Filed 4/14/23 P. v. Cardona CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOEL CARDONA,

Defendant and Appellant.

 D079256

 (Super. Ct. No. SCN389414)

APPEAL from a judgment of the Superior Court of San Diego County, 

Brad A. Weinreb, Judge. Affirmed.

Joanna McKim, under appointment by the Court of Appeal, for

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General,

A. Natasha Cortina, Christine Levingston Bergman, and Kathryn 

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. 

A jury found Joel Cardona guilty of second-degree murder as a lesser 

included offense of first-degree murder. (Pen. Code, § 187, subd. (a), 
2

count 1.)1 The trial court subsequently made true findings on allegations of a 

prior strike conviction and prior serious felony conviction. (§§ 1170.12, subds. 

(a)-(d), 667, subds. (a)(1) & (b)-(i).) The court declined to strike either of the 

prior conviction enhancements and sentenced Cardona to 30 years to life,

plus five years. 

Cardona contends on appeal that: (1) the trial court violated his 

constitutional rights by not suspending proceedings under section 1368 to 

conduct a third competency hearing; (2) the court prejudicially erred in 

failing to instruct the jury on voluntary manslaughter based on imperfect 

self-defense (CALCRIM No. 571) and mental impairment (CALCRIM 

No. 3428); (3) the court prejudicially erred in finding that Cardona waived his 

Miranda2 rights and admitting his post-arrest statements; and (4) there was 

insufficient evidence to support the jury’s finding of guilt for second-degree 

murder. 

We conclude that the trial court did not abuse its discretion in 

refraining from suspending proceedings to conduct another competency 

hearing. We also conclude that the evidence did not warrant instructing the 

jury on either imperfect self-defense or mental impairment, and any error in 

declining to do so was harmless. We reject Cardona’s argument that the trial 

court prejudicially erred in admitting Cardona’s post-arrest statements,

because he impliedly waived his Miranda rights. Finally, viewing the 

evidence in the light most favorable to the jury verdict, we conclude that 

there is substantial evidence to support the jury’s finding that Cardona acted 

1 Further statutory references are to the Penal Code unless otherwise 

stated.

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

with implied malice, and that his acts were a substantial factor in causing

the victim’s death. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. N.J.’s Killing

In August 2018, the victim, N.J., was living with his uncles Rafael J. 

and Mauricio J. at their house in Oceanside. Cardona, a cousin in the family, 

went to their house on August 1, 2018. Mauricio had taken Cardona to the 

hospital earlier that day after he fell and cut his eyebrow, for which doctors 

gave him stitches and prescribed pain medication. That evening, Cardona

spent all night awake watching sports, even though his family members told 

him to “take [his] meds and go to sleep.”

The following morning on August 2, 2018, sometime after 6:00 a.m., 

Rafael prepared to leave for work in his truck. But Cardona was nervous and 

tried to keep Rafael from leaving. Rafael asked N.J. to call 911 because 

Cardona “was not well” and was using foul language to confront Rafael. A

responding officer arrived around 6:47 a.m., spoke briefly with Rafael before 

he left for work, and then talked with Cardona, who was evasive at first. 

However, after the officer was able to obtain Cardona’s information and 

determine there were no outstanding warrants for his arrest, the officer 

advised Cardona to avoid further conflict and left the residence around 

7:05 a.m.

Less than 15 minutes later, a neighbor, Vanessa Q., called 911 to report 

that Cardona and N.J. were fighting in the front yard of Rafael’s house. 

Vanessa, while staying on the phone with the 911 dispatcher, walked towards 

the yard and saw N.J. face down on the ground with his shirt over his face.

Cardona was on top of N.J. with one knee on his back, punching N.J. in the 

head. N.J. pled for help and Vanessa heard N.J. say to Cardona, “You’re 
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going to kill me.” She also recalled Cardona saying “remember my sister” as 

he hit N.J. Vanessa told Cardona to stop, but he continued to punch N.J.

around his head and face. When Vanessa got closer, Cardona told her to “get 

back” because “you’re ugly.” Around that time, Vanessa noticed that N.J. 

was no longer talking and appeared to be unconscious. She told Cardona,

“Stop, you’re go[ing to] kill him. Stop it. Please.” She then screamed for 

Cardona to stop, telling him again, “You’re killing him[!]” Vanessa’s 911 call, 

which was recorded, lasted approximately ten minutes. 

Vanessa testified at trial that Cardona remained on top of N.J. the 

entire time she observed the incident and hit him “nonstop.” She never saw 

N.J. change positions, hit or kick Cardona, or fight back. She also described 

how, while N.J.’s shirt was over his face, she could see the shirt moving in 

and out of his mouth as he was breathing and screaming. 

The same officer who came to the residence earlier that morning was 

the first to respond to the fight. When he arrived at 7:21 a.m., he saw 

Cardona “smashing” N.J.’s face into the roots of a tree in the yard. The 

officer drew his firearm and yelled at Cardona, “Let him go or I’m going to 

fucking shoot you[!]” The officer testified that Cardona looked at him, 

reached under N.J.’s neck, and pulled it back with “a significant amount of 

force” in a “snapping-like motion.” N.J.’s head then fell forward quickly and 

hit the ground hard, after which his body went limp. Vanessa also testified 

that when the officer arrived at the scene, she saw Cardona pull N.J.’s neck 

and torso back with his left arm before dropping N.J. to the ground, after 

which N.J. stopped moving. 

Cardona then leaned forward towards the officer, who realized that 

Cardona was unarmed. The officer holstered his firearm and tasered 

Cardona instead. The officer ordered him to get on the ground, but Cardona
5

still did not comply and instead tried to remove the taser prongs from his 

body. The officer deployed his taser again, but to no avail. After he was

tased three more times, Cardona eventually complied, and the officer 

proceeded to handcuff him. 

The officer turned to N.J., who was not moving or breathing, and 

attempted to render aid. But while the officer administered CPR, Cardona 

began kicking the officer in his lower back and trying to kick N.J. in the head. 

Cardona tried to get up while still handcuffed, so the officer stopped 

rendering aid to N.J. and restrained Cardona further until other officers 

arrived at the scene. When they arrived, Cardona was tased two more times 

because he continued to struggle and attempt to kick N.J.’s head. Cardona 

was ultimately placed in a full-body harness to restrain his movement, N.J. 

was declared dead at the scene. 

A field evidence technician processed the crime scene and noted that 

the dining room inside the house was in disarray. Chairs and the trash can 

were knocked over, the television was lying on the living room floor, and the 

technician found blood drops on the kitchen floor. Testing showed that the 

blood came from N.J. and not Cardona. 

N.J.’s uncles testified that N.J. had been living at their house for years, 

and they never saw Cardona and N.J. argue, nor were they aware of any 

problems between the two. Rafael also testified that Cardona’s behavior that 

morning was strange and out of character, but N.J. was acting normal and

sitting on his bed resting when Rafael asked him to call the police. 

B. Cardona’s Post-Arrest Interrogation

Two detectives attempted to speak with Cardona on the day of the 

incident after he was taken to a hospital for treatment, but he had trouble 

staying awake due to sedatives he was given. Instead, the detectives 
6

questioned Cardona in jail the following day on August 3, 2018. At that time,

Cardona appeared alert, engaged, and interested in speaking with them. 

One detective advised Cardona of his Miranda rights, and Cardona verbally 

confirmed that he understood them. The detectives did not expressly ask 

Cardona if he was willing to waive his rights and speak to them, but Cardona 

proceeded to answer questions about the previous day’s events.

Cardona told the detectives that after Mauricio took him to the hospital 

to get stitches for his eyebrow, he went back to his cousins’ house and stayed 

up all night watching sports. The following morning, he went outside and 

tried to keep his cousin Rafael from going to work because he was feeling 

paranoid and was afraid of being alone at the house. 

After he spoke with the officer who was dispatched to the house, 

Cardona went inside and saw N.J. in the kitchen. Cardona said that N.J. 

made a comment about the oven being his, which angered Cardona because 

the house belonged to N.J.’s uncles, and he thought N.J. was being 

disrespectful. Cardona punched N.J. in the mouth, N.J. responded by

pushing Cardona in the chest, and the two brawled inside before eventually 

moving to the front yard. 

