1

Filed 10/7/22 P. v. Moreno CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS RODRIGUEZ MORENO,

Defendant and Appellant.

 A165845

 (Kern County

 Super. Ct. No. BF168564A)

While driving drunk, defendant Jesus Rodriguez Moreno (Rodriguez)

hit a utility pole and then hit and killed a pedestrian, 39-year-old David Rico.

Rodriguez, who was 55 years old and had three prior convictions for driving 

under the influence (DUI), then drove away from the scene. Soon afterward, 

he was found nearby, passed out in his car. A jury convicted him of second 

degree murder, gross vehicular manslaughter while intoxicated, and hit-andrun causing death, all felonies, and driving with a suspended license, a 

misdemeanor. It also found true allegations that Rodriguez fled the scene 

and had prior DUI convictions. The trial court sentenced him to 20 years to 

life in prison.

On appeal, Rodriguez claims that his statements to law enforcement 

officials were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 

(Miranda). We agree, because he was never adequately informed that an 

attorney would be appointed for him if he could not afford one. We also 
2

conclude that the error was prejudicial as to the felony convictions. 

Therefore, we reverse those convictions and remand for a new trial.

1

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. The Crash and Physical Evidence

Around 8:00 p.m. on Saturday, June 3, 2017, Rico told his mother he 

was going for a walk and left her home in Lamont. At approximately 

9:40 p.m., a California Highway Patrol (CHP) officer, Ahearn Lucas, was 

dispatched in response to a report that a vehicle had hit a utility pole on 

State Route 184 (SR-184). SR-184 is a two-lane highway, running north to 

south, with “a nine-foot divided section” marked by double yellow lines that 

functions as a divider. Although the stretch of road at issue was not well-lit, 

on the night in question the weather was “clear and calm” and there were “no 

unusual conditions” such as potholes. 

While Officer Lucas was en route, he received an updated report that a 

vehicle had hit a pedestrian. Upon arriving at the scene at 10:07 p.m., the 

officer discovered a deceased person, later identified as Rico. Rico was lying

on the dirt shoulder of SR-184’s northbound lane, several feet from the 

asphalt. He “had severe head trauma,” and his leg appeared to be broken.2

1 As a result of our disposition, we need not address Rodriguez’s 

numerous other arguments for reversal, most of which allege evidentiary or

instructional errors. We therefore deny his request for judicial notice of a 

document related to one of those claims. Although we mention some evidence 

Rodriguez claims was erroneously admitted, such as evidence of his level of

intoxication, we do not thereby express an opinion on the merits of his

challenges to that evidence.

2 Rico’s death certificate, which was admitted into evidence, stated that 

his cause of death was “blunt force head trauma.” There was no testimony

about his autopsy.
3

Plastic vehicle debris, including a side mirror, was scattered near his body. 

The location of the debris suggested that Rico was hit while he was “on the 

far right side of the shoulder” of the road, not “in the traffic lane.”

A few blocks south on SR-184 from Rico’s body, a wooden utility pole, 

which stood about 14 feet away from the road’s northbound lane, had been 

“[shorn] off” near the base. About two hundred feet north of this pole, a

vehicle bumper with the license plate attached was lying on the road’s dirt 

shoulder near a second utility pole.3

Another CHP officer at the scene, Sergeant Cecil McKinty, discovered a 

trail of vehicle fluid on the ground. The trail began around the shorn-off 

utility pole, continued to the vehicle bumper, and “veer[ed] back into [SR184’s] northbound lane.” The trail then “traveled from the northbound lane 

onto the asphalt shoulder and . . . continue[d] [to] where [Rico] was located.” 

At one point, the trail went into the southbound lane, proof that the vehicle 

was used to commit a traffic violation by crossing the double yellow lines. 

Sergeant McKinty followed the fluid trail as it traveled down several 

different streets. At approximately 10:27 p.m., less than two miles away 

from the crash scene, he located the trail’s termination point under a Pontiac 

Aztek SUV parked on the road’s shoulder.

“[A] large pool of . . . oil and fluid” was underneath the front of the 

Aztek. It was missing its passenger’s-side mirror and its front bumper, and 

its back license plate matched the license plate on the bumper at the crash 

scene. The front of the vehicle, particularly its right corner, was significantly 

damaged. The right side of the windshield was badly cracked, and the 

damage appeared “consistent with a round object striking [it].” The vehicle’s 

3 There was conflicting evidence about whether the vehicle hit the 

second utility pole, but this uncertainty does not affect our analysis.
4

hood likewise appeared to have struck “something . . . round and solid.” DNA 

testing later established that a small amount of Rico’s blood was on the 

outside of the passenger’s-side B pillar, close to where it attached to the 

windshield.

B. Evidence Related to Rodriguez’s Condition

After Sergeant McKinty located the Aztek, he activated his emergency 

lights and parked behind it. When he approached the vehicle, he observed 

Rodriguez “slouched over” in the driver’s seat and apparently “passed out.” 

Rodriguez had an abrasion on his nose, likely caused by the deployed driver’s 

airbag, and his blood was on the airbag. His shirt and undershirt were also 

bloody. 

Sergeant McKinty reached through the Aztek’s open window and shook 

Rodriguez’s shoulder, but “it took [the sergeant] several seconds to get 

[Rodriguez] to actually wake up and respond.” Rodriguez’s “eyes were 

bloodshot and watery,” and his speech was “slurred,” to the point that 

Sergeant McKinty did not know whether Rodriguez was speaking Spanish or 

English. The sergeant could also smell “a strong odor of alcohol coming out of 

the [Aztek].” Three Budweiser beer cans, at least one of which was full and 

one of which was empty, were later discovered inside the vehicle’s cabin.

