PEOPLE v. VANCE

te comment on the evidence or argument as to inferences to be drawn therefrom."'" ( People v. Redd, supra, 48 Cal.4th 691, 749; see Cassim v. Allstate Ins. Co., supra, 33 Cal.4th 780, 796 [counsel may not "make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel's motives or character"].)

(6) The second is the prosecutor's remarks about "the defendant's appearance throughout this trial" being "extremely deceiving" what with "the defendant . . . sitting there looking like a pitiful excuse for a human being." This was, at best, imprudent, because "comment during the guilt phase of a capital trial on a defendant's courtroom demeanor is improper. . . ." ( People v. Boyette (2002) 29 Cal.4th 381, 434 [ 127 Cal.Rptr.2d 544, 58 P.3d 391].)

(7) Unfortunately, the possible prejudicial effect of the improper comments by the prosecutor was exacerbated by the trial court's passive reaction to them. We assume that defense counsel's "improper argument" was sufficient to alert the court to the impermissible nature of the prosecutor's argument. But after it sustained the defense's second objection, the court could have been in no doubt as to the thrust of the prosecutor's argument, and its highly improper nature. At that point, a more active response would have been in order. "`"Emotion must not reign over reason and, on objection, courts should guard against prejudicially emotional argument."'" ( People v. Jackson, supra, 45 Cal.4th 662, 691, quoting People v. Leonard, supra, 40 Cal.4th 1370, 1418; see Sabella v. Southern Pac. Co., supra, 70 Cal.2d 311, 321, fn. 8 ["[A] court should . . . intercede to prevent potentially prejudicial conduct of counsel."].) Certainly there is the natural impulse to "let counsel try their case," but the judge presiding over a criminal case has responsibilities more stringent than those in a civil case. And our Supreme Court has reversed a murder conviction by reason of a trial court's "failure to rein in" a prosecutor's "continual misconduct." ( People v. Hill, supra, 17 Cal.4th 800, 821.)

(8) "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (Pen. Code, § 1044.) Although the Supreme Court has construed this provision as ordinarily imposing "no sua sponte duty to . . . remedy misconduct" ( People v. Freeman (1994) 8 Cal.4th 450, 490 [ 34 Cal.Rptr.2d 558, 882 P.2d 249]; accord, People v. Medina (1995) 11 Cal.4th 694, 727 [ 47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. Montiel (1993) 5 Cal.4th 877, 915, 918 [ 21 Cal.Rptr.2d 705, 855 P.2d 1277], decisions cited), that is not the case here.

What is presented is a situation in which defense counsel repeatedly made objections to the prosecutor's Golden Rule argument, which the trial court sustained, and also requested that the jury be admonished, which the trial court refused. And a situation where defense counsel's objections to the prosecutor's victim impact argument was first overruled and then sustained. Thus, the situation here is one where the assistance of the court was sought by counsel to counteract clear misconduct, and where the court's duty — to respond to that request by curbing improper argument and ensuring that the jury is not led astray by improper comments — was no less clear.

(9) Concerning the omission of the admonition, the issue of timing is significant. "One of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks . . ." ( Sabella v. Southern Pac. Co., supra, 70 Cal.2d 311, 320), and "`forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.'" ( People v. Brown (2003) 31 Cal.4th 518, 553 [ 3 Cal.Rptr.3d 145, 73 P.3d 1137], quoting Horn v. Atchison, T. S. F. Ry. Co. (1964) 61 Cal.2d 602, 610 [ 39 Cal.Rptr. 721, 394 P.2d 561].) Regrettably, the court did not perform that duty. Even after sustaining three defense objections, the trial court either failed to appreciate the true nature of the prosecutor's argument or perceived no need to halt it. The situation here is therefore to be distinguished from instances where a prosecutor's argument in misconduct is presumed neutralized by appropriate admonition from the court. (E.g., People v. Price (1991) 1 Cal.4th 324, 454-455 [ 3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Green (1980) 27 Cal.3d 1, 29 [ 164 Cal.Rptr. 1, 609 P.2d 468]; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [ 273 Cal.Rptr. 757].)

