already, man.” After a few additional comments, Detective Lilomaiava stated, “Listen, I, I got to go. I have to be somewhere. All I’m trying to do is trying to figure this thing out a nd make it, I can make it go away but . . . .”
Defendant asked “but this th ing is going to go away, righ t?” Detective Lilomaiava answered, “Yeah.”
Defendant clarified that he was talk ing about the April shooting and not the September arrest for possession of the handgun. Detective Lilomaiava said they had to separate what they were talking about. De fendant said he wanted to separate the two incidents, and Detective Lilomaiava said th ey were talking about “what happened that day.” Detective Lilomaiava said defendant had to worry about the firearms possession case, not the shooting case.
Detective Lilomaiava asked if there was something that led up to the shooting. Defendant replied it had to do with gang s and random people in them. Defendant repeated that he was just smoking marijuana that morning with a co uple of friends, and the Black guys socked him and his brother and took his marijuana.
Detective Lilomaiava said he understood the principal of disrespect because he deals mostly with gangs. Defendant again refu sed to say who was with him in the car at the time of the shooting. He said the shooting victim was not part of the group in the earlier attack. Defendant hesitated to say ex actly what happened, except that one thing
led to another. Detective Lilomaiava said he would not write that dow n, and “the dude is11 not even going to, doesn’t even want to do anything with it. ” According to Detective Lilomaiava, the only reason he was talking w ith defendant was his desire “to clear my
case.” Defendant said he did not want to get charged for that case, but Detective Lilomaiava said “that’s the case you have to worry about.” Detective Lilomaiava said it would “bite you in the ass if you don’t talk to me. [¶] But that’s the one that I’m trying to help you out with.” Detective Lilomaiava said, “This on e, I can honestly tell you that you [ sic ] talking . . . probably go away.” Defendant asked if it is up to the district attorney. Detective Lilomaiava said, “It might not ev en go to the DA. [¶] I mi ght have to just write out a report and file it away.” When defendant aske d if he could have Detective Lilomaiava’s word on that, he said it’s on the recording. Defendant replied, “you guys are freaking tricky.” Detective Lilomaiava assured defendant “y ou don’t have to worry about this case, is [ sic ] that the case right there you have to wo rry about.” Referring to the shooting of Becker, defendant asked, “But that’s a bigge r case, isn’t it?” Detective Lilomaiava replied, “Bigger case but sometimes bigger ca se ain’t going anywhere. And that’s why I, I told you just better off you saying something. ” Defendant asked, “That’s, this is going away, right?” Detective Lilo maiava answered, “Yeah.”
Defendant asked what Detective Lilomaia va would like him to speak about.
Detective Lilomaiava said he wanted to know why the shooting happened. Defendant explained that the Blacks were always trying to mess with them so he bought a gun for protection. Defendant got “punked” every day and his house wa s shot up numerous times. He thinks he shot twice at the guy, he did not know if he was hit, and then he went
home.
Detective Lilomaiava said twice more that this is the case de fendant had to worry
about. He would talk to the district attorney about this ca se. Defendant objected that
Detective Lilomaiava told hi m he did not have to worr y about the shooting case.
Detective Lilomaiava said there is “more ch ance of this case not even going anywhere” and being dropped. Defendant sa id he did not want to be ch arged with the shooting case.12 Detective Lilomaiava said that based on wh at he knows the case is “not going to go anywhere.” Detective Lilomaia va said the only reason he wa s talking to defendant about
it was so that “he can know what happened.” He just did not want to be “surprised that fucked up guy he lied to me.” He woul d write it up and have his boss review it. Defendant said, “All right but . . . going to go away, right?” Detective Lilomaiava said he would talk to his boss and “this is proba bly not going to go anywhere.” Detective Lilomaiava said the shooting victim “doesn’t give a shit about what happened” and “he . . . doesn’t want anything to do with it. [¶] So, you actua lly lucked out.” Detective Lilomaiava reassured defendant “this prob ably not going to go anywhere.” Defendant continued to express his concer n about the shooting ca se, stating that “I just don’t want this coming back to me, man.” Detective Lilomaiava said he did not have to worry about the shooting cas e, implying that the fire arms case was defendant’s problem. Detective Lilomaia va told defendant to worry about his other case, not the shooting. He suggested that defendant discu ss with his attorney ho w to work out “some freaking probation or some shit.” When defendant asked if he could come back with his attorney to write down what had been discussed, Detective Lilomaiava replied “like I said, I wouldn’t have to worry about this case. I worry about the on e you have in your pocket.” The discussion then turned to de fendant being released on bail. Detective Lilomaiava again assured defendant, “I wo uldn’t worry about this case.” Defendant asked if he had the detective’s word, and Detective Lilomaiava replied, “Yeah.”