Sergeant McKinty repeatedly instructed Rodriguez in English to exit 

the vehicle, but Rodriguez just leaned toward the front passenger’s seat. 

Eventually, a sheriff’s deputy helped Sergeant McKinty pull Rodriguez out of 

the Aztek. 

Soon afterward, Officer Lucas arrived to interrogate Rodriguez. Officer 

Lucas likewise observed that Rodriguez’s eyes were “red and watery,” and 

Rodriguez’s breath smelled like alcohol. After the interrogation, which we 
5

discuss in more detail below, Officer Lucas conducted three field sobriety 

tests. Rodriguez showed signs of alcohol impairment during all three tests. 

A computer check revealed that Rodriguez was on DUI probation and 

his driver’s license was suspended. Officer Lucas then administered two 

preliminary alcohol screening (PAS) tests to Rodriguez. The first test, which 

was performed at 11:21 p.m., showed that Rodriguez’s blood-alcohol content 

(BAC) was .24 percent. The second test, which was performed four minutes 

later, showed his BAC was .25 percent. 

Officer Lucas arrested Rodriguez for DUI and gave him the option of 

submitting to a blood test or an official breath test. Rodriguez elected a blood 

test, requiring his transport to a hospital. The blood sample, which was 

drawn at 1:30 a.m. the following morning, showed his BAC was .251 percent.4

C. Rodriguez’s Statements to Law Enforcement

Rodriguez was questioned by CHP officers three times, and all three

interrogations were recorded and played for the jury. The first interrogation 

was recorded from a distance by a patrol vehicle’s mobile video audio 

recording system (MVARS), and the recordings of the other two 

interrogations were audio only. 

1. First interrogation

After Rodriguez was removed from the patrol vehicle where he was 

waiting, Officer Lucas interviewed him. Officer Daniel Dinsing, who spoke 

Spanish but was not certified to translate it by the CHP, served as translator. 

Rodriguez said he was at a friend’s house earlier that night and was

driving by himself to his sister’s house when he dropped his cell phone on the 

4 A criminalist testified that the PAS tests, which indicated that 

Rodriguez had approximately the same BAC as the blood test showed he had 

two hours later, could have underestimated Rodriguez’s true level of 

intoxication. 
6

Aztek’s floor. As he was trying to retrieve the phone, he hit a pole. He 

continued to his sister’s house because he saw no reason to stay at the scene, 

and he decided to sleep in the car so he would not disturb his sister.

Rodriguez indicated that he did not have any physical problems or 

impairments and did not hit his head during the crash. 

Rodriguez denied several times that he hit a person, both before and 

after the CHP officers informed him a pedestrian was killed. When told there 

was blood on the outside of the Aztec, Rodriguez claimed it was his. He said

it got there when he got out to inspect the damage, wiped blood from his nose, 

and touched the vehicle. 

Rodriguez admitted that beginning around 2:30 p.m., he drank six to 

seven Bud Light beers. He agreed that six to seven hours had passed since 

his last drink. Although he acknowledged that he knew he could kill 

someone if he drove while drunk, he consistently denied that he was drunk

during the crash, and he denied drinking alcohol after it. 

2. Second interrogation

Approximately 30 minutes later, upon arriving at the hospital for the 

blood draw, Rodriguez was interviewed by Officer Lucas and another officer, 

who was certified as a Spanish translator by the CHP. Rodriguez repeated 

much of what he said before, including that he was alone in the Aztek, that 

he crashed into the pole because he was looking for his dropped cell phone, 

that he did not hit a person and any blood on the car was his, that he was not 

drunk during the crash, and that he was not “injured or sick.” He also again 

confirmed that he knew that “when you’re driving under the influence of 

alcohol, you can kill someone,” stating that it “would be a disgrace” to do so.
7

3. Third interrogation

Two days after the crash, Officer David Cabrera, who was certified by 

the CHP as a Spanish translator, questioned Rodriguez in Spanish at the jail. 

Rodriguez reported that his cell phone rang, he dropped it, and when he bent 

down to get it, he “hit a post.” He stated, “[A]fter I hit the post I became 

nervous and I started bleeding. . . . I said, ‘I’m gonna look for help.’ After 

that, I ran to my sister’s house to call an ambulance, but then I found an 

officer and there I was assisted by them[, t]hank God.” Although the fluid 

trail showed that Rodriguez followed an indirect route, requiring six turns, to 

get to his sister’s house, he told Officer Cabrera that he took a different route 

that would have required only two turns. 

Consistent with his prior statements, Rodriguez denied that he hit a 

pedestrian. Attempting to explain the blood on the outside of the Aztek, he 

stated, “When I reached my sister’s house I washed my face and went to see 

the impact that I gave it (unintelligible). So I stayed there sitting down and 

. . . I leaned back like this on . . . the car and placed my hand like this and left 

a big blood stain, but it was mine because I didn’t hit any other person.” 

Rodriguez again confirmed that he knew if he drank and drove he could 

kill someone. He also confirmed that he drank six beers before the crash and

did not consume any alcohol after it. This time, however, he stated that he 

began drinking at around 5:00 p.m., not 2:30 p.m., and that he had the last 

drink when “it was already getting dark.”

