Filed 12/17/13 P. v. Rios CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
NORMA RIOS,
Defendant and Appellant. B245549
(Los Angeles County Super. Ct. No. BA384651)

APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed. Barbara S. Perry, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Ana R. Duarte and Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant Norma Rios was charged with murder. (Pen. Code, § 187, subd. (a).) 1 Following a jury trial, defe ndant was acquitted of first de gree murder, convicted of second degree murder, 2 and sentenced to a term of 15 years to life. On appeal, defendant contends the tria l court erred in denying her requests to suppress her videotaped interview and give a voluntary manslaughter instruction. Finding no error, we affirm.

BACKGROUND

During the early morning hours of May 18 , 2011, Jose Antonio Melgar was beaten and kicked to death while sleeping on the sidewalk outside Service Employees International Union office in Los Angeles. According to the bu ilding’s surveillance videotape, Melgar was attacked by four individuals at 1:12 a.m. The police were called when Melgar’s bo dy was discovered at about 7:50 a.m. Los Angeles Police Department Detective Ch ristopher Linscomb responded to the call and determined from the buildi ng’s surveillance videotape that Melgar was sleeping next to two companions when the a ttack occurred. His companio ns were later identified as Jorge Pineda, who testified at the preliminar y hearing but died before trial, and a man named “Sarco,” who did not testify. 3 The surveillance videotape showed that after Melgar was attacked, there was no “signifi cant movement” until Pine da got up and left the area at 6:30 a.m., followed by Sarco 20 minutes later. At 2:30 p.m. that same day, Officer Je ssie Swartz and his partner responded to a report of a Hispanic female “sitting at the co rner of Rampart and Temple.” At that

1 All further statutory references are to the Penal Code.

2 Defendant was also charge d but acquitted of dissuading a witness. (§ 136.1, subd. (b)(1).)

3 Both the surveillance videotape and Pi neda’s preliminary h earing testimony were admitted into evid ence at trial.3 location, the officers found defendant, wh o matched the description of the possible female suspect in this case, sitting next to Pineda. Defendant was arrested as a possible susp ect in this case and Pineda was detained for questioning. When a bl ood-stained tank top was fo und in defendant’s pocket, defendant said, “I got in a fight and hit him w ith a brick.” (The ju ry was informed that the blood on defendant’s clothi ng did not come from Melgar.) During Pineda’s interview by Linscomb, Pineda named defendant and her son, Giovanni Rios (Giovanni), 4 as possible suspects in this case. Pineda also selected Giovanni’s photograph from a six-pack lineup. During defendant’s interview by Lindsc omb, Officer Rafael Lopez served as translator. Defendant’s videotaped statements , which she sought to suppress at trial, are discussed below.

I. Defendant’s Videotaped Statements During the pre- Miranda 5 portion of the interview, defendant was asked for her name, her parents’ names, her birthplace, height , weight, age, and plac e of birth. She was also asked for the name, date of birth, addr ess, phone number, and occupation of her son and her husband. She was then asked abou t her employment, Social Security number, telephone number, tattoos, government benefits, prior addresses, arrest record, driver’s license or California identification number, fri ends’ names, and hist ory of drug use. After defendant answered the abov e questions, she was advised of her Miranda rights and asked whether she underst ood those rights. She answered yes. 6

4 Defendant’s son, Giovanni, is referred to in the record as Giovanni or Jovanni. Because defendant and her son have the same last name, we will refer to her son as Giovanni.

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

6 At trial, Linscomb testified that he had “offered” defendant an “express waiver” of her Miranda rights but did not obtain one.4 Defendant was then shown a photograph of Melgar and was asked if she knew him. Defendant initially denied knowing him, but then stated that his name was Tony (Melgar) 7 and that he took his recycl ables to the recycling center at Temple and Rampart. Defendant claimed she was a ttacked by Melgar at 9:00 p. m. the previous night at Beverly and Coronado (the location where Me lgar was killed several hours later). She stated that Melgar, who appeared to be ve ry drunk, had suddenly grabbed, beaten, and kicked her. She suffered an in jury to her head, which Lope z examined and described on the videotape as a “big cut and a big bump.” 8 Defendant gave varying acc ounts of her activities the previous day. She initially said that at 4:00 p.m., a man named Flac o had given Melgar so me whiskey and vodka, which had caused Melgar to go “crazy” and hit her. She later said that Flaco had offered her a drink at 4:00 p.m., but Melgar was not present. She then said that after being attacked by Melgar, she went to a friend’s house and put some pa per on her head, which was bleeding. When she left her friend’s ho use, her eyesight was blurry. She walked around for a while and bought a beer at about 4:00 p.m. and then had something to eat. At this point during the interview, defe ndant complain ed of feeling dizzy. The interview resumed after Lopez replied, “We won’t be here that long, okay?” Defendant stated that after being attacked by Melgar, sh e was afraid for her life. She took a blanket and went to sleep in some bushes near Coronado and the freeway. She did not wake up until 7: 30 a.m. that morning. Lopez told defendant that she was lying. He told he r that she had been seen throwing bricks at Beverly a nd Coronado, and several witne sses had identified her as the person who “was throwing bricks and assau lted” Melgar. Defendant admitted she was angry about being assaulted an d had started throwing bricks about 20 minutes after the assault occurred.

