By Robert Phillips  

Deputy District Attorney (ret.) 

Case Law:

Rules:  

(1) After an initial advisal and waiver or one’s Miranda rights, a new Miranda advisement is not necessary before a later custodial interrogation is resumed, so long as a proper warning had been given previously and the subsequent interrogation is reasonably contemporaneous with a prior knowing and intelligent waiver.  

(2) An in-custody suspect expressing concern that other co-suspects might discover that he is talking to the police, and an interrogator’s assurances they would not, does not preclude the later use of the suspect’s incriminating statements in court.  

(3) Absent evidence that a suspect is under the influence to the extent that he would not be able to understand and waive his Miranda rights, that he might have been intoxicated is irrelevant.  

(4) Threatening a vulnerable or frightened suspect with the death penalty or making promises of leniency in exchange for a suspect’s cooperation may result in the suppression of the suspect’s resulting admissions. However, there is no such threat where officers are very low key and their statements themselves are non-threatening. Also, explaining to a suspect that an accomplice is generally better off than a triggerman, and far less likely to receive the death penalty, is not coercive. 

Facts: Nineteen-year-old defendant Mao Hin, an alleged member of the Tiny Rascals Gang (or “TRG”), an Asian criminal street gang, was involved in at least three shootings in Stockton, California, between the months of September and November of 2003. Ultimately, Hin was charged in state court with multiple offenses stemming from two incidents: a murder and robbery in American Legion Park on Oct. 10 and a drive-by shooting on Bedlow Drive, plus a related shooting at a random vehicle on Nov. 8. Also introduced into evidence was testimony concerning a Sept. 12 uncharged shooting on Hammer Lane, used by the prosecution to establish an evidentiary predicate for the enhancements and to provide context and motive for the charged crimes.  

Hammer Lane Shooting [Uncharged]: The Hammer Lane shooting involved the occupants of a blue Honda Accord shooting into another vehicle, a Mitsubishi. One person was killed and two others seriously injured. While the shooter was eventually identified as Rathana Chan, other occupants of the Honda included 16-year-old Rattanak Kak and, by his own admission, Hin, the defendant; all members of the TRG. The motive behind the shooting was the suspects’ apparently mistaken belief that the car was occupied by members of the rival street gang the Asian Boyz Gang (ABZ).  

American Legion Park Shooting: A month later, Oct. 10, Hin and Kak confronted Debra Pizano and Alfonso Martinez, who were walking together in American Legion Park in Stockton around 9:30 p.m. Kak pulled a gun and pointed it at their heads as Hin demanded their money. The victims complied. Hin and Kak then directed the victims further into the park where it was darker. At the bottom of a hill, Hin and Kak took Martinez’s clothes and Pizano’s watch. Hin made a comment as he started to walk away, laughing about how dangerous it was to walk in the park late at night. Kak then started shooting, wounding Pizano in her head and leg and killing Martinez with shots to his left upper back and left thigh.  

The Bedlow Drive and Random Vehicle Shootings: On Nov. 8, thirteen people were gathered in a residential carport on Bedlow Drive, drinking beer and listening to music. Several people noticed a “white, blue, (or) brown” van approaching slowly. Gunfire suddenly erupted from the van with anywhere from 16 to 30 shots being fired. Three people in the carport (Ream Voeuth, Nath Sok, and Krisna Khan) and two others in the adjoining residences (Sobin Pen and Sokhon Hing) sustained gunshot wounds. Both Hin and Kak were later charged with the attempted murder of each victim along with various other charges. Then, officers responding to the scene of this shooting were flagged down by the occupants of a vehicle with shattered glass and a bullet hole in its side. There were three or four individuals in this vehicle, one of whom was injured and transported to the hospital. All the damage appeared to have been caused by shots entering (rather than exiting) the vehicle. This incident resulted in the defendants being charged with shooting at a vehicle.  

Defendant’s Arrest and Questioning: Later that night, officers located a tan Toyota van approximately one mile away from the scene that matched the vehicle description provided by the various witnesses on Bedlow Drive. One of the officers recognized the van as one he had seen Hin driving in the past. It was confirmed via DMV records that the van was registered to Hin. Setting up surveillance, officers soon observed three people getting into the van shortly after midnight. One of the officers recognized Hin as the driver, having contacted him before, and knew he did not have a valid California driver’s license. A vehicle stop was conducted on that basis. Kak and a third person (16-year-old Sarun Chun) were contacted, along with Hin. Officers observed that Hin appeared to have been drinking. In a search of the vehicle (uncontested in this appeal), officers found two 9-millimeter shell casings behind the driver’s seat, consistent with a passenger shooting out of the passenger-side window. Hin was arrested (also uncontested on appeal) and placed into the back seat of a police car.  