D. Procedural History

Rodriguez was charged with second degree murder, gross vehicular 

manslaughter while intoxicated, and hit-and-run causing death, all felonies, 
8

and a misdemeanor count of driving with a suspended license.5 The count of 

gross vehicular manslaughter was accompanied by allegations that Rodriguez 

had three prior DUI convictions and fled the scene of the crime.6 The jury 

found him guilty of all counts and enhancements as charged. 

On May 21, 2019, the trial court sentenced Rodriguez to a total term of 

20 years to life in prison, composed of a term of 15 years to life for gross 

vehicular manslaughter while intoxicated and a consecutive term of five 

years for the fleeing-the-scene enhancement. A concurrent term of 180 days 

in county jail was imposed for driving with a suspended license, and a term of 

15 years to life for murder and the upper term of four years for hit-and-run

causing death were imposed and stayed.

Rodriguez immediately appealed. Due to numerous extensions of time 

sought by both parties, the matter did not become fully briefed until

October 2021. On August 9, 2022, the appeal was transferred from the Fifth 

District Court of Appeal to this court for decision. 

II.

DISCUSSION

Rodriguez claims that his statements during the three interrogations

were admitted in violation of his Miranda rights. We agree.

5 The charges were brought under Penal Code sections 187 (murder) 

and 191.5, subdivision (a) (gross vehicular manslaughter), and Vehicle Code 

sections 20001, subdivision (b)(2) (hit-and-run), and 14601.2, subdivision (a) 

(driving with suspended license). All further statutory references are to the 

Vehicle Code unless otherwise noted.

6 The allegation of prior DUI convictions was made under Penal Code 

section 191.5, subdivision (d), based on 2008, 2015, and 2017 convictions for 

violating section 23152, subdivision (a). The fleeing-the-scene allegation was 

made under section 20001, subdivision (c). 
9

A. Additional Facts

At the outset of the first interrogation, Officer Lucas read Rodriguez his 

Miranda rights, with Officer Dinsing translating, as follows:

7

OFFICER LUCAS: Listen[,] you have the right to remain 

silent. Do you understand?

OFFICER DINSING: Okay. You have the right to remain

silent. Do you understand?

[RODRIGUEZ]: (Unintelligible.)

OFFICER LUCAS: Anything you say may be used against 

you in court. Do you understand?

OFFICER DINSING: Anything you say may be used against 

you in court. Do you understand? Say 

yes or no (unintelligible).

[RODRIGUEZ]: Yes.

OFFICER LUCAS: You have the right to the presence of an 

attorney before and during any 

questioning. Do you understand?

OFFICER DINSING: You have the right to call an attorney 

before, during interrogation. Do you 

understand?

[RODRIGUEZ]: Yes.

OFFICER LUCAS: If you cannot afford an attorney one will 

be appointed for you free of charge before 

any questioning if you want. Do you 

7 The exchange is quoted from the transcript of the videotaped 

interview. Instead of reproducing Rodriguez’s and Officer Dinsing’s

statements in Spanish, the transcript contains translations of those 

statements back into English. The parties do not dispute that the

translations are accurate.
10

understand?

OFFICER DINSING: If you cannot pay an attorney one will be 

called for you free of charge before the 

interrogation if you said. Do you 

understand?

[RODRIGUEZ]: (Unintelligible.)

OFFICER DINSING: Yes? Say yes man – man. (Unintelligible.)

Rodriguez was not read his Miranda rights at the second interrogation, 

which occurred only a short time later. At the outset of the third 

interrogation, Officer Cabrera read Rodriguez his rights again as follows:

8

OFFICER CABRERA: [B]efore I talk to you, I want to let you 

know that you have been arrested. You 

already know that you have been 

arrested. Your rights, you have the right 

to remain silent, a- any declaration that 

you give may be used against you. You 

have the right to speak to an attorney, to 

have an attorney present while we ask 

you questions.

[RODRIGUEZ]: Very well.

OFFICER CABRERA: Do you understand your rights?

[RODRIGUEZ]: Yes. I understand them.

OFFICER CABRERA: Okay, sir. After understanding your 

rights, do you want to talk to me?

[RODRIGUEZ]: Of course. Why not? (Unintelligible.)

8 We quote from the transcript of the audio interview, which contains 

English translations of Rodriguez’s and Officer Cabrera’s original Spanish 

statements. Again, the parties do not dispute the translations’ accuracy.
11

Before trial, Rodriguez moved to exclude his interrogation statements 

under Miranda. In regard to the first interrogation, Rodriguez’s trial counsel

argued that Officer Dinsing did not “fully translate Miranda properly,”

explaining, “There’s a big difference between you can call an attorney,” which 

Officer Dinsing said in Spanish, “and you have the right to the presence of an 

attorney,” which Officer Lucas originally said. (Italics added.) Also, while 

Officer Lucas said that if Rodriguez could not afford an attorney, “one [would] 

be appointed for [him] free of charge,” Officer Dinsing translated the latter 

part of that statement as “one [would] be called for [him] free of charge.” 

(Italics added.) The prosecutor responded that defense counsel was 

“nitpick[ing] Spanish words and what they mean as being defective for 

Miranda.” 