When they were fighting outside, Cardona remembered that he had 

seen N.J. wearing sunglasses that Cardona thought were his, and it made 

him angry that N.J. may have stolen the sunglasses from Cardona’s sister’s 

car. Cardona said he asked N.J. where his sunglasses were while he was 

hitting him, and that he had his knee on N.J.’s back. When N.J. did not 

answer, Cardona continued to punch him. Cardona told detectives that he 

only hit N.J. a few times, and that he stayed on top of him because “. . . I 

didn’t know if [N.J.] was going to grab me and like try to take advantage of 

me to where I was in a position to defend myself.” Cardona did not recall 
7

N.J. telling him to stop or telling him that he was killing him, and Cardona 

said “. . . I would’ve stopped if, if I knew that was the—that’s what he was 

saying.” Cardona said that he did not intend to kill N.J., and that he did not 

remember hitting N.J.’s head against tree roots in the front yard. However, 

Cardona did recall N.J. yelling for him to get back, and he remembered 

Vanessa coming over to say, “stop, you’re killing him.” 

When asked why he would react so strongly to N.J. saying the oven was 

his, or N.J. taking his sunglasses, Cardona said, “Probably because I spent 

the whole night up” and “I don’t know.” According to Cardona, he had a good 

relationship with N.J., and they had never fought before or had any issues in 

the past. When asked whether he could have walked away from the 

altercation after N.J. was face down and Cardona had the position of 

advantage, he agreed that he could have chosen to get off N.J.—but he 

continued to hit N.J. because he was “waiting for an answer” regarding his 

sunglasses. Cardona made no mention of N.J. threatening him or using a 

weapon against him. 

C. Medical Examiner’s Testimony

A medical examiner testified regarding her inspection of N.J.’s body. 

She observed bruising and abrasions on his face, neck, chest, abdomen, and 

back. She found lacerations on his scalp and small hemorrhages on his 

eyelids, which could be consistent with strangulation or a violent cough. 

There were also tears and bleeding inside N.J.’s mouth. 

As for internal injuries, there was bleeding under N.J.’s scalp on the 

front, sides, and back of his head, with a small subdural hemorrhage along 

the base of his brain. Those internal injuries were hallmarks of force applied 

to the brain, and Cardona’s external injuries were also consistent with him

being punched in the head and face repeatedly. There were hemorrhages on 
8

both sides of N.J.’s neck, which were consistent with being held in a 

chokehold for several minutes and being yanked backwards by the neck. 

Injuries on N.J.’s torso and back were also consistent with him being pinned 

face down to the ground with someone sitting on his back. 

A toxicology test detected the presence of methamphetamine in N.J.’s 

blood at 0.92 milligrams per liter, a concentration slightly below the average 

level of fatal overdoses seen in the medical examiner’s office. The medical 

examiner concluded that the cause of death was “head and neck trauma with 

methamphetamine toxicity contributing,” and that the manner of death was 

homicide. Multiple factors could have played a role in N.J.’s death, including 

blunt force trauma to N.J.’s head, strangulation from having an arm around 

his neck, suffocation from his shirt against his nose and mouth, mechanical 

asphyxia from someone sitting on his back, and the effects of 

methamphetamine in his system. However, there was no way to single out 

any of the factors as the cause of death. While the level of methamphetamine 

in N.J.’s blood could have caused an overdose or increased his risk of fatal 

cardiac arrest, N.J. also could have survived if not for his other injuries. 

D. Toxicologists’ Testimony

The defense called Dr. Charles O’Connell, a medical toxicologist, as an 

expert witness. In his opinion, N.J.’s individual injuries were not 

independently fatal. The 0.92 milligrams per liter concentration of 

methamphetamine found in N.J.’s blood was “relatively high” and within 

overdose range, but sometimes the concentration of methamphetamine 

detected after death is higher than pre-mortem levels. Inexperienced users 

could have a more extreme response to methamphetamine than more 

frequent users, who have a higher tolerance. Such responses could include 

cardiac arrest or arrhythmias, which would be exacerbated by a physical 
9

altercation or having another person’s weight on top of them. When asked 

whether it was possible for someone like N.J. to survive his injuries from the 

fight with Cardona, absent methamphetamine, Dr. O’Connell said it was 

possible. He also said that a person “being . . . choked [while] their head is 

being . . . hit into the ground . . . is potentially fatal if it goes on long enough.” 

The People called Dr. Ola Bawardi, a forensic toxicologist, as a rebuttal 

expert witness. She testified that physical symptoms of methamphetamine 

use include hyperactivity, rapid speech, and fidgeting. While the 

concentration of methamphetamine in N.J.’s blood was high, post-mortem 

redistribution of methamphetamine can cause a “false elevation of the level of 

methamphetamine that a person would have had at the time of death[.]” 

Given his detected blood concentration level, Dr. Bawardi believed that N.J. 

had used methamphetamine within 12 hours of his death. 

E. 911 Dispatcher Testimony

The People called as a rebuttal witness the 911 dispatcher who took 

N.J.’s call when Cardona was preventing Rafael from leaving for work. After 

the People played the call recording, which lasted approximately five 

minutes, the dispatcher testified that N.J. seemed “very calm [and] 

forthcoming answering questions in a cohesive manner.” She described N.J.’s 

demeanor on the call as “calm” and “factual.” 

F. Verdict and Sentencing

The People charged Cardona with murder and alleged a serious felony 

prior and a strike prior. (§ 187, subd. (a), count 1; §§ 1170.12, subds. (a)-(d), 

667, subds. (a)(1) & (b)-(i)).

After the jury began deliberating, it requested a readback of the 

testimony from the responding officer and one of the detectives who 

interrogated Cardona. The jury also asked for clarification of CALCRIM 
10

No. 520, the instruction on first- or second-degree murder with malice 

aforethought, and more specifically, the meaning of “at the time he acted, he 

knew his act was dangerous to human life.” The jury’s note said that “some 

of us interpret that as affecting life such as harmed, disabled, or 

marred[/]crippled” and “others interpret [that] as causing death or taking a 

human life. Any further clarification that you can offer on this element of 

first/second degree murder would be appreciated.” After hearing from the 

parties, the court responded to the jury with the following: “The risk of 

serious bodily injury alone is not sufficient. There must be awareness of the 

risk of death from the defendant’s actions.” 

The jury subsequently found Cardona guilty of second-degree murder 

as a lesser included offense of first-degree murder. (§ 187, subd. (a), count 1.) 

After Cardona waived his right to have the jury decide the prior conviction 

allegations, the trial court made true findings on the allegations of a prior 

strike conviction and prior serious felony conviction. (§§ 1170.12, subds. (a)-

(d), 667, subds. (a)(1) & (b)-(i).) In June 2021, the trial court declined to 

strike either of the prior conviction enhancements and sentenced Cardona to 

30 years to life plus five years. 

DISCUSSION

I

Cardona first contends that the trial court had an obligation to suspend 

proceedings under section 13683 to conduct another competency hearing, 

3 Section 1368 provides, in relevant part:
11

even though two different psychiatrists had already conducted pretrial 

evaluations within the year before trial and found him competent. We 

conclude that the trial court did not abuse its discretion in refraining from 

suspending proceedings because the record does not show that circumstances 

had substantially changed in a manner casting doubt on the validity of the

two prior competency findings. 

We begin first with additional background information relevant to this 

issue before setting forth the governing legal principles and explaining our 

conclusion. 

A. Additional Relevant Facts

In January 2019, a year before Cardona’s trial commenced, the court 

suspended proceedings pursuant to section 1368 so that he could undergo a 

“(a) If, during the pendency of an action and prior to judgment . . . a 

doubt arises in the mind of the judge as to the mental competence of the 

defendant, he or she shall state that doubt in the record and inquire of the 

attorney for the defendant whether, in the opinion of the attorney, the 

defendant is mentally competent. . . . At the request of the defendant or his 

or her counsel or upon its own motion, the court shall recess the proceedings 

for as long as may be reasonably necessary to permit counsel to confer with 

the defendant and to form an opinion as to the mental competence of the 

defendant at that point in time.