The Prosecutor's Misconduct and the Trial Court's Refusal to Admonish the Jury Demonstrate Reversible Error

It is the specific circumstances presented here that lead us to conclude that the prosecutor's misconduct tipped a very delicate balance — and thus qualifies as prejudicial.

First, this was not a case where the defendant disputed all culpability. Defendant never denied his participation in the events leading to Prasad's death. Indeed, in his closing argument, defendant's counsel conceded that defendant was guilty of at least involuntary manslaughter, and he appeared to accept that a verdict of voluntary manslaughter or even second degree murder would be reasonable.

(10) The prosecution's sole theory for the jury finding defendant guilty of first degree murder was that he had committed the willful, deliberate, and premeditated murder of Prasad. "`[M]urder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. . . .'" ( People v. Visciotti (1992) 2 Cal.4th 1, 61 [ 5 Cal.Rptr.2d 495, 825 P.2d 388].) "First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly [citation], and is evidenced by planning activity, a motive to kill, or an exacting manner of death." ( People v. Carasi (2008) 44 Cal.4th 1263, 1306 [ 82 Cal.Rptr.3d 265, 190 P.3d 616].)

(11) "Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. [Citations.] . . . `[M]alice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.'" ( People v. Knoller (2007) 41 Cal.4th 139, 151 [ 59 Cal.Rptr.3d 157, 158 P.3d 731], quoting Pen. Code, § 188.) "Malice is implied when the killing is proximately caused by `"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."'" ( Knoller, at pp. 143, 157, quoting People v. Phillips (1966) 64 Cal.2d 574, 587 [ 51 Cal.Rptr. 225, 414 P.2d 353].) Knowledge of the risk of serious bodily injury is not enough; knowledge of a high probability of death is too much. "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another — no more, and no less." ( Knoller, at p. 143.)

As evidenced by his unsuccessful motion to reduce the crime to second degree murder (see fn. 10 and accompanying text, ante), defendant appeared willing to admit that the evidence was sufficient to support a conviction for second degree murder. However, he was adamant in closing argument that evidence was insufficient to prove first degree murder, particularly in that there was no intent to kill Prasad. Thus, it is germane to discuss People v. Anderson (1968) 70 Cal.2d 15 [ 73 Cal.Rptr. 550, 447 P.2d 942], where our Supreme Court established an analytical template for determining the sufficiency of evidence to support a conviction for first degree murder.

(12) Beginning with "the presumption that an unjustified killing of a human being constitutes murder of the second, rather than the first, degree" ( People v. Anderson, supra, 70 Cal.2d 15, 25), the court established an approach to evaluating the three types of evidence indicative of first degree murder: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as `planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection' and `careful thought and weighing of considerations' rather than the `mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design' to take his victim's life in a particular way for a `reason' which the jury can reasonably infer from facts of type (1) or (2).

(13) ". . . [T]his court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." ( People v. Anderson, supra, 70 Cal.2d 15, 26-27.)

In other words, in the Anderson context defendant could have concluded that his actions did result in Prasad's death, but this does not demonstrate that the death was intentional.

We first note that there was no direct evidence that defendant set out on the evening of June 2 with the intent to kill Prasad. He never denied that he intended to administer a beating to Prasad to "teach him a lesson" for his informing Delong of defendant's cheating on her. His utterances to West and Pedrosa are consistent on this point. Certainly animus was present, but what "planning" evidence was there of a preexisting intent to kill? Taking the zip ties from Pedrosa's shop, ensuring that West accompanied him (and hoping to have Pedrosa in on it as well), gaining Prasad's confidence and perhaps lulling him into a false sense of safety, and taking him to a place where they would be unobserved, and then taking him by surprise with the chokehold, all this can be seen as planning — but only if an intent to kill underlay these acts. An entirely different complexion is acquired if defendant's stated motive was not a smokescreen, but is accepted at face value. In sum, evidence of defendant's planning activity is hardly overwhelming.

