People v. Vargas CA2/7

Filed 6/16/23 P. v. Vargas CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B322174
Plaintiff and Respondent, (Los Angeles Super. Ct.
Case No. VA150032)
v.
KEVIN VARGAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Affirmed.
Spolin Law, Aaron Spolin and Jeremy Cutcher for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury convicted Kevin Vargas of second degree murder,
fleeing a pursuing police officer causing death, hit-and-run
driving resulting in death and aggravated assault on a peace
officer. On appeal Vargas argues the court erred in denying his
motion in limine to exclude statements made during a video-
recorded custodial interview, asserting they were obtained in
violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
He also contends, in the alternative, the court should have
admitted the entire video recording, including the portion
showing him crying alone after the interview concluded.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
An amended information filed May 6, 2022 charged Vargas
with murder (Pen. Code, § 187, subd. (a)) (count 1), fleeing a
pursuing police officer causing death (Veh. Code, § 2800.3,
subd. (b)) (count 2), hit-and-run driving resulting in death or
serious injury (Veh. Code, § 20001, subd. (b)(2) (count 3),
four counts of assault with a deadly weapon on a peace officer by
means likely to produce great bodily injury (Pen. Code, § 245,
subd. (c)) (counts 4, 5, 6 and 7) and two counts of misdemeanor
hit-and-run driving resulting in property damage (Veh. Code,
§ 20002, subd. (a)) (counts 8 and 9). A number of aggravating
factors were specially alleged, including that Vargas’s conduct
created a serious danger to society (Cal. Rules of Court,
rule 4.421(b)(1)); Vargas’s victims were particularly vulnerable
(Cal. Rules of Court, rule 4.421(a)(3)); and Vargas, who had
suffered a prior misdemeanor conviction in 2018 for evading a
police officer, had committed the charged offenses while on
probation (Cal. Rules of Court, rule 4.421(b)(4)) and had
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performed unsatisfactorily while on probation (Cal. Rules of
Court, rule 4.421(b)(5)). Vargas pleaded not guilty to all counts
and denied all special allegations.
2. The Evidence at Trial
According to the evidence at trial, while travelling in his
car at a speed of 35 miles per hour, Vargas made a left turn
against a red arrow, causing two other cars to stop suddenly to
avoid an accident. Whittier Police Officer Jesse Garcia, who saw
Vargas make the illegal turn, activated the lights and siren of his
marked police car and followed Vargas with the intention of
citing him for the traffic infraction.
As Officer Garcia started to follow Vargas, Vargas slammed
on his brakes to avoid hitting a pickup truck travelling in the
same direction. Vargas pulled next to the pickup truck and made
a hand gesture with his index finger and thumb extended—
roughly the shape of a gun—to the pickup driver. He made the
same gesture to Officer Garcia, who had driven alongside
Vargas’s car. Vargas then drove in front of the pickup truck and
stopped, preventing the pickup truck from moving. Vargas left
his own car and began cursing at the pickup driver, accusing the
driver of cutting him off and nearly killing him.
Officer Garcia got out of his patrol car and directed Vargas
multiple times to stop confronting the pickup driver and to sit on
the curb. Instead of obeying Officer Garcia’s commands, Vargas
moved toward his own car. Concerned Vargas might be
attempting to retrieve a weapon, Officer Garcia remained behind
the pickup truck with his firearm drawn and pointed toward the
ground and again directed Vargas to stop. Officer Garcia
testified he purposely placed the firearm behind the pickup truck
and outside of Vargas’s view.
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Vargas ignored Officer Garcia’s commands, returned to his
car and sped away. He ran several red lights and stop signs, at
times drove on the wrong side of the road and nearly caused
several accidents. Officer Garcia pursued Vargas. Other officers
became involved in the pursuit in marked police cars with their
lights and sirens activated. Vargas did not pull over. He
continued to drive erratically, on several occasions purposefully
driving directly at the officers’ vehicles, forcing them to abruptly
swerve to avoid a collision. Finally, as Vargas travelled at a high
rate of speed through a stop sign, his car collided in the
intersection with a sports utility vehicle driven by Isais
Rodriguez Cruz. Vargas’s car exploded in flames on impact.