“(b) If counsel informs the court that he or she believes the defendant is 

or may be mentally incompetent, the court shall order that the question of 

the defendant’s mental competence is to be determined in a hearing which is 

held pursuant to Sections 1368.1 and 1369. If counsel informs the court that 

he or she believes the defendant is mentally competent, the court may 

nevertheless order a hearing. Any hearing shall be held in the superior 

court.

“(c) Except as provided in Section 1368.1, when an order for a hearing 

into the present mental competence of the defendant has been issued, all 

proceedings in the criminal prosecution shall be suspended until the question 

of the present mental competence of the defendant has been determined.”
12

competency examination. In March 2019, a psychiatrist determined that 

Cardona was competent to stand trial after interviewing him in custody and 

reviewing his case records. The psychiatrist noted that Cardona had a selfreported history of schizoaffective disorder. Cardona also told the 

psychiatrist that he was not taking any mental health medications at the 

time of the interview but had received treatment at a hospital and taken 

medications in the past. The psychiatrist observed that Cardona “did not 

want to sit down for the interview and wanted to stand,” that he did not 

always answer questions directly, and that he would “ramble at times.” 

However, the psychiatrist also observed that Cardona had no active 

symptoms of schizoaffective disorder and concluded that Cardona had “the 

ability to understand the nature of the proceedings against him[]” and 

“cooperate with his attorney in a rational manner in his own defense.” 

In June 2019, the court suspended proceedings again pursuant to 

section 1368 because Cardona’s attorney declared doubts about his 

competency. A different psychiatrist evaluated Cardona, and in July 2019 he 

also found Cardona competent to stand trial. The psychiatrist noted that 

during the interview, Cardona “fluctuated in his cooperation” with answering 

questions, but “was oriented and did not display any psychotic symptoms . . .” 

Cardona “showed difficulty with remaining focused” and “frequently changed 

the subject of questions asked,” going on “short tangents questioning his own 

willingness to cooperate with the evaluation, before eventually deciding to 

continue.” Cardona again reported being hospitalized and diagnosed with 

schizoaffective disorder in the past. However, Cardona said he was not under 

the care of a jail psychiatrist at the time of the interview and was not taking 

any psychiatric medications because they “weigh him down.” The 

psychiatrist concluded, as the previous psychiatrist had, that despite 
13

Cardona’s deficits in focus and intellectual functioning, he had “no 

diagnosable severe mental illness” and “appear[ed] capable of assisting his 

attorney in a rational defense[.]” 

Proceedings were reinstated and pretrial motions were heard in early 

January 2020. During that hearing, the trial court noted that it had spoken 

with Cardona about appropriate courtroom behavior and found that 

restraints were not necessary at that time. The court thanked Cardona for 

being respectful of the process that morning, and the following exchange 

ensued:

“[CARDONA]: Go into your afternoon. 

“THE COURT: I’m sorry?

“[CARDONA]: Into your late afternoon, into your late 

evening, into your night. 

“THE COURT: Thank you. The court is aware–

“[CARDONA]: Can I address the court?

“THE COURT: One second, please. The court – the court’s 

aware of the legal evidentiary requirements that [the] court 

must engage in prior to engaging in restraints. There’s 

nothing before me that would suggest the need to do [so] 

now. If an issue comes to the court’s attention that we need 

to address, we’ll do so at the appropriate time.” 

Early on the first day of trial on January 7, 2020, the following 

exchange occurred outside the presence of the jury:

“THE COURT: . . . I want to caution you, you’ve stood up a 

couple of times today and yesterday. It makes my bailiff 

nervous when you do so and when it’s happening as a 

surprise. [¶] And so–

“[CARDONA]: Okay. Okay. I apologize. I won’t–

“THE COURT: And I–

“[CARDONA]: Do my best to refrain from that. Thank you 

so much.

“THE COURT: I appreciate that. It’s – It’s also for your 

safety as well. So–

“[CARDONA]: I understand. Like, I already know the 

repercussions. Like–
14

“THE COURT: That’s fine.

“[CARDONA]: All, like, duration of time.

“THE COURT: I appreciate that. We’re here for a long 

time, and sometimes we all need to stand up and stretch, 

and sometimes we need to take breaks. [¶] If you need to 

take a break other than when we have the scheduled 

breaks, you let your attorney know. . . . But in terms of you 

interacting with the jurors, interacting with members of 

the public or family members that may be in the courtroom, 

I’m going to ask you not to do so. 

“[CARDONA]: Okay.” 

Soon thereafter, before opening statements, the court admonished Cardona 

that if necessary, the court would consider using a chair with restraints to 

prevent him from standing up. 

Later that afternoon, the court noted that Cardona had stood up 

“several times” and that Cardona reached forward and grabbed his name 

plate twice. Cardona, talking over the court at times, said, “You have to 

excuse me . . . I was in college, you know, I got a lot of racing thoughts and 

stuff like that . . . You know, I don’t mean any harm . . . I don’t even recall, 

like, what’s going on[.] . . . I’m not a mess-up. I’m not a fuck up.” The court 

stated that reaching for the name plate caused security concerns, so the name 

plate was removed from the table. The court also noted that Cardona was 

“becoming frustrated with this process[,]” and that the court had given 

Cardona the opportunity to speak with his attorney. This exchange then

ensued:

“[CARDONA]: You can excuse my language, you know. 

“THE COURT: You – You’ve been respectful of the process, 

but you have not been conforming with some of the things 

that I’ve asked you to do. [¶] I don’t want you standing up 

anymore during the trial.

“[CARDONA]: That’s fine. That’s fine. 

“THE COURT: And we may have – If you’re not able to 

conform with my rulings, we may have to take additional 
15

measures such as securing you to the chair. But I’m going 

to give your attorney the opportunity to talk to you–

“[CARDONA]: Put me back in the cell. He’ll [defense 

counsel] fight my case.” 

After Cardona stood again before a witness took the stand, the court 

recessed for Cardona to speak with his attorney about potentially being 

restrained. After the recess, Cardona’s attorney objected to using a restraint 

chair because of how the jury would perceive it. The court noted that the jury 

would not be able to see that he was being restrained, the chair would still 

allow him to have free movement of his upper body, and it would not infringe 

on his ability to assist his counsel. As the court was making these 

statements, Cardona asked, “What if it had suicide doors?” He and the court 

then engaged in cross-talk, during which Cardona said, “I was abiding by the 

laws enacted, you know, like, in 2017, ’18, ’19. So . . . I have nothing to say.” 

The court admonished Cardona not to speak while it made its ruling. 

The court’s bailiff then spoke on the record about Cardona’s repeated 

non-compliance with instructions to remain seated, as well as about jail 

records indicating he “hasn’t been compliant with his medication[.]” After 

hearing those comments, the court found that there was a need for Cardona 

to use the restraint chair for security reasons. The court also stated that it 

did not “have any issues or concerns with respect to [section] 1368 or 

competency issues[]” and it believed Cardona was being impacted by the

“emotional nature of . . . the case.” The court admonished Cardona that if he 

continued to be disruptive, it could remove him from the courtroom, or 

Cardona could choose not to participate in the proceedings. 

When trial adjourned for the day and the attorneys were addressing

the admissibility of Cardona’s post-arrest statements, Cardona interrupted 

twice: once to mention “1982,” and once to ask, “Are we having pizza[?]” At 
16

his attorney’s request, the court made “another referral to jail medical to 

evaluate and address” Cardona’s “medication issues[.]” 

The second day of trial proceeded without incident, but on the third 

day, Cardona interjected a few times while the attorneys discussed jury 

instructions with the court. At one point he asked, “You guys seen that 

movie Marshal?” As the discussion progressed, Cardona asked to leave and 

said, “I have small claims court handles the outside . . . of this case. . . . Took 

three years.” After being given the opportunity to speak with his attorney, 

Cardona decided to waive his presence during the parties’ discussion of jury 

instructions, and his attorney proceeded in his absence. 

Cardona was present for the fourth day of trial and interjected with 

brief comments during the defense’s expert testimony, which led the court to 

admonish him again. After a recess, defense counsel informed the court that 

Cardona wanted to waive his presence again and listen to proceedings from a 

holding cell until closing arguments. The court agreed to instruct the jurors

that Cardona had exercised his right not to be present, and that they should 

not speculate as to the reasons why. At some point during subsequent 

witness testimony, a pounding noise could be heard in the courtroom coming 

from Cardona’s holding cell. 