What of the manner of the killing? Was it "so particular and exacting that the defendant must have intentionally killed according to a `preconceived design' to take his victim's life in a particular way"? Granted, immobilizing Prasad and abandoning him in a situation where he was not likely to be immediately discovered could suffice, but only if it is accepted that defendant had knowledge of the lethality of the chokehold, that is, that he knew it would inevitably lead to Prasad's demise. Defendant had an advantage of 100 pounds or more on Prasad. Judging by his testimony and custodial statements, he seems to have been somewhat surprised by Prasad's being incapacitated by the chokehold. Crediting defendant's knowledge of the chokehold's consequences would in turn require accepting that defendant knew that Prasad would be fatally incapacitated when defendant threw the bound Prasad down the ravine according to a preconceived intent. With respect to this last point, the evidence was in conflict. West's version was contradicted by defendant's testimony. Defendant did make subsequent statements that he did throw Prasad down the ravine, but one recipient, Pedrosa, did not believe it, writing it off to defendant's bragging. Even so, in either version Prasad was alive, as West expressly testified. On the other hand, if defendant was given to braggadocio, why would he not boast of killing the person who had so offended him?

The second factor, defendant's "prior relationship and/or conduct with the victim," has largely been covered already. Defendant certainly had a relationship with Prasad, but a homicidal conclusion is hardly the ineluctable inference. The fact that Dr. Rogers could not identify a cause of death when he performed an autopsy on Prasad's desiccated remains does not compel the conclusion that Prasad died as the result of defendant's willful, deliberate, and premeditated intent.

We do not wish to be understood as holding that a jury could not conclude that defendant was in fact guilty of first degree murder. The record before us would, all other things being equal, be sufficient to uphold such a verdict. But the same jury could also conclude that defendant was at most guilty of no more than second degree murder, as defendant argued in the trial court. In short, the evidence for first degree murder might be legally sufficient, but it is far short of overwhelming.

In addition to the evidence for first degree murder being equally compatible with a conclusion that it showed no more than second degree murder, the extent of the actual evidentiary dispute was quite narrow. There was no direct evidence that defendant desired the death of Prasad prior to the night of June 2. The testimony of defendant, West, Pedrosa, and Ms. Delong is unanimous on this point, all agreeing that defendant went no further than expressing the intent to administer a nonlethal beating for his supposed betrayal of defendant's infidelity to Ms. Delong. Both defendant and West, the only percipient witnesses to the events in Palomares Canyon, testified that Prasad was unconscious but still alive after the chokehold applied by defendant. The sole point of factual disagreement was whether Prasad was left by the side of the road or thrown down the canyon.

Thus, the only real issue for the jury to determine was defendant's mental state on the night of June 2. It is in this context that the prosecutor's misconduct must be deemed prejudicial.

The prosecution's evidence was hardly overwhelming in pointing to defendant's guilt for first degree murder. None of the prosecution's evidence directly and unambiguously pointed to the mental state required for first degree murder. Even giving the prosecution's evidence its maximum effectiveness, the two sides were in equipoise. With the case teetering on a knife edge, it would not take much to tilt the balance.

Because Prasad obviously did not testify as to his final thoughts, the prosecutor's Golden Rule argument plainly asked the jury to go beyond the evidence. Critically, the trial court's refusal to give the requested admonition did nothing to tell the jury that they should not. The absence of an admonition would also not draw the sting of the prosecutor's attack on defense counsel, whose efforts on behalf of defendant might therefore be viewed by the jury in an unfavorable light. Given the particularly powerful lure of the empathetic impulse to associate with the undoubted plight of the victim — the one incontestable point of a murder trial — we cannot assume the jury ignored the prosecutor's gambit. The prosecutor's invitation to consider the natural grief of the victim's relatives, several of whom the jury had heard testify (see fn. 9, ante), would only further shift the jury's attention from the evidence.

