P. v. Nelson

Filed 2/25/10 P. v. Nelson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL MOSES NELSON,
Defendant and Appellant.
G040151
(Super. Ct. No. 04ZF0072)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Frank F.
Fasel, Judge. Affirmed in part and reversed in part.
Mary Woodward Wells, under appointment by the Court of Appeal, for
Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and
Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

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Samuel Moses Nelson appeals from his murder and burglary convictions.
He argues the incriminating oral and written statements he made during an interview
regarding these crimes were obtained in violation of his Fifth Amendment rights as
defined in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also requests this
court review the proceedings relevant to his Pitchess motion. (Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess).) After reviewing the record, we find no abuse of
discretion with respect to the Pitchess motion. However, we conclude Nelson‟s Miranda
rights were violated when, after being accused of murder, Nelson requested to speak with
his mother “to let her know what was happening” and he explained he wanted to “talk to
her about it [and] see what [he] should do.” The United States Supreme Court (Fare v.
Michael C. (1979) 442 U.S. 707 (Fare)) and more recently the California Supreme Court
(People v. Lessie (2010) 47 Cal.4th 1152 (Lessie)), have held a totality-of-the-
circumstances test is to be applied in cases involving juveniles. Nelson‟s parental
requests, when viewed in context, compel exclusion of his subsequent confession.
Accordingly, the murder conviction and two burglary convictions must be reversed.
However, we affirm the three burglary convictions relating to Jane Thompson because
Nelson confessed to those crimes before he invoked his Fifth Amendment rights. In sum,
the judgment is affirmed in part and reversed in part.
I
A. The Burglaries
In April 2004, Katherine Parks‟s home on Via Loma in Laguna Niguel was
burglarized. Two purses were stolen. In May 2004, Sheryl Adler‟s home on Via Palma
in Laguna Niguel was burglarized. Two wallets and a checkbook were stolen. In June
2004, Jane Thompson‟s home on Vista Way in Laguna Niguel was burglarized. Her
purse, credit cards, and a checkbook were stolen.
On June 20, 2004, Nelson used Thompson‟s stolen Visa credit card to
purchase $245 worth of lobster and steak at the Chart House and over $600 of food at the

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Beach House Restaurant. A few days later (June 25), Nelson attempted to use
Thompson‟s checks to buy $35 worth of sandwiches in Dana Point, but he was rebuffed.
B. The Murder
On June 25, 2004, deputies found 72-year-old Thompson beaten to death in
her home. She died of massive blunt force head trauma, with multiple skull factures and
brain hemorrhaging. Orange County Deputy Sheriffs Daniel Salcedo and Brian Sutton
conducted a neighborhood canvas during their investigation of the murder. They
contacted Nelson outside his house, and he agreed to be interviewed about the crime
while sitting in Salcedo‟s vehicle. When asked if he had ever been inside Thompson‟s
house, Nelson replied that a few weeks earlier he had been kicking his soccer ball outside
and Thompson asked him to help her remove a dead mouse from her house. Nelson said
he could not remember Thompson‟s name, but he pointed to her house that was
approximately 45 to 60 feet from his own home. Nelson said he followed Thompson into
her house and into the master bedroom to retrieve the dead mouse. He gave an accurate
description of the floor plan, which was identical to his house.
Nelson stated he knew Thompson had been killed, and he was aware of the
recent rash of burglaries in his neighborhood. He denied having anything to do with
these crimes. Nelson admitted he occasionally liked to walk around his neighborhood
late at night to smoke and check things out. He stated he was willing take a lie detector
test.
Later that same day, Sutton and Salcedo investigated the charges on
Thompson‟s credit cards, verified the charges were made, and obtained a description of
the person who made the purchases. The next day, the manager of the Beach House
Restaurant identified Nelson from a photo lineup as the person who had used
Thompson‟s credit card to purchase $633.64 of food. He signed the transaction slip as
Sam Adler.

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Sutton and Salcedo returned to Nelson‟s home and asked if he would be
willing to go to the Sheriff‟s Department to discuss the case. Salcedo told Nelson he did
not have to go, and he was free to leave if he chose. Nelson agreed to accompany them,
and he was driven to the Sheriff‟s Department in Santa Ana. In an audio/video recorded
interview, Nelson was advised and waived his Miranda rights after some preliminary
questions. Nelson restated he was in Thompson‟s home only to retrieve a dead mouse.
When Salcedo questioned him about using Thompson‟s credit card, Nelson stated he
found her purse with the credit cards on June 22 in the greenbelt area behind her house.
Nelson admitted he used the credit cards at some local businesses, buying over $200 of
food at the Chart House and over $500 of food at the Beach House restaurant. Nelson
stated he signed the transaction slips as either Sam Thompson or Sam Adler. He stated
these purchases were made on June 24. The restaurants‟ records showed the food was
bought on June 20.
Salcedo continued to question Nelson about the credit card purchases, and
Nelson eventually admitted he had entered Thompson‟s house late on June 18 when she
was not home. Nelson explained he entered through an unlocked rear sliding glass door,
went upstairs, and took a credit card from a desk drawer and some jewelry. Nelson said
he returned to Thompson‟s house early in the morning (1:00 a.m.) on June 24 but
discovered she was home. He returned several times that morning, watching and waiting
for her to turn off the lights and go to bed. At approximately 2:30 a.m., Nelson saw
Thompson had fallen asleep on the couch in front of the television. Nelson entered
through the same unlocked sliding door, took her purse, and left. He explained he needed
money for a trip to Colorado.
Nelson explained he returned to Thompson‟s house the next night because
he needed more money for his Colorado trip. He entered Thompson‟s home and saw her
asleep on the couch in front of the television. Thereafter, he exited and entered the house

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a few times. After returning to the house a third time, and still finding Thompson asleep,
Nelson returned to his home after deciding he needed to “formulate a better plan . . . .”
Despite his other admissions, during much of the interrogation Nelson
denied responsibility for Thompson‟s murder. After several hours of interrogation
Nelson ultimately revealed his involvement in the murder. The circumstances leading up
to Nelson‟s confession will be discussed in greater detail anon.
Nelson confessed the murder occurred as follows: When at home Nelson
changed into dark sweatpants and sweatshirt, diving gloves, and a beanie cap. He armed
himself with a finishing hammer. He returned to Thompson‟s home and found she was
still asleep. Nelson stood over her to see whether she was awake. When she stirred, he
struck her one or two times on the side of the head with the hammer. Thompson rolled
off the couch onto the floor. Nelson became enraged upon discovering some of her blood
had gotten into his mouth. He did not like the taste and proceeded to angrily hit her with
the hammer until he made a hole in her head.
Nelson described how he left the house, holding the hammer so it would
not drip and leave a bloody trail. Later, he wrapped the hammer in one of the plastic bags
available on his street for residents to use for dog droppings. He deposited the bag and
his beanie cap in a trash can across the street. He then took off his clothes, wrapped them
in a ball, and left them in the greenbelt behind Thompson‟s house.
During the interview, Nelson also admitted burglarizing the Parks‟s and
Adler‟s residences. Later, Nelson told deputies they could find the ball of clothing not on
the greenbelt but across the street. At other locations near Thompson‟s house, deputies
located some of Thompson‟s credit cards and jewelry. The next day, Nelson wrote an
apology letter to Thompson.
C. The Case
Nelson was charged with first degree burglary of Parks and Adler (counts 1
and 2), three counts of first degree burglary against Thompson (counts 3, 4, and 5), and

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her murder during the felony (count 6). The indictment also alleged two enhancements:
(1) Nelson personally used a deadly weapon pursuant to Penal Code section 12022,
subdivision (b)(1), and (2), he committed the first degree burglaries against a person over
the age of 65 pursuant to Penal Code section 667.9, subdivision (a).
Nelson filed a formal Pitchess motion for the discovery of three peace
deputies‟ personnel records. The trial court denied the motion after conducting an in
camera review of the requested records. Nelson‟s motion to suppress evidence of
statements he made to his mother at the sheriff‟s headquarters interview room was
granted. However, his motion to dismiss the indictment and his motion to transfer the
case to juvenile court were both denied. Nelson filed an in limine motion to exclude his
other incriminating statements to the police as involuntary and in violation of Miranda,
supra, 384 U.S. 436. After the court denied this motion, Nelson waived his right to a jury
and submitted to a court trial.
The court found Nelson guilty as charged and sentenced him to an
indeterminate term of 25 years to life for the principal offense of murder, and concurrent
upper six-year terms for four of the five burglary convictions. Sentence on the final
burglary count was imposed and stayed. The terms for the special enhancements were
stricken.
II
On appeal, Nelson argues his oral and written statements were erroneously
admitted because the statements were obtained in violation of his Fifth Amendment rights
as defined by Miranda, supra, 384 U.S. 436. He maintains a juvenile‟s request to speak
to a parent is a per se invocation of his or her Fifth Amendment rights. (People v. Burton
(1971) 6 Cal.3d 375 (Burton).) Alternatively, Nelson argues even under the federal
totality-of-the-circumstances test (Fare, supra, 442 U.S. 707), his first parental request
during the custodial interrogation was an invocation of his Miranda rights. As we will
explain, only the latter argument has merit.

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A. Standard of Review
“In considering a claim that a statement or confession is inadmissible
because it was obtained in violation of a defendant‟s rights under Miranda . . . the scope
of our review is well established. „“We must accept the trial court‟s resolution of
disputed facts and inferences, and its evaluations of credibility, if they are substantially
supported. [Citations.] However, we must independently determine from the undisputed
facts, and those properly found by the trial court, whether the challenged statement was
illegally obtained.”‟ [Citation.] „We apply federal standards in reviewing defendant‟s
claim that the challenged statements were elicited from him in violation of Miranda.‟
[Citation.]” (People v. Box (2000) 23 Cal.4th 1153, 1194; see also Lessie, supra,
47 Cal.4th at p. __.)
In this case the facts relating to Nelson‟s interrogation are undisputed. It
was videotaped and the audio tape was transcribed. We accept those facts, and the trial
court was not required to make any additional factual findings. What is disputed in this
case is the legal import of those facts. The legal question we must decide is whether after
validly waiving his Miranda rights, Nelson‟s subsequent statements were legally
sufficient to constitute an invocation of Miranda rights and required cessation of the
interrogation. “„[W]e independently decide whether the challenged statements were
obtained in violation of Miranda [ supra, 384 U.S. 436].‟ (People v. Davis (2009)
46 Cal.4th 539, 586).)” (Lessie, supra, 47 Cal.4th at p. __.)
B. The Legal Test To Be Applied
In Lessie, our Supreme Court recently acknowledged and addressed head
on “a long-standing, unresolved conflict between binding precedents” regarding the
standard that should be applied for juveniles invoking their Fifth Amendment rights
during a custodial interrogation. (Lessie, supra, 47 Cal.4th at p. __.) In short, the court
decided a totality-of-the-circumstances test, as articulated by the United States Supreme
Court opinion of Fare, supra, 442 U.S. at page 725 controls.