7 Although defendant referred to Melgar as Tony, we will refer to him as Melgar for the sake of consistency.

8 Lopez testified at trial that his descrip tion of a “big cut and big bump” was a “fair portrayal of the injury [he] saw on the back of [defendant’s] head.”5 Lopez told defendant that there was a surveillance videotape of the attack on Melgar. He told her that she was visible on the videotape with the three men who had beaten Melgar. Defendant admitted be ing present when Melgar was attacked, but claimed she did not see anything because her back was turned . She explained that she had gone back to ask Melgar why he had beaten her. While th ey were talking, thre e men arrived and began kicking him. She did not know who they we re, but she thought th ey looked like gang bangers. Defendant was shown a phot ograph (without being told the photograph was of her son Giovanni) and was asked, “I s that one of them?” She replied, “It’s one of them, but I do not recognize him.” At that point, Detective Motto entere d the room with defendant’s cell phone, which had been taken from her when she was arrested. Motto told the officers that defendant had used her phone to call her son Giovanni around the time of the attack on Melgar. Motto also told the officers that defendant’s cell phone number was the same number that Giovanni had listed during his December 2010 arrest. Defendant was then asked the following qu estions about her son: “[Lopez] Do you remember that you told us th e name of your son? [¶] [Def endant] Yes. [¶] [Lopez] Mira, what is that name? Do you know that name? [¶] [Def endant] Yes. [¶] [Lopez] What is your son’s name? [¶] [Defendant] Th e name is uh . . . Gio. [¶] [Lopez] Yes. The name of your son, that yo u told us, is Giovanni Rios, ri ght? [¶] [Defendant] Yes. [¶] [Lopez] What do you think this name is here? That says, Giovanni Rios. You just told me that that is one of the guys that b eat him up. [¶] [Defe ndant] No, I didn’t say that.” Defendant was asked for Giovanni’s date of birth. She replied, “two, two, ninety” (Feb. 2, 1990). She was asked why she did not identify Giovanni’s photograph right away. She replied, “Because I can’t see and I’m still hurting and my eyesight is blurry.” Defendant was told that the police we re aware of the following facts: (1) defendant and Giovanni were on the surveillance videotape of the killing;6 (2) defendant told Giovanni “what Tony [Melga r] did to” her; (3) defendant went with Giovanni to find Melgar; and (4) defendant told Giovanni, “that’s the one,” “[k]ill that mother fucker.” Defendant denied the above statements we re true. She was th en told, “You came back with three guys and you told them, th at’s him. And those three men beat him up and killed him. Do you understand? You are on video. Do you unde rstand? . . . Your son is on the video.” “We know everything.” “They heard you say, there is that mother fucker, kill him. All the people that hang out there on Beverly and Coronado saw it.” “Why would you get your son involved in that? . . . He got angry when you explained to him, ‘son, I was beaten up.’ Did he get angr y? What did he say when you told him?” Defendant denied telling Giovanni that Me lgar had beaten her. She stated that Giovanni’s friend had probably told him about her beating. Defendant was asked whether the cell phone number that Giovanni had listed during his prior arrest was her cell phone number. She replie d that Giovanni had two cell phones, but she had none. She claimed th at she called him “from the street.” Defendant was shown the cell phone that was found in her possession when she was arrested. She was told, “No, you called hi m from this phone.” “B efore they beat up Tony you called your son on th is phone, okay? This phone that is here, that he gave when he was previously arrested.” Defenda nt replied, “Yes, because he, he, my phone was stolen and this same number is the one I to ld my son to put it fo r me.” “[T]his used to be the number he had before.” Defendant eventually stat ed that she had called her son to ask for money: “[Lopez] Why did you call your son before they beat up Tony ? [¶] [Defendant] I called my son? [¶] [Lopez] Yes. You still called him. We can show you here, that you called him. [¶] [Defendant] Yes, yes, I called hi m. . . . Because I wanted him to bring me money. . . . I called him because I was hungry and I needed money.” Defendant blamed Giovanni’s friends for attacking Melga r. She said that although Giovanni was “really angry, like really a ngry,” Giovanni did not participate in the beating. “And I told him, Gordo [Giovanni’s nickname], let’s go. Mommy, okay.7 That’s all he said.” She denied telling Giovanni to beat up Melgar: “I did not say, that mother fucker. The on e who said that was the other one, ” the one who wears his hair in a “Mohawk.” Defendant was asked to start over and te ll the truth about what happened. She replied, “I just saw when they kicked him.” She stated th at while “the other one” was beating Melgar, she grabbed and hugg ed her son and left with him. Defendant repeatedly denied telling her s on that she had been beaten by Melgar, and repeatedly denied her son’ s involvement in the attack on Melgar: “No, my son did not beat Tony up. I told you who beat him up. The guy that has the hair like this, here, like this.” After declaring that her son did not partic ipate in the attack on Melgar, defendant complained that her head hurt: “I’m tired. The back of my head hurts. My brain is opened. It is almost open, like this. I am getting dizzy, I feel bad.” However, defendant continued talking and recounted the following conversation with her son: “No, I said, no, no, baby, nobody has beaten me up. [Y]es, he said. But he had already been told. . . . [M]ommy, he said, should I call an ambulance for you? I said, no, God alone will heal me . [¶] [Lopez] When did you tell him finally, when did you tell him that Tony had beaten you up? [¶] [Defendant] No, his friend told him, told my son.” The interview ended several moments la ter with defendant’s final denial: “[Lopez] You ar e going to continue, continue with this story, that you did not tell Giovanni? [¶] [Defendant] I did not tell him. [¶] [Lopez] You did not tell him? [¶] [Defendant] No.” After the interview was over, defendant asked for a “pill,” stating, “I feel bad.” Defendant was given some wate r and transported to jail.8 II. Pineda’s Preliminary Hearing Testimony The prosecution’s evidence at trial included defendant’s videotaped statements and Pineda’s prelimin ary hearing testimony. 9 Pineda testified at the preliminary hearing as follows: Pineda knew both Tonito (Melgar) and de fendant (whom he identified in court at the preliminary hearing) for 20 years. Pine da saw defendant’s son “Jovanni” (Giovanni) “every now and then.” On the night of the killing, Pineda drank four beers and some vodka before he fell asleep on the sidewalk near Beverly and Cor onado. He woke up when Melgar arrived and asked for a blanket. He gave Melgar a blanket and they both went to sleep near a man named Sarco. During the night, defendant came by with Giovanni and a third person. Defendant told Giovanni that Melgar was the “son of a bitch” or “puto that hit me, kill him.” After defendant and Giovanni “hit [M elgar] in the head” and gave Melgar “a couple kicks,” defendant told Giovanni to “hit him with the block.” Gi ovanni hit Melgar with a “block of cement” and said, “Why did you hit my mo ther? I’m going to kill you[.]” Giovanni was going to hit Pineda but defendant “told him not to.” Later that day, Pineda spoke with defe ndant near the recycling center on Temple and Coronado. Defe ndant threatened to have “her buddies” “come after” Pineda because he had seen “what happened.” Defendant warn ed Pineda “not to talk” to the police.