(14) The prosecutor's improper arguments shifted the jury's attention from the evidence to the all too natural response of empathizing with the victim's suffering and his family's resulting torment. Once such emotions are unbridled, they are hard to rein in. (See Sabella v. Southern Pac. Co., supra, 70 Cal.2d 311, 321; People v. Edgar (1917) 34 Cal.App. 459, 471 [ 167 P. 891] [prosecutor's improper remarks were of the sort "it is not in human nature to forget or disregard . . ."].) Their inevitable impact would have "weighed heavily" against finding defendant guilty of manslaughter or second degree murder, and they "may have been the deciding factors which brought about his conviction" of first degree murder. ( People v. Kirkes (1952) 39 Cal.2d 719, 727 [ 249 P.2d 1]; accord, People v. Braun (1939) 14 Cal.2d 1, 8 192 P.2d 402]; People v. Hidalgo (1947) 78 Cal.App.2d 926, 949 [ 179 P.2d 102].) In these circumstances, we think the standard instruction that argument of the attorneys is not evidence could have no palliative force because there was no likelihood the jury would have treated the prosecutor's argument as anything but argument.

"The sheer number of the instances of prosecutorial misconduct . . . is profoundly troubling. Considered together, we conclude they created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors." ( People v. Hill, supra, 17 Cal.4th 800, 847.) The trial court's reactions and inactions to the misconduct only aggravated the situation by removing the one restraint that might have operated on the jury. (E.g., People v. Jackson, supra, 45 Cal.4th 662, 691; People v. Hill, supra, at p. 821; see Sabella v. Southern Pac. Co., supra, 70 Cal.2d 311, 321 fn. 8 [evaluation of misconduct should encompass "the judge's control . . . of the trial," including whether it acted to prevent or mitigate misconduct (fn. omitted)].) The ambivalent actions of the trial court did nothing to instruct the jury that consideration of such natural human impulses was inappropriate in the objective determination of defendant's guilt. In these circumstances, we think there is at least a reasonable probability that a more lenient verdict would have been returned in the absence of the errors. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243]; People v. Edgar, supra, 34 Cal.App. 459, 471 ["where as here, in a closely balanced criminal case, misconduct is repeated and persisted in, . . . and is so pronounced and pernicious that it is not in human nature to forget or disregard its prejudicial effect, then . . . the only remedy remaining is to be found in a reversal of the judgment."].)

The authorities cited by the Attorney General against this conclusion are not persuasive. People v. Arias, supra, 13 Cal.4th 92, People v. Stansbury, supra, 4 Cal.4th 1017, People v. Pensinger, supra, 52 Cal.3d 1210, and People v. Fields, supra, 35 Cal.3d 329, are distinguishable because they are all capital cases, where, as already noted, Golden Rule and victim impact evidence are allowed but only in the penalty phase. In People v. Simington, supra, 19 Cal.App.4th 1374, 1379-1380, a Golden Rule violation was found harmless because the evidence against the defendant was overwhelming. This was not a capital case, and the prosecution's evidence could not possibly be characterized as overwhelming.

There Was No Error in the Denial of Defendant's Miranda Suppression Motion

Only one of the other contentions made by defendant deals with a matter that may arise on retrial.

Defendant was arrested on June 13. He was first interviewed by officers, and four and one-half hours later by an assistant district attorney.

Prior to trial, defendant moved to suppress evidence of statements he made in the two interviews because his statements were elicited in violation of Miranda v. Arizona, supra, 384 U.S. 436. Following an evidentiary hearing pursuant to Evidence Code section 402, the court ruled that evidence of an initial interview by officers at the San Leandro police station on June 13 would be excluded as elicited in violation of Miranda, but that the second interview by the district attorney would be admissible. Defendant contends the second interview was tainted by the first because his invocation of his right to silence was ignored, and the statement was involuntarily induced by an improper promise of leniency. The contention is without merit.