Vargas managed to escape and fled on foot without stopping to
check on Cruz. Vargas surrendered only when had reached a
dead end, located a substantial distance from the crash site. He
yelled “I’m sorry,” when apprehended. Cruz died from his
injuries a short time later.
The People presented evidence that Vargas had been
convicted of misdemeanor evasion of police in 2018. In that
incident, for which Vargas was on probation at the time he
committed the charged offenses, a Huntington Beach police
officer attempted to pull Vargas over for speeding after activating
the lights and siren of her marked police car. Vargas failed to
pull over despite a pursuit that covered more than three miles
and ultimately involved 10 police cars. Vargas stopped only
when his path was blocked by police.
Vargas was interviewed by Whittier Police Officer Matthew
Handlen after his arrest in the case at bar. A video recording of
Vargas’s custodial interview was played for the jury after the
court denied Vargas’s motion in limine to exclude it as having
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been obtained in violation of Miranda. Vargas acknowledged
during the interview that he drove dangerously and in a manner
that could have killed, and did kill, someone. He explained he
had panicked after Officer Garcia appeared to target him rather
than the pickup driver who had cut him off. Surveillance footage
of parts of Vargas’s pursuit was also played for the jury.
Vargas testified in his defense that he had not realized he
had driven through a red arrow and had not seen Officer Garcia
until the confrontation with the pickup driver. When Vargas
finally noticed Officer Garcia, he thought the officer would help
him. Instead, Officer Garcia assumed a hostile stance and
unholstered his weapon, albeit pointed toward the ground.
(Vargas had not mentioned in his custodial interview that Officer
Garcia had drawn his weapon. His attorney argued at trial that
Vargas had indicated as much with his hands during the
interview.)
Vargas testified Officer Garcia had not ordered him to stop,
but to return to his car, which he did. Because Vargas had not
been detained, he drove away. Vargas knew he was not driving
safely, but he was scared. Vargas had been on probation for a
misdemeanor offense of evading police; he understood, more so
since that incident, that he was supposed to stop when the lights
and siren of a police car were activated; but he did not trust
Officer Garcia, who appeared hostile to him during the
confrontation with the pickup driver. Vargas believed the other
police officers in pursuit were all working in concert with Officer
Garcia and against him. He did not intend to hit any of the police
officers with his car when he drove toward their vehicles. He was
confused and panicked.
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3. Verdict and Sentence
The jury found Vargas guilty on all counts and found all
special allegations true. In a bifurcated proceeding after Vargas
waived his right to a jury trial on the specially alleged prior
misdemeanor conviction, Vargas admitted, and the court found,
the prior conviction allegation true.
The court sentenced Vargas to an aggregate indeterminate
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state prison term of 20 years to life.
DISCUSSION
1. The Court Did Not Err in Admitting Vargas’s Custodial
Statements
a. Vargas’s motion in limine
Before beginning Vargas’s custodial interrogation, Officer
Handlen advised Vargas of his Miranda rights; and Vargas said
2
he understood them. The following exchange then took place:
1
The court imposed the upper term of five years on count 4
(aggravated assault on a peace officer) plus 15 years to life for
second degree murder. The court imposed concurrent terms of
five years for each of the three remaining aggravated assault
charges and four years for the felony hit-and-run offense and
stayed imposition of sentence on count 2 (evading a police officer)
pursuant to Penal Code section 654.
2
Officer Handlen stated, “[Y]ou have the right to remain
silent, Do you understand?” “Anything you say may be used
against you in court. Do you understand?” “You have the right
to the presence of an attorney before and during any questioning.
Do you understand?” “If you cannot afford an attorney, one will
be appointed free of charge before any questioning if you want.
Do you understand all of that?” Each time Vargas was asked if
he understood, he said, “Yes.”
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“[Officer Handlen] Okay, do you want to talk to me about
what happened today or—excuse me, it has to be yesterday?