DISCUSSION

On appeal, defendant challenges the tria l court’s denials of her (1) motion to suppress her videotaped statements, and (2) request for a voluntary manslaughter instruction. Additional facts relevant to her contentions are discussed below.

9 The admissibility of Pineda’s prior testim ony is not at issue on appeal. (Evid. Code, § 1291, subd. (a)(2).)9 Defendant’s Videotaped Statements During trial, defendant moved to supp ress her videotaped statements on the following grounds: First, the officers used a “deliberate que stion first technique to elicit incriminating statements from [defendant] be fore advising her of her Miranda rights. They then improperly used th ese incriminating statements to elicit more incriminating statements from her after a Miranda advisement,” in violation of Missouri v. Seibert (2004) 542 U.S. 600 ( Seibert ). Second, defendant was impa ired by the effects of a concussion and therefore lack ed the capacity to knowingly and voluntarily waive her
Miranda rights. 10

I. The Question First Technique Outside the presence of th e jury, the trial court heard Officer Lopez’s testimony concerning the question first technique. Lopez testified that during the pre- Miranda phase of the interview, defendant was only as ked to provide biographical information for herself, her son, and her spouse. According to Lopez, these were foundational questions “that would typically be asked as part of th e booking process” and, because they were unrelated to the crime itself, did not require a Miranda warning. 11 After hearing Lopez’s testimony, th e trial court held that the pre- Miranda questions did not constitute an interrogation and, therefore, no Miranda warning was required for that phase of the interview. Th e trial court stated: “In this particular situation involving Ms. Rios, questions were asked about family members, friends, phone

10 Defendant also argued below that info rmation obtained from a warrantless search of her cell phone was used to elicit incrimin ating responses. However, the opening brief does not challenge the search of defendant’s cell phone.