In regard to the third interrogation, Rodriguez’s counsel contended, and 

the prosecutor agreed, that Officer Cabrera “did not give the full Miranda

advisement” because the officer did not ask whether Rodriguez understood 

that he was entitled to have an attorney appointed for him if he could not 

afford one. Defense counsel argued that because two days had passed since

Rodriguez was originally read his Miranda rights, he should have been 

readvised “in full.” The prosecutor responded that even if “best practices” 

were not used, Rodriguez was read his full Miranda rights at the first 

interrogation, and he clearly waived his right against self-incrimination on 

that occasion. 

The trial court ruled that “the necessary Miranda advisals were given” 

during the first interrogation. Although Officer Dinsing’s translation 

contained “some differences in words,” those differences did not “dissipate, 

minimize, nor incorrectly advise [Rodriguez] of these necessary rights.” The 

court also found that Rodriguez “impliedly waived those rights knowingly, 
12

voluntarily, and intelligently before participating in [the] interview.” Finally, 

the court confirmed that because the second interrogation occurred only 

30 minutes later, “a second advisal was unnecessary.” Thus, Rodriguez’s 

statements during the first two interrogations were admissible.

The trial court ruled that another Miranda advisement was required 

before the third interrogation because it was custodial and two days had 

passed since the first interrogation. The court also agreed with the parties 

that Officer Cabrera’s “advisement was inadequate.” Although the court 

“would, without hesitation, exclude [Rodriguez’s] statements” during the 

third interrogation if that were the first time he was advised under Miranda,

the court determined it would be “remiss if it were not to consider that the 

initial Miranda advisement given . . . was an adequate advisement as 

previously found.” 

Thus, the trial court addressed the issue of “what effect, if any, . . . an 

inadequate advisement [has] when it follows an adequate advisement.” 

Relying on People v. Duren (1973) 9 Cal.3d 218 (Duren), the court concluded 

that “based on the proper advisal two days earlier and, just as importantly, 

[Rodriguez’s] waiving his rights knowingly, intelligently, and voluntarily [at 

that time], . . . [Rodriguez] nonetheless did participate voluntarily in an 

interview with Officer Cabrera still under the guise of the Miranda advisal 

previously given.” Therefore, the court ruled that Rodriguez’s statements 

during the third interrogation were also admissible. 

B. The Admission of Rodriguez’s Statements Violated Miranda.

“The Fifth Amendment to the United States Constitution, which 

applies to the states by virtue of the Fourteenth Amendment, provides that 

no person may be compelled to be a witness against himself or herself.” 

(People v. Linton (2013) 56 Cal.4th 1146, 1170–1171.) Miranda held that a 
13

suspect must be warned prior to any custodial interrogation “that [the 

suspect] has the right to remain silent, that anything [the suspect] says can 

be used against [the suspect] in a court of law, that [the suspect] has the 

right to the presence of any attorney, and that if [the suspect] cannot afford 

an attorney one will be appointed . . . prior to any questioning if [the suspect] 

so desires.” (Miranda, supra, 384 U.S. at p. 479; Linton, at p. 1171.) “[A] 

defendant’s statement is inadmissible unless all four warnings were given to 

the defendant prior to the interrogation, regardless of the defendant’s 

understanding of [those] rights.” (People v. Bradford (2008) 169 Cal.App.4th 

843, 852.)

We review de novo “a trial court’s granting or denial of a motion to 

suppress a statement under Miranda insofar as the trial court’s underlying 

decision entails a measurement of the facts against the law.” (People v. 

Waidla (2000) 22 Cal.4th 690, 730.) To the extent the ruling relies on factual 

findings, we review those findings for substantial evidence, but we “examine[] 

independently the resolution of a pure question of law . . . [and] the resolution 

of a mixed question of law and fact that is predominantly legal.” (Ibid.)

1. The first interrogation

Rodriguez claims the first Miranda advisement “did not convey the 

right to an attorney to be appointed free of charge.” He argues that because 

he was informed in Spanish that he had “the right to call an attorney before, 

during interrogation” and that if he could not “pay an attorney one [would] be 

called for [him] free of charge before the interrogation,” the latter warning 

“suggest[ed] that the call would not cost [him], without addressing whether 
14

the lawyer would be provided at no charge.” We agree that Rodriguez was 

inadequately advised of this right at the first interrogation.

9

Although “[t]he four warnings Miranda requires are invariable,” the 

United States Supreme Court “has not dictated the words in which the 

essential information must be conveyed. [Citations.] In determining whether 

police officers adequately conveyed the four warnings, . . . reviewing courts 

are not required to examine the words employed ‘as if construing a will or 

defining the terms of an easement. The inquiry is simply whether the 

warnings reasonably “conve[y] . . . [the suspect’s] rights as required by 

Miranda.” ’ ” (Florida v. Powell (2010) 559 U.S. 50, 60; People v. Wash (1993) 

6 Cal.4th 215, 236–237.) In other words, “no talismanic incantation [is] 

required to satisfy [Miranda’s] strictures” so long as “ ‘a fully effective 

equivalent’ ” is given. (California v. Prysock (1981) 453 U.S. 355, 359–360, 

italics added (Prysock).)

The purpose of the advisement at issue is to inform indigent people, 

who are those “most often subjected to interrogation,” that they “too ha[ve] a 

right to have counsel present.” (Miranda, supra, 384 U.S. at p. 473.) 

“Without this additional warning, the admonition of the right to consult with 

counsel would often be understood as meaning only that [a suspect] can 

consult with a lawyer if [the suspect] has one or has the funds to obtain one.” 