Defense Evidence

Valentin Hernandez, defendant’s older brother, did not believe defendant was a gang member. Valentin believed Genis was a me mber of Mid City Stoners. A brother of
defendant and Valentin was shot and killed at a party in 2009. Defendant testified that he was walking on April 10, when he was approached by
several Black males in a car. One of the occu pants got out of the car and asked defendant where he was from. Defendant did not recogn ize the men, but they claimed to be from13 the Bounty Hunter Bloods and wore red, the gang’s color. Defendant said, “I don’t bang.” One of the men removed mariju ana and money from defendant’s pockets.
Defendant did not resist because he believed the man was armed.
Defendant was afraid because the Bloods were driving around the area, so he called Genis to come pick him up. Genis wa s being driven by Christian Portillo at the time, so the two of them went to defendant’s location. Af ter defendant was in the car, Portillo drove off, but a Black male pulled out a gun and opened fire on the car.
Defendant ducked af ter hearing gunshots. Portillo drove until he found a safe place to stop. He reported the incident to the polic e a few hours later but did not mention that
defendant or Genis had been in the car at the time of the shooting. Defendant was driving with Genis as a passenger on April 17. He was unaware Genis possessed a gun. Genis directed defendant to turn onto 113th Street, where defendant saw Becker walking with a bicycle. Genis told defendant to slow down. Defendant then saw Genis with a gun in each hand, pointed toward Becker. Genis fired both guns and screamed, “Fuck Bloods.” Defendant had no idea Genis was going to shoot. Defendant drove away quickly. Defendant did not tell anyone about the shooting. He knew Genis was a gang
member and did not want to snitch on him. Defendant bought another gun, the .45 caliber, for protection from anyone, includi ng from Genis. He had the gun in his possession when arrested on September 16.
The version of events defe ndant told to Det ective Lilomaiava in the September 17
interview was false. He did not trust the detective and was afraid of repercussions from
Genis. He confessed because he believed he would not be prosecute d based on Detective
Lilomaiava’s assurances. After Genis was killed, defendant tried to tell Detective Lilomaiava what had really ha ppened, but the detective was not interested in speaking to him at that point. Some months after the shooting, defendant parked his Camaro on a street near his home. The following morning he discovered th at his Camaro had been burned. He did14 not report the arson of his car to the polic e. The text message on his phone regarding firearms was intended for Genis, wh o had borrowed defe ndant’s phone.

DISCUSSION

Defendant makes two challenges to th e admissibility of his September 17
confession—that he did no t knowingly, intelligently, and voluntarily waive his Miranda rights, and his statement was the involuntar y product of multiple false promises of leniency made by Detective Lilomaiava. Examination of defendant’s opening brief reflects no argument on the i ssue of the validity of the Miranda waiver, an issue without merit which does not require discussion. We accordingly address only defendant’s contention that his September 17 confession was involuntary, which we conclude is
meritorious.

Defendant’s Objection to Admission of the Confession and Ruling of the Court

In the trial court, defendant challenged the voluntariness of his confession on the basis that it was the product of improper inducements of leniency by Detective Lilomaiava. In denying defendant’s motion to exclude the confession as involuntary, the trial court found, “there’s been no offers of any threats, punishment, leniency, any free pass, or any other representation that woul d suggest that by talking to the police, somehow this case is – the D.A. is not goin g to file the case, it’s not going to be prosecuted, nothing is going to happen to him.”