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“This totality-of-the-circumstances approach is adequate to determine
whether there has been a waiver even where interrogation of juveniles is involved. We
discern no persuasive reasons why any other approach is required where the question is
whether a juvenile has waived his rights, as opposed to whether an adult has done so.
The totality approach permits—indeed, it mandates—inquiry into all the circumstances
surrounding the interrogation. This includes evaluation of the juvenile‟s age, experience,
education, background, and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his Fifth Amendment rights, and the
consequences of waiving those rights. [Citation.]” (Fare, supra, 442 U.S. at p. 725.)
In so ruling, our Supreme Court in Lessie overruled its previous decision in
Burton, supra, 6 Cal.3d 375 [holding juvenile‟s parental request, made during custodial
interrogation, constituted a per se invocation of Fifth Amendment rights]. In Lessie the
court reasoned Burton‟s special rule for juveniles was inconsistent with the high court‟s
subsequent decision in Fare that required courts to determine whether a defendant—
minor or adult—waived his or her Fifth Amendment privilege by inquiring into the
totality of the circumstances surrounding the interrogation. (Fare, supra, 442 U.S. at
pp. 724-725.)
Accordingly, the legal test to be applied, in light of the totality of the
circumstances, is whether the suspect validly invoked his Miranda rights. “„“[U]nder the
familiar requirements of Miranda, . . . a suspect may not be subjected to custodial
interrogation unless he or she knowingly and intelligently has waived the right to remain
silent, to the presence of an attorney, and to appointed counsel in the event the suspect is
indigent.”‟ [Citations.] [The Supreme Court] has observed „that no particular form of
words or conduct is necessary on the part of a suspect in order to invoke his or her right
to remain silent‟ [citation], and the suspect may invoke this right by any words or conduct
reasonably inconsistent with a present willingness to discuss the case freely and
completely. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 829 (Samayoa).)

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C. Evolution of the Totality of the Circumstances Test
Although the per se test established in Burton has now been overruled in
Lessie, it is nevertheless important to mention the Burton decision as it is the starting
point for any discussion of totality-of-the-circumstances test‟s development. In Burton, a
16-year-old defendant spoke to deputies after having been advised of his Miranda rights.
(Burton, supra, 6 Cal.3d at p. 379.) Prior to the statements, his father had arrived at the
police station and asked to see him and was refused. Defendant had also asked to see his
parents before questioning commenced. The Supreme Court held, “[W]hen, as in the
instant case, a minor is taken into custody and is subjected to interrogation, without the
presence of an attorney, his request to see one of his parents, made at any time prior to or
during questioning, must, in the absence of evidence demanding a contrary conclusion,
be construed to indicate that the minor suspect desires to invoke his Fifth Amendment
privilege. [Citations.]” (Id. at pp. 383-384.)
In the Burton case our Supreme Court reasoned, “It appears to us most
likely and most normal that a minor who wants help on how to conduct himself with the
police and wishes to indicate that he does not want to proceed without such help would
express such desire by requesting to see his parents. For adults, removed from the
protective ambit of parental guidance, the desire for help naturally manifests in a request
for an attorney. For minors, it would seem that the desire for help naturally manifests in
a request for parents. It would certainly severely restrict the „protective devices‟ required
by Miranda in cases where the suspects are minors if the only call for help which is to be
deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume
that a minor in custody will be in a position to call an attorney for assistance and it is
unrealistic to attribute no significance to his call for help from the only person to whom
he normally looks—a parent or guardian. It is common knowledge that this is the normal
reaction of a youthful suspect who finds himself in trouble with the law.” (Burton, supra,
6 Cal.3d at p. 382.) Prior to the United States Supreme Court ruling in Fare, California

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courts followed Burton and viewed any request by a minor to speak with a parent to be
per se invocation of the juvenile‟s Fifth Amendment rights.
In Fare, a 16-year-old murder suspect, with a lengthy juvenile record,
responded to a Miranda advisement by asking if his probation officer could be present.
(Fare, supra, 442 U.S. at p. 710.) When the juvenile was told that was not possible, he
waived his rights and made admissions. (Ibid.) Prior to trial, the juvenile sought
unsuccessfully to exclude his admissions relying on the Burton case. The California
appellate court affirmed the lower court‟s ruling. (Fare, supra, 442 U.S. at p. 713, fn. 2.)
Our California Supreme Court granted review, and by a divided vote, reversed the ruling,
held, “[the] „request to see his probation officer at the commencement of interrogation
negated any possible willingness on his part to discuss his case with the police [and]
thereby invoked his Fifth Amendment privilege.‟” (Id. at p. 713.) The court based this
conclusion on its view that, because of the juvenile court system‟s emphasis on the
relationship between a probation officer and the probationer, the officer was “„a trusted
guardian figure who exercises the authority of the state as parens patriae and whose duty
it is to implement the protective and rehabilitative powers of the juvenile court.‟” (Id. at
pp. 713-714.) It concluded the juvenile‟s request for his probation officer was the same
as a request to see his parents, and thus under Burton’s per se rule it constituted an
invocation of the juvenile‟s Fifth Amendment rights. (Id. at p. 714.) In making this
ruling, the court also expressly rejected the totality-of-the-circumstances test, noting,
“„[O]ur question turns not on whether the [juvenile] had the ability, capacity or
willingness to give a knowledgeable waiver, and hence whether he acted voluntarily, but
whether, when he called for his probation officer, he exercised his Fifth Amendment
privilege.‟” (Id. at p. 715.)
The United State Supreme Court granted review and reversed. (Fare,
supra, 442 U.S. at p. 724.) It concluded the California Supreme Court erred in finding a
juvenile‟s request for his probation officer was a per se invocation of his Fifth

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Amendment rights under Miranda. (Fare, supra, 442 U.S. at p. 724.) It upheld the
waiver as valid, holding that only a specific request for an attorney is a per se invocation
of the right to counsel. Other requests (for parents, trusted adults, or probation officers)
are to be considered as part of applying the normal totality-of-the-circumstances test. (Id.
at pp. 724-725.) The court concluded, “There is no reason to assume that such courts—
especially juvenile courts, with their special expertise in this area—will be unable to
apply the totality-of-the-circumstances analysis so as to take into account those special
concerns that are present when young persons, often with limited experience and
education and with immature judgment, are involved. Where the age and experience of a
juvenile indicate that his request for his probation officer or his parents is, in fact, an
invocation of his right to remain silent, the totality approach will allow the court the
necessary flexibility to take this into account in making a waiver determination. At the
same time, that approach refrains from imposing rigid restraints on police and courts in
dealing with an experienced older juvenile with an extensive prior record who knowingly
and intelligently waives his Fifth Amendment rights and voluntarily consents to
interrogation.” (Fare, supra, 442 U.S. at pp. 725-726.)
In the 30 years following the Fare decision, California appellate courts
have struggled with the question of whether the Burton test was still good law and can be
reconciled with Fare. Recently our Supreme Court ended the debate and in the Lessie
case declared the Fare totality-of-the-circumstances test must apply. “The decisions of
[the Supreme Court] are binding upon and must be followed by all the state courts of
California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto
Equity Sales).)
C. The Totality-of-The-Circumstances Test As Applied
We find instructive to review the totality-of-the-circumstances analysis as
applied in the Fare and Lessie cases. In the Fare case, the juvenile suspect who was on
probation asked at the outset to see his probation officer. When the police denied this

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request, the juvenile without any further hesitation stated he would talk without
consulting an attorney, and made various incriminating statements. (Fare, supra,
442 U.S. at pp. 710-712.) In considering the totality of the circumstances, the Supreme
Court observed, “[N]o special factors indicate that [the juvenile] was unable to
understand the nature of his actions. He was a 16 1/2-year-old juvenile with considerable
experience with the police. He had a record of several arrests. He had served time in a
youth camp, and he had been on probation for several years. He was under the full-time
supervision of probation authorities. There is no indication that he was of insufficient
intelligence to understand the rights he was waiving, or what the consequences of that
waiver would be. He was not worn down by improper interrogation tactics or lengthy
questioning or by trickery or deceit.” (Id. at pp. 726-727.)
In addition the Supreme Court in Fare determined, “The transcript of the
interrogation reveals that the police officers conducting the interrogation took care to
ensure that [the juvenile] understood his rights. They fully explained to [the juvenile]
that he was being questioned in connection with a murder. They then informed him of all
the rights delineated in Miranda, and ascertained that [he] understood those rights. There
is no indication in the record that [the juvenile] failed to understand what the officers told
him. Moreover, after his request to see his probation officer had been denied, and after
the police officer once more had explained his rights to him, respondent clearly expressed
his willingness to waive his rights and continue the interrogation.” (Fare, supra,
442 U.S. at p. 726.) In light of all the foregoing circumstances, the court concluded
Fare‟s statements were voluntary and admissible.
In the Lessie case a 16-year-old murder suspect confessed to the crime
during a custodial investigation. (Lessie, supra, 47 Cal.4th at p. __.) After being advised
he was under arrest, police officers told Lessie he could make whatever phone calls he
wanted to make. He requested to call his father, but he did not have the phone number.
When the police obtained the number they asked Lessie if he wanted to call his father or

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did he want them to make the call. Lessie indicated he would like to call his father.
Before giving Lessie a telephone, the police officers asked a series of booking questions
and advised him of his Miranda rights, which he waived. The officers then proceeded
with more booking questions and asked Lessie about his prior commitments to juvenile
hall. Thereafter, Lessie made numerous incriminating statements and again asked if he
could make a phone call to his father. Lessie was advised he would be given a cellular
telephone so he could speak with his father privately. Before the phone was provided,
Lessie made additional incriminating statements. When he eventually was given the
telephone to call his father, Lessie was unable to reach him and left a message stating he
was in jail and requesting his father to call him back. (Lessie, supra, 47 Cal.4th at p. __.)
In reviewing the totality of the circumstances, the Supreme Court
concluded, “Nothing in the record suggests defendant was unable to understand, or did
not understand, the meaning of the rights to remain silent and to have the assistance of
counsel, and the consequences of waiving those rights. [Lessie] was, at the time of his
interrogation, 16 years old and, while no longer in school, had completed the 10th grade
and held jobs in retail stores. While no evidence was offered that [Lessie] had, or had
not, previously been advised of his rights under Miranda, supra, 384 U.S. 436 . . . he was
no stranger to the justice system. [He] had been arrested twice before, once for burglary
and making criminal threats, and once for fleeing police after a traffic stop and
possessing marijuana. Both sets of charges led to proceedings in juvenile court, and the
second resulted in a commitment to juvenile hall. Nothing in this background, or in the
transcript of [Lessie‟s] interrogation, suggests his decision to waive his Miranda rights
was other than knowing and voluntary. Asked by detectives to confirm that he
understood each right as read to him, he answered affirmatively four times. While
defendant did not expressly waive his Miranda rights, he did so implicitly by willingly
answering questions after acknowledging that he understood those rights. [Citation.]”
(Lessie, supra, 47 Cal.4th at p. __.)