Defendant was arrested at approximately 4:00 p.m. His videotaped interview with Officers Norton and Kelly began about 70 minutes later. After some orienting preliminaries, the following occurred:

"NORTON: All right first of all you have the right to remain silent. Do you understand that?

"VANCE: Yeah.

"NORTON: Anything you say can and will be used against you in a court of law. Do you understand that?

"VANCE: Yep.

"NORTON: Uh, you have the right to talk to a lawyer and have him present while you are being questioned. Do you understand that?

"VANCE: Yep.

"NORTON: If you cannot afford to hire an attorney, one will be appointed to represent you free of charge before any questioning if you wish one. Do you understand each of these rights I have explained to you?

"VANCE: Yeah.

"NORTON: Okay, why don't you tell me your side of the story?

"VANCE: I don't have a side of the story.

"KELLY: We just found Deuce's body in the creek in Palomares. His decomposed body. Alright, and we have already finished interviewing four different people, and we know what time it is.

"NORTON: Here is your opportunity to sit with us and tell us exactly what happened, because, like Ray said, we have already talked to a couple of different other people, we have already got Deuce's body, and we know what time it is. We need to hear exactly what happened from your perspective, why it happened, what motivated you, you know what I mean? What really happened, you know . . .

"KELLY: It was probably an accident or something bad happened. I don't know, but we need to find out.

"NORTON: But you just sitting here saying you don't know what we are talking about when we know you do. You know what I mean. You need to be honest with us, be honest with yourself. What happened?

"KELLY: Did you drive out with Deuce and Kevin West out to into Palomares? That's a yes or no, dude? We just . . .

"NORTON: Are you not going to talk to us, is that what you are doing?

"VANCE: No, I'm talking to you guys.

"NORTON: It's a simple question. Did you drive out there with Deuce and Kevin?

"KELLY: Look, dude, we're not here to . . . we just want to find the truth out, alright? We just want to hear your side of the story, how things went down, okay? We know Deuce is dead. That's fine, okay, and we are not sitting here saying you're some kind of crazy serial killer or something like that. Some bad shit happened. We just want to figure out what happened so we can tell Deuce's family, okay? Alright dude, we don't think anything of you, we're not here to judge you. We know it wasn't supposed to go down that way and it did you know what I mean. Something went down. It wasn't supposed to go that way, but it happened, bro, and now we have to get to the bottom of it, figure this shit out man, you know? I know you are upset man, but let's get through this together all right? We're not here to fuck with you, man.

"NORTON: It takes a big man to be honest all right and I know you have that in you all right. It takes a big man to be honest.

[VANCE begins crying]

"KELLY: Dude, it's okay, bro, alright. It's alright, bro. We're not here to mess with you, all right. We are here to listen and then to help you out.

"VANCE: (crying) That's what everybody always tells me and then I end up getting fucked.

"KELLY: Well, we're not here to do that bro, we're just here to find out the truth about what happened. And I think you have a lot on your chest right now, and I think you need to talk about this, I know you want to talk about this.

"NORTON: This has been weighing on you for the last two weeks.

"KELLY: The last two weeks have been fucked.

"NORTON: Tell us what happened. Come on Drew, what happened, buddy.

"KELLY: Keep it real with us Drew. Man we're not going to sit here and judge you, buddy.

"VANCE: (crying) It doesn't matter anyway I'm just going to go to prison and rot and never come out of there.

"NORTON: Drew, this is the thing, buddy. We need to know your side of the story. We need to know what happened. What happened out there, Drew? Tell us what happened out there.

"VANCE: It was an accident."

All of this took four minutes.

As measured by the timer on the videotape, which we have watched.

Approximately three and one-half minutes later, Norton asked, "What happened once you guys got there, Andrew?" Defendant replied, "I don't want to talk about it." When, approximately four minutes later, Norton again asked "So what happened when you guys . . . got out there Andrew?" defendant responded, "I don't want to talk about it. I'm just a bad person."