(Ibid.) To be effective, this advisement must make clear that a suspect has a 

“right to the presence of appointed counsel prior to and during interrogation,” 

not merely at “a future point in time after . . . interrogation.” (Prysock, supra, 

453 U.S. at p. 360.) In assessing whether the advisement of this right was 

9 As a result, we need not address Rodriguez’s alternative argument 

that he did not knowingly and intelligently waive his right to remain silent at 

the first interrogation. 
15

effective, courts may consider whether the immediately preceding advisement 

about the right to counsel in general was “clearly conveyed” and, if so, 

whether the advisement at issue “suggested any limitation on the right to the 

presence of appointed counsel different from” the general right. (Id. at 

pp. 360–361.)

Applying these principles here, we conclude that Officer Dinsing’s 

translation did not adequately convey that Rodriguez was entitled to 

appointed counsel before and during the interrogation. Officer Dinsing 

informed Rodriguez that if he could not afford an attorney, one would be 

“called for [him] free of charge before the interrogation.” This statement is 

ambiguous, because it could mean that an attorney would be summoned for 

Rodriguez free of charge, but it could also mean that an attorney would be 

contacted by telephone for him free of charge. Particularly given the popular 

understanding of an arrestee’s right to make telephone calls, including to an 

attorney (see Pen. Code, § 851.5), a reasonable person could arrive at the 

latter interpretation.

The Attorney General implicitly concedes that if the statement is 

interpreted to mean that a telephone call to an attorney would be free, then it 

did not adequately inform Rodriguez that he was entitled to the presence of 

appointed counsel. The Attorney General claims “[t]his interpretation makes 

little sense,” however, because Rodriguez was informed that his “right to 

have an attorney ‘called for [him] free of charge’ only arises ‘[i]f [he] cannot 

pay an attorney.’ ” The Attorney General contends that since “it would be 

illogical to provide a suspect a free telephone call to an attorney [the suspect] 

could not afford,” it is more reasonable to interpret “the ‘free of charge’ 

language [as] referr[ing] to the cost of an attorney” generally, not the cost of a 

telephone call. 
16

We might find this argument more convincing were it not for the 

immediately preceding advisement, which compounded the ambiguity. 

Officer Dinsing’s translation of that warning informed Rodriguez that he had

“the right to call an attorney”—not “the right to the presence of an attorney”

as Officer Lucas stated—before and during the interrogation. (Italics added.) 

Not only did this translation also contain the ambiguous word “call,” it did

not clearly express that the attorney had to be physically present during the 

interrogation if Rodriguez wished. (See Miranda, supra, 384 U.S. at p. 469.) 

Thus, even if the warning at issue otherwise reasonably conveyed that 

Rodriguez was entitled to appointed counsel without charge, it was still

deficient because his general right to counsel was not adequately 

communicated. (Cf. Prysock, supra, 453 U.S. at pp. 360–361.) 

In short, the Miranda advisement before the first interrogation was 

inadequate to inform Rodriguez of his right to appointed counsel. As a result, 

his statements during that interrogation were inadmissible. In turn, because 

Rodriguez was not readvised of his Miranda rights before the second 

interrogation, his statements during that interrogation were necessarily 

inadmissible as well. 

2. The third interrogation

Rodriguez also claims the trial court erred by concluding that Officer 

Cabrera’s failure to advise him of the right to appointed counsel before the 

third interrogation was cured because he was properly advised of that right 

before the first interrogation. We again agree.

“Where a subsequent interrogation is ‘ “reasonably contemporaneous” ’ 

with the prior waiver, and the prior waiver was ‘knowing and intelligent,’ 

police need not undertake a Miranda readvisement.” (People v. Spencer

(2018) 5 Cal.5th 642, 668.) In People v. Mickle (1991) 54 Cal.3d 140 (Mickle), 
17

our state Supreme Court explained that when determining whether 

readvisement is necessary, “courts examine the totality of the circumstances, 

including the amount of time that has passed since the [initial] waiver, any 

change in the identity of the interrogator or the location of the interview, any 

official reminder of the prior advisement, the suspect’s sophistication or past 

experience with law enforcement, and any indicia that [the suspect] 

subjectively understands and waives [the suspect’s] rights.” (Id. at p. 170.) 

To begin with, as discussed above, the advisement before the first 

interrogation was inadequate because it did not clearly convey Rodriguez’s 

right to appointed counsel. For this reason alone, the omission of an 

advisement about that right before the third interrogation rendered 

Rodriguez’s subsequent statements inadmissible.

Even if the first advisement had been adequate, we would agree with 

Rodriguez that his statements during the third interrogation were 

inadmissible. After explicitly concluding that a Miranda readvisement was 

required at the third interrogation and that the readvisement Rodriguez 

received was inadequate, the trial court nonetheless concluded that under 

Duren he “did participate voluntarily [at the third] interview still under the 

guise of the Miranda advisal previously given.” But Duren does not support 

the proposition that a later, inadequate advisement can be cured by an

earlier, adequate advisement even if the later interrogation was “an entirely 

separate session” requiring readvisement. (People v. Spencer, supra, 

5 Cal.5th at p. 670.) Rather, although not couched in such terms, Duren 

implicitly concluded that the two interrogations at issue there were 

reasonably contemporaneous, noting that they occurred the same day and

that the officers who insufficiently advised the defendant confirmed with him

that another officer had previously given him the proper advisement. (Duren, 
18

supra, 9 Cal.3d at p. 242.) If it were the case that a defendant’s legitimate 

waiver of Miranda rights during one interrogation established the defendant 

effectively waived those rights for any future interrogation without regard to 

the contemporaneousness requirement, readvisement would never be needed. 