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The court in Lessie, determined, “The only apparent reason to question the
validity of [Lessie‟s] waiver is his claim that, by asking to speak with his father, he
intended to exercise his Fifth Amendment rights and that the police induced him to waive
his rights by withholding a telephone until after he had confessed. To be sure, the police
chose to continue questioning defendant rather than allowing him to use the telephone.
The trial court noted this with evident frustration in concluding the police had
committed „at least a technical violation‟ of Welfare and Institutions Code section 627,
subdivision (b), by not advising [Lessie] that he had the right to make telephone calls
within an hour after being taken into custody. The bare violation of section 627,
however, has very limited relevance in the present context.” (Lessie, supra, 47 Cal.4th at
p. __, fn. omitted.) The court concluded that based on the entire record, there was no
basis for construing Lessie‟s request to speak with his father was an invocation of his
Fifth Amendment rights.
D. Circumstances Surrounding Nelson’s Statements1
Salcedo and Sutton first interviewed Nelson in a car in front of his house.
Nelson denied any criminal involvement, and Nelson stated he was willing to take a
polygraph test. The next day, Salcedo and Sutton returned with follow-up questions.
Nelson‟s mother was not home, and Nelson agreed to go with the detectives to the police
headquarters in Santa Ana for an interview. He was not handcuffed, promised anything,
or threatened by the deputies.
When they arrived at police headquarters, Nelson was taken to an interview
room. He was questioned for over six and one-half hours regarding Thompson‟s death
and the burglaries. At the start of the interview (3:30 p.m.), Salcedo told Nelson they
wanted to talk to him because there were a couple of things they wanted to clarify, and
1 On our own motion, we take judicial notice of the DVD recording of the
interview, which was considered by the trial court. We reviewed the recording in
addition to the transcript provided by Nelson.

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after talking with Nelson‟s mother, her boyfriend, and Nelson‟s brother, there were things
“that they said that you said that just didn‟t make sense.” Salcedo asked about Nelson‟s
prior arrests. Nelson told him that four or five months earlier he was arrested after being
caught in a stolen car. He also admitted a prior arrest for possessing stolen property.
Nelson had recently spent 61 days in juvenile hall for his most recent arrest. During this
portion of the interview, Nelson appeared relaxed and comfortable speaking with the two
plain-clothed deputies and freely offered information in addition to answering their
questions.
Salcedo stated he wanted to advise Nelson of his Miranda rights, and asked
“I‟m sure you‟re aware of those because of your prior arrests?” Nelson confidently
replied, “Yeah.” Salcedo stated it was a formality to advise him of these rights. Nelson
stated, “Like you have the right to remain silent, okay, yeah.” Salcedo asked Nelson if he
had any questions, asked if he was speaking loud enough, and asked Nelson to indicate if
he did not understand what was being read to him. Nelson responded, “All right.”
Salcedo stated he was going to read the Miranda rights verbatim from the card, but if
Nelson had any questions, “I will re-explain it, more in kind of our terms.” Nelson
agreed and responded, “yes,” after each Miranda right was read to him. Nelson indicated
he understood everything that had just been explained to him.
After some introductory questions, Nelson repeated his dead mouse story
from the previous day. Salcedo asked Nelson if he was being honest, and asked Nelson if
there was anything else on his mind he wanted to discuss. Nelson replied, “Well, yeah,
because I didn‟t want to mention this because it would be like weird and suspicious kind
of, you know, cause of what‟s happening.” Nelson admitted finding Thompson‟s purse
in the greenbelt area behind her house. He confessed to using her credit cards at several
local businesses. Nelson had been questioned for almost two hours at this point, and he
still appeared willing to speak with the deputies and answer their questions.

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Salcedo confronted Nelson with a problem in his story: His purchases had
been made two days before Nelson said he found her purse. Only then did Nelson admit
he grabbed credit cards from Thompson‟s coffee table when he was invited into her home
to retrieve the dead mouse. Salcedo accused Nelson of lying about the dead mouse and
asked Nelson if the police were going to find his DNA in the house. He said Nelson
needed to clear his conscience and “be a man . . . .” Nelson asked if Salcedo was trying
to say he murdered Thompson. Salcedo responded, “You brought it up, I didn‟t.”
Nelson adamantly denied killing “that lady.”
The deputies continued to challenge Nelson‟s truthfulness, and revealed
they had found his fingerprints on the sliding door to Thompson‟s living room. Nelson‟s
demeanor changed. He looked less confident and started repeatedly rubbing his hands
over his face and head before admitting he broke into Thompson‟s house. Nelson stated
he opened the sliding door and entered Thompson‟s house when she was not home. He
stole credit cards and some jewelry. He added that he returned to her house a few nights
later. Nelson saw Thompson was at home and he waited until she fell asleep to sneak
into her house to grab her purse. He stated Thompson was asleep on the couch. He
denied burglarizing other houses in the area. Although the questioning had been ongoing
without a break for a little over two and one-half hours, Nelson appeared willing to
discuss the burglaries with the deputies in a friendly manner. He volunteered information
about using Thompson‟s credit cards.
The tone of the interview changed during the third hour. Salcedo pressed
Nelson to tell him about what else happened when he was in Thompson‟s house. He
informed Nelson fingerprints were on a piece of paper that was bloody on both sides,
suggesting someone had picked it up after hurting Thompson. The deputies also
suggested Nelson‟s DNA was found at the house, and asked him for an explanation.

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Salcedo questioned Nelson‟s truthfulness. Salcedo said, “I have some more information I
want to ask you about. . . . Okay, remember when I asked you if you were willing to take
a . . . lie detector test or polygraph yesterday?” Nelson replied he was still willing to do
that. Salcedo asked Nelson if he hurt Thompson, and Nelson appeared angry at the
accusation, and he denied harming her. Nelson attempted to convince the deputies he had
nothing to do with the murder. However, the deputies persisted in accusing Nelson of
hurting Thompson, and presented him with their theory of what happened that night.
Nelson repeatedly stated he did not hurt her. Salcedo, in a combative tone, opined
Nelson was lying and asked if he would make the same denial on the polygraph test.
Nelson again stated he was telling the truth, but was becoming less talkative and assertive
with the deputies. Many of their questions went unanswered or Nelson would simply nod
his head. He began to slump down into his chair. He put his head in his hands and was
looking down at the floor.
After seeing Nelson was becoming nonresponsive, Salcedo suggested
Nelson take the polygraph test “right now,” and he reminded Nelson “[y]ou can‟t deceive
the machine. Do you understand that?” Nelson then made his first request to call his
mother. He sat up and leaned forward to look at the deputies directly. In an assertive
tone of voice, Nelson asked the following:
“Nelson: Can I call my mom?
“Salcedo: Sure. What do you want to call your mom for?
“Nelson: I want to let her know what is happening.
“Salcedo: Okay.
“Nelson: And I also want to like talk to her about it [and] see what I should
do.
“Salcedo: Okay, but why the sudden urgency to talk to your mom?
“Nelson: No, I‟ve been wanting to talk to my mom but I wanted to do it
now before later.

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“Salcedo: You‟ve never brought that up, correct?
“Nelson: Because I didn‟t think it was important until now.
“Salcedo: But why is it so important right now?
“Nelson: Because I‟m being accused of murder that‟s why it‟s important
right now.
“Salcedo: Well „cause [sic] we know you murdered . . . Thompson.
“Nelson: No I didn‟t.”
Salcedo continued to question Nelson about whether he was being truthful,
and reminded Nelson about his previous lies during the interview. Nelson resumed his
position of looking at the floor and rarely responding to Salcedo‟s accusations. After
only a few minutes had passed, Nelson made a second request to speak to his mother.
Salcedo returned to the issue of taking the polygraph test, stating, “We have a person here
that can do the test right now. Then we can see the truth.” Nelson replied, “All right. I
want to talk to my mom though.” Salcedo replied, “Okay, wait, Sam, you got caught, do
you understand that? Do you understand what that means, Sam?” Nelson stated he
understood he had committed some crimes, but he repeated “I did not kill that lady
though.” Salcedo said the police knew he did it.
The interview continued for 20 minutes before Nelson made another
request to speak to his mother. At this point Nelson was no longer volunteering
information or conversing freely with the deputies. As the deputies repeated the same
accusations, and continued to ask Nelson “why” he did it, Nelson sat hunched over in his
chair, holding his stomach, and looking down at the floor. Occasionally, when pressed
by one of the deputies to say something, Nelson would repeat the statements he did not
hurt Thompson, and he did not know who killed her. At one point he stated he did not
care who killed her, he just wanted them to leave him alone. He clarified, “It‟s not that I
don‟t care that she, uh, whoever, gets, like whoever did it gets caught but it‟s the fact that
I don‟t care who it is as long as you guys leave me alone.”