“[Vargas] We will talk about that, but also like, the
attorney presence for any trial you said that—
“[Officer Handlen] If you, if you desire one.
“[Vargas] Yes, I would like that. Um—
“[Officer Handlen] Do you want to talk to me?
“[Vargas] Yes, I do want to talk to you.
“[Officer Handlen] Okay.
“[Vargas]— to tell you what is going on.
“[Officer Handlen] Okay.
“[Vargas] I will tell you.
“[Officer Handlen] Okay, so uh, tell me what happened
yesterday.”
Vargas moved in limine to exclude his statements to Officer
Handlen because the questioning occurred after he had invoked
his right to counsel. The court denied the motion, finding,
although Vargas had unambiguously requested counsel for trial,
he had not done so for purposes of the interview with Officer
Handlen. When Officer Handlen followed up, expressly asking
Vargas whether he wanted to speak to him about the incident,
Vargas had said yes and answered questions. The court ruled
Vargas had impliedly waived his Miranda rights when he
answered Officer Handlen’s questions.
b. Governing law
“‘Under California law, issues relating to the suppression of
statements made during a custodial interrogation must be
reviewed under federal constitutional standards.’ [Citation.] To
protect suspects’ Fifth Amendment rights, in Miranda [citation],
the high court held that before questioning, individuals in
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custody must be advised of their right to remain silent, that
anything they say may be used as evidence against them, and
that they have the right to the presence of an attorney, whether
retained or appointed. [Citation.] But a suspect can waive these
rights and agree to speak with law enforcement. [Citation.] The
burden is on the prosecution to prove by a preponderance of the
evidence that the waiver was knowing, intelligent, and voluntary,
based on a totality of the circumstances.” (People v. Flores (2020)
9 Cal.5th 371, 416-417.)
“‘A valid waiver need not be of predetermined form, but
instead must reflect that the suspect in fact knowingly and
voluntarily waived the rights delineated in the Miranda decision.’
[Citation.] ‘A suspect’s expressed willingness to answer questions
after acknowledging an understanding of his or her Miranda
rights has itself been held sufficient to constitute an implied
waiver of such rights.’ [Citation.] The critical question with
respect to waiver is whether it was knowing and voluntary, which
is ‘directed at an evaluation of the defendant’s state of mind.’”
(People v. Flores, supra, 9 Cal.5th at p. 417; see Berghuis v.
Thompkins (2010) 560 U.S. 370, 384 [“[w]here the prosecution
shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced statement
establishes an implied waiver of the right to remain silent”];
People v. Cunningham (2015) 61 Cal.4th 609, 642 [“[i]n general, if
a custodial suspect, having heard and understood a full
explanation of his or her Miranda rights, then makes an
uncompelled and uncoerced decision to talk, he or she has
thereby knowingly, voluntarily, and intelligently waived them”].)
A suspect’s invocation of the right to counsel, whether at
the inception of the custodial interview after the Miranda
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advisement has been given or after the right has been waived,
must be sufficiently clear so that a reasonable law enforcement
officer would understand the suspect’s intent to invoke his rights
under Miranda. (See People v. Flores, supra, 9 Cal.5th at p. 417;
3
People v. McCurdy (2014) 59 Cal.4th 1063, 1087.) When the
defendant’s assertion relating to counsel is ambiguous or
equivocal, law enforcement may ask clarifying questions directed
to whether the accused wishes to exercise the right or waive it.
(See People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 206
[“[t]his court has recognized that ‘“when a suspect under
interrogation makes an ambiguous statement that could be
construed as an invocation of his or her Miranda rights, ‘the
interrogators may clarify the suspect’s comprehension of, and
desire to invoke or waive, the Miranda rights’”’”]; People v.
Williams (2010) 49 Cal.4th 405, 428 [same].)