After testimony concluded on the fourth day, but before jury 

instructions and closing arguments, Cardona returned to the courtroom and 

the court advised him that if he began disrupting the proceedings, the court 

would “have to take a break and address that.” The rest of the day proceeded 

without incident, and on the fifth and final day of trial, Cardona waived his 

right to have the jury decide the prior conviction allegations. 

When the jury reached a verdict two days later, Cardona was initially 

unwilling to come out of his cell for the reading of the verdict. After 
17

consulting with his counsel, Cardona agreed to appear in court. However, 

after the verdict was read and while the court was providing final 

instructions to the jury, Cardona interrupted the proceedings and attempted 

to get up from his chair. Cardona was not compliant with deputies’ 

commands, so the jury was ordered to leave the courtroom briefly while the 

deputies removed him. 

B. Governing Law

“The constitutional guarantee of due process forbids a court from trying 

or convicting a criminal defendant who is mentally incompetent to stand 

trial. [Citations.] Section 1367 of the Penal Code, incorporating the 

applicable constitutional standard, specifies that a person is incompetent to 

stand trial ‘if, as a result of mental disorder or developmental disability, the 

defendant is unable to understand the nature of the criminal proceedings or 

to assist counsel in the conduct of a defense in a rational manner.’ ” 

(People v. Rodas (2018) 6 Cal.5th 219, 230 (Rodas); People v. Buenrostro

(2018) 6 Cal.5th 367, 386 [“As a matter of due process, ‘[a] defendant may not 

be put to trial unless he “ ‘has sufficient present ability to consult with his 

lawyer with a reasonable degree of rational understanding . . . [and] a 

rational as well as factual understanding of the proceedings against 

him.’ ” ’ ”].)

Section 1368 provides for the suspension of criminal proceedings to 

conduct a competency hearing if a doubt arises as to the defendant’s mental 

competence to stand trial. (See People v. Lawley (2002) 27 Cal.4th 102, 136

(Lawley).) Our Supreme Court “has construed that provision, in conformity 

with the requirements of federal constitutional law, as meaning that an 

accused has the right ‘to a hearing on present sanity if he comes forward with 

substantial evidence that he is incapable, because of mental illness, of 
18

understanding the nature of the proceedings against him or of assisting in his 

defense.’ ” (Rodas, supra, 6 Cal.5th at p. 231.) “When a doubt exists as to the 

defendant’s mental competence, the court must appoint an expert or experts 

to examine the defendant. The issue is then tried to the court or a jury under 

the procedures set out in Penal Code section 1369.” (Ibid.)

However, a defendant is presumed competent unless proven otherwise 

by a preponderance of the evidence (§ 1369, subd. (f)), and “a defendant must 

exhibit more than bizarre, paranoid behavior, strange words, or a preexisting 

psychiatric condition that has little bearing on the question of whether the 

defendant can assist his [or her] defense counsel” (People v. Ramos (2004) 34 

Cal.4th 494, 508 (Ramos)) before the trial court is obligated to order a 

competency hearing. Evidence “ ‘that does no more than form the basis for 

speculation regarding possible current incompetence is not sufficient.’

[Citations.]” (People v. Ramirez (2006) 39 Cal.4th 398, 431 (Ramirez).)

Moreover, “ ‘[w]hen a competency hearing has already been held and 

defendant has been found competent to stand trial, . . . a trial court need not 

suspend proceedings to conduct a second competency hearing unless it “is 

presented with a substantial change of circumstances or with new evidence” 

casting a serious doubt on the validity of that finding.’ ” (People v. Kelly 

(1992) 1 Cal.4th 495, 542.) A trial court may rely on its own observations in 

determining whether the defendant’s mental state has significantly changed 

during the course of trial to necessitate a new competency hearing. (People v. 

Jones (1991) 53 Cal.3d 1115, 1153.)

“We review a trial court’s determination concerning whether a new 

competency hearing must be held for substantial evidence.” (People v. 

Ng (2022) 13 Cal.5th 448, 531.)
19

C. Analysis

Cardona primarily asserts that his actions and comments during the 

pretrial motion hearing and throughout trial showed that between the 

competency findings in March and July 2019, and his trial in January 2020, 

Cardona was “showing mental decompensation” because he “was not taking 

his medication.” According to Cordona, this constituted “evidence casting 

doubt on the initial competency findings.” 

Importantly, however, the evidence shows Cardona was not taking 

medication at the time of his prior competency evaluations. During his 

interview for the March 2019 competency report, Cardona said that although 

he had received treatment at a hospital and taken medications in the past, he 

was not taking any mental health medications at that time. In July 2019, 

Cardona again reported that he was not under the care of a jail psychiatrist 

and was not taking any psychiatric medications because they “weigh him 

down.” Given that Cardona was not taking medication at either time when

two different psychiatrists deemed him competent, the fact that he was not 

taking medication shortly before or during trial was not a change of 

circumstances that would warrant suspending the proceedings yet again.

Nor did Cardona’s behavior in court constitute substantial evidence of 

materially changed circumstances casting doubt on the validity of the prior 

findings of competence. Although Cardona frequently stood during trial

despite the court’s orders to remain seated, the first evaluating psychiatrist 

observed that Cardona “did not want to sit down for the interview and 

wanted to stand for the interview.” That same psychiatrist also noted that 

Cardona sometimes had to be asked the same questions repeatedly, and that 

Cardona would “ramble at times[.]” The second psychiatrist similarly 

reported that Cardona “fluctuated in his cooperation” with answering 
20

questions, “showed difficulty with remaining focused[,]” and “frequently 

changed the subject of questions asked,” going on “short tangents questioning 

his own willingness to cooperate with the evaluation, before eventually 

deciding to continue.” 

These observations are largely consistent with Cardona’s comments 

and outbursts during trial, which lends further support to the trial court’s 

decision that another competency hearing was not necessary. (See Lawley,

supra, 27 Cal.4th at pp. 136–138 [each instance cited by defendant as an 

example of his incompetence “appears . . . to manifest the same arguably 

delusional beliefs” reported by the two evaluating psychologists who found 

defendant competent].) “[T]he duty to suspend is not triggered by 

information that substantially duplicates evidence already considered at an 

earlier, formal inquiry into the defendant’s competence; when faced with 

evidence of relatively minor changes in the defendant’s mental state, the 

court may rely on a prior competency finding rather than convening a new 

hearing to cover largely the same ground.” (Rodas, supra, 6 Cal.5th at 

pp. 234–235.) Here, because Cardona’s behavior in court was similar to his 

behavior during prior competency evaluations, the record does not show any

substantial change of circumstances or new evidence casting doubt on the 

prior findings of competency. (Lawley, at pp. 137–138.)

Furthermore, occasional bizarre behavior and “strange words,” by 

themselves, shed little light on the question of whether the defendant can 

assist in his own defense. (See Ramos, supra, 34 Cal.4th at p. 508.) Unlike 

in People v. Easter (2019) 34 Cal.App.5th 226, which Cardona cites to in his 

briefs, there was no indication here that Cardona’s communications with his 

attorney were compromised to the extent that they “consisted of jumbled 

words and fanciful responses,” making it impossible for him to “hold a logical 
21

conversation, consult with [his attorney] with a rational degree of 

understanding, or assist in his own defense or testify at trial.” (See id. at 

p. 243.) Although his attorney requested that Cardona be evaluated to 

address “medication issues,” his counsel never reported having significant 

trouble communicating or consulting with Cardona during trial. 

Rather, the trial record shows that on multiple occasions, Cardona

appeared able and willing to consult with his attorney during instances when 

the court confronted him about his disruptive behavior, when he decided to 

waive his presence, and when he waived his right to a jury trial on the prior 

conviction allegations. More than once, Cardona even apologized to the court 

for disrupting proceedings and said he would do his “best to refrain from 

that.” 