He was immediately advised of his Miranda rights and responded that he understood. When told that expended shell casings had been found in his van, he denied any knowledge of them. He was then transported to the police station at 12:30 a.m. Nov. 9. An hour later, the arresting officer confirmed with Hin that he remembered his rights, although apparently no questioning occurred. When told that he was going to be questioned about the shell casings found in his van, Hin responded that he had not fired a gun since he was 15 years old, claiming also that he had done nothing wrong. A breath test administered around the same time showed a blood-alcohol content of 0.08%. Hin was then contacted by a detective two and a half hours later, around 4 a.m., and asked again if he remembered his rights. After Hin affirmed that he did, he was questioned by the detective for about an hour about his involvement in the Bedlow Drive shooting. His responses were not noted, but presumably he denied any involvement. He was then transported to the investigations building of the Stockton Police Department at around 6 a.m. where he was given an opportunity to rest, provided with food and given access to the restroom. About 19 hours later, around 3:15 p.m., he was readvised of his Miranda rights. During this interview, he eventually admitted to being involved in the Bedlow Drive shooting. He also made statements that led the detectives to believe that he might have been involved in the Hammer Lane and American Legion Park shootings as well.  

Arrangements were therefore made to have the detectives involved in those two incidents come in and question him. Around 7 p.m., a new set of detectives came in to interview Hin, waking him up to do so. Asked again if he remembered in Miranda rights, defendant simply responded,  “Yeah.” After pressing defendant for more details about the shooting at Bedlow Drive and his gang involvement, the detectives then asked him for details about the American Legion Park murder. Before initiating this line of questioning, however, one of the detectives specifically told Hin that he needed to “come clean” about what happened or else he would go to court and “most likely” spend the rest of his life in prison. The detective added that if he didn’t come clean, he was “going to get fried” because the park shooting was “the biggest case in Stockton.” To this, Hin asked, “This is between us ” The detective replied, “Yeah.” Hin then asked, “Nobody is gonna know ” The detective replied, “Uh huh.”  

Hin then proceeded to explain that he was there but denied that he was the shooter, that they “needed money” so they “robbed them,” that he had walked away before he heard the shots and that it was Kak who killed Martinez. Turning to the Hammer Lane shooting, Hin repeatedly denied knowing anything about this incident. But then he eventually asked the detective, “What we’re talking about, right here. This is not going to go out to nobody, is it ” The detective responded, “Me, and the [district attorney].” Expressing a concern about being labeled a “snitch” and “catch[ing] a bullet to [his] face,” Hin eventually identified those who were involved in this shooting while claiming that he was merely sitting in the front passenger seat of a car and was otherwise uninvolved.  

Resulting Charges: Hin was charged in state court with one count of murder (victim Alfonso Martinez), one count of attempted murder (victim Debra Pizano), second-degree robbery of both victims (all based upon the shooting in the American Legion Park), five counts of attempted murder, two counts of shooting at an inhabited dwelling, one count of shooting at an occupied vehicle, and one count of being an active participant in a criminal street gang during the commission of the drive-by shooting (all based upon the drive-by shooting on Bedlow Drive and the later shooting at the vehicle after leaving Bedlow Drive). A pile of gang-related allegations was attached. Robbery, kidnapping and gang-related special circumstances were also alleged, making it a capital case. Tried with a co-defendant, Rattanak Kak (who is not part of this appeal, since he was a minor and not subject to the death penalty), Hin was convicted of all the above count and the special circumstances were found to be true. He was sentenced to death.  

Hin’s motion to suppress his statements was denied by the trial court. Convicted of those charges and allegations, and with the jury recommending the death penalty, the appeal to the California Supreme Court was automatic. 

Held: In a 91-page decision authored by Justice Goodwin H. Liu, the California Supreme Court unanimously affirmed the trial court’s findings as they related to the admission of Hin’s statements. The court also unanimously reversed on Hin’s attempted murder convictions (the attempted murder of Debra Pizano in American Legion Park and the Bedlow Drive drive-by shooting), and the charge of being an active participant in a criminal street gang, remanding the case to the trial court for a retrial or reconsideration of these issues. [See Note, below.] As a result, Hin’s death sentence was also reversed.  

On the Miranda issue, pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Hin argued on appeal that the trial court committed constitutional error when it denied his motion to suppress the custodial statements he made following his arrest. Specifically, he submitted that the interrogating officers (1) did not properly advise him of his rights. He further argued that (2) his waiver of rights under Miranda were involuntary because it was obtained by threats that he was looking at the death penalty, implied assurances of leniency and false promises of confidentiality. Lastly, defendant argued that (3) his waiver was not knowing and intelligent because he was intoxicated when arrested. The court rejected all these arguments. 