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Salcedo persisted with questions, changing the topic to questions about the
theft of Thompson‟s purse and what Nelson did with the contents. Nelson answered
some of their questions and admitted he made up the dead mouse story. At this point,
Salcedo appeared angry and told Nelson he was lying about everything and law
enforcement had evidence he hurt Thompson. Nelson retorted law enforcement had no
evidence. Salcedo accused Nelson of calling the deputies liars. Sutton told Nelson
circumstantial evidence was enough to convict him. Salcedo repeated the theory Nelson
killed Thompson because he was afraid she would recognize him and he did not want to
return to juvenile hall. The deputies repeated they knew he hurt her and demanded he tell
them the truth about “why” he hurt her. Nelson then made his third request to speak with
his mother.
“Salcedo: All we want is a simple explanation, [Nelson]. That‟s all I want.
I want the truth. I want you to be a man and tell me.
“Nelson: I didn‟t, I didn‟t kill her.
“Salcedo: Did you hurt her?
“Nelson: No.
“Salcedo: You didn‟t do anything to . . . Thompson?
“Nelson: No.
“Salcedo: You took her purse?
“Nelson: Yes and I want to talk to my mom now.
“Salcedo: Okay. And your quote was I don‟t care what happened to her.
“Nelson: . . . that‟s because I was being . . . .
“Salcedo: No, that‟s what you said.”
For the next five minutes, the deputies continued to question Nelson and
accuse him of murder. They repeatedly demanded Nelson provide an explanation as to
why he hurt Thompson. Nelson appeared to be listening to the deputies because he
would occasionally nod his head, but he did not speak until he made his fourth request:

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“Nelson: I didn‟t kill her . . . and let me talk to my mom now, please.
“Salcedo: What are you gonna [sic] cry to your mommy about?
“Nelson: I want to, I want to tell her what‟s going on right now, where I
am.
“Salcedo: Are you going to tell her you murdered . . . Thompson?
“Nelson: No, because I didn‟t.
“Salcedo: Oh, you didn‟t?
“Nelson: No.
“Salcedo: So, do you think your mom‟s . . . .
“Sutton: . . . are you going to tell her about all the other stuff?
“Nelson: Yes.
“Salcedo: Oh you are?
“Nelson: I have to.”
For approximately another five minutes, the deputies spoke to Nelson, who
said very little in response. Salcedo advised Nelson he would be talking to his mother at
jail. He stated, “You‟re never gonna [sic] be able to be back on your little couch with
mommy and screwing around with your friends and ripping off all your neighbors ever
again [Nelson], ever. You got caught. Do you understand that, [Nelson]? You‟re not,
it‟s not a phone call to mommy and she‟s gonna [sic] come pick you up and you‟re gonna
[sic] go home. It ain‟t gonna [sic] happen, okay? All we want is the decency of an
explanation. . . .” Salcedo repeated the reasons why it was unlikely anyone else killed
Thompson. He asked Nelson questions, but Nelson was nonresponsive. It was not until
Salcedo again brought up the polygraph test that Nelson made his fifth request to call his
mother.
“Salcedo: You didn‟t do anything? Okay, are you still willing to take that
polygraph test for us?
“Nelson: Sure, if I can talk to my mom first.

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“Salcedo: Okay. Ah, where‟s your mom right now?
“Nelson: What time is it?
“Salcedo: It is . . . almost 7 o‟clock.
“Nelson: She should be home.
“Salcedo: Okay and do you want to use my cell phone?
“Nelson: Sure.
“Salcedo: Okay, do you mind if we sit here?
“Nelson: Sure.
“Salcedo: Okay . . . I‟ll dial the number for [you] and we‟re [going to]
leave . . . the room and give you some privacy, is that fair? Okay? And then, are you
gonna [sic] take the test for us?”
“Nelson: Yes.
“Salcedo: Look at me in the eye when you say that.
“Nelson: Yes.
“Salcedo: Okay, why are your eyes all watery?
“Nelson: Because I‟m being blamed for a murder, plus, I‟m gonna [sic] get
busted for all this other stuff that I did.
“Salcedo: Oh, you‟re getting busted for all of it, [Nelson]. I mean
everything. Everything [Nelson]. You got caught. You got caught. What‟s mommy‟s
phone number?”
The deputies left the room, and Nelson started to cry. He left a tearful
telephone message for his mother, stating he was in Santa Ana, he was being questioned
“for a long time,” and he was accused of killing their neighbor. Nelson stated he did not
know what to do, and he had been there for three hours. In the message, Nelson stated
the deputies wanted to give him a polygraph test and they told him he was going to jail
for the rest of his life.

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Nelson telephoned his grandmother next, stating he needed to talk to his
mom. Nelson cried while he talked with his grandmother. Salcedo returned to the room
to tell Nelson his mother had called the station earlier, and he gave Nelson a different
telephone number to try. Salcedo left the room, and Nelson spoke next to his brother on
the telephone. Nelson said the deputies told him they had evidence tying him to the
murder and they “hardly even . . . let me make a phone call. Yeah I, they made me make
„em [sic] a trade basically. Like a phone call to take a polygraph test.” Nelson asked his
brother if he should tell them to “hold off” until he spoke to his mother.
When Salcedo and Sutton returned, Salcedo told Nelson the polygraph
operator was there and waiting. Nelson, who was still on the telephone with his brother,
told Salcedo, “[T]hey‟re telling me not to take the test until my mom or a lawyer is here,
is that okay?” Salcedo replied, “That‟s your decision.” Salcedo refused to speak to
Nelson‟s brother and told Nelson he would call the brother back later. Nelson then asked
if there was a telephone number his mother could use to call the station. Salcedo asked if
Nelson‟s family was going to find his mom for him. Salcedo asked Nelson why he
wanted to talk to his mother.
“Salcedo: Yeah, I mean, do you want to ask your mom if you should take
this test? I mean, what, what do you want to do?
“Nelson: Uh, they don‟t want me to do anything until a lawyer or my mom
is here. So I‟m gonna, [sic] I need to wait.”
Salcedo said he would inform the polygrapher of Nelson‟s decision. He
asked, “Now did you, were you able to talk to everybody you wanted to?” Nelson said
he did not talk to his mom, but he spoke with his grandmother and brother.
For the next hour, Salcedo lectured Nelson about doing the right thing, and
he re-described the evidence against Nelson. Salcedo began to suggest the murder was
just a regrettable mistake. He asked Nelson if his grandmother would want him to tell the

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truth. Nelson again denied hurting Thompson and said he was not going to say he did
something he did not do. He asked the deputies if they could “please stop talking about
it.” Nelson was crying and said very little during this hour. He sat slumped forward in
his chair looking down at the ground.
The deputies ignored his plea to stop talking about the murder, and instead
reminded Nelson he had not been truthful earlier in the interview and he needed to be
honest. Four hours and forty-five minutes into the interview, Nelson asked if he could
use the bathroom and made his sixth request to speak with his mother. He stated, “And I
also need to call my mom, because she, my, my family wants her to come down here.”
The deputies told Nelson he could use the restroom, and Sutton offered to
get Nelson a candy bar. Nelson stated he was really hungry, and repeated, “Can I, could I
try calling my mom again to see if I can reach her?” Salcedo told him to wait and left the
room. When he returned he told Nelson, “Okay, . . . I think your mom may be coming
down, so, uh, do you want to talk to your mom? Do you mind if I ask you any more
things?” Nelson asked, “Is there anything new that you need to talk to me about?”
Salcedo reminded Nelson they had to “drag” the truth out of him about the stolen credit
card usage. He restated the evidence that had come to light so far, and continued to
question Nelson for approximately five more minutes. Nelson was holding his stomach
and his head. He did not respond to most of Salcedo‟s questions.
Approximately five hours into the interview, Nelson made his seventh and
final request to speak to his mother. The following exchange took place:
“Nelson: Can I have a few minutes to myself?
“Salcedo: You certainly can, are you gonna [sic] tell us, think about what
the truth is?
“Sutton: You know what[?] [D]o you want a pencil and a piece of paper to
write down your feelings?

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“Nelson: Yes.”
Nelson stated he would write down what happened but then asked, “Could I
use the phone real fast, though?” Salcedo asked who Nelson wanted to call. Nelson said,
“I want to call my mom, and, uh, my brother again.” Salcedo asked if Nelson could first
write down his story but asked if Nelson would rather call first. Nelson said, “I‟d rather
call first.”
The detective left the room, and Nelson‟s attempts to call his mother failed.
He told Salcedo that he had not written down anything yet and asked if he could be alone
“until my family gets here? They should be here in like 10 minutes[.]”
Salcedo asked if Nelson would like time alone to “write for us?” Nelson
replied he wanted to be alone to think about stuff. Salcedo accused Nelson of “playing us
again.” Nelson said, “I know but this is my life here. I want some time.” The deputies
left the room and told Nelson to knock on the door when he was done.
The deputies left Nelson alone for a few minutes and returned and asked
Nelson if he needed more time. Nelson asked if his family was there yet. He had been in
the interview room five hours and 20 minutes. Salcedo said he would let him know when
they arrived. Minutes later, Nelson completed a written statement admitting he murdered
Thompson. The detective questioned Nelson about the details of his statement. At 10:00
p.m., the interview ended and Nelson met with his mother in the interview room.
The following day, a different sheriff‟s deputy (Larry Pool) questioned
Nelson in juvenile hall about where his discarded clothing and some of Thompson‟s
belongings were hidden. Pool also asked Nelson additional questions about the crime.
Nelson agreed to tell Salcedo by cell phone the location of the concealed evidence.
Nelson was not re-Mirandized. Pool also had Nelson write a letter apologizing for what
he had done.