The two evaluating psychiatrists for the pretrial competency 

proceedings also concluded that despite Cardona’s tendency to ramble, go on 

tangents, and change the subject of questions, he still had “the ability to 

understand the nature of the proceedings against him[,]” could “cooperate 

with his attorney in a rational manner in his own defense[,]” and “appear[ed] 

capable of assisting his attorney in a rational defense[.]” The psychiatrists

observed that Cardona had no active symptoms of schizoaffective disorder, no 

psychotic symptoms, and “no diagnosable severe mental illness.” 

We must accord great deference to a trial court’s decision not to order a 

competency hearing, because the trial court is uniquely situated to observe 

the defendant’s conduct and demeanor and relative ability to understand the 

nature of the proceedings and rationally conduct a defense. (People v. 

Danielson (1992) 3 Cal.4th 691, 726–727.) And while Cardona’s behavior 

provided some basis for speculating about a possible mental disorder or 

developmental disability, speculation is an insufficient basis for requiring the 
22

suspension of proceedings for a third time. (Ramirez, supra, 39 Cal.4th at 

p. 431.) We therefore conclude that the trial judge—who was aware Cardona 

had been found competent on two prior occasions within the year before trial,

and who was able to observe his conduct at trial as a whole and in context—

did not err by declining to sua sponte order a third competency hearing.

II

We turn next to Cardona’s arguments that the trial court prejudicially 

erred in failing to instruct the jury on (1) voluntary manslaughter based on 

imperfect self-defense, and (2) mental impairment as a defense to specific 

intent. We conclude that the trial court did not err in declining to give these

instructions because substantial evidence did not support instructing the jury 

on either of them. We further conclude that even if the court did err in 

declining to give either of these instructions, any error was harmless.

A. Governing Law

Voluntary manslaughter based on imperfect self-defense is a lesser 

included offense of murder. The trial court has a duty to instruct on this 

theory “whenever the evidence is such that a jury could reasonably conclude 

that the defendant killed the victim in the unreasonable but good faith belief 

in having to act in self-defense.” (People v. Barton (1995) 12 Cal.4th 186, 201 

(Barton).)

A trial court has no sua sponte duty to instruct on mental impairment 

as a defense to a specific mental state. (People v. Saille (1991) 54 Cal.3d 

1103, 1119.) If requested by the defense, however, the trial court must give a 

pinpoint instruction on mental impairment if there is evidence supportive of 

the theory. (Ibid.)

A trial judge “has the authority to refuse requested instructions on a 

defense theory for which there is no supporting evidence.” (People v. 
23

Ponce (1996) 44 Cal.App.4th 1380, 1386.) Even requested instructions need 

not be given to the jury “absent substantial evidence to support them.” 

(People v. Stitely (2005) 35 Cal.4th 514, 551); accord, People v. 

Nguyen (2015) 61 Cal.4th 1015, 1049 (Nguyen).) On review, we determine 

independently whether substantial evidence to support a requested 

instruction existed. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055;

see People v. Mentch (2008) 45 Cal.4th 274, 288 [“On appeal, we likewise ask 

only whether the requested instruction was supported by substantial 

evidence—evidence that, if believed by a rational jury, would have raised a 

reasonable doubt . . . .”].)

B. Jury Instruction on Imperfect Self-Defense

At trial, the defense requested that the court instruct the jury on 

voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571). 

The People objected, arguing that under the bracketed portions of the 

instruction, imperfect self-defense “does not apply when the defendant, 

through [his] own wrongful conduct, has created circumstances that justify 

[his] adversary’s use of force.” (CALCRIM No. 571.) The People also argued 

that Cardona never expressed fear of N.J. or concern for his own safety, aside 

from telling detectives that he wanted to prevent N.J. from taking advantage 

of him in the fight. The court initially sided with the defense, but after 

further consideration, the court agreed with the People that the instruction 

was unwarranted because the evidence was not sufficient to show that 

Cardona believed he was in danger of imminent harm or great bodily injury. 

There are two types of self-defense under California law: “perfect” selfdefense and “imperfect” self-defense. (People v. Randle (2005) 35 Cal.4th 987, 

994.) “For perfect self-defense, one must actually and reasonably believe in 

the necessity of defending oneself from imminent danger of death or great 
24

bodily injury.” (Ibid.) Imperfect self-defense requires evidence showing the 

“ ‘defendant killed another person because the defendant actually, but 

unreasonably, believed he was in imminent danger of death or great bodily 

injury . . . .’ ” (Nguyen, supra, 61 Cal.4th at p. 1048, italics added.) In 

contrast to perfect self-defense, imperfect self-defense is not a true 

affirmative defense; it is shorthand for a theory of voluntary manslaughter. 

(Barton, supra, 12 Cal.4th at pp. 199–201.)

For imperfect self-defense to apply, “the fear must be of imminent 

harm.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) A fear of future 

harm will not suffice no matter how great the fear and likelihood of harm. 

(People v. Landry (2016) 2 Cal.5th 52, 97–98; People v. Manriquez (2005) 37 

Cal.4th 547, 581–582.) Furthermore, imperfect self-defense cannot be used 

by a defendant whose wrongful conduct creates circumstances under which 

the victim’s actions are legally justified. (In re Christian S. (1994) 7 Cal.4th 

768, 773, fn. 1 (Christian S.).)

Here, we conclude that the imperfect self-defense instruction was 

unwarranted because the evidence did not show Cardona actually believed, 

reasonably or unreasonably, that he was in imminent danger of death or 

great bodily injury. In his interrogation, Cardona told detectives that he 

stayed on top of N.J. with his knee against his back because “. . . I didn’t 

know if [N.J.] was going to grab me and like try to take advantage of me to 

where I was in a position to defend myself.” (Italics added.) When asked 

whether he could have walked away from the altercation after N.J. was face 

down and Cardona had the position of advantage, he agreed that he could 

have chosen to get off N.J.—but he continued to hit N.J. because he was 

“waiting for an answer” regarding his sunglasses. Cardona also explained 

that when he was on top of N.J. while N.J. was face down on the ground, he 
25

“just wanted to get in that position to where he wasn’t trying to like . . . hurt 

[him].” This statement establishes that Cardona kept his knee on N.J.’s back

only to maintain the upper hand while he was attacking N.J. Cardona’s 

statements do not establish that his aggressive acts were in response to any 

actual belief that he needed to defend himself from danger of death or great 

bodily injury. 

Furthermore, there is no evidence that Cardona had reason to fear N.J. 

based on their prior interactions. According to Cardona, he had a good 

relationship with N.J., and they had never fought before or had any issues in 

the past. Other family members testified that they had never seen the two 

argue and they were not aware of any problems between them. Cardona also

made no mention of N.J. threatening him or using a weapon against him

either before or during the incident. 

Even if Cardona did actually believe N.J. was a threat or posed some 

kind of danger, there is no evidence he believed that danger was imminent. 

Imperfect self-defense only applies when the defendant fears immediate 

harm that “ ‘must be instantly dealt with.’ [Citation.]” (People v. Beck and 

Cruz (2019) 8 Cal. 5th 548, 648, internal quotation marks omitted.) Here, the 

only harm Cardona mentioned was the possibility that N.J. might fight back

against him, but there is no indication he believed such potential danger was 

imminent. Cardona had his knee on N.J.’s back while N.J. was lying prone 

on the ground, and Vanessa testified that for the entire time she was 

watching them, N.J. never changed positions, never hit or kicked Cardona, 

and never fought back. 

The fact that Cardona was the instigator of the fight also supports the 

trial court’s finding that there was no basis for an imperfect self-defense

instruction. (See Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) As the 
26

People noted at trial, imperfect self-defense does not apply when the 

defendant, through his own wrongful conduct, has created circumstances that 

justify his adversary’s use of force. (Ibid.) Here, Cardona admitted after his 

arrest that the brawl started when he punched N.J. in the mouth. Cardona 

said that N.J. then pushed him back and they “were struggling in the house,” 

but once they got outside, there was a point at which N.J. no longer fought 

back. The record shows that Cardona instigated and continued the physical 

confrontation that led to N.J.’s death, which supports the trial court’s 

decision not to give the imperfect self-defense instruction. 