11 Lopez later testified at trial that th e following interrogation techniques were used in this case: (1) discuss ot her topics before giving a Miranda warning; (2) convince the suspect the evidence of guilt is overwhelming, even thou gh no such ev idence exists; (3) refuse to accept the suspec t’s denials or statements of innocence; (4) accuse the suspect of lying; and (5) empa thize with the suspect that th ings may have gotten out of control.10 numbers and addresses. I would note there were no questions asked about the circumstances of this case. In my view the facts of Ms. Rios’ case, this case, are quite a bit different than the facts of the Seibert case. I don’t believe there is any sort of interrogation . . . pre- Miranda which is meant to elicit an incriminating response.” On appeal, defendant contends , as she did below, the pre- Miranda questions constituted an improper custodial interrogation. Specifically, she argues that because the officers were aware that her son wa s a suspect in the killing, the pre- Miranda questions concerning her son’s name a nd phone number were designed to “establish her connection to the other suspect in the crim e.” (Internal record referenc e omitted.) Defendant argues: “The only time appellant told the officers he r son’s name, date of birth, and phone number was during the pre- Miranda questioning. After she was Mirandized, the officers repeatedly advert ed to the pre- Miranda information she had prov ided about her son to challenge her responses to their questions. [¶] Lopez acknowle dged that the phone number Motto said Giovanni gave to police was the number of the phone appellant had when she was arrested, and therefore she could not have called that number from her phone. The only other phone number for Giovanni that was discussed during the interrogation was the number appe llant provided during the pre- Miranda portion of the interrogation.” (Internal record references omitted.) For the reasons that follow, we conclude that no Miranda warning was required for the initial phase of the interview.

A. General Miranda Principles
In People v. Andreasen (2013) 214 Cal.App.4th 70, th e appellate court set forth the following general prin ciples concerning the Miranda rule. “To protect the constitutional privile ge against self-incrimination, the Miranda rule requires that before the police may question the defendant during a custodial interrogation, the defendant must be advised of the right to remain silent and to an attorney and that any statements may be used against him or her in court. ( People v. Gomez (2011) 192 Cal.App.4t h 609, 627.) If the defendant i nvokes the right to silence or11 to an attorney, the inte rrogation must cease. ( People v. Davis [(2009)] 46 Cal.4th [539,] 585.) “Generally, statements elic ited in violation of these Miranda principles may not be used against the defendant at trial ( People v. Gomez , supra , 192 Cal.App.4th at p. 627), . . . ). This exclusionary rule is applied in prophylactic fashio n to deter coercive investigative questioning and advance the trustw orthiness of trial ev idence, even if the defendant’s statements were voluntary apart from the Miranda violation. (See Smith v. Illinois (1984) 469 U.S. 91, 95, fn. 2, 99, fn. 8; People v. Bradford (1997) 14 Cal.4th 1005, 1033.) “The prophylactic Miranda protections are triggered only if a defendant is subjected to a custodial interrogation. ( People v. Ochoa (1998) 19 Cal.4th 353, 401.) Interrogation refers not only to express questi oning, but also to its functional equivalent; i.e., ‘“any words or actions on the part of the police ( other than those normally attendant to arrest and custody ) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”’ ( Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601 ( Muniz ), italics added.) However, not a ll police questioning of a person in custody constitutes interrogation. ( People v. Franzen (2012) 210 Cal.App.4th 1193, 1201.) The exclusion for communications ‘nor mally attendant to arrest and custody’ recognizes that the police may properly perf orm their normal administrative duties that

are distinct from their investigatory function without giving rise to Miranda protections. ( Muniz , supra , 496 U.S. at pp. 600-602; see People v. Hall (1988) 199 Cal.App.3d 914, 921 . . . .) “For example, under the ‘“routine booking question” exception’ to the Miranda rule, the police need not provide Miranda warnings prior to asking routine booking questions to secure biographical information. ( Muniz , supra , 496 U.S. at pp. 601-602;