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E. The Trial Court’s Analysis and Ruling
Applying the totality-of-the-circumstances test to the undisputed facts, the
trial court concluded Nelson made an initial voluntary waiver of his Miranda rights. The
court made the further legal determination Nelson‟s subsequent requests to talk to and
wait for his mother and an attorney were ambiguous. It inferred Nelson wanted to speak
to his mother and the attorney about whether he should take a polygraph test. It found the
facts Nelson continued to consent to voluntarily talk to the police and signed a written
confession, rather than wait for his mother, showed Nelson never intended to invoke his
Fifth Amendment rights. In addition, the court determined the juvenile hall and
telephone interviews by Pool and Salcedo were “contemporaneous” with the earlier
interview and admissible.
F. Our Analysis
As noted previously, “The totality approach permits-indeed, it mandates-
inquiry into all the circumstances surrounding the interrogation. This includes evaluation
of the juvenile‟s age, experience, education, background, and intelligence, and into
whether he has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights. [Citation.]” (Fare,
supra, 442 U.S. at p. 725.)
Nelson does not dispute his initial waiver of his Miranda rights was valid.
At the time of his interview, Nelson was 15 years old. He had two prior arrests, the most
recent resulting in a several month stay in juvenile hall. Before Nelson was questioned,
the detective advised him they needed to go through the “formality” of a Miranda right
advisement. Nelson agreed he had heard the warning before and specifically told the
detective he understood he had the right to remain silent. Nelson said he understood he
could stop the detective at any time if he did not understand what rights he was waiving.
His voluntary responses to the deputies‟ subsequent questions indicate he understood his

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Miranda rights and waived them. “Nothing in the record indicates [Nelson] was of
insufficient intelligence to understand the advisement and [Nelson] does not argue on
appeal that the interview was unconstitutionally coercive. [Citation.]” (People v. Hector
(2000) 83 Cal.App.4th 228, 236.)
Nelson argues his first request to speak to his mother was an invocation of
his Fifth Amendment rights. Considering Nelson‟s request in light of the entire record,
we conclude the request for a parent was clearly made in response to increased pressure
from Salcedo to take a polygraph test and after Nelson was told he would not be able to
“deceive” the polygraph. Salcedo had demanded proof Nelson did not kill Thompson.
At this stage of the interrogation, the DVD recording plainly showed a significant change
in Nelson‟s demeanor. The assertiveness obvious at the beginning of the interrogation
had dissolved. Nelson was less responsive to the deputies‟ questions. He slumped in his
chair, put his head in his hands, and stared at the floor. His conduct, words and demeanor
together were an unmistakable indication Nelson was becoming overwhelmed by hours
of persistent interrogation.
Turning to the specific words spoken, we discerned no ambiguity or
equivocation. Nelson first asked, “Can I call my mom?” and made six other similar
subsequent requests before confessing. Nelson‟s requests to speak to his mother were not
conditional. (Cf. People v. Gonzalez 34 Cal.4th 1111 [statement by accused that if he
was going to be charged he wanted to speak to a public defender held to be conditional
and insufficient].) The requests were not uncertain. (Cf. Davis v. U.S. (1994) 512 U.S.
452, 460 [the statement “Maybe I should talk to a lawyer” was too ambiguous to be
construed as request for counsel].) To the contrary, here the DVD shows Nelson‟s
subsequent requests for his mother grew shorter, but more insistent. His second and third
requests were not questions, but rather affirmative statements: “I want to talk to my
mom.” His fourth request sounded like a plea: “[A]nd let me talk to my mom now,
please.”

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We recognize generally police officers need not seek clarification when
faced with a statement that could be interpreted as an invocation of Miranda rights.
(People v. Johnson (1993) 6 Cal.4th 1, 27.) But here, the deputies repeatedly chose to
question Nelson regarding his request. Nelson attempted to explain why he wanted to
speak to his mother, but after his fourth request the deputies began to ridicule Nelson.
They referred derisively to Nelson‟s mother as his “mommy,” asked Nelson what he was
going “to cry to [his] mommy about.” They taunted Nelson, telling him that he was
never going to “be able to be back on [his] little couch with mommy.” Statements such
as these only served to discourage and thwart Nelson‟s efforts to exercise his Fifth
Amendment rights, and must be considered in evaluating Nelson‟s statements.
Finally, we found the reasons Nelson gave for wanting to speak to his
mother distinguish this case from Fare and Lessie. In his first parental request, Nelson
referenced the polygraph test and said he wanted to talk to his mother about what he
should do. When asked about the sudden urgency to speak with his mother, Nelson
responded, “Because I‟m being accused of murder that‟s why it‟s important now.” Later
on he was heard to leave a tearful message for his mother stating he was accused of
killing their neighbor and he didn‟t know what to do. These statements clearly establish
Nelson realized he was faced with the prospect of incriminating himself during a
polygraph test and a charge of murder was imminent. He explicitly expressed a desire to
speak to his mother for the purpose of obtaining her advice on how he should proceed.
On these facts, there is no basis for construing Nelson‟s request to speak with his mother
as anything other than an invocation of his Fifth Amendment rights, and any reasonable
officer would know Nelson wanted the questioning to stop.
The trial court concluded Nelson simply wanted his mother to ask about the
polygraph test. Even if we were to construe the request so narrowly, it still amounts to an
invocation of his Miranda rights. Seeking advice from his mother about whether to
remain silent and avoid incriminating himself on the polygraph test was a clear indication

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he desired assistance to protect his legal rights. A lie detector test is a form of custodial
interrogation. (People v. Carter (1970) 7 Cal.App.3d 332, 338, overruled on other
grounds in People v. Beagle (1972) 6 Cal.3d 441, 443.) It is an effective way to secure
incriminating statements from a suspect. If a suspect made a clear and unequivocal
request to secure the advice of a lawyer as to whether he should agree to take a polygraph
test, there would be no dispute the request constituted an invocation.
We recognize Nelson, like the juveniles in Fare and Lessie, was no stranger
to the criminal justice system. But he was a year younger than these defendants and he
was subjected to a much lengthier interrogation. After more than four hours of
aggressive questioning, the 15 year old complained he was “really hungry.” One of the
deputies responded by offering to get Nelson a candy bar. Over the course of the
interrogation Nelson was repeatedly tearful when speaking with the deputies, during
telephone messages to his mother, and when speaking with family members on the
phone. While individually these various factors may not be compelling, when taken as a
whole they plainly demonstrate the degree to which Nelson was worn down by the
persistent and extensive questioning. (Cf. Fare, supra, 442 U.S. at pp. 726-727 [in
considering totality of the circumstances the court noted the evidence showed the juvenile
“was not worn down by improper interrogation tactics or lengthy questioning or by
trickery or deceit”].)
This case is also distinguishable from Lessie where the court found the
juvenile, by willingly answering questions, implicitly waived his rights. (Lessie, supra,
47 Cal.4th at p. __.) Here, Nelson initially answered questions eagerly, but over the
course of time that willingness evaporated. As the interrogation continued, he became
increasingly nonresponsive to questions and was no longer volunteering information. He
indicated he did not care who was responsible for the murder, he just wanted the deputies
to leave him alone. When pressed to make a decision regarding taking the polygraph test,
Nelson said he had been told by his family not to do anything until his mother arrived, so

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he needed to wait. Referring to the murder, Nelson asked the deputies to “please stop
talking about it.” This request was ignored. When asked if he minded if the deputies
continued to ask him questions, Nelson responded, “Is there anything new that you need
to talk to me about?” Another round of questions followed.
The record shows that during the latter part of the interview Nelson, by his
statements and conduct, showed he no longer was willing to answer questions. While
Nelson sat holding his stomach and his head, he did not respond to questions unless
Salcedo forcefully demanded a response. Later in the interrogation, Salcedo candidly
commented he felt as if he were being forced to “drag the truth” out of Nelson.
The record also shows Nelson made several attempts to end the
questioning. He asked if he could have a few minutes to himself. After asking again to
use the phone to reach his mother or brother, Nelson was asked if he could first write
down “his story” for the deputies. Nelson responded he would rather call first. When
deputies returned, Nelson said he had not written anything down yet, and asked if he
could be alone until his family arrived. The deputies asked Nelson if he wanted time
alone to write things down and Nelson replied he wanted to be alone to “think about
things.” When he was accused by one of the deputies of “playing us again,” Nelson
responded this was his life, and he needed time. Deputies then left Nelson in the room
alone and told him to knock on the door when he was “done.” However, the deputies did
not wait for his knock but rather returned a few minutes later and asked if he needed
more time to write. Nelson responded by asking if his family had arrived. The deputies
left again telling Nelson they would let him know when his family arrived. Minutes later
Nelson wrote out and signed a statement admitting he committed the murder.
Admittedly the deputies allowed Nelson to make numerous unsuccessful
attempts to contact his mother, but we find no support in the record for the trial court‟s
conclusion Nelson decided to confess rather than wait to speak with his mother. After

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considering Nelson‟s age, experience, maturity, sophistication, the length, intensity, and
content of the interrogation, we conclude Nelson‟s purpose in requesting to speak with
his mother was to secure her assistance to protect his Fifth Amendment rights. Further
evidence of Nelson‟s desire to invoke his Miranda rights is evidenced by his various
requests to end the conversation about the murder. His words and conduct were
inconsistent with “a present willingness to discuss the case freely and completely.
[Citation.]” (Samayoa, supra, 15 Cal.4th at p. 829.) In short, the record reflects a
juvenile who persisted in his attempts to seek his mother‟s assistance in protecting his
rights, who numerous times indicated he did not want to continue speaking, and after
over five hours of interrogation submitted to the deputies insistence that he write out a
confession.
G. Our Conclusion
In summary, any statements made by Nelson after he first requested to
speak with his mother were obtained in violation of Miranda. Moreover, Nelson‟s
subsequent words and conduct were consistent with a person seeking to invoke his
Miranda rights. Thus, the confessions obtained are inadmissible. In addition, Nelson‟s
admissions made in juvenile hall and during telephone interviews are inadmissible. We
conclude admission of the confession and subsequent incriminating statements were
prejudicial and compel reversal of the convictions for murder and burglary (with the
exception of the three burglary counts relating to Thompson because Nelson admitted
these crimes before invoking his Miranda rights). (Chapman v. State of California
(1967) 386 U.S. 18.)
H. The Dissent
Our dissenting colleague suggests we have “resuscitate[d] the per se
parental invocation rule” of Burton. (Dis. opn. post, p. 1) Not so. As stated repeatedly
throughout this opinion, we have analyzed the undisputed facts of this case under the

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Fare/Lessie totality-of-the-circumstances test. (Fare, supra, 442 U.S. at p. 725; Lessie,
supra, 47 Cal.4th at p. __.) As we have discussed, the Fare case concerned the validity
of a juvenile‟s initial waiver of his Miranda rights, and the Lessie case, like the case
before us, involved in part, a juvenile‟s parental request following a valid waiver. “The
decisions of [the Supreme Court] are binding upon and must be followed by all the state
courts of California.” (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Our dissenting
colleague has adopted a more narrow approach, applicable to adult suspects, and thus he
reviews the facts from the “vantage point of a reasonable officer.” (Dis. opn. post, fn. 2;
Davis, supra, 512 U.S. 452 [holding reasonable officer perspective applies to adult
suspects invoking Miranda rights following a valid waiver] and People v. Gonzalez
(2005) 34 Cal.4th 1111 [implementing Davis test]). We respectfully disagree this test
should be adopted for juveniles. Nothing said by the Fare or Lessie courts suggests that
the totality-of-the-circumstances test must be abandoned when evaluating whether a
postwaiver request to speak to a parent constitutes an invocation of a minor‟s Miranda
rights. We decline the invitation of our dissenting colleague to do so.
III
Nelson requested this court review the materials considered by the trial
court in camera before denying his Pitchess motion. The Attorney General does not
object. (People v. Mooc (2001) 26 Cal.4th 1216, 1227-1228 [procedure for review]
(Mooc).) We have reviewed the sealed reporter‟s transcript. In ruling on the Pitchess
motion, the trial court properly asked the court reporter to make a record of the court‟s
questions, comments, and inquiry into the particular files, records, and documents
produced by the custodian. (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) The trial court
did not abuse its discretion in finding no discoverable materials. (Alford v. Superior
Court (2003) 29 Cal.4th 1033, 1039 [standard of review].)