Cardona argues that because the court gave the instruction on perfect

self-defense, there must have been a basis for the jury to find he acted in 

imperfect self-defense. But “just because the court permitted instructions on 

perfect self-defense does not mean that substantial evidence supported the 

giving of an imperfect self-defense instruction.” (People v. Rodriguez (1997) 

53 Cal.App.4th 1250, 1270.) Given the evidence in this case, we conclude 

that “it would not have been error for the trial court to have denied perfect 

self-defense instructions with regard to [the victim] because no substantial 

evidence supported such a defense.” (Ibid.) 

Even assuming the trial court erred by not giving an imperfect selfdefense instruction, the record does not show that the error was prejudicial. 

The failure to instruct on imperfect self-defense constitutes reversible error 

only if the defendant establishes that it is reasonably probable he would have 

obtained a more favorable outcome had the error not occurred. (People v. 

Gonzalez (2018) 5 Cal.5th 186, 191, 197–199, 200, fn. 4 (Gonzalez) [“. . . we 

have since clarified that Watson applies to the failure to instruct on lesser 

included offenses.”]; see People v. Watson (1956) 46 Cal.2d 818, 836

(Watson).) In applying this harmless error analysis, a court must be mindful 
27

that the failure to provide the jury with the option of convicting on voluntary 

manslaughter “creates a specific kind of risk—that the jury, faced with an allor-nothing choice between first degree murder or acquittal” will convict the 

defendant of murder even though the prosecution failed to satisfy its burden 

to prove the crime. (Gonzalez, at pp. 191, 200.)

The question, however, “is not what a jury could have done, but what a 

jury would likely have done if properly instructed.” (People v. Reeves (2001) 

91 Cal.App.4th 14, 53; see People v. Breverman (1998) 19 Cal.4th 142, 177, 

178.).) “ ‘In making that evaluation, an appellate court may consider, among 

other things, whether the evidence supporting the existing judgment is 

so relatively strong, and the evidence supporting a different outcome is 

so comparatively weak, that there is no reasonable probability the error of 

which the defendant complains affected the result.’ [Citation.]” (People v. 

Russell (2006) 144 Cal.App.4th 1415, 1432.) We also consider the 

instructions as a whole, the jury’s findings, and the closing arguments of 

counsel. (People v. Cain (1995) 10 Cal.4th 1, 35–36; People v. Eid (2010) 187 

Cal.App.4th 859, 883.)

Here, for the reasons we have discussed, it would have been a stretch 

for any reasonable juror to conclude that Cardona genuinely believed he was 

in imminent danger of death or great bodily injury when he had his victim 

restrained face down on the ground and was beating him mercilessly simply 

for not answering his questions. The fact that Cardona was the instigator of 

the fight also made it unlikely the jury would find he acted with a belief in 

the need for self-defense. Cardona points to the fact that the jury asked for a 

readback of the two law enforcement officers’ testimony and for clarification 

of the instruction on murder to argue that it is reasonably probable he would 

have obtained a more favorable outcome if the jury was instructed on 
28

imperfect self-defense. However, the readback covered a wide range of topics,

including all of the responding officer’s interactions with Cardona that 

morning and Cardona’s post-arrest statements, and there is no indication the 

jury’s request was specifically related to the issue of self-defense. 

Furthermore, the jury’s question about CALCRIM No. 520 focused on the 

meaning of “dangerous to human life” for purposes of determining whether he 

acted with implied malice, not whether he acted in self-defense. 

Finally, the jury in this case was not faced with an “all-or-nothing 

choice between first degree murder or acquittal”—rather, the court instructed 

the jury on second-degree murder, perfect self-defense, voluntary 

manslaughter based on heat of passion, and involuntary manslaughter. (See 

Gonzalez, supra, 5 Cal.5th at pp. 191, 200.) On the topic of self-defense, 

Cardona’s counsel argued in closing that N.J. actually instigated the fight by 

“start[ing] an argument over a stove[,]” perhaps because he was under the 

influence of methamphetamine. He also argued that N.J. may have 

threatened Cardona with a frying pan or with a broken chair leg. Later in 

his closing, Cardona’s counsel repeated these points to argue for finding that 

Cardona was provoked for heat-of-passion purposes. But in finding Cardona 

guilty of second-degree murder, the jury appears to have rejected those

attempts to argue that Cardona was not the instigator, making it even more 

improbable that the jury would have found Cardona acted in imperfect selfdefense. For all these reasons, we conclude that any error from declining to 

instruct the jury on imperfect self-defense was harmless under Watson.

C. Jury Instruction on Mental Impairment

Cardona’s counsel also requested that the court instruct the jury on 

mental impairment to negate the specific intent element of the charged 
29

offense (CALCRIM No. 3428).4 At trial, the People argued that the 

instruction was inappropriate because the evidence did not establish that 

Cardona suffers from a mental disease, defect, or disorder. In response, the 

defense pointed to evidence indicating that Cardona was acting oddly and not 

taking “his meds” at the time of the incident. 

The court stated that the evidence did not establish whether or when 

Cardona was off medication, and even if it had, it was unclear what that 

medication was for. The court ultimately denied the defense’s request for the

instruction on the basis that the evidence presented was insufficient to show 

that Cardona suffered from a mental disease or disorder. 

CALCRIM No. 3428 “is a pinpoint instruction that must be given only if 

requested by the defendant, and only if substantial evidence supports the 

defense theory that defendant’s mental disease or disorder affected the 

formation of the relevant intent or mental state. [Citation.] Also, expert 

medical opinion testimony is necessary to establish that a defendant suffered 

from a mental disease, mental defect, or mental disorder within the meaning 

of CALCRIM No. 3428, because jurors cannot make such a determination 

from common experience.” (People v. Larsen (2012) 205 Cal.App.4th 810, 824

(Larsen); see also People v. Moore (2002) 96 Cal.App.4th 1105, 1117 [“Expert 

medical testimony is necessary to establish a defendant suffered from a 

mental disease, mental defect, or mental disorder because jurors cannot 

make such a determination from common experience”].)

4 CALCRIM No. 3428 instructs, in relevant part, as follows: “You have 

heard evidence that the defendant may have suffered from a mental 

(disease[,]/ [or] defect[,]/ [or] disorder). You may consider this evidence only 

for the limited purpose of deciding whether, at the time of the charged crime, 

the defendant acted [or failed to act] with the intent or mental state required 

for that crime.”
30

Here, Cardona introduced no expert testimony regarding any mental 

defect or disorder, and he failed to introduce any other evidence that he 

suffered from a specific mental disorder or impairment at the time of the 

offense. As the trial court noted, the record does not establish what kind of 

medication, if any, he was taking when the fight occurred. Cardona received 

treatment for a cut above his eye the day before the incident, but the record 

indicates he was prescribed pain medication, not medication to treat a mental 

disease or disorder. Although Cardona reported during his interrogation that 

he had previously been diagnosed with schizoaffective disorder, that evidence 

was not presented to the jury and there was no evidence confirming that 

diagnosis, let alone showing whether Cardona was suffering from symptoms 

of schizoaffective disorder at the time of the crime. Given this record, we 

conclude that the trial court did not err in finding that no substantial 

evidence supported instructing the jury on mental impairment. 

Even assuming error, the record does not show that declining to give 

the mental impairment instruction was prejudicial. Prejudice resulting from 

the failure to give a pinpoint instruction is assessed under the state 

constitutional standard requiring reversal only if it is reasonably probable 

the jury would have reached a different result if the omitted instruction had 

been given. (Larsen, supra, 205 Cal.App.4th at p. 829; see Watson, supra, 46 

Cal.2d at p. 836.) Here, even if the jury received the instruction on mental 

impairment, the jury would have had no evidence to rely on in considering 

whether a mental disease or defect prevented Cardona from acting with the 

intent required for murder. The defense failed to present sufficient evidence 

of a mental disease or defect, and also failed to connect any of Cardona’s 

supposed symptoms with the evidence of his intent. (See Larsen, at p. 833 

[failure to instruct on mental impairment was harmless where “the 
31

connection between the symptoms of defendant’s Asperger’s syndrome and 

the evidence of intent to commit the charged conspiracy was not at all 

persuasive, and the evidence of guilt was compelling.”].) In contrast, as 

discussed below, the evidence that Cardona acted with the implied malice 

required for second-degree murder was substantial. Accordingly, it is not 

reasonably probable that the jury in this case would have reached a different 

result if CALCRIM No. 3428 had been given.