see People v. Quiroga (1993) 16 Cal.App.4th 961, 967; People v. Hall , supra , 199 Cal.App.3d at p. 921.) Also, the Miranda requirements are generally not implicated when the police ask questions related to safety concerns that arise during the arrest or booking process. ( People v. Gomez , supra , 192 Cal.App.4th at pp. 634-635 [ Miranda not12 triggered during routine booki ng question about gang affiliati on designed to ensure safety of jail placement]; People v. Jones (1979) 96 Cal.Ap p.3d 820, 827-828 [ Miranda not triggered by arrest question re lated to defendant’s medical condition].) Similarly, casual conversations or ‘smalltalk’ unrelated to the offense do not typically constitute a Miranda interrogation. ( People v. Gamache (2010) 48 Cal.4th 347, 388; People v. Lewis (1990) 50 Cal.3d 262, 274-275; People v. Franzen , supra , 210 Cal.App.4th at pp. 1201-1203 . . . .) “The fact that information gathered from these routine qu estions or casual conversations turns out to be incriminating does not alone render the statements inadmissible. (See People v. Gomez , supra , 192 Cal.App.4th at p. 629.) This principle excluding routine or casual communications from Miranda ’ s coverage can apply even when a defendant has already received Miranda warnings and invoked his or her rights. ( U.S. v. Foster [(2000)] 227 F.3d [1096,] 1103-1104; Commonwealth of Pennsylvania v. Abdul-Salaam [(1996)] 678 A.2d [342,] 350-351.) “However, a Miranda interrogation may emerge during routine or casual exchanges if the police ask questions ‘“th at are designed to elicit incriminatory admissions.”’ ( Muniz , supra , 496 U.S. at p. 602, fn. 14; see People v. Gomez , supra , 192 Cal.App.4th at p. 627.) For example, the Muniz court held that although a defendant’s confused manner of answering routine biogra phical questions was admissible to prove his intoxication at the time of his arrest for drun k driving, the defendan t’s inability to answer a more specific question about his birth date that went beyond a ro utine booking question was inadmissible. ( Muniz , supra , 496 U.S. at pp. 585-586, 592-593, 598-602 [due to absence of Miranda warnings, defendant’s inability to st ate the date of his sixth birthday was inadmissible to show confused mental state]; see U.S. v. Hinckley (D.D.C. 1982) 217 U.S. App.D.C. 262 [672 F. 2d 115, 118-126] [due to Miranda violation, pr osecution could not rebut insanity defense with defendant’s responses to federal agents’ investigatory questioning about defendant’s social, em ployment, educational, and medical background].)13 “The courts caution that the facts of a ny routine questioning or casual conversation must be carefully scru tinized to ensure that the police are not using the communication as a pretext for eliciting incrim inating information. (See People v. Gomez , supra , 192 Cal.App.4th at p. 630.) This cautious appr oach is particularly appropriate when a defendant has invoked his or her Miranda rights before the communication. ( U.S. v.
Foster , supra , 227 F.3d at p. 1103 [‘conversations oc curring after a person invokes his or her Miranda rights must be viewed with suspicion and introduced at trial only with the utmost caution’].) When evaluating whether the Miranda requirements should apply during noninvestigative routine or casual exchan ges, relevant factors to consider include the nature of the questions, the context of the questioning, the knowledge and intent of the officer asking the questions, the relationshi p between the questions and the crime, the administrative need for the questions, and an y other indications that the questions were designed to elicit incrim inating evidence. ( People v. Gomez , supra , 192 Cal.App.4th at pp. 630-631.) “On appeal from the denial of a Miranda exclusionary motion, we defer to the trial court’s factual and credibility findings if supported by substantial evidence, and independently determine whether the challeng ed statements were illegally obtained. ( People v. Ochoa , supra , 19 Cal.4th at pp. 401-402; People v. Gomez , supra , 192 Cal.App.4th at p. 627.)” ( People v. Andreasen , supra , 214 Cal.App.4th at pp. 86-88, fn. omitted.)

B. What Constitutes an Interrogation According to the California Supreme Court, an interrogation “‘consists of express questioning, or words or actions on the part of the police that “are reasonably likely to elicit an incriminating response from the suspect.”’ ( People v. Cunningham [(2001)] 25 Cal.4th [926,] 993, quoting Rhode Island v. Innis [(1980)] 446 U.S. [291,] 301.) ‘Interrogation thus refers to questioning initiated by th e police or its functional equivalent, not voluntary conversation. [Citation.] “‘Vol unteered statements of any kind are not barred by the Fift h Amendment . . . .’”’ ( People v. Thornton (2007) 41 Cal.4th14 391, 432, quoting Rhode Island v. Innis , at p. 300.) Consequently, the police ‘may speak to a suspect in custody as l ong as the speech would not reas onably be construed as calling for an incriminating response.’ ( People v. Clark (1993) 5 Cal. 4th 950, 985.) “Under these rules, smalltalk is perm itted. Thus, we have concluded that a detective who told a defendant during booking that he ‘looked “like a traffic ticket”’ and asked ‘“Is it just a warrant?”’ was not engaged in an impermissible custodial interrogation. ( People v. Bradford (1997) 14 Cal.4th 1005, 1034.) [The deputy’s] remarks [in this case] were even more i nnocuous; objectively, there was no reason to suspect that inquiring abou t Gamache’s military servic e would lead Gamache to volunteer his regret about failing to kill Pe ggy Williams or the other inflammatory remarks that followed. [The deputy’s] subs equent ‘“neutral inquir[i es]”’ did not convert Gamache’s volunteered admissions into the product of interrogation. ( People v. Ray (1996) 13 Cal.4th 313, 338 .) The trial court did not err in admitting them.” ( People v. Gamache , supra , 48 Cal.4th at pp. 386-387.)
“In Rhode Island v. Innis [, supra ,] 446 U.S. 291, the Court defined the phrase ‘functional equivalent’ of express questioning to include ‘any words or actions on the part of the police (other than those normally attendant to arrest a nd custody) that the police should know are reasonably likely to elicit an incriminati ng response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.’ Id. at 301 (footnotes omitted) . . . . However, ‘[a]ny knowledge the police ma y have had concerning the unusual susceptibility of a defendant to a particular form of persuasion mi ght be an important factor in determining’ what the po lice reasonably should have known. Innis , supra , at 302, n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning, and also words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasona bly should know are likely to ‘have . . . the force of a que stion on the accused,’ [citation], and therefore be reasonably likely to elicit an incriminating response.” ( Muniz , supra , 496 U.S. at pp. 600-601.)15 C. Analysis Defendant contends that because the pre- Miranda questions were designed to establish both her parental rela tionship with her son, who was a suspect in this case, and his phone number, the officers were engaged in an impermissible custodial interrogation during the first phase of the ques tioning. We are not persuaded. The record show s that defendant was arrested beca use she fit the description of the possible female suspect. During the pre- Miranda questioning, she was asked for the names and phone numbers of her family memb ers. Her responses—her son’s name and telephone number—were not incriminating and th e officers had no basis to believe that these biographical questions would call for an incriminating response. Defendant contends that the biographical questions were improper because the officers were able to use her responses —her son’s name and phone number—to challenge her failure to identify her son’s ph otograph. However, such use of her earlier responses was not a Miranda violation. “The fact that in formation gathered from these routine questions or casual conversations turn s out to be incriminating does not alone render the statements inadmissible. (See People v. Gomez , supra , 192 Cal.App.4th at p. 629.)” ( People v. Andreasen , supra , 214 Cal.App.4th at p. 88.) We conclude that because the pre- Miranda questions may not reasonably be construed as calling for an incriminating response, no Miranda warning was required at the initial phase of the interview.