The trial court ordered evidence of this interview excluded, but stated "my ruling is very limited. I'm going to find that there was not a valid waiver of Miranda in this case." The court further found that defendant had not invoked his right to silence under the Fifth Amendment or his right to counsel under the Sixth Amendment. The court then reiterated that "The sole basis of exclusion is that I do not find, once again, that there was a clear waiver of his Fifth Amendment right[] and that is why I'm excluding it." The court rejected defendant's arguments that the district attorney interview was tainted by the first interview, and likewise was not preceded by an effective waiver.

"In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as it's evaluations of credibility if substantially supported, but independently determine from un-disputed facts and facts found by the trial court whether the challenged statement was legally obtained." ( People v. Smith (2007) 40 Cal.4th 483, 502 [ 54 Cal.Rptr.3d 245, 150 P.3d 1224].) Whether defendant invoked his rights under Miranda is a question of fact to be resolved on the basis of the totality of the circumstances. ( People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 [ 74 Cal.Rptr.2d 212, 954 P.2d 475]; People v. Hayes (1985) 38 Cal.3d 780, 784-785 [ 214 Cal.Rptr. 652, 699 P.2d 1259].) Defendant contends his "I don't have a side of the story" and "I don't want to talk about it" statements must be treated as invocations of his Miranda rights.

(15) But invocations cannot be equivocal or ambiguous. ( Berghius v. Thompkins (2010) 560 U.S. ___ [ 176 L.Ed.2d 1098, 130 S.Ct. 2250, 2259-2260]; see People v. Crittenden (1994) 9 Cal.4th 83, 129 [ 36 Cal.Rptr.2d 474, 885 P.2d 887] ["we apply federal standards in reviewing a defendant's claim that his or her statements were elicited in violation of Miranda"].) Having viewed the tape, and reviewed the testimony given in connection with defendant's suppression motion, we conclude that there is substantial evidence from the totality of the circumstances supporting the trial court's implicit finding that neither statement constituted an unequivocal invocation.

Although the premise of Miranda is that custodial interrogation is deemed inherently coercive (e.g., United States v. Patane (2004) 542 U.S. 630, 639 [ 159 L.Ed.2d 667, 124 S.Ct. 2620]), defendant was hardly a terrified novice. When the interview session started, even before the Miranda warnings were given, defendant was asking whether he could speak with another officer with whom he had had prior dealings. He faults the officers for not asking questions to clarify whether he was invoking his rights, but they did precisely that: when Norton early on asked "Are you not going to talk to us, is that what you are doing?," defendant replied, "No, I'm talking to you guys." Defendant's "I don't have a side of the story" statement strikes us as, at best, inherently ambiguous. It obviously could mean that he had no explanation ("story") that was exculpatory. (16) Defendant's claim that his first statement was the product of the officers' implied promise of "help" — which defendant equates with leniency — is to be reviewed according to well-established standards: "The federal and state Constitutions both bar the use of involuntary confessions against a criminal defendant. [Citations.] A confession is involuntary if it is `not "`the product of a rational intellect and a free will' "`[citation], such that the defendant's `will was overborne at the time he confessed.' [Citation.] In assessing allegedly coercive police tactics, `[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.] Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation." ( People v. Smith, supra, 40 Cal.4th 483, 501.) "`The question posed . . . in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.]" ( People v. Thompson (1990) 50 Cal.3d 134, 166 [ 266 Cal.Rptr. 309, 785 P.2d 857].)