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IV
The murder conviction for the murder of Thompson, and the burglaries of
Parks and Adler are reversed (counts 1, 2 and 6). We affirm the remaining burglary
convictions (counts 3, 4 and 5). Accordingly the judgment is affirmed in part and
reversed in part.
O‟LEARY, ACTING P. J.
I CONCUR:
IKOLA, J.

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1
ARONSON, J., Concurring and Dissenting:
The majority‟s justification for overturning Nelson‟s murder conviction
rests on its conclusion that when Nelson first asked to speak with his mother, he actually
wanted to speak with a lawyer. My colleagues view this as an unambiguous request for
an attorney. Indeed, they conclude “there is no basis for construing Nelson‟s request to
speak with his mother as anything other than an invocation of his Fifth Amendment
rights,” and any reasonable officer would know this. (Maj. opn. ante, at p. 27.)
It is difficult to fathom why this is so. In Davis v. United States (1994)
512 U.S. 452 (Davis), the Supreme Court held that to stop a police interview after
officers obtain a valid Miranda waiver,1 the suspect “must unambiguously request
counsel.” (Id. at p. 459.) A minor‟s request to call his mother “„to inquire about
. . . possible representation‟” is not an unambiguous request for counsel and therefore
does not require officers to cease questioning. (Flamer v. State of Delaware (3d Cir.
1995) 68 F.3d 710, 725, italics added.) As the high court has explained, “[I]f a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the cessation of questioning.”
(Davis, at p. 459; see, e.g., McNeil v. Wisconsin (1991) 501 U.S. 171, 178 (McNeil) [“the
likelihood that a suspect would wish counsel to be present is not the test”].) Yet the
majority holds Nelson unambiguously made known his wish for counsel without even
making reference to an attorney, but only his mother. The majority thus appears to
resuscitate the per se parental invocation rule of People v. Burton (1971) 6 Cal.3d 375,
which our Supreme Court just overturned. (People v. Lessie (2010) 47 Cal.4th 1152
(Lessie).)
To invoke the Fifth Amendment right to counsel, the individual must
“„express[]‟ his wish for the particular sort of lawyerly assistance that is the subject of
Miranda.” (McNeil, supra, 501 U.S. at p. 178.) A minor‟s request to speak with a parent
1 Miranda v. Arizona (1966) 384 U.S. 436.

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may have nothing to do with securing the advice of an attorney or asserting the right to
remain silent. (See, e.g. People v. Hector (2000) 83 Cal.App.4th 228, 236 (Hector)
[minor wanted to inform his mother about the crime before she heard it from someone
else]; People v. Maestas (1987) 194 Cal.App.3d 1499, 1509 (Maestas) [minor wanted to
let parents know “what was happening or to seek comfort”].) In any event, in the
postwaiver context here, the inquiry under Davis does not focus on divining the suspect‟s
subjective intent — which may have been confused or inchoate — in uttering particular
words, but rather on the officer‟s objectively reasonable observations. “If the suspect‟s
statement is not an unambiguous or unequivocal request for counsel, the officers have no
obligation to stop questioning him.” (Davis, supra, 512 U.S. at pp. 461-462.)
Under article I, section 28, subdivision (d), of the California Constitution,
we must apply federal standards in deciding whether to exclude a confession for violating
Miranda. (People v. Crittenden (1994) 9 Cal.4th 83, 129 [pursuant to California‟s
adoption of federal standard, invocation of right to counsel must be unambiguous and
unequivocal]; People v. Cunningham (2001) 25 Cal.4th 926, 993 [same].)
Here, as I discuss in more detail below, the officers knew Nelson had
experience dealing with law enforcement and the juvenile justice system, had served a
two-month juvenile commitment, and displayed the physical and emotional
characteristics of a hardened and streetwise young adult. When Nelson explained he
wanted “to let [his mother] know what is happening” and talk to her about whether to
take the polygraph (maj. opn. ante, at p. 17), a reasonable officer could conclude
Nelson‟s request to speak with his mother was not tantamount to a request for legal
assistance. Because this statement, and Nelson‟s other statements that followed, were
ambiguous, officers could proceed with the interview.
The Davis standard applies not only to postwaiver invocations of the right
to counsel, but also the right to silence. (People v. Stitely (2005) 35 Cal.4th 514.) As our
Supreme Court has explained, when a suspect validly waives his or her Fifth Amendment
rights, as the majority agrees Nelson did here, “[i]t is not enough” that, later in the
interview, “a reasonable police officer . . . understand[s] that the suspect might be

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invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law
enforcement officers are not required . . . either to ask clarifying questions or cease
questioning altogether.” (Id. at p. 535.) Consequently, the majority‟s analysis fares no
better supposing Nelson invoked his right to silence rather than an attorney.
Several jurisdictions have applied Davis to juvenile defendants. (In re
Christopher K. (Ill. 2005) 841 N.E.2d 945, 964-965; In re Frederick C. (Neb.Ct.App.
1999) 594 N.W.2d 294, 301-302; State v. Williams (Minn. 1995) 535 N.W.2d 277, 284-
286.) Until now, it appears no court has refused to do so. (See In re H.V. (Tex. 2008)
252 S.W.3d 319, 326-327 [observing it “need not decide” the issue since juvenile‟s
statement he “„wanted his mother to ask for an attorney‟” satisfied Davis standard].)
There seems little reason to suppose the high court would conclude juveniles fall outside
its holding in Davis, given the court “recognize[d] that requiring a clear assertion of the
right to counsel might disadvantage some suspects who — because of fear, intimidation,
lack of linguistic skills, or a variety of other reasons — will not clearly articulate their
right to counsel although they actually want to have a lawyer present.” (Davis, supra,
512 U.S. at p. 460.)
As the Supreme Court explained, “[T]he primary protection afforded
suspects subject to custodial interrogation is the Miranda warnings themselves. „[F]ull
comprehension of the rights to remain silent and request an attorney [is] sufficient to
dispel whatever coercion is inherent in the interrogation process.‟ [Citation.] A suspect
who knowingly and voluntarily waives his right to counsel after having that right
explained to him has indicated his willingness to deal with the police unassisted.”
(Davis, supra, 512 U.S. at pp. 460-461.) Noting that in addition to the Miranda
warnings, Edwards v. Arizona (1981) 451 U.S. 477 (Edwards) affords a second layer of
prophylaxis by requiring immediate and total cessation of questioning when the suspect
requests an attorney, the high court concluded a third order of protection — extending
Edwards to ambiguous requests — was unnecessary where a suspect has validly waived
his rights. (Davis, at pp. 459-462.)

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This reasoning applies to juveniles who validly waive their rights. The
majority does not dispute Nelson comprehended his rights, as contemplated in Miranda,
Edwards, and Davis, and validly waived them. It follows, therefore, that Davis applies.
Because Davis applies in the postwaiver setting here, the majority‟s reliance on pre-
waiver cases is misplaced. (See, e.g., Lessie, supra, 47 Cal.4th 1152; Fare v. Michael C.
(1979) 442 U.S. 707 (Fare)) are simply inapposite. Those cases attempt to discern under
a totality of the circumstances test whether an individual‟s initial waiver of rights is valid,
not whether a suspect has invoked his rights later in the interview.
Even assuming arguendo that Davis‟s unambiguous and unequivocal
invocation standard does not apply, a totality of circumstances analysis favors the trial
court‟s conclusion Nelson did not intend to invoke his Fifth Amendment rights after his
initial waiver. His own testimony establishes he intended to speak with the officers, not
remain silent or request a lawyer. He testified at the pretrial Miranda hearing that during
the course of the interview he thought it would “seem funny” if he did not talk to the
investigators, and he conceded he was aware of the role lawyers played because an
attorney had represented him in juvenile court. I do not believe we can say, consistent
with our appropriately circumscribed and limited vantage point on appeal, that substantial
evidence does not support the trial court‟s determination of Nelson‟s intent. The trial
court, having heard Nelson and the other witnesses, was in the best position to make that
assessment.
Whether a defendant has invoked the right to consult a lawyer or asserted
the right to silence is a factual determination. (People v. Musselwhite (1998) 17 Cal.4th
1216, 1238 (Musselwhite).) The trial court here, after viewing the videotaped interview
and hearing several witnesses, including Nelson, concluded Nelson did not
unambiguously and unequivocally invoke his Fifth Amendment rights. My colleagues
brush aside the trial court‟s conclusions, explaining that Nelson‟s desire to speak with his
mother was a “clear indication” he invoked his rights. (Maj. opn. ante, at p. 27.) The
trial court did not think so, and we are bound to accept the trial court‟s resolution of
disputed facts and inferences. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125