II. The Post- Miranda Questioning Did Not Violate Seibert Defendant contends her post- Miranda statements were inadmissible under Seibert. We conclude the contention lacks merit. The issue in Seibert was the validity of a “question first” interrogation technique. In that case, the officers elicit ed a confession before giving a Miranda warning and obtaining the defendant’s repeated confession. As Seibert explained, the question first technique “calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a stat ement is generally16 inadmissible, since taken in violation of Miranda v. Arizona , [ supra ,] 384 U.S. 436, the interrogating officer follows it with Miranda warnings and then lead s the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream reci tation of warnings af ter interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.” ( Seibert , supra , 542 U.S. at p. 604.) Seibert is clearly distinguishable. As we previously noted, the pre- Miranda questioning in this case did not elicit an incriminating response or confession. Notwithstanding Officer Lopez’s testimony that the interview was designed to elicit a confession, 12 the information obta ined during the pre- Miranda questioning (the son’s name and phone number) was not incriminating. Accordingly, there was no violation of Seibert.

III. There Was a Valid Miranda Waiver Defendant contends the pr osecution failed to establis h that she knowingly and voluntarily waived her Miranda rights. We disagree.

A. The Requirements of a Valid Miranda Waiver According to Berghuis v. Thompkins (2010) 560 U.S. 370, 382-383, “Even absent the accused’s invocation of the right to rema in silent, the accused’s statement during a custodial interrogation is inadmissible at tria l unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [ Miranda ] rights’ when making the statement. [ North Carolina v. ] Butler [(1979) 441 U.S. 369,] 373. The waiver inquiry ‘has two distinct dimensions’: waiver must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coer cion, or deception,’ and ‘made with a full awareness of both the nature of the right being abandoned and the

12 Ante , footnote 11.17 consequences of the decision to abandon it.’ [ Moran v. ] Burbine [(1986) 475 U.S. 412,] 421.” The prosecution “does not need to show that a waiver of Miranda rights was express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect’s statement into evidence. Butler , supra , at 376. Butler made clear that a waiver of Miranda rights may be implied through ‘the de fendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.’ 441 U.S., at 373. The Court in Butler therefore ‘retreated’ from the ‘language and tenor of the Miranda opinion,’ which ‘suggested that the Court would require that a waiver . . . be “specifically made.” Connecticut v. Barrett , 479 U.S. 523, 531- 532 (1987) (Brennan, J., concurring in judgment). “If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is in sufficient to demonstrate ‘a valid waiver’ of Miranda rights. [Citation.] The prosec ution must make the additional showing that the accused understood these right s. [Citations.] Where the prosecution shows that a Miranda warning was given and that it wa s understood by the accused, an accused’s uncoerced statement estab lishes an implied waiver of th e right to remain silent. “Although Miranda imposes on the police a rule that is both fo rmalistic and practical when it prevents them from interro gating suspects without first providing them with a Miranda warning, see Burbine [, supra , 475 U.S.] at 427, it does not impose a formalistic waiver procedure th at a suspect must follow to re linquish those rights. As a general proposition, the law can presume that an indi vidual who, with a full understanding of his or her right s, acts in a manner inconsiste nt with their exercise has made a deliberate choice to relinquish th e protection those rights afford. See, e.g. , Butler , supra , [441 U.S.] at 372-376; [ Colorado v. ] Connelly [(1986) 479 U.S. 157], 169-170 (‘There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the [due process] confessi on context’). The Court’s cases have recognized that a waiver of Miranda rights need only meet the standard of Johnson v. Zerbst , 304 U.S. 458, 464 (1938). See Butler , supra , at 374-375; Miranda ,18 supra , [384 U.S.] at 475-476 (applying Zerbst standard of intentional relinquishment of a known right). As Butler recognized, 441 U.S., at 375-376, Miranda rights can therefore be waived through means less formal than a t ypical waiver on the record in a courtroom, cf. Fed. Rule Crim. Proc. 11, given the practical constraints and necessities of interrogation and the fact that Miranda’s main protection lies in advising defendants of their rights, see Davis [ v. United States (1994)] 512 U.S. [452,] 460; Burbine , 475 U.S., at 427.” ( Berghuis v. Thompkins , supra , 560 U.S. at pp. 384-385.)