Apparently recognizing that the admissibility of Rodriguez’s 

statements during the third interrogation turns on the contemporaneousness 

requirement, the Attorney General does not defend the trial court’s reasoning 

but instead argues that readvisement was unnecessary in light of the Mickle 

factors. We disagree. It appears that approximately 36 hours passed 

between the first and third interrogations.

10 This is a substantial time 

period, even if decisions cited by the Attorney General establish it is not too 

long as a matter of law. (See People v. Pearson (2012) 53 Cal.4th 306, 317 

[interrogations were reasonably contemporaneous where there was a 27-hour 

gap between them]; People v. Williams (2010) 49 Cal.4th 405, 434–435 [same 

for 40-hour gap]; Mickle, supra, 54 Cal.3d at p. 171 [same for 36-hour gap].) 

Moreover, the third interrogation was conducted by a different interrogator 

in a different location, and there was no “official reminder of the prior 

advisement.”11 (Mickle, at p. 170.) These factors weigh against a finding of 

contemporaneousness and distinguish this case from the cited decisions. (See 

Pearson, at pp. 316–317 [two jailhouse interrogations by same officer who 

10 Documentation in the record suggests the third interrogation was at

12:15 p.m. on June 5, 2017. 

11 The Attorney General claims that Officer Cabrera “did remind 

[Rodriguez] of his Miranda rights by re-advising [Rodriguez] of [those] rights, 

while inadvertently leaving out that counsel would be provided free of 

charge.” But there must be a reminder that the first, proper advisement

occurred, not merely an incomplete reiteration of the rights themselves, to 

support the conclusion that readvisement was unnecessary. (See Mickle, 

supra, 54 Cal.3d at p. 170.)
19

confirmed at second interrogation that defendant “remembered his Miranda

rights”]; Williams, at p. 435 [interrogations conducted at same location and 

same investigator participated in them]; Mickle, at p. 171 [interrogations in 

different locations but conducted by same two officers, who reminded 

defendant of earlier interaction].)

The record also contains affirmative evidence that Rodriguez did not 

“subjectively understand[]” his right to appointed counsel. (Mickle, supra, 

54 Cal.3d at p. 170; cf. People v. Pearson, supra, 53 Cal.4th at p. 317 

[observing nothing in record “suggesting . . . that [the] defendant had 

forgotten or no longer understood his rights”].) At the end of the third 

interrogation, Rodriguez said, “I don’t know if the county is going to provide 

someone or if I have to get a private one or . . . .” Officer Cabrera responded, 

“However you’d like.” Rodriguez stated, “It’s that I don’t have money,” and 

the officer replied, “If you don’t have money, they can appoint you an 

attorney.” The Attorney General attempts to minimize Rodriguez’s first 

statement as a “more procedural” question about “the mechanics of how and 

when he would get counsel.” But the statement can also be interpreted to 

mean Rodriguez was wondering whether he would be appointed counsel for 

free or would “have to” retain private counsel at his own expense. Under this 

interpretation, his statements suggest he did not understand his right to 

appointed counsel while Officer Cabrera was questioning him.

Finally, the Attorney General notes that Rodriguez “had a long 

criminal history” and was presumably “quite familiar with the criminal 

justice system.” Although a suspect’s previous experience with that system 

may be relevant (Mickle, supra, 54 Cal.3d at p. 170), it does not offset the

numerous other factors in this case weighing against contemporaneousness. 

Moreover, Rodriguez’s limited command of English and his apparent 
20

misunderstanding of his right to appointed counsel cast doubt on whether he 

actually understood his Miranda rights from his past interactions with law 

enforcement. 

In sum, readvisement was required before the third interrogation, not 

only because the first advisement was itself inadequate but also because the 

third interrogation was not reasonably contemporaneous with the first 

interrogation. Thus, the statements Rodriguez made during the third 

interrogation were inadmissible as well.

C. The Error in Admitting Rodriguez’s Statements Was Prejudicial.

Having concluded that Rodriguez’s statements during all three 

interrogations were admitted in violation of Miranda, we turn to whether the 

error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. 

(People v. Flores (2020) 9 Cal.5th 371, 439–440; In re Matthew W. (2021) 

66 Cal.App.5th 392, 410 (Matthew W.).) Although there was strong evidence 

supporting the convictions, we cannot conclude beyond a reasonable doubt 

that the admission of Rodriguez’s statements was harmless.

To assess whether a Miranda error was prejudicial, we must 

“determine ‘whether the error was harmless beyond a reasonable doubt—that 

is, whether it is clear beyond a reasonable doubt that use of the statement[s]

did not contribute to the verdict. [Citation.] Under this test, the appropriate 

inquiry is “not whether, in a trial that occurred without the error, a guilty 

verdict would surely have been rendered, but whether the guilty verdict 

actually rendered in this trial was surely unattributable to the error.” ’ ” 

(Matthew W., supra, 66 Cal.App.5th at pp. 410–411, quoting People v. 

Quartermain (1997) 16 Cal.4th 600, 621.) “[T]he evidence that remains after 

[the challenged] statements are excluded must not only be sufficient to 

support the verdict, but must overwhelmingly establish [the defendant’s] 
21

guilt beyond a reasonable doubt.” (People v. Villasenor (2015) 

242 Cal.App.4th 42, 69, italics added.)

The People have the burden to demonstrate “ ‘beyond a reasonable 

doubt that the error did not contribute to the verdict.’ ” (In re Loza (2018) 

27 Cal.App.5th 797, 805.) “The proper test for prejudice requires [us to] 

consider[] . . . not only the evidence that would support the judgment, but 

also the impact of the inadmissible evidence on the final outcome.” (People v. 