(1) Need for a Readvisal of the Miranda Rights: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Miranda v. Arizona, supra, at p. 444; see also People v. Sims (1993) 5 Cal.4^th 405, 440.) Hin did not question here the validity of the initial advisal of his rights when he was arrested. His complaint was that before his third interrogation (by a different set of detectives investigating the Hammer Lane and American Legion Park shootings), he was asked only whether he remembered his rights from the prior interrogations. He argued that he should have been given a new complete set of advisals before this final interrogation. The court disagreed.  

[To rehash the sequence of events, Hin was provided with a full advisement of his Miranda rights at the time of his arrest (at approximately 12:30 a.m.) by the arresting officer. An hour later (1:30 a.m.), the arresting officer asked Hin whether he remembered his rights. He confirmed that he did. He was not questioned during either of these two contacts. Prior to being briefly questioned by detectives at about 4 a.m., Hin again confirmed he remembered his rights. Then, around 3:15 p.m. the following afternoon, Hin was given a second full advisement of his Miranda rights before being questioned again about the Bedlow Drive shooting. After that, around 7 p.m. that evening, Hin was questioned about two different crimes, the Hammer Lane and American Legion Park shootings, by a different set of detectives. On this occasion, he was again asked only whether he remembered his rights as read to him some four hours earlier that afternoon. Defendant responded with a simple, “Yeah.”] 

On appeal, Hin objected to the failure of this different set of detectives investigating two different crimes (the Hammer Lane and Bedlow Drive shootings) to give him a complete Miranda advisal prior to this final interrogation. The court here held that this was not error: “This court repeatedly has held that a Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and ‘the subsequent interrogation is “reasonably contemporaneous” (Italics added) with the prior knowing and intelligent waiver.’” (People v. Smith (2007) 40 Cal.4^th 483, 504.) Pursuant to Smith, five factors are to be considered on this issue while taking into account the “totality of the circumstances:” (1) The amount of time that has passed since the initial waiver, (2) any change in the identity of the interrogator(s) or location of the interrogation, (3) an official reminder of the prior advisement, (4) the suspect’s sophistication or past experience with law enforcement and (5) further indicia that a defendant subjectively understands and waives his rights.  

First, the court noted that prior cases have approved time lapses greater than just four hours. (27 hours, People v. Pearson (2012) 53 Cal.4^th 306, 317 and 12 hours, People v. Smith, supra, at pp. 504-505.) Although the interviewers in this case had changed, the location of the interview remained the same between the last full Miranda advisement and the interview at issue. The court also found significant the fact that Hin was asked if he remembered his rights from before, to which he indicated that he did. Lastly, it was noted that although Hin had no prior criminal justice experience, the court found there to be sufficient indications in the record that he understood and waived his rights throughout his time in custody. In sum, Hin never expressed any discomfort or unwillingness to talk while affirmatively responding each time he was asked if he understood his rights. Within a roughly 19-hour period, he was advised of his Miranda rights twice and reminded of them three times. Yet at each juncture, he made no attempt to exercise those rights. The court therefore held that under the totality of the circumstances, the interview at issue was reasonably contemporaneous with the prior advisement and that he continued to have his rights in mind. The court therefore concluded that no readvisement prior to the interrogation in issue was legally necessary.  

(2) Requests for Confidentiality: Hin challenged the voluntariness of his admissions made to detectives investigating the Hammer Lane and American Legion Park shootings. His challenge was based upon the fact that at one point during this interrogation, after acknowledging that he still had his Miranda rights in mind, he asked the detective questioning him: “This is between us ” To this, the detective replied, “Yeah.” Hin then asked, “Nobody is gonna know ” The detective replied, “Uh-huh.” Later during this continued questioning, defendant asked, “This is not going to go out to nobody, is it ” To this, the detective responded that it would go only to the detectives and the prosecutor.  

On appeal, Hin argued that this exchange showed that he had not knowingly and intelligently waived his Miranda rights, reflecting instead his misunderstanding as to the consequences of him answering questions, thinking that his responses were between him and the detectives only. The court rejected this argument, holding that Hin’s request for confidentiality under the circumstances here reflected no more than his concern about gang retaliation and was not a request for confidentiality. Per the court: “Given this context, we conclude that (the detective) did not promise (Hin) that his statements would remain confidential, nor did (Hin) understand (the detective’s) comment to mean that all that was said would remain confidential.”  