Applicable Law

As explained in People v. Tully (2012) 54 Cal.4th 952, 993 ( Tully ), a confession is involuntary and inadmissible if it was elic ited by any express or implied promise of benefit or leniency. Not every inducement to speak renders a confession involuntary; if15 the benefit pointed out by the police flows naturally from the truth and honesty, a subsequent confession is not involuntary. ( Ibid. ; People v. Howard (1988) 44 Cal.3d 375, 398.) “A confession is not rendered invo luntary by coercive police activity that is not the ‘motivating cause’ of th e defendant’s confession. ( People v. Williams (1997) 16 Cal.4th 635, 661.)” ( People v. Linton (2013) 56 Cal.4th 1146, 11 76.) The burden is on the prosecution to establish the voluntariness of a confession by a preponderance of the evidence. ( Tully
, supra , at p. 993; People v. Carrington (2009) 47 Cal.4th 145, 169 ( Carrington ).) The focus of the inquiry is on whet her defendant’s choice to confess was not essentially free because his will was overb orne, which is determined by examination of the totality of the circumstances. ( Tully
, supra, at p. 993; Carrington , supra , at p. 169.)
We review the trial court’s factual findi ngs for substantial evidence, but conduct a
de novo review of the trial court’s findi ng that the confession is voluntary. ( Arizona v.
Fulminante (1991) 499 U.S. 279, 287, 303 ( Fulminante ); Tully
, supra , 54 Cal.4th at p. 993; Carrington , supra , 47 Cal.4th at p. 169.) Whethe r conduct constituted a promise of leniency and whether it operated as an induce ment is subject to independent review. ( People v. Jones (1998) 17 Cal.4th 279, 296.) An interrogator’s statem ent that he has no authority to make promises does not, standing alone, undermine a defendant’s conten tion that his confession was involuntary. “The viewpoint is too narrow, for promises can be implicit as well as explicit, and an assertion that no promises are being made may be contradicted by subsequent conversation. ( People v. Hill (1967) 66 Cal.2d 536, 549-550.)” ( People v. Andersen (1980) 101 Cal.App.3d 563, 579.) “‘[I]n carr ying out their interrogations the police must avoid threats of punishment for the suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession . . . . [The police] are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.’ ( People v.
Andersen [ , supra, at p.] 576.)” ( People v. Holloway (2004) 33 Cal.4th 96, 115.)16 Analysis

We have listened to the r ecorded portions of defendant ’s interrogation in fulfilling our obligation to make an independent determ ination of the voluntariness of defendant’s confession. Defendant makes no argument that the first portion of the recorded interrogation – relating to defendant’s Sept ember 16 arrest for possession of a firearm and the subsequent search of his home l eading to discovery of another handgun and marijuana – was involuntary. Our review reveals no coercion in that portion of the
interview. We reach a different conclusion regardin g the portion of the recording containing
defendant’s confession to the Becker shootin g. In our discussion, we italicize those portions of the interview whic h contain express or implied promises of leniency and
which lead to the conclusion th at the totality of the circumst ance show that the confession was motivated by those promises.
Detective Lilomaiava told defendan t he believed defendant committed the shooting and that defendant had been identified by Becker. He said he wanted to see what defendant had to say abou t the shooting before presenti ng the case to the district attorney. Defendant said he did not recall the shooting. De tective Lilomaiava confronted
defendant with evidence of his involvement in the Becker shooting, some true, some inaccurate, including that defend ant had been identified by a couple of people. Detective
Lilomaiava said he would write it up and put it through to the district attorney, but it is hard since people identified defendant, and there is a big difference between being on probation and 15 or 20 years in prison . He urged defendant to talk because he did not want defendant sitting in prison five or ten years later thi nking he shoul d have spoken to
the detective. After stating the guns were being tested for DNA and he was trying to put the case together before it came back an d will “bite you in the ass,” Detective Lilomaiava said he wanted to ask, “why this shit happened?” Defendant said it was for protection. He17 denied driving or owning a Ca maro. Detective Lilomaiava emphasized for a second time
that there is a difference between prob ation and a long prison sentence . He suggested perhaps a shooting in front of defendant’s home was the motiva tion for the Becker shooting, but defendant denied knowledge of that other shoo ting. Detective Lilomaiava mentioned probation for a third time, stating there is a differe nce between probation and 15 to 20 years in state prison . Defendant asked what the detective meant by probation. Without answering defendant’s qu estion, Detective Lilomaiava said that decision is made by the district attorney. It is a close question whether the refe rence to the difference between probation and a lengthy term in state prison, made th ree times by Detective Lilomaiava, constitutes an implied promise of leniency . While an exhortation to te ll the truth is constitutionally permissible, it is far less certain that it is permissible to suggest that a suspect will get probation rather than up to 20 years in state prison by explaining what motivated a potentially deadly shooting. We need not resolve this i ssue, because the subsequent interview contains statements constituting express promises of leniency as an
inducement. When the detective suggested defendant carried a gun for protection, defendant agreed. The detective offered that he woul d say defendant had th e gun and was honest
about it because his friend wa s killed a few weeks earlier and there were many shootings between the Blacks and Hispanics. He needed to know the mo tive so he could “ sell this ” to the district attorney. At this point defend ant asked for the tape re corder to be turned
off.
What followed was the unrecorded 12 minut e interview of defendant. According to Detective Lilomaiava’s testimony, defendan t confessed while the tape recorder was out of the interview room. A worker brought the recorder back into th e interview room, and
the balance of the interview wa s recorded, including defendant ’s confession, which is in issue in this appeal. The final portion of the tape recorded in terview is replete with express and implied promises of leniency. Detective Lilomaiava began by saying he is trying to figure out18 what happened and “ basically make it go away ,” which is why Detective Lilomaiava needed defendant’s help. Detect ive Lilomaiava further stated, “ I can make it go away with you talking to me an d telling me what happened. You know what I mean? ”
Defendant said he did not wa nt “that coming back to me” and asked if he could “have that in writing.” Detective Lilomaiava assu red defendant it would be in a report, but defendant said he wanted to see paperwork so “that thing won’t come back.” Detective
Lilomaiava said he would record it and write a report, but defendant said he “got screwed already, man.” After a few additional comment s, Detective Lilomaiava stated, “Listen, I, I got to go. I have to be some where. All I’m trying to do is trying to figure out and make it, I can make it go away but . . . . ” Defendant asked “ but this thing is going to go away, right? ” Detective Lilomaiava answered, “ Yeah. ” This colloquy, alone, is sufficient to demonstrate that the interrogation leading to defendant’s final confession was tainted by improper promises that the shooting case would go away if defendant simply explaine d its motivation. Defe ndant’s motivation to confess is demonstrated by him seeking assurances that the case would go away, followed by an express promise that it would by Detective Lilomaiava. As the interview progressed, additional expr ess promises of leniency were made to
defendant. Defendant would no t disclose who was with him at the time of the shooting,
nor did he describe th e shooting in detail; instead, he simply told the detective that one thing led to another. Detective Lilomaiava sa id he would not write that down, “the dude [Becker] is not even going to, doesn’t ev en want to do anything with it,” and the only reason he was talking with defendant was his desire “ to clear my case. ” Defendant said he did not want to get charged for that case , but Detective Lilomaiava said “that’s the case you have to worry about.” Referring to the shooting of Becker, Detective
Lilomaiava said it would “ bite you in the ass if you don’t ta lk to me. But that’s the one that I’m trying to help you out with. ” Thus, defendant was lead to believe the only purpose of the interrogation was to clear the cas e with his explanation, and if he did not talk, it would “bite [h im] in the ass.”19 Adding to the expressions of leniency in return for a st atement, Detective Lilomaiava said, “ This one, I can honestly tell you that you [ sic ] talking . . . probably go