B. Defendant Made a Knowing , Intelligent , and Voluntary Waiver Defendant argues that because she wa s interviewed while intoxicated and suffering the effects of a concussion, she lack ed the capacity to kn owingly, intelligently, and voluntarily waive her Miranda rights. Defendant also cont ends the trial court failed to inquire whether the circumstances of her interrogation, including the officers’ decision to avoid seeking an express Miranda waiver, precluded a finding that the Miranda warnings were effective. We disagree. We conclude the record supports the trial court’s finding that defendant k nowingly, intelligently, and voluntarily waived her Miranda rights.

1. The Concussion Evidence Outside the presence of th e jury, the respective medical experts—Dr. Ponton for the prosecution and Dr. O’Connor for the de fense—testified as to the effects of defendant’s concussion on her ability to kn owingly, intelligently, and voluntarily waive her Miranda rights. Both experts based their conc lusions on (1) a nurse’s report prepared when defendant received medical attention at the jail at 10:00 p.m. on the night of her arrest, and (2) defendant’s vide otaped interview statements. The Prosecution’s Expert . Dr. Ponton testified that based on his review of the nurse’s report and defendant’s videotaped interview statemen ts, it was “more likely than not” that defendant had suffered a concussion. Because there was no evidence of a loss of consciousness, Dr. Ponton believed th at defendant had suffered a grade one19 concussion. Based on defendant’s videot aped statements, Dr. Ponton found that defendant was not confused and was able to understand the questions that were posed during the interview. Dr. Ponton saw nothing in the videotape that would lead him to believe that defendant did not understand the Miranda rights that were read to her. It was clear, in his view, that defendant “could under stand what she was being asked. She was responding appropriately.” Dr. Ponton further noted th at during the videotaped interview, defendant “was trying to provide stories filling up time. She was thinking on the spot. She was trying to provide exculpatory versions of the events.” He concluded from the manner in which she presented herself that she woul d have responded to the questi ons in the same way even in the absence of a head injury. As to defendant’s difficulty in providing personal inform ation, Dr. Ponton stated: “Whenever she had to provide her personal in formation that identified herself, she had difficulties. She did not have any difficulty identifying her son’ s date of birth, her son’s name, her son’s phone number, her boyfriend’ s full name and address, her boyfriend’s phone number, the name of the employer. Wh enever information was asked of her that involved other people, she wa s able to provide it just lik e that. When she was asked about her date of birth, her age, her na me, she always hesitated and had problems providing that information. [¶] Q How di d that strike you in en tering your opinion so far as possible confusion? [¶] A I felt that she was not forthcoming with personal information.” The Defense Expert . Dr. O’Connor testified that based on his review of the nurse’s report, defendant was still intoxicate d when she was examin ed by a nurse at the jail at 10:00 p.m. on the night of her arrest. He believed, based on his review of the nurse’s report and the videotaped interview, that defendant had suffered a grade two concussion. In Dr. O’Connor’s view, defend ant’s difficulty in answering basic questions (the spelling of her last name and date of birth) and her complaints of blurred vision, headache, and not feeling we ll were consistent with a grade two concussion.20 However, Dr. O’Connor testified that there was nothing in the videotaped interview that would lead him to conclu de that defendant did not understand the Miranda rights that were read to her or the questions that followed.

2. The Trial Court’s Ruling In concluding that defendant was able to understand her Miranda rights, the trial court stated: “I listened to the testim ony of Dr. Ponton, Dr. O’Connor, and Officer Lopez. Just to summarize briefly. Dr. O’Conn or testified, in his belief, at the time of the interview, Ms. Rios had suffered what he believed to be a grade two concussion. Dr. Ponton testified, in his belief, the concussion was a level one concussion. Dr. O’Connor indicated that he could not opine whether or not with the grade two concussion Ms. Rios was or was not able to understand the Miranda warnings given. I don’t find that leads me to believe even if Ms. Rios had suffered a grade two concussion, there is no evidence produced before me that Ms. Rios was not able to understand the Miranda warnings and the questioning of her during the actual interview. I find Dr. Ponton’s opinion to be more credible th an Dr. O’Connor’s. Over the objections of the defense, I am going to find that the statements given by Ms. Rios during the Miranda interview were knowing a nd voluntary, and that would be my ruling.”