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(Gonzalez).) I therefore respectfully dissent from the majority‟s decision to reverse
Nelson‟s murder conviction and the burglaries alleged in counts 1 and 2, but otherwise
join in affirming the burglary convictions in counts 3, 4, and 5.
* * *
It is settled that a minor may waive Miranda rights if the minor “has the
capacity to understand the warnings given him, the nature of his Fifth Amendment rights,
and the consequences of waiving those rights.” (Fare, supra, 442 U.S. at p. 725.)
Although police officers must inform minors of their right to an attorney
and their right to silence, “courts have declined to impose a requirement that police
advise minors of a right to speak with parents or to have a parent present during
questioning.” (In re John S. (1988) 199 Cal.App.3d 441, 445 [failure to consult parents
before interviewing juvenile does not negate minor‟s valid Miranda waiver]; Maestas,
supra, 194 Cal.App.3d at 1509; see also In re Bonnie H. (1997) 56 Cal.App.4th 563, 577
[validity of juvenile waiver of rights not affected by failure to seek additional consent of
parent or guardian].) Whether a juvenile has validly waived Miranda rights is
determined by considering the totality of circumstances surrounding the interrogation,
including “the juvenile‟s age, experience, education, background and intelligence, and . .
. whether he has the capacity to understand the warnings given to him, the nature of his
Fifth Amendment rights, and the consequences of waiving those rights.” (Fare, supra,
442 U.S. at p. 725.)
Here, applying Fare‟s totality of circumstances test, the trial court rejected
Nelson‟s claim he did not knowingly and voluntarily waive his Miranda rights at the
outset of the interview, and the majority does not dispute that conclusion. The court also
rejected Nelson‟s claim he invoked his Miranda rights during the interview when he
requested to speak with his mother, finding these statements to be ambiguous. The court
reached this decision after hearing testimony from several witnesses, including Nelson,
and reviewing the videotape and transcript of Nelson‟s interview.
In reviewing Nelson‟s Miranda claim, we must accept the trial court‟s
resolution of disputed facts and inferences contained in its express or implied factual

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findings, if supported by substantial evidence. (People v. Storm (2002) 28 Cal.4th 1007,
1022, 1023; People v. Whitson (1998) 17 Cal.4th 229, 248.) We exercise independent
review over legal issues, however. (People v. Benson (1990) 52 Cal.3d 754, 778.)
“Although we independently determine whether, from the undisputed facts and those
properly found by the trial court, the challenged statements were illegally obtained
[citation], we „“give great weight to the considered conclusions” of a lower court that has
previously reviewed the same evidence.‟” (People v. Wash (1993) 6 Cal.4th 215, 236;
Musselwhite, supra, 17 Cal.4th at pp. 1238-1239.)
The record amply supports the trial court‟s determination Nelson validly
waived his Miranda rights at the beginning of the interview. The officers fully explained
to Nelson his Miranda rights, and Nelson responded he understood his rights. After some
introductory questions, he waived his rights so he could engage the officers with his
explanation he entered Thompson‟s home to retrieve a dead mouse for her. Nothing in
the record suggested Nelson lacked the capacity to understand the warnings he received,
or that he was confused about his right to the advice of a lawyer or unaware of the
potential help a lawyer could provide. Nelson was an experienced 15 year old who had
several past dealings with police officers when he was arrested for prior juvenile
offenses. Nelson had received Miranda warnings on several occasions, the most recent
occurring only two months before the interview when police officers arrested him for
residential burglary. Nelson conceded during his testimony that during Salcedo‟s
explanation of his rights, Nelson, without prompting, anticipated the advisement and
before the officer finished, volunteered “„like you have the right to remain silent.‟”
Nelson testified he also understood the role of an attorney because a lawyer previously
had represented him in juvenile court. The record therefore supports the conclusion that,
unlike some minors, Nelson was an experienced and “streetwise” juvenile capable of
independently exercising his Miranda rights. The majority agrees with this conclusion,
citing Nelson‟s experience with the criminal justice system and his familiarity with
Miranda.

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Later in the interview, officers requested Nelson immediately submit to a
lie detector test. Nelson asked to call his mother because he wanted to “let her know
what is happening” (maj. opn. ante, at p. 17), and to “talk to her about it and see what I
should do.” (Id. at pp. 17-18.) The trial court found Nelson‟s request was ambiguous,
and although he may have sought his mother‟s input on whether to take a polygraph, the
court did not interpret this as an assertion of his Miranda rights. The court did not view
Nelson as “some vulnerable waif,” undoubtedly referring to Nelson‟s demeanor and
experience with law enforcement, and therefore concluded there was nothing in his
statement or conduct to suggest an unambiguous and unequivocal invocation of his
rights.
The majority rejects the trial court‟s finding and concludes this criminally
experienced and streetwise youth, speaking directly to the officer and “[i]n an assertive
tone of voice” (maj. opn. ante, at p. 17), mistakenly requested to speak with his mother
when he meant to ask for an attorney, and that a reasonable officer would have
recognized this as an unambiguous and unequivocal request for counsel. This dubious
proposition collapses if a reasonable officer could have found Nelson‟s statement to be
ambiguous.
The importance of determining whether a suspect unambiguously invoked
the right to counsel stems from Davis, supra, 512 U.S. 452. As I discussed earlier, the
Supreme Court explained that Miranda warnings offered a suspect primary protection
against an involuntary and coerced waiver of Fifth Amendment rights. (Id. at p. 461.)
Davis noted that under Edwards, supra, 451 U.S. at pp. 484-485, a suspect who waives
his Miranda rights and agrees to answer questions may assert the right to counsel at any
time during the interview, and police officers immediately must stop questioning the
suspect until an attorney is present or the suspect reinstates contact. (Davis, at p. 458.)
For suspects who initially waive their rights, Edwards provides additional protection “if a
suspect subsequently requests an attorney” because “questioning must cease,” but this
protection “must be affirmatively invoked by the suspect.” (Davis, at pp. 460-461.)

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Davis then focused on how courts should analyze a suspect‟s ambiguous
request for counsel made during a police interrogation. To invoke the protection under
Edwards, the request for counsel must be “unambiguous” and “unequivocal.” (Davis,
supra, 512 U.S. at p. 459.) The court explained that “if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking the right to
counsel, our precedents do not require cessation of questioning.” (Davis, supra, 512 U.S.
at p. 459.) Thus, the suspect “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” (Ibid.) Officers therefore are not required
to stop questioning the suspect in the face of ambiguous comments that might be
construed as a request for a lawyer. (Ibid.)
In Gonzalez, supra, 34 Cal.4th 1111, the California Supreme Court
implemented the holding in Davis and articulated the standard of review for determining
whether a suspect‟s statement, made during a custodial interrogation after initially
waiving Miranda, constituted a request for counsel. “[A] reviewing court—like the trial
court in the first instance—must ask whether, in light of the circumstances, a reasonable
officer would have understood a defendant‟s reference to an attorney to be an
unequivocal and unambiguous request for counsel, without regard to the defendant‟s
subjective ability or capacity to articulate his or her desire for counsel, and with no
further requirement imposed upon the officers to ask clarifying questions of the
defendant. In reviewing the issue, moreover, the reviewing court must „accept the trial
court‟s resolution of disputed facts and inferences, and its evaluations of credibility, if
supported by substantial evidence.‟” (Id. at p. 1125.)
In Gonzalez, the defendant waived his Miranda rights and agreed to take a
lie detector test, but then stated, “if for anything you guys are going to charge me I want
to talk to a public defender too, for any little thing.” (Gonzalez, supra, 34 Cal.4th at
p. 1119.) The officer assured the defendant he could talk to a public defender at any
time, but explained an arrest was not a prosecution, although police would “book[]” him

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for murder and hold him in custody that night. The defendant subsequently confessed the
next day in a follow-up interview. (Id. at p. 1126.) The Supreme Court concluded the
defendant‟s statement was ambiguous and therefore would not have put a reasonable
officer on notice he wanted to speak with a lawyer before answering any more questions.
“The question is not what defendant understood himself to be saying, but what a
reasonable officer in the circumstances would have understood defendant to be saying.”
(Ibid.) The court explained “the police could reasonably have assumed the defendant was
capable of making an unequivocal request for counsel if he so desired” because they were
aware the defendant had prior contacts with law enforcement, was on probation, and had
been advised of his Miranda rights on previous occasions. (Id. at p. 1127.)
Similarly, the officers here could have assumed Nelson was capable of
either directly invoking his rights or raising the issue in a manner that would alert a
reasonable officer his statement was equivalent to a request for a lawyer or an assertion
of the right to remain silent. In other words, adopting Davis‟s holding to the juvenile
setting,2 under the circumstances known to the officer, it must be clear the minor‟s
request to speak with a parent is tantamount to a request for legal assistance from an
attorney. (Davis, supra, 512 U.S. at p. 459, italics added [“Although a suspect need not
„speak with the discrimination of an Oxford don,‟ . . . he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney”].) An interviewing
officer may, as here, seek clarification from the minor to discern whether the minor
actually wanted a lawyer, but Davis does not require this, and the officer may continue
the interview in the face of the suspect‟s ambiguous or equivocal statements.
2 The holding in Davis could be interpreted to require juveniles to
explicitly assert their right to a lawyer or to remain silent. At a minimum, I
conclude Davis requires evaluation of the minor‟s request to speak with a parent
from the vantage point of the interviewing officer, and the interview must cease if
the statement objectively alerted, or should have alerted, the officer the minor
unambiguously and unequivocally sought to invoke his or her rights.