Gonzalez (2012) 210 Cal.App.4th 875, 884.) We pay special attention to the 

prosecution’s closing arguments, as “[a] prosecutor’s reference to evidence 

that should not have been presented to the jury increases the potential for 

prejudice flowing from the error.” (People v. Diaz (2014) 227 Cal.App.4th 362, 

384; Loza, at p. 805.) 

Initially, we review the elements of the felonies of which Rodriguez was 

convicted.

12 The jury was instructed under CALCRIM No. 2140 that the 

offense of hit-and-run causing death required proof that (1) Rodriguez was 

involved in a vehicle accident while he was driving; (2) the accident caused

someone else’s death; (3) he “knew that he had been involved in an accident 

that injured another person or knew from the nature of the accident that it 

was probable that another person had been injured”; and (4) he willfully 

failed to perform a duty under sections 20003 or 20004, such as providing 

reasonable assistance to any injured person. (See § 20001, subd. (b)(2).)

12 In closing, Rodriguez’s trial counsel conceded that Rodriguez was 

guilty of the misdemeanor count of driving with a suspended license. Given 

this concession, as well as the Department of Motor Vehicles record admitted 

into evidence showing his license was suspended and the other evidence that 

he drove the Aztek, we conclude beyond a reasonable doubt that he would 

have been convicted of the misdemeanor even if the interrogations were 

excluded.
22

The jury was instructed under CALCRIM No. 590 that Rodriguez was 

guilty of gross vehicular manslaughter while intoxicated if he (1) drove while 

under the influence of alcohol; (2) committed an infraction while doing so; 

(3) committed the infraction with gross negligence; and (4) caused the death 

of another person through his grossly negligent conduct. (See Pen. Code, 

§ 191.5, subd. (a).) Acting with gross negligence was defined as acting “so 

different[ly] from the way an ordinarily careful person would act in the same 

situation that [the] act amounts to disregard for human life or indifference to

the consequences of that act.”

Finally, the jury was instructed under CALCRIM No. 520 that 

Rodriguez was guilty of second degree murder if he committed an act causing 

a person’s death with malice aforethought. (See Pen. Code, § 187, subd. (a).) 

The instruction further provided that he acted with express malice if he 

“unlawfully intended to kill” and that he acted with implied malice if (1) he 

intentionally committed an act; (2) the act’s natural and probable

consequences were dangerous to human life; (3) “[a]t the time he acted, he 

knew his act was dangerous to human life”; and (4) “[h]e deliberately acted 

with conscious disregard for human life.” 

The Attorney General argues that the error was harmless because 

“[t]he prosecution . . . could readily prove every element” of the charges 

“without using any of [Rodriguez’s] statements.” According to the Attorney 

General, “[a]t most, [Rodriguez’s] statements provided some additional proof 

that [Rodriguez] was driving the vehicle that night, that he was intoxicated, 

and that he knew the dangers of drunk driving,” but “these facts . . . were 

overwhelmingly established by other evidence.” 

We acknowledge there was compelling evidence supporting the charges. 

The physical evidence left no reasonable doubt that the Aztek hit the utility 
23

pole and hit and killed Rico. In addition, even apart from Rodriguez’s 

admissions during the interrogations, it was clear that Rodriguez was driving 

during the crash, since his blood was on the driver’s-side airbag. In turn, the 

numerous tests showing his high BAC constituted overwhelming evidence 

that he was legally intoxicated when he caused the crash.

The evidence was less overwhelming, however, when it came to 

establishing Rodriguez’s mens rea. His interrogation statements were 

damning in this regard. In them, Rodriguez acknowledged numerous times 

that he knew that drunk driving could cause another person’s death, crucial 

evidence that he acted with both gross negligence and implied malice. (See 

People v. Ochoa (1993) 6 Cal.4th 1199, 1208 [defendant’s knowledge of drunk 

driving’s risks is proof of gross negligence]; People v. Watson (1981) 30 Cal.3d 

290, 300–301 (Watson) [same for implied malice].)

The Attorney General points out that in connection with his prior DUI 

convictions Rodriguez “signed advisements pursuant to . . . Watson,” which 

were introduced into evidence.13 Thus, the Attorney General claims, 

Rodriguez’s statements that he was aware of the dangers of drunk driving

were “cumulative.” 

As the closing arguments show, however, Rodriguez’s live, repeated 

admissions in the immediate aftermath of a fatal crash were key evidence 

13 Under section 23593, a trial court must give an advisement based on 

Watson to a defendant convicted of various DUI offenses, including the 

offense of which Rodriguez was previously convicted three times. (See 

People v. Yushchuk (2018) 28 Cal.App.5th 120, 123.) The required 

advisement informs a defendant that “ ‘it is extremely dangerous to human 

life to drive while under the influence of alcohol’ ” and that “ ‘[i]f [the 

defendant] continue[s] to drive while under the influence of alcohol . . . and, 

as a result of that driving, someone is killed, [the defendant] can be charged 

with murder.’ ” (§ 23593, subd. (a).) 
24

bolstering the prosecution’s case. The prosecutor began his closing argument 

by stating that Rico died because Rodriguez “made very specific choices 

knowing very specific things.” The prosecutor then described the “numerous 

times” throughout all three interrogations that Rodriguez said he knew he 

could kill someone if he drove drunk. The prosecutor also discussed the 

previous Watson advisements, but Rodriguez’s trial counsel countered that 

there was reason to doubt that Rodriguez understood them, as it was unclear 

whether they were translated for him, it did not appear he had counsel 

present while he was advised of his rights, and people routinely sign 

documents they have not read. 