III

Cardona next argues that the trial court erred in finding that he

waived his Miranda rights during his interrogation and admitting his postarrest statements at trial. We conclude that the trial court did not err 

because even though there was no express waiver, Cardona impliedly waived 

his Miranda rights, and any potential error was harmless beyond a 

reasonable doubt.

A. Additional Relevant Facts

At the beginning of his custodial interrogation, one of the two 

interrogating detectives informed Cardona of his Miranda rights and 

Cardona confirmed he understood them. The detective did not ask Cardona a 

follow-up question to confirm his waiver of those rights before proceeding 

with questioning. According to the detective, however, Cardona was willing 

to speak with him and answered his questions fully. Before the 

interrogation, Cardona’s sister told the detective that Cardona had a mental 

illness and was taking psychiatric medication, but the detective did not know 

the severity of Cardona’s mental illness and it appeared to him that Cardona 

understood what was happening during the questioning. 

At trial, the defense sought to exclude Cardona’s statements on 

Miranda grounds. The court reviewed the transcript, video, and audio 
32

recordings from Cardona’s post-arrest interview. The court also heard 

testimony from one of the interrogating detectives. After hearing arguments 

from the parties, the court found that the detective properly advised Cardona 

of his Miranda rights, and that Cardona impliedly waived those rights by 

willingly subjecting himself to questioning. The court determined that the 

detectives did not use coercive physical or psychological tactics, and that even 

though Cardona has mental impairments, they were not so severe as to make 

his statements unreliable or overcome his ability to voluntarily and implicitly 

waive his Miranda rights. Accordingly, the court denied the defense’s 

request to exclude Cardona’s interrogation statements. 

B. Governing Law

“In general, if a custodial suspect, having heard and understood a full 

explanation of his . . . Miranda rights, then makes an uncompelled and 

uncoerced decision to talk, he . . . has thereby knowingly, voluntarily, and 

intelligently waived them. [Citation.] Law enforcement officers are not 

required to obtain an express waiver of a suspect’s Miranda rights prior to a 

custodial interview. [Citation.] Rather, a valid waiver of Miranda rights 

may, as here, be inferred from the defendant’s words and actions. [Citation.]” 

(People v. Cunningham (2015) 61 Cal.4th 609, 642 (Cunningham).)

Whether a statement is voluntary depends on “whether the statement 

is ‘ “the product of an essentially free and unconstrained choice” ’ or whether 

the defendant’s ‘ “will has been overborne and his capacity for selfdetermination critically impaired” ’ by coercion. [Citation.] No single factor 

is dispositive; ‘rather courts consider the totality of [the] circumstances.’

[Citations.]” (Cunningham, supra, 61 Cal.4th at p. 642.) Relevant 

considerations include the level of coercion, the length and location of the 
33

interrogation, its continuity, and the defendant’s maturity, education, and 

physical and mental health. (Id. at pp. 642–643.)

“ ‘On review of a trial court’s decision on a Miranda issue, we accept the 

trial court’s determination of disputed facts if supported by substantial 

evidence, but we independently decide whether the challenged statements 

were obtained in violation of Miranda.’ [Citation.]” (People v. Hensley (2014) 

59 Cal.4th 788, 809.)

C. Analysis

We conclude that the totality of the circumstances of Cardona’s 

interrogation support that he waived his Miranda rights knowingly and 

voluntarily. After the detective informed him of his rights, Cardona 

confirmed that he understood them and continued to talk to the detectives. 

Neither the length nor physical circumstances of the interrogation appeared 

to be coercive; the questioning lasted less than 1.5 hours; he was not deceived 

or induced by improper promises; and the tone of the interview, as evidenced 

in the transcript and video, was calm, respectful, non-accusatory, and nonthreatening. (See Cunningham, supra, 61 Cal.4th at p. 644 [statements 

voluntary where interview “was spread over a four-hour period” and “the tone 

of the questioning as evidenced in the transcript [was not] particularly harsh 

or accusatory”]; People v. Whitson (1998) 17 Cal.4th 229, 249 (Whitson)

[finding waiver voluntary where defendant’s “willingness to speak with the 

officers [was] readily apparent from his responses” and he was “not worn 

down by improper interrogation tactics, lengthy questioning, or trickery or 

deceit”].) Cardona even confirmed at one point during the interrogation that 

he was not being forced to talk to the detectives, stating that he “just 

want[ed] to be honest, that’s all.” 
34

Although late in the interrogation Cardona asked if he “need[ed] to hire 

a lawyer[,]” a suspect who wishes to invoke the right to counsel “must do so 

‘unambiguously[,]’ ” and merely positing that “ ‘[m]aybe I should talk to a 

lawyer’ ” is insufficient. (People v. Tom (2014) 59 Cal.4th 1210, 1225; see 

Davis v. U.S. (1994) 512 U.S. 452, 462 (Davis).) Under Davis, it is not enough 

that a suspect makes a reference to an attorney “that a reasonable officer in 

light of the circumstances would have understood” to mean “only that the 

suspect might be invoking the right to counsel.” (Davis, at p. 459; see also 

People v. Nelson (2012) 53 Cal.4th 367, 376 (Nelson).) Given the ambiguous

nature of Cardona’s question, it was reasonable for the detectives to believe it 

was not a clear invocation of his right to counsel. 

Additionally, “[e]ven though officers may ask questions to clarify 

whether the right to counsel is being invoked, they are not obligated to do so.” 

(Nelson, supra, 53 Cal.4th at p. 377.) Here, after Cardona asked if he needed 

to hire a lawyer, the detective responded, “That’s not for us to say. We are 

just trying to see if you understand why we’re talking to you, why it is that 

you’re here.” The detective then followed up by asking whether Cardona 

“ha[d] any problem with us talking to you about this incident?” Cardona 

replied, “No.” Thus, even though the detectives were not obligated to seek 

clarification about Cardona’s willingness to continue speaking with them, 

they did so here, and there is no evidence that Cardona’s statements were not 

voluntarily given. 

Although Cardona sometimes asked for questions to be repeated or 

rephrased, he was generally able to answer coherently and with apparent 

understanding. One of the interrogating detectives testified that Cardona 

was alert, willing to speak with him, and answered his questions fully. The 

interrogation transcript and video support the detective’s testimony, and 
35

there is no evidence that Cardona’s judgment was clouded or otherwise 

impaired during the interview by pain, medications, or medical procedures.

(See Whitson, supra, 17 Cal.4th at p. 249.) 

Even if some of Cardona’s behavior “was irrational or bizarre, there is 

no evidence his ‘abilities to reason or comprehend or resist were in fact so 

disabled that he was incapable of free or rational choice. [Citations.]’ ” 

(Cunningham, supra, 61 Cal.4th at p. 645; see, e.g., People v. Mayfield (1993) 

5 Cal.4th 142, 204 [defendant, who may have been under the influence of 

drugs or his diabetic condition at the time of his lengthy interview, did not 

appear mentally impaired because he sounded lucid, spoke clearly albeit

slowly, and at times “engaged in animated” conversation with detectives].)

Although Cardona’s sister mentioned to the detectives that he suffered from 

mental illness, it appeared that he had little difficulty understanding what 

was happening during the interview. Based on the totality of the evidence, 

including our own review of the videotaped interrogation, Cardona 

understood the detectives and responded appropriately to their questions.

There is also evidence in the record indicating that Cardona had prior 

experience with law enforcement. Cardona acknowledged at the end of his

interrogation that he had previous arrests for fighting with police officers.

He also mentioned being incarcerated, and the record shows he was convicted 

of attempted carjacking in 2007. While the record does not indicate whether

Cardona was advised of his Miranda rights on other occasions, a defendant’s 

prior encounters with law enforcement can be considered in determining 

whether a waiver was knowing and voluntary. (See, e.g., People v. Lessie 

(2010) 47 Cal.4th 1152, 1169 [“While no evidence was offered that defendant 

had, or had not, previously been advised of his rights under Miranda, . . . he 

was no stranger to the justice system.”].) Given the totality of the 
36

circumstances here, we conclude that Cardona impliedly waived his Miranda

rights, and his statements were properly admitted. 