away. ” When defendant sought clarification if the decision was up to the district attorney, Detective Lilomaiava said, “ It might not even go to the DA. I might have to just write out a report and file it away. ” When defendant asked if he could have Detective Lilomaiava’s word on that, he said it is on the recording. Defendant replied “you guys are freaking tricky.” Detective Lilomaiava assured defendant “ you don’t have to worry
about this case , is [ sic ] that the case right there you have to worry about.” Defendant said, “But that’s a bigger case, isn’t it?” Detective Lilomaiava replied, “ Bigger case but sometimes bigger case ain’t going anywhere. And that’s why I, told you just better off you saying something. ” Defendant said, “ That’s, this is going away, right? ” Detective Lilomaiava said, “ Yeah. ” Our independent review of the totality of the circumstances leading up to defendant’s ultimate confession accordingly dem onstrates repeated promises that the case was go away if defendant explained the motivati on for the shooting. He was told that the case was not going anywhere, it might not even go to the district a ttorney, and ultimately was given an express promise that the shootin g case was going away. His full confession
then followed. Any doubt that the assurances of leni ency motivated defendant’s confession is eliminated in this latter part of the interrogation. Althou gh he had unambiguously told defendant several times the shooting case woul d go away, Detective Lilomaiava later told
defendant that this is the case defendant ha d to worry about and he would talk to the district attorney about it. Defendant objected that Detective Lilomaiava told him he did not have to worry about this case. Detective Lilomaiava e quivocated and said there is more chance of this case not even going anywhe re and being dropped. Defendant said he did not want to be charged w ith the shooting case. Returnin g to what he earlier told defendant, Detective Lilomaia va said that based on what he knows the case is “ not going to go anywhere ,” the only reason he was talking to defendant about it was so that “he can know what happened” and “ basically this, this case is gonna [ sic ] away. ”20 Detective Lilomaiava again softened hi s stance regarding the case going away, by saying he would write it up and have his boss review it. Defendant said, “all right but going to go away, right?” Detective Lilomaia va said he would talk to his boss and “ this is probably not going to go anywhere. ” Detective Lilomaiava said the shooting victim “doesn’t give a shit about what happened” and “he . . . doesn’t want anything to do with it. [¶] So, you actually lu cked out.” Detective Liloma iava reassured defendant “ this probably not goin g to go anywhere ,” and defendant should not worry about this case.
This discussion further solidifies our conc lusion that defendant was repeatedly told the case would go away if he explained what happened, that defendant relied on those repeated promises, and that his confessi on was the direct result of impermissible promises of leniency. The Attorney General accura tely notes that at times Detective Lilomaiava told
defendant he did not make the final decision on a case, that it w ould have to go the district attorney, and that it would be review ed by the detective’s boss. While we agree those statements are interspers ed throughout the interview, they are overshadowed by the more emphatic and compelling promises of le niency. The Attorney General’s argument that “there was no promise of more lenien t treatment at the hands of the police, prosecution, or court” is belied by the re peated statements made by the detective indicating that he merely wanted to know the motivation for the shooting and the case was going to go away. We also reject the Attorney General’s argument that it is not entirely clear that Detective Lilomaiava was referring to the shoot ing case in making his various statements about the case going away. List ening to the recording of th e interview, as opposed to merely reading the supporting transcription, leaves no room for doubt that the detective was referring to the shooting case going away. The express statements that the case would go away were made in that portion of the interview pertaining to the shooting. We
have no doubt Detective Liloma iava’s references to a case going away pertained to the shooting of Becker.21 The remaining issue is whether admission of defendant’s confe ssion, contained in the final portion of the tape r ecording, is prejudicial error.