Concededly, defendant was crying during the first 10 to 15 minutes, prompting one of the officers to urge defendant to "Take a couple of deep breaths and try to compose yourself." It worked, if only temporarily. Defendant resumed crying when confronted with a picture of the victim. While defendant reads an implied promise of leniency into Officer Kelly's statement that "[w]e are here to listen and then to help you out," and Officer Norton's statement that "the court . . . wants to know what the real story is and you're the only one that can provide that," our review of the videotape reveals that the only benefits promised by the officers was the peace of mind defendant and others would have after he did the right thing and gave his side of the story. That is not coercion. (E.g., People v. Williams (2010) 49 Cal.4th 405, 444 [ 111 Cal.Rptr.3d 589, 233 P.3d 1000]; People v. Boyde (1988) 46 Cal.3d 212, 238 [ 250 Cal.Rptr. 83, 758 P.2d 25] ["Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise, does not . . . make a subsequent confession involuntary."]; People v. Jimenez (1978) 21 Cal.3d 595, 611-612 [ 147 Cal.Rptr. 172, 580 P.2d 672] ["`[when] the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,' the subsequent statement will not be considered involuntarily made"]; People v. Andersen (1980) 101 Cal.App.3d 563, 578 [ 161 Cal.Rptr. 707].) The brief and bland references upon which defendant has seized do not push this case over the forbidden line of promised threats or vowed leniency (see People v. Ray (1996) 13 Cal.4th 313, 340 [ 52 Cal.Rptr.2d 296, 914 P.2d 846]), certainly not within the context of an interview that lasted more than three hours.

Certainly defendant experienced stress. It may have been realization of the seriousness of his situation, or remorse at what he had done. Defendant's repeated and resigned expressions that "in the end it really doesn't matter," and "What does it matter I'm . . . going to prison for the rest of my life," betray a deep pessimism about the criminal justice system. Even if defendant in good faith was insisting that he left Prasad alive, he was now confronted with the reality that the choking of Prasad had led to his death. Undoubtedly, Officers Norton and Kelly used planned techniques, interrogation ploys, and even mock flattery ("It takes a big man to be honest," "You're doing the right thing. I'm proud of you," "you were very honest with us"), during the course of the interview. Yet, there are long periods of unforced lucidity by defendant. If defendant was not particularly forthcoming with volunteered details, he nevertheless followed questions posed, and generally provided answers, even if the question had to be reiterated. The questioning was insistent, but not intrusive or overbearing. There was a break of almost 40 minutes when defendant was left alone in the interview room. Defendant's body language was not cowering. Defendant was wearing handcuffs only until the interview was about to begin, when they were removed. He was able to assert himself and challenge the logic of the officers' assumptions, i.e., "I don't care what you think," "what I think you're doing right now, you're analyzing too much," "I don't care if you believe me or not." And, ultimately, the officers failed on the crucial point — defendant doggedly insisted Prasad was alive when he left, and he adamantly denied that he pushed Prasad off the road and down the canyon ravine.

When initially offered a photograph of the victim, defendant insisted that "I don't want to see him, please don't show it to me." When later forced to look at the photograph, defendant once more broke down in tears, insisting "I don't want to be alive no more." And even later in the interview, when Officer Norton made reference to the photograph of Prasad, defendant insisted, "I don't want to see it again." At that point Officer Kelly bluntly told defendant that Prasad "died at the hands of another and those hands were yours, and you have to face up to that, you killed another human being, you killed somebody," and then Prasad's "family that's never going to see him again, they don't even know yet . . . that he's dead. . . . What am I going to tell his mother cause him [(Norton)] and I are going to tell his mother. What do we tell her? Give me an idea, here, man. You know how hard that is to do?"

Granted, defendant made statements after June 2 that were recorded, and which will bear an incriminating inference. The general import of the statements is that a week after June 6 — after he knew that Prasad was thought missing by his family, who were trying to locate him — defendant either assumed or knew that Prasad's body was still in Palomares Canyon, and that it would have the zip ties which should be removed. However, the inference that defendant now knew Prasad was dead, is still not inconsistent with the defense theory that there was no murderous intent on the night of June 2. In other words, defendant could have concluded that his actions did result in Prasad's death, but this does not demonstrate that the death was intentional.

In light of the foregoing, we conclude the trial court's pretrial ruling cannot be overturned on the basis of the record as it now exists. However, in the event of a retrial, the trial court is at liberty to reexamine this ruling in light of any new information that may be brought to its attention.

DISPOSITION

The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate.

Kline, P. J., and Haerle, J., concurred.