Even if any error occurred, however, it was harmless beyond a 

reasonable doubt. Erroneous admission of statements made in violation of 

Miranda is subject to harmless error analysis under Chapman v. California

(1967) 386 U.S. 18 (Chapman). Under Chapman, a constitutional error is 

harmless when it appears “beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” (Id. at p. 24.) Here, 

the evidence presented at trial included testimony from multiple 

eyewitnesses describing, in great detail, how Cardona punched N.J. 

repeatedly while N.J. was in a vulnerable prone position. An audio recording 

corroborated eyewitness testimony and even captured N.J.’s screams for help. 

Two eyewitnesses testified that at one point, Cardona reached under N.J.’s 

neck and forcefully pulled it backwards before releasing it and letting N.J. 

fall to the ground hard, after which N.J. went limp. 

The responding officer further testified about how Cardona continued 

to try to kick N.J., even while Cardona was handcuffed and N.J. was lying 

motionless. Blood tested from the scene belonged to N.J. and not Cardona, 

which is circumstantial evidence that Cardona was the aggressor even 

without his own statements confirming as much. Finally, the medical 

examiner opined that N.J.’s injuries were consistent with witnesses’ 

descriptions of what happened, and she concluded that “head and neck 

trauma” were contributing factors in N.J.’s homicide. On this record, we 

agree with the People that any error in admitting Cardona’s statements was 

harmless beyond a reasonable doubt. 

As for Cardona asking whether he needed a lawyer, even if Cardona’s 

question could be viewed as an unambiguous invocation of his right to an 
37

attorney, his question came after the portions of his interview that were 

admitted into evidence and played for the jury. Because only statements 

made after unambiguous invocation are inadmissible, any potential error in 

finding that Cardona did not clearly invoke his right to counsel would be 

harmless in this case. (See, e.g., People v. Storm (2002) 28 Cal.4th 1007, 1021 

[“ ‘A suspect, having invoked these rights, is not subject to further

interrogation by the police until counsel has been made available to him . . . . 

[Citations.]’ ” (Italics added.)].) Accordingly, we conclude that the trial court 

did not prejudicially err in admitting portions of his post-arrest statements 

into evidence. 

IV

Lastly, Cardona contends there was insufficient evidence to support the 

jury’s finding of guilt for second-degree murder. Specifically, he argues there 

was no substantial evidence that he harbored implied malice, or that his

actions proximately caused N.J.’s death. We disagree and conclude that 

there was substantial evidence to support the jury’s verdict.

A. Governing Law

In response to an appellant’s challenge to the sufficiency of the 

evidence supporting his conviction, we must determine “ ‘whether, after 

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’ ” (Nguyen, supra, 61 Cal.4th at p. 1055.) “The 

record must disclose substantial evidence to support the verdict—i.e., 

evidence that is reasonable, credible, and of solid value—such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “[W]e review the 

evidence in the light most favorable to the prosecution and presume in 
38

support of the judgment the existence of every fact the jury could reasonably 

have deduced from the evidence.” (Ibid.) “ ‘Conflicts and even testimony 

[that] is subject to justifiable suspicion do not justify the reversal of a 

judgment, for it is the exclusive province of the trial judge or jury to 

determine the credibility of a witness and the truth or falsity of the facts 

upon which a determination depends. [Citation.] We resolve neither 

credibility issues nor evidentiary conflicts; we look for substantial 

evidence.’ ” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted 

unless it appears “that upon no hypothesis whatever is there sufficient 

substantial evidence to support” ’ the jury’s verdict.” (Ibid.)

“[S]econd degree murder . . . is ‘the unlawful killing of a human being 

with malice aforethought but without the additional elements, such as 

willfulness, premeditation, and deliberation, that would support a conviction 

of first degree murder.’ [Citation.] . . . ‘Malice is implied when the killing is 

proximately caused by “ ‘an act, the natural consequences of which are 

dangerous to life, which act was deliberately performed by a person who 

knows that his conduct endangers the life of another and who acts with 

conscious disregard for life.’ ” [Citation.] In short, implied malice requires a 

defendant’s awareness of engaging in conduct that endangers the life of 

another . . . .’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507.) Implied 

malice may be proven by circumstantial evidence. (People v. Smith (2009) 

178 Cal.App.4th 475, 479 [“Because intent can seldom be proven by direct 

evidence, it typically is inferred from the circumstances.”].)

Regarding proximate cause, an act causes death if the death is the 

direct, natural, and probable consequence of the act, and the death would not 

have happened without the act. (See People v. Cervantes (2001) 26 Cal.4th 

860, 866–874; People v. Roberts (1992) 2 Cal.4th 271, 315–321.) There may 
39

be more than one cause of death, and an act causes death only if it is a 

substantial factor in causing the death. (People v. Sanchez (2001) 26 Cal.4th 

834, 845–849.) A substantial factor is more than a trivial or remote factor;

however, it does not need to be the only factor that causes the death. (See id.

at p. 845.) “California courts have long held ‘that there may be multiple 

proximate causes of a homicide[.]’ ” (People v. Garcia (2022) 82 Cal.App.5th 

956, 963 (Garcia); see also People v. Jennings (2010) 50 Cal.4th 616, 643 [a 

defendant may be criminally liable for a result directly caused by his or her 

act, even though there is another contributing cause].)

B. Analysis

Here, there was substantial evidence to establish that Cardona 

violently attacked N.J., knowing it endangered his life, and that Cardona 

acted with a conscious disregard for N.J.’s life. As noted, according to 

Vanessa’s testimony, N.J. yelled for Cardona to stop hitting him and said, 

“You’re going to kill me.” Although Cardona denied hearing N.J. say that, he

acknowledged in his interrogation that he heard Vanessa tell him to stop

hitting N.J. because he was “killing him.” The evidence shows that Cardona

punched N.J. “nonstop” around his head for about ten minutes while N.J. was 

lying face down with his shirt pulled over his face. Cardona also admitted 

post-arrest that he could have walked away from the altercation but

continued to hit N.J. with his knee pressed against his back because he was 

“waiting for an answer” regarding his sunglasses. Even after Cardona was 

handcuffed, he continued to attack N.J., who was lying motionless on the 

ground as the responding officer attempted to render him aid. Cardona’s 

interference even forced the officer to stop administering CPR to N.J. so he 

could restrain Cardona further, despite already deploying his taser several 
40

times. Viewed in the light most favorable to the verdict, the totality of the 

evidence is sufficient to support that Cardona acted with implied malice. 

We also conclude there was sufficient evidence to show that Cardona’s 

actions were a substantial factor in causing N.J.’s death. Cardona points out 

that none of N.J.’s physical injuries was independently fatal, but there may 

be multiple contributing causes of a homicide. (See Garcia, supra, 82 

Cal.App.5th at p. 963.) Similarly, although methamphetamine was found to 

be a contributing factor in N.J.’s death, the medical examiner testified that 

there was no way to single out any single factor as the cause of death. She 

further testified that while the level of methamphetamine in N.J.’s blood 

could have caused an overdose or increased his risk of fatal cardiac arrest, 

N.J. also could have survived if not for his other injuries. The defense’s own 

expert witness testified that while N.J. may have survived the attack absent 

his methamphetamine use, a person “being . . . choked [while] their head is

being . . . hit into the ground . . . is potentially fatal if it goes on long enough.” 

Lastly, testimony from Rafael and the 911 dispatcher showed that N.J. 

did not exhibit any obvious physical symptoms of methamphetamine use in 

the hour leading up to the incident, lending support to the People’s theory 

that the concentration of methamphetamine found in N.J.’s blood was falsely 

elevated due to post-mortem redistribution. 

The record ultimately shows that while drug use may have contributed 

to N.J.’s death, it did not negate evidence that Cardona’s actions were a 

substantial factor in causing N.J.’s death. (See People v. Catlin (2001) 26 

Cal.4th 81, 155 [“ ‘So long as a victim’s predisposing physical condition, 

regardless of its cause, is not the only substantial factor bringing about his 

death, that condition . . . in no way destroys the [defendant’s] criminal 

responsibility for the death.’ ”].)
41

In sum, we conclude there was substantial evidence to support 

Cardona’s second-degree murder conviction. 

DISPOSITION

The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P. J.

DATO, J.