Prejudice

Admission of an involuntary confession is not reversible error per se. “The prejudicial effect of such error is to be de termined, for purposes of California law, under the generally applicable reasonable-probability test embodied in article VI, section 13, of the California Constitution. ( People v. Watson [(1956)] 46 Cal.2d 818, 836 [( Watson )].) Of course, because the Watson standard is less demanding than the harmless-beyond-areasonable-doubt standard mandated by the applicable federal c onstitutional authorities (see [] Fulminante
, supra , 499 U.S. [at pp.] 306-313; Chapman v. California [(1967)] 386 U.S. 18, 23 [( Chapman )]), whenever a confession admitted in a California trial has been obtained by means that render the confession inadmissible under the federal Constitution, the prejudicial effect of the conf ession must be determined under the federal standard.” ( People v. Cahill (1993) 5 Cal.4th 478, 509-510.)
Introduction of defendant’s confession did not result in any prejudice to defendant as to the misdemeanor firearm possession ch arge in count 4, which was based on his September 16 arrest. The evidence as to count 4 is undisputed, and defendant’s confession to possession of the firearm was not tainted by the promises of leniency that came later in his interrogation. The same ca nnot be said, about the attempted murder conviction in count 1, the assault with a firearm charge in count 2, and the possession of unregistered handgun charge in count 3. Here, we deal with a tape recorded conf ession, which may tempt the jury to rely
on that evidence alone to convict. ( Fulminante
, supra , 499 U.S. at pp. 297-298.) As explained by Justice Kennedy, “If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without
careful consideration of the ot her evidence in the case. Apar t, perhaps, from a videotape of the crime, one would have difficulty find ing evidence more dama ging to a criminal22 defendant’s plea of innocence.” ( Fulminante
, supra , at p. 313 (conc. opn. of Kennedy, J.).) “A confession is like no other evidence. Indeed, ‘the defendant 's own confession is probably the most probative and damaging evid ence that can be admitted against him . . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information abou t his past conduct. Certainly, confessions have profound impact on the ju ry, so much so that we may justifiably doubt its ability to put them out of mind even if to ld to do so.’ [Citations.]” ( Fulminante
, supra , at p. 296.)
Factors identified in Fulminante point toward prejudice in this case. Although
there is substantial evidence of defendant’s guilt without regard to his confession, it is far
from clear that the case would have been f iled without it, and there is certainly no
reasonable doubt that the confession affect ed the verdict. No witness identified defendant as the shooter. The victim, Becke r, may fairly be described as a less than reliable witness. Although defendant posse ssed two firearms, neither was tied to the Becker shooting. The jury had some difficulty with the case as reflected in its findings that the gang, great bodily in jury, and hate crime allega tions were not true. The confession certainly was the most powerfu l evidence connecting defendant to the shooting of Becker. (See Fulminante
, supra , 499 U.S. at pp. 295- 296.) Admission of the
confession also tended to corroborated other evidence pointing toward guilt. ( Fulminante, supra, at p. 300.) These circumstance s point unerringly toward prejudice
under the Chapman standard of review.

DISPOSITION

The judgment is affirmed as to count 3, but reversed as to counts 1, 2 and 4. The
cause is remanded to the trial court for fu rther proceedings on counts 1, 2 and 4.

KRIEGLER, J.23 We concur:

MOSK, Acting P. J.

KIRSCHNER, J. *

* Judge of the Los Angeles County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.