3. Defendant’s Contentions on Appeal Defendant contends that by relying on Dr. O’Conno r’s inability to determine whether the concussion had rendered her incapable of understanding her Miranda rights, the trial court erroneously shifted the burden of proof to defendant

. We disagree. The trial court found the prosecution had met its burden, through Dr. Ponton’s expert testimony, to establish a kn owing, voluntary, and intellig ent wavier of defendant’s Miranda rights. We conclude the trial court’ s reliance on Dr. Ponton’s testimony was proper and did not shift the burde n of proof to defendant. Defendant next contends, for the first ti me on appeal, that Dr. Ponton’s testimony was insufficient to support the trial cour t’s ruling because D r. Ponton lacked the21 necessary medical experience to de termine whether she understood her Miranda rights. The problem with this contenti on, however, is that defendant did not raise it below and, therefore, failed to preserve the issue for appe al. (Evid. Code, § 353, subd. (a) [a finding shall not be reversed based on the errone ous admission of evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion”].) 13 Finally, defendant contends that because the trial court denied her exclusionary motion on the ground that the pre- Miranda questions were not meant to elicit incriminating statements, “the court never undertook an inquiry into the question of whether the circumstances of appellant’s in terrogation, including the officers’ decision not to seek a waiver of rights from a ppellant, precluded a finding that the Miranda warnings were effective. Absent such an inquiry by the court, the statement was inadmissible, and the conviction must be reversed.” (Citing Edwards v. Arizona (1981) 451 U.S. 477, 484.) Defendant’s reliance on Edwards is misplaced. In that case, the defendant invoked the right to have counsel present during custodial interrogation. Where the right to counsel is invoked, “a valid waiver of that right cannot be established by showing only that he respon ded to further police-initiated custodial interrogation even if he has been advised of his rights.” (451 U.S. at p. 484.) Because in this case the right to counsel was not invoked du ring custodial interrogation, Edwards is inapplicable. Based on our review of the record, we are sati sfied that substantial evidence supports the trial court’s finding that defendant knowingl y, intelligently, and vo luntarily waived her Miranda rights.

13 In her reply brief, defendant urges us to treat the Attorney General’s failure to address her insufficiency argument as a conc ession that her insufficiency argument is correct. We decline to do so. The sole case cited in support of her position, Smith v. Williams (1961) 55 Cal.2d 617, 621, is distingu ishable because it involved an appeal from a judgment following the sustaining of a demurrer. Because the appellant in Williams was not attempting to object to the ad mission of evidence for the first time on appeal, the case is not relevant to our inquiry.22 Voluntary Manslaughter

The trial court has a sua sponte duty to instruct on a lesser included offense when the record, viewed in the light most favorable to the defendant, contains substantial evidence to support th e instruction. ( People v. Barton (1995) 12 Cal.4th 186, 194-195.) Manslaughter is a lesser in cluded offense of murder. “V oluntary manslaughter is an unlawful killing without malice ‘u pon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).) ‘Heat of passion arises when “at the ti me of the killing, the reason of the accused was obscured or disturbed by pa ssion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” [Citation.]’ ( People v.
Barton [, supra ,] 12 Cal.4th [at p.] 201.) ‘[T]he killi ng must be “upon a sudden quarrel or heat of passion” (§ 192); that is, “suddenl y as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has ela[ps]ed for the passions of an ordinarily r easonable person to cool, the killing is murder, not manslaughter.” [Citation.]’ ( People v. Daniels (1991) 52 Cal.3d 815, 868.)” ( People v. Hach (2009) 176 Cal.Ap p.4th 1450, 1458.) Defendant contends the trial court err oneously refused to instruct on voluntary manslaughter based on a heat of passion defense. She relies on People v. Beltran (2013) 56 Cal.4th 935, in which the Supreme Court upheld the voluntary manslaughter instruction that was given in that case, sta ting: “Provocation is adequate only when it would render an ordinary person of average disposition ‘liable to ac t rashly or without due deliberation and reflecti on, and from this passion rather than from judgment.’ [Citation.]” ( Id. at p. 957.) Beltran , however, did not involv e a four-hour interval between the provocation and the killing. The evidence of provo cation in that case showed at best that the killing was co mmitted during a su dden quarrel. In this case, on the other hand, there wa s a four-hour interval between Melgar’s assault on defendant at 9:00 p.m. and defend ant’s assault on Melgar at 1:00 a.m. The23 trial court found the killing was not a voluntary manslaughter because the four-hour interval had provided a sufficient cooling-o ff period for passion to subside and reason to return. The record supports that finding. The evidence showed the assault on Melgar was motivated by revenge for a beating inflic ted on defendant several hours earlier. In addition, defendant’s act of r ecruiting others to assist in Melgar’s killing is compelling evidence of planning and is in consistent with an act that is committed rash ly or without reflection. Because there was no substantial evidence of a sudden heat of passion, the voluntary manslaughter instructi on was properly refused.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.