In rebuttal, the prosecutor emphasized that Rodriguez wanted to blame

everyone but himself for Rico’s death, arguing, “What I picked up [from the 

defense’s closing argument] was it’s the [c]ourt’s fault [when giving the 

Watson advisements]. It’s the interpreter’s fault. It’s the counsel on the day 

of court’s fault because he didn’t know. How could he know? He doesn’t 

speak English. [¶] Well, we know from the MVARS [of the first interrogation] 

that he does, in fact, know[,] because he tells the officers yes, I recall that 

being told to me in court.” The prosecutor proceeded to highlight evidence 

that Rodriguez did understand English, including that he “[spoke] some 

English in the MVARS. The fact that he speaks Spanish, even if provided an 

interpreter, is not a defense.” 

Thus, a substantial portion of the closing arguments was devoted to the 

significance of the prior Watson advisements, and the prosecutor relied on 

Rodriguez’s interrogations to prove his mens rea both directly, as he admitted 

during them that he understood the dangers of drunk driving, and indirectly, 

as they showed he understood English well enough to have understood the 

Watson advisements. Had the interrogation statements been excluded, the 
25

remaining evidence of Rodriguez’s knowledge of these dangers would have 

been weaker, and the defense’s attack on that evidence would have been more 

likely to succeed.

Rodriguez’s interrogations were also a rich source of information about 

his post-crash behavior, which also tended to prove he acted with the 

requisite mens rea for the homicide offenses. (See People v. Thompson (2010) 

49 Cal.4th 79, 113 [post-crime statements and behavior may be relevant to 

prove defendant had intent to kill at time of murder]; People v. Nicolas (2017) 

8 Cal.App.5th 1165, 1172 [defendant’s “indifferen[ce] to the consequences of 

her actions” immediately after fatal collision was evidence defendant acted 

with gross negligence].) At no time after being told he hit a pedestrian did 

Rodriguez ever express concern for Rico or remorse for the other man’s death. 

To the contrary, Rodriguez focused on his own trauma, claiming that he was 

the one who left blood on the front of the Aztek and that he left the scene 

because he needed medical help for himself. This evidence resonated with 

the prosecutor’s theme in closing that Rodriguez “just didn’t care” about 

anyone else. 

Finally, the interrogation statements helped the prosecution prove the 

knowledge element of hit-and-run causing death, that Rodriguez knew or 

should have known he was in a crash that injured another person. His trial 

counsel argued in closing that this element was not established because the 

jury was required to credit Rodriguez’s claim that he thought he hit only a 

pole, not a person. But the physical evidence and other portions of the 

interrogations undermined this defense and tended to prove Rodriguez did 

know he injured someone else.

First, if Rodriguez was to be believed that he crashed because he 

dropped his cell phone, not because he was inebriated, he should have noticed 
26

that he hit a person.14 Indeed, the Aztek hit the pole, traveled a few blocks 

north, and then hit Rico, so even if Rodriguez hit the pole while he was 

distracted by the phone, there is no apparent reason that distraction should 

have continued after the collision he admittedly did notice. Second, in 

attempting to explain the blood on the outside of the Aztek, Rodriguez 

admitted that he exited the vehicle to inspect the damage. This admission 

was also detrimental, because as the prosecutor argued, the damage to the 

front of the vehicle “clearly [came] from a human being.” In our view, a

defense involving the knowledge element would have been more likely to 

succeed had none of Rodriguez’s statements been admitted, since any benefit 

he derived from the statements was outweighed by their lack of credibility as 

a whole. (See Matthew W., supra, 66 Cal.App.5th at pp. 410, 414 [Miranda 

violation prejudicial where unlikely that juvenile court “could have evaluated 

the totality of the evidence presented . . . without being influenced to some 

degree by the evidence of [the minor]’s inconsistencies, lies, and evasions 

during his prearrest statements to police”].)

In short, the interrogation statements helped to prove Rodriguez’s 

mens rea, the primary contested issue, for all the felony charges. Since “we 

are unable to confidently say that the evidence of guilt in this case was so 

overwhelming” that the resulting convictions “were ‘ “surely unattributable” ’ 

to the admission of [the interrogation] statements,” the Miranda error 

requires reversal. (Matthew W., supra, 66 Cal.App.5th at p. 415.) 

14 The Attorney General claims that Rodriguez actually benefited from 

the admission of his statements that he crashed while distracted by the cell 

phone, because this allowed him to present a defense for which there was no 

other evidence. In fact, Rodriguez’s trial counsel did not rely on such a 

defense in closing.
27

III.

DISPOSITION

The judgment is affirmed in part and reversed in part. The convictions 

for second degree murder, gross vehicular manslaughter while intoxicated, 

and hit-and-run causing death are reversed, and the sentence is vacated. 

The matter is remanded for a new trial on the reversed counts. In all other 

respects, the judgment is affirmed.
28

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Devine, J. *

*Judge of the Superior Court of the County of Contra Costa, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.

People v. Rodriguez Moreno A165845