Once an accused has “‘expressed his desire to deal with the
police only through counsel, [the accused] is not subject to
further interrogation by the authorities unless counsel has been
made available to him,’ unless he validly waives his earlier
request” for counsel. (Smith v. Illinois (1984) 469 U.S. 91, 94-95;
People v. Johnson (2022) 12 Cal.5th 544, 583.) This ban on
further interrogation is intended to prevent police from
“‘‘“badgering a defendant into waiving his previously asserted
Miranda rights.”’”” (Johnson, at p. 578.) A valid waiver is not
3
“The requirements for a valid waiver of rights differ from
the requirements for a valid invocation of rights.” (People v.
Flores, supra, 9 Cal.5th at p. 417; see Smith v. Illinois (1984)
469 U.S. 91, 98 [“[i]nvocation and waiver are entirely distinct
inquiries, and the two must not be blurred by merging them
together”].)
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established merely by showing only that the accused responded
to further interrogation. (Smith, at p. 99.)
When, as here, the trial court made no credibility or other
factual findings subject to substantial evidence review, our only
task is to decide independently whether the challenged
statements were obtained in violation of Miranda. (People v.
Johnson, supra, 12 Cal.5th at p. 578; People v. Suarez (2020)
10 Cal.5th 116, 158; People v. Hensley (2014) 59 Cal.4th 788,
4
809.)
c. Vargas did not invoke his right to counsel during
questioning; he waived his Miranda rights
Vargas contends he did not waive his right to counsel
during questioning, but expressly invoked it when he asked
about counsel and stated, “I want that.” Rather than honoring
an obvious request to have counsel present during the
interrogation, Vargas asserts, Officer Handlen continued to
question him, asking, “Do you want to talk to me?” According to
Vargas, that question, along with everything that followed it,
was unlawful, requiring suppression of Vargas’s custodial
statements.
The record below belies Vargas’s contention: His purported
request for counsel after being given the Miranda advisements
was far from clear. Vargas said he would talk to
Officer Handlen about the incident and asked about having
counsel “at trial.” He was told he could have one if desired; and
he replied, “I want that.” Officer Handlen then followed with a
4
The trial court did not hold an evidentiary hearing and
made no credibility determinations. It ruled, based on the
transcript of the custodial interview, that no Miranda violation
had occurred.
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clarifying question—“Do you want to talk to me?”—to determine
whether Vargas wanted to invoke his Miranda right to counsel
during questioning or whether he wanted to waive that right
and continue the interview without an attorney present. Vargas
responded “Yes,” without qualification. It was only at that point,
after Vargas had stated he understood his Miranda rights and
said in response to Officer Handlen’s clarifying question that he
wanted to talk, that Officer Handlen began the interrogation,
and Vargas proceeded to answer questions, impliedly waiving
his Miranda rights. (See People v. Sauceda-Contreras, supra,55 Cal.4th at p. 207; People v. Cruz (2008) 44 Cal.4th 636, 647;
see generally Berghuis v. Thompkins, supra, 560 U.S. at pp. 386-
387.)
Vargas’s reliance on People v. Henderson (2020) 9 Cal.5th
1013, 1022, to argue he invoked his right to counsel before he
answered any questions is misplaced. There, after initially
waiving his Miranda rights and responding to questions during
an interrogation, the defendant, in response to a question about
his whereabouts, said, “‘[I] want to speak to an attorney first,
because I, I take responsibility for me, but there’s other people
that . . . .’” (Id. at p. 1020.) The Supreme Court held the
defendant, having earlier waived his right to counsel, had
unambiguously invoked it as soon as he unequivocally stated he
did not want to answer until he spoke to an attorney. The Court
explained the defendant’s expressed reasons for wanting an
attorney did not make that request ambiguous. (Id. at p. 1024.)
Here, in contrast, the only unambiguous aspect of Vargas’s
request for counsel was directed to counsel at trial.
Implicitly acknowledging as much, Vargas asserts he was
prevented from fully articulating his request for counsel during
11
questioning because Officer Handlen interrupted him.
(Cf. People v. Henderson, supra, 9 Cal.5th at p. 1024 [if anything,
“defendant was precluded from fully articulating his request for
counsel because Officer Herrera repeatedly spoke over him”; after
defendant stated he wanted an attorney because he did not want
to take responsibility for others, Officer Herrera repeatedly asked
what the defendant did want to take responsibility for].) Had
Officer Handlen not interrupted him, Vargas asserts, he would
have been able to make his request for an attorney during
questioning plain.