To the contrary, Hin was properly advised pursuant to Miranda that his statements could be used against him in a court of law. When he inquired about who was going to know the contents of his statements, he was repeatedly told they would be conveyed to the district attorney. Under these circumstances, Hin’s comments about confidentiality centered on his concern for his own personal safety should other members of TRG find out he was cooperating with the police and not whether those statements could later be used against him in court. The court therefore rejected his argument that his confession was involuntary because it was induced by a false promise of confidentiality.  

(3) Defendant’s Intoxication: Hin argued on appeal that his intoxication prevented him from understanding the consequences of waiving his Miranda rights. Indeed, the arresting officer noted that he appeared to be under the influence when first arrested. And then about an hour after his arrest, a breath test showed a blood-alcohol content of 0.08%. The trial court held, however, that there was no evidence that Hin “was so under the influence that he wouldn’t be able to understand and waive his Miranda [r]ights.” Also, the court noted that it “has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs” alone. (Citing People v. Clark (1993) 5 Cal.4^th 950, 988.) The court held, therefore; “(W)ithout more, (the evidence as presented) does not establish that he was too intoxicated to make a knowing and intelligent waiver.”  

(4) Threats of Punishment and/or the Death Penalty: During Hin’s final interrogation, one of the detectives told him that he needed to “come clean” about what happened or else he would go to court and “most likely” spend the rest of his life in prison. The detective added that if he did not come clean, he was “going to get fried.” Hin argued that such comments constituted “coercion,” a violation of the Fourteenth Amendment due process clause. The court disagreed, holding that these comments, at least in this context, did not overcome the defendant’s will: “We have found a constitutional violation in this context only where officers threaten a vulnerable or frightened suspect with the death penalty, promise leniency in exchange for the suspect’s cooperation and extract incriminating information as a direct result of such express or implied threats and promises.”  

In its ruling here, the court noted that Hin “exhibited no signs of distress in response to (the detective’s) reference to the death penalty. As the trial court noted, ‘the officers were very low key,’ and the statement was ‘non-threatening.’ Nothing about (Hin’s) demeanor throughout the interrogation indicated that he was afraid, and he did not appear threatened by the officer’s use of the phrase ‘get fried.’” Nor did the detective’s comments constitute an “offer of leniency.” “(T)he detective’s statement to (defendant) ‘[did] not constitute an offer of leniency on the part of the police or the prosecution in return for a confession; it (merely) advised defendant that an accomplice is generally better off than a triggerman. That was sound advice . . . [as] an accomplice is far less likely to receive the death penalty than the triggerman.” (Quoting People v. Garcia (1984) 36 Cal.3^rd 539, 546.)  

Conclusion: The court found no error in the trial court’s rulings relative to the Miranda issues and thus upheld the admission of his statements into evidence against him. 

Author's Notes: As noted above, there are a plethora of other issues in this case, as in all death penalty cases, that are not necessarily of interest to police offices. As such, they are not covered in this brief. Prosecutors, however, as with any death penalty case, should review this entire case on their own and learn from it. The prosecutorial issues discussed in this case, for instance, include (1) P.C. Code § 954 and a defendant’s motion to sever (pgs. 438-440), (2) statutory changes to P.C. §§ 188 & 189, altering the applicability of the so-called “felony murder rule” (pgs. 440-454), and (3) the applicability of the “double jeopardy” rule in a prospective new trial as relevant to the charges and special allegations (as well as some of the specific evidence used at trial) where those charges and allegations are overturned on appeal (pgs. 454-487). Other standard evidentiary issues of importance only to prosecutors are discussed (pgs. 487-493), as well as the usual issues raised and consistently rejected in death penalty cases (pgs. 494-509). 

Getting back to Miranda, even though the California Supreme Court rejected Hin’s various arguments, they do raise several red flags police officers need to consider, ensuring that you don’t cross the line and cause a reversal. Threatening the death penalty, for instance, is never a good idea. (See People v. Nicholas (1980) 112 Cal.App.3^rd 249, 267-268; People v. McClary (1977) 20 Cal.3^rd 218, 229.) So, it’s best not to even mention it. And any “offer of leniency,” such as suggesting that a suspect’s cooperation will get him a better deal at sentencing, is strictly forbidden. (E.g., see People v. Holloway (2004) 33 Cal.4^th 96, 115; People v. Westmoreland (2013) 213 Cal.App.4^th 602, 609; People v. Chun (2007) 155 Cal.App.4^th 170; Rodriguez v. McDonald (9^th Cir. 2017) 872 F.3^rd 908, 918-926.)  

A less sympathetic appellate court might well have interpreted differently the detectives’ flirting with these rules in this case. What the officers did do correctly in this case, however, was to ensure that the defendant remembered the rights enumerated in a Miranda admonishment before attempting to renew any questioning. One can sometimes get away with not doing this, but why flirt with disaster? And when in doubt, a complete new advisement is a good idea.