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Nelson‟s statement is at least as ambiguous as those found in other cases.
In People v. Roquemore (2005) 131 Cal.App.4th 11, 24, the appellate court concluded the
defendant did not make an unequivocal request for counsel when he asked, “„Can I call a
lawyer or my mom to talk to you?‟” In discussing the issue, the court listed numerous
cases that “found references to an accused‟s expressed desire for counsel to be
ambiguous.” (Ibid.; see Gonzalez, supra, 34 Cal.4th at pp. 1119, 1122-1127 [“„[I]f for
anything you guys are going to charge me I want to talk to a public defender too, for any
little thing‟” found to be equivocal and ambiguous]; Clark v. Murphy (9th Cir. 2003)
331 F.3d 1062, 1070-1072 [defendant‟s statement, “„I think I would like to talk to a
lawyer‟” was not an unequivocal request for counsel]; Soffar v. Cockrell (5th Cir. 2002)
300 F.3d 588, 593-596 [defendant‟s questions on “whether he should get an attorney;
how he could get one; and how long it would take to have an attorney appointed” were
equivocal]; Dormire v. Wilkinson (8th Cir. 2001) 249 F.3d 801, 803-804 [defendant‟s
request to call his girlfriend, immediately followed by “„Could I call my lawyer?,‟” found
equivocal]; Valdez v. Ward (10th Cir. 2000) 219 F.3d 1222, 1231-1233 [after confessing
to murder, the defendant‟s statement, “„Yes, I understand it a little bit and I sign it
because I understand it something about a lawyer and he want to ask me questions and
that‟s what I‟m looking for a lawyer,‟” found ambiguous]; Burket v. Angelone (4th Cir.
2000) 208 F.3d 172, 196-198 [“„I think I need a lawyer‟” was equivocal]; Diaz v.
Senkowski (2d Cir. 1996) 76 F.3d 61, 63-65 [“„Do you think I need a lawyer?‟” held to be
equivocal]; Coleman v. Singletary (11th Cir. 1994) 30 F.3d 1420, 1423, 1426 [when
asked about the appointment of a public defender, the defendant stated: “„I don‟t know.
But if he said to stop I don‟t want to do what he said not to do‟”]; Lord v. Duckworth
(7th Cir. 1994) 29 F.3d 1216, 1219-1221 [“„I can‟t afford a lawyer but is there anyway I
can get one?‟”]; Connecticut v. Anonymous (1997) 694 A.2d 766, 770-775 [“„Do I still
have a right to an attorney?‟”]; Gresham v. United States (D.C.App. 1995) 654 A.2d 871,
873-875 [“at the time of his arrest but before the police questioned him, he invoked his
right to counsel by asking his girlfriend, in the presence of police, to call his mother and
tell her to get him a lawyer” — not a clear assertion of the right to counsel]; State v.

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Eastlack (Ariz. 1994) 883 P.2d 999, 1005-1007 (concur. opn. of Kleinschmidt, J.) [“„I
think I better talk to an attorney‟” found equivocal]; Poyner v. Murray (4th Cir. 1992)
964 F.2d 1404, 1410 [“„Didn‟t you tell me I had the right to an attorney?‟” did not
constitute an unequivocal invocation of the right to counsel]; Cothren v. Alabama (1997)
705 So.2d 861, 862-866 [“„I think I want to talk to an attorney before I answer that‟”
subject to differing interpretations].)
Of course, it is possible Nelson meant to invoke his Miranda rights with his
request to see his mother, although substantial evidence supports the trial court‟s contrary
conclusion. But as several cases have noted, a suspect‟s hesitancy to take a lie detector
test is not necessarily an automatic invocation of Miranda rights. (People v. Davis
(1981) 29 Cal.3d 814, 825 [specific reluctance to take lie detector not an invocation of
Miranda rights]; People v. Hurd (1998) 62 Cal.App.4th 1084, 1091 (Hurd) [refusal to
take polygraph not a Miranda invocation because defendant continued to answer
questions about the crime].) Moreover, considering Nelson‟s experience in dealing with
police officers and the likelihood he fully understood the benefits an attorney could
provide based on his juvenile court experience, it is not unreasonable to conclude he
would have directly asserted his rights if that was what he wanted. He certainly
demonstrated no hesitancy in asking to see his mother or to phone relatives. Nelson‟s
streetwise demeanor and experience with law enforcement contrasts sharply with those
juveniles who lack his knowledge and understanding of a criminal suspect‟s rights.
Nelson‟s request to see his mother must be examined with his experience and background
in mind. After all, few minors could recite from memory one of the Miranda
advisements, as Nelson confidently did at the outset of his interview. The trial court no
doubt had this contrast in mind when it found that Nelson was not “some vulnerable
waif.”
The California Supreme Court‟s recent decision in Lessie, supra, 47 Cal.4th
1152, does not aid the majority. In Lessie, the court concluded a juvenile‟s request to
speak with his father during the initial Miranda advisement did not constitute a request
for counsel. Although there was no evidence the juvenile had received Miranda

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advisements in the past, he previously had been arrested and committed to juvenile hall.
In rejecting his Miranda claim, the court noted the juvenile did not say he “wanted his
father to call an attorney on his behalf.” (Lessie, at p. ___, [2010 WL 308813, at p. 10].)
The majority argues a different result is called for here because Nelson was
a year younger, subjected to lengthier interrogation, became tearful at times and was
hungry — factors that, according to the majority, “demonstrate the degree to which
Nelson was worn down by the persistent and extensive questioning.” (Maj. opn. ante,
p. 28.) This might be persuasive if Nelson had claimed the police coerced him into
confessing, but the sole issue raised is whether Nelson invoked his Miranda rights. The
majority concedes Nelson validly waived his rights at the outset and, if he did not validly
invoke them during the interview, then it is beside the point whether he was tired and
hungry.
The majority also points to how Nelson‟s demeanor changed as the
interview progressed, becoming more withdrawn and providing terse answers, in contrast
to the defendant in Lessie, who willingly answered questions. True, Nelson‟s enthusiasm
for the interview process appeared to diminish, but succinct answers and a sullen
demeanor hardly furnishes legal grounds for finding an invocation of the right to counsel.
(See People v. Michaels (2002) 28 Cal.4th 486, 510-511; People v. Silva (1988)
45 Cal.3d 604, 629-630 (Silva) [during an ongoing interrogation, defendant may refuse
answer certain questions without demonstrating an intent to terminate the interview].)
Thus, the record supports the trial court‟s findings Nelson‟s initial request
to speak with his mother was not a clear invocation of his Fifth Amendment rights.
Based on the officer‟s knowledge of Nelson‟s background, it was not unreasonable for
the officer to judge that Nelson would have asked for a lawyer if he wanted legal advice,
and therefore his request to speak with his mother was not equivalent to an invocation of
his right to counsel.
These findings support with equal force the trial court‟s rejection of
Nelson‟s claim his subsequent requests to speak with his mother constituted a request for
counsel. A reasonable officer could have understood these requests as reflecting

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Nelson‟s desire to discuss with his mother whether to take a polygraph test, and, as
Nelson explained at one point, to tell her about the “other stuff,” presumably referring to
his numerous burglaries and the use of the murder victim‟s credit card. (Maj. opn. ante,
p. 20.)
Substantial evidence also supports the trial court‟s decision Nelson did not
invoke his right to silence. There is nothing inherent in the request for a parent that
compels a finding the juvenile intended to invoke his right to silence. (Fare, supra,
442 U.S. at p. 724 [request to speak to probation officer does not by itself invoke the
juvenile‟s right to silence]; United States v. Franzen (7th Cir. 1981) 653 F.2d 1153, 1159
[applying Fare to juvenile‟s request for his father and concluding it did not constitute an
invocation of minor‟s right to silence].) This is particularly true where the minor does
not indicate a desire to remain silent and continues to freely answer questions. In Hector,
supra, 83 Cal.App.4th 228, the juvenile did not invoke his right to silence when informed
detectives had not been able to reach his mother because he “did not indicate he wished
to stop speaking with the detectives and instead readily continued to answer their
questions.” (Id. at p. 236.) Similarly, Nelson did not invoke his right to silence merely
by asking to speak with his mother, and continued to respond freely to questions up until
the time he spoke with his brother and grandmother.
At this point, Nelson informed Salcedo his grandmother and brother
advised him not to do “anything” until he had spoken with his mother or a lawyer. The
majority describes this as an unambiguous request by Nelson to halt the entire interview
and invoke his Miranda rights. This conclusion rests on an expansive interpretation of
Nelson‟s use of the word “anything.” But when considered in context, a more reasonable
interpretation is that Nelson was referring only to the lie detector test.
A few minutes before Nelson‟s statement, the deputies granted his request
to call his mother. Although unable to reach his mother, Nelson talked with his
grandmother and was on the telephone with his brother when Salcedo returned to the
interview room and informed Nelson the polygraph operator was ready to begin the test.
Nelson responded, “All right, uh, they‟re telling me not to take the test until my mom or a

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lawyer is here, is that okay?” (Italics added.) Salcedo responded, “That‟s your decision,”
and Deputy Sutton reiterated, “That‟s up to you.” Salcedo offered to provide Nelson‟s
family with the telephone number of the sheriff‟s office so his mother could call and
speak with Nelson, who explained his mother was expected home shortly. At this point
Salcedo asked, “Yeah, I mean, do you want to ask your mom if you should take this test?
I mean, what, what do you want to do?” (Italics added.) Nelson responded, “Uh, they
don‟t want me to do anything until a lawyer or my mom is here. So I‟m gonna, I need to
wait.” Salcedo then asked Nelson to wait briefly while he left the room to tell the
polygraph operator “what your decision was.” Shortly thereafter, Salcedo and Nelson
resumed the interview.
Thus, it is apparent that Nelson‟s request not to do “anything” is not the
clear-cut invocation of rights the majority claims. Indeed, the trial court found that
Nelson did not intend to halt the interview, but only to defer taking the polygraph. This
is certainly how Salcedo understood it, and based on the trial court‟s findings, I cannot
say this conclusion was unreasonable.
As discussed above, the majority states it does not matter whether Nelson
only intended to defer a decision on the polygraph exam, finding that his request was an
invocation of his Miranda rights. But a suspect‟s hesitancy to take a lie detector test is
not necessarily an automatic assertion of Miranda. (Silva, supra, 45 Cal.3d at pp. 629-
630 [during an ongoing interrogation, defendant may refuse to answer certain questions
without demonstrating an intent to terminate the interview].) In People v. Davis, supra,
29 Cal.3d 814, the defendant waived his Miranda rights and agreed to take a lie detector
test, but later refused to answer any questions during the test. The California Supreme
Court rejected the defendant‟s claim his silence during the test constituted a Miranda
invocation, explaining “the surrounding circumstances show that his reluctance was
related only to the polygraph examination.” (People v. Davis, at p. 825.) Because the
defendant “showed no hesitation to speak with the interrogating officers,” his silence
during the polygraph exam was not an assertion he was unwilling to discuss the case,
“but only that he was unwilling to submit to the scrutiny of the lie detector, a mechanical

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device.” (Ibid.; see also Hurd, supra, 62 Cal.App.4th at p. 1091 [defendant‟s refusal to
take polygraph and demonstrate how homicide occurred not a Miranda invocation
because defendant continued to answer questions about the crime].) Based on the
foregoing, I would defer to the trial court‟s finding that Nelson‟s reluctance to take the lie
detector test before talking with his mother did not evidence an intent to terminate the
interview. Consequently, I would affirm the judgment.
ARONSON, J.

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