However, in marked contrast to the interrogator in People
v. Henderson, supra, 9 Cal.5th 1013, Officer Handlen did not
repeatedly interrupt Vargas, let alone do so to ask substantive
questions. Moreover, after Officer Handlen confirmed Vargas
could have counsel at trial if he desired, Vargas responded with “I
want that.” Still uncertain whether Vargas intended to waive his
Miranda rights, Officer Handlen again inquired whether Vargas
wanted to talk to him at that time, and Vargas said yes.
Henderson, which involved very different circumstances, does not
assist Vargas.
Smith v. Illinois, supra, 469 U.S. 91 is also inapposite.
There, immediately after advising the defendant of his Miranda
right to counsel during questioning, the defendant responded,
“‘I’d like to do that.’” The United States Supreme Court found
that statement, which was “‘neither indecisive nor ambiguous,’”
required all questioning to cease until counsel was present. (Id.
at p. 96 [clear request for counsel could not be construed as
ambiguous based on subsequent statements the suspect had
made].) In arguing his case is “no different,” Vargas emphasizes
that he, too, had stated, in response to the Miranda admonition
12
about the right to counsel, “I want that.” But Vargas’s “I want
that” referred to Officer’s Handlen’s response to Vargas’s
question about obtaining counsel at trial, a distinction Vargas
does not mention, let alone address, in his appellate briefs.
In sum, Vargas’s statement, “I want that,” referring to the
colloquy about his right to the presence of counsel at trial, was at
the very least ambiguous and far from a clear invocation of his
right to counsel during questioning. Accordingly, after
Officer Handlen clarified whether Vargas wanted to talk to him
and Vargas, who had stated he understood his Miranda rights,
said yes, Vargas waived his Miranda rights. The court did not
err in denying Vargas’s motion in limine to exclude his custodial
statements.
2. The Court Did Not Commit Prejudicial Error in
Excluding Recorded Evidence That Vargas Cried After
His Interrogation Ended
Evidence Code section 356 provides, “Where part of an act,
declaration, conversation, or writing is given in evidence by one
party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given;
and when a detached act, declaration, conversation, or writing is
given into evidence, any other act, declaration, conversation or
writing which is necessary to make it understood may also be
given in evidence.” “In the event a statement admitted in
evidence constitutes part of a conversation or correspondence, the
opponent is entitled to have placed in evidence all that was said
or written by or to the declarant in the course of such
conversation or correspondence provided the other statements
have some bearing upon, or connection with, the admission or
declaration in evidence.” (People v. Harris (2005) 37 Cal.4th 310,
334-335, cleaned up.)
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Vargas contends, if the video recording of his custodial
statement was properly admitted into evidence, the court erred in
not permitting him, pursuant to Evidence Code section 356, to
present the last part of the recording, which showed Vargas
crying while alone in the interview room after the interrogation
had concluded and Officer Handlen had left the room. Excluding
this material was prejudicial error, Vargas contends, because it
would have enabled the jury to see Vargas’s upset and remorse
over what had occurred.
Officer Handlen testified at trial that Vargas had cried
while being questioned, and part of the recording admitted into
evidence showed him crying during the interview. Even if the
court erred in excluding the portion of the recording after the
interview had concluded, a doubtful proposition (see People v.
Melendez (2016) 2 Cal.5th 1, 27-28 [Evidence Code section 356
does not authorize admission of statement that fails to correct a
misleading impression]), any error was harmless. Because other
portions of the recording had captured substantively similar
demeanor evidence, it is not reasonably probable Vargas would
have received a more favorable verdict had that evidence been
admitted. (See People v. Arias (1996) 13 Cal.4th 92, 153 [error in
excluding evidence under Evidence Code section 356 evaluated
under standard of prejudice for state law error articulated in
People v. Watson (1956) 46 Cal.2d 818, 836].)
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DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
FEUER, J.

ESCALANTE, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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