
    [No. F068226.
    Fifth Dist.
    Oct. 27, 2015.]
    THE PEOPLE, Plaintiff and Respondent, v. BRYAN DAVID BRIDGEFORD, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II., III., IV., V. and VI. of the Discussion.
    
   Opinion

LEVY, Acting P. J.

INTRODUCTION

Following a jury trial, appellant Bryan David Bridgeford was convicted of murder in the first degree of both Leonel Medina (count 1) and Juan Eduardo Avalos (count 2). (Pen. Code, § 187, subd. (a).) As to both counts, the jury found true that appellant committed the crimes while an active participant in a criminal street gang (§ 186.22, subd. (b)(5)); intentionally and personally discharged a firearm (§ 12022.53, subd. (d)); the murders furthered criminal street gang activities (§ 190.2, subd. (a)(22)); and he committed multiple murders (§ 190.2, subd. (a)(3)). He was also convicted of active participation in a criminal street gang (§ 186.22, subd. (a); count 3).

Regarding counts 1 and 2, appellant was sentenced to consecutive terms of life without possibility of parole. Consecutive terms of 25 years to life were added pursuant to the firearm enhancements. The sentence on count 3 and the remaining special allegations were stayed pursuant to section 654.

Before trial, the trial court denied appellant’s motion to suppress statements he made to law enforcement during two separate interviews. The first interview ended when appellant invoked his right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). He was released from custody but law enforcement arrested him later that same day, gave him new Miranda warnings, and appellant agreed to talk. During the second interview, appellant eventually confessed that he shot both Medina and Avalos.

Appellant raises six issues on appeal, and we find merit to his first claim. In the published portion of the opinion, we address his argument that the trial court prejudicially erred when it failed to apply Maryland v. Shatter (2010) 559 U.S. 98 [175 L.Ed.2d 1045, 130 S.Ct. 1213] (Shatter) in deciding his suppression motion. Under Shatter, law enforcement must wait 14 days before it may resume questioning (absent initiation by the suspect or with the presence of counsel) after a suspect has invoked his or her right to counsel and is released from custody. (Shatter, at pp. 105, 110.) The trial court erred in not applying Shatter because the requisite 14-day break in custody did not occur in appellant’s case. As discussed in part I. of the Discussion, this error was prejudicial, requiring reversal of appellant’s convictions and a remand for new trial.

In the unpublished portion of the opinion, we address appellant’s remaining five contentions on appeal and the scope of retrial to assist the parties on remand. Appellant asserts the totality of the circumstances demonstrates his statements were coerced after his arrest and during the second interview because he discussed witness protection with the detectives. We find no such coercion.

Appellant claims his recorded conversation with an accomplice, which occurred during the second interview, should have been suppressed under the “fruit of the poisonous tree” rule as a result of the police coercion. Although suppression is required under Shatter, we disagree that suppression is warranted under the alternative argument appellant presents on appeal because no such coercion occurred.

The parties agree, as do we, that the trial court erred regarding certain jury instructions: the court gave an incorrect instruction with CALCRIM No. 301, and it failed to instruct regarding the charged firearm enhancements. The parties, however, disagree whether these instructional errors were prejudicial. In light of the remand, we will not address the disputed prejudicial impact of these errors or appellant’s last argument that his right to due process of law was violated from cumulative errors.

We reverse the judgment and remand for a new trial consistent with this opinion.

FACTUAL BACKGROUND

I. The Prosecution’s Case.

A. The uncharged home invasion robbery.

In the early morning hours on January 4, 2010, a home invasion robbery took place at the residence of Jacob McEver on Golden Gate Avenue in Dos Palos, California. McEver was awake. Three individuals entered his home wearing dark pants and shirts. One of them wore a hoodie and the other two may have been wearing beanies. All three wore masks, which appeared to be shirtsleeves covering their lower faces and noses. One of the individuals carried a rifle with a “see-through clip” that was “very distinguishable.” That individual told McEver to get on the ground because he was being robbed.

During the robbery, one suspect called another one “Bryan.” McEver knew appellant because they grew up together and lived approximately half a block apart. They had played basketball together on several occasions. After the name “Bryan” was used, McEver recognized appellant from his “tall and lanky” body type, his voice and “very distinguishable facial features.” At trial, McEver identified appellant as the person who was holding the rifle during the invasion of his home.

B. The homicides and subsequent investigation.

The day after the McEver home invasion robbery, Medina and Avalos, both Sureño gang members, were shot to death in Medina’s garage located on Highway 33 in Dos Palos. Both victims suffered multiple gunshot wounds. Stippling to one of Avalos’s wounds near his right ear (caused by a rifle or handgun) indicated the shooter was approximately two to four feet away. No other wounds on either victim exhibited stippling or gunpowder soot. Inside the garage, law enforcement discovered and collected approximately six spent 12-gauge shotgun shells and approximately 10 spent .22-caliber cartridges. Both victims were struck from both weapons, and shots from the .22-caliber rifle were potentially fatal for both victims. The forensic pathologist who performed the autopsies listed the cause of death for both victims as “multiple gunshot wounds.”

The shotgun shells were all from the same brand and make, which a local Walmart sold. Law enforcement reviewed that Walmart’s video surveillance. The day before these shootings, appellant, along with Jose German, Anthony Gonzalez, and Henry Delatorre, were recorded entering the Walmart. Everyone except for German was wearing a black beanie. At some point, all four individuals went to the sporting goods department and they looked at ammunition. Appellant and Gonzalez stayed at a counter while the other two went down an aisle where these particular shotgun shells were displayed on a rack. Appellant and Gonzalez appeared to reach for something behind the counter while no employees were present, but the viewing officer could not determine why or for what they reached. The video later shows all four individuals exiting the store with a Walmart. bag, and something appears inside the bag. No ammunition matching the evidence at the crime scene was purchased from Walmart that day.

On January 6, 2010, Dos Palos Police Chief Barry Mann went to appellant’s home as part of the investigation into the robbery at McEver’s home. Mann asked appellant if he knew why Mann was there. Appellant said yes, “because of the stuff that happened on the highway.” Mann was surprised and explained he was there regarding stolen property. He asked if he could search appellant’s residence because appellant’s name had come up. Appellant refused and Mann pleaded with him, reminding appellant he had entered his residence numerous times before to provide medical aid for his grandmother. Mann said he would return with a search warrant. Appellant would not allow Mann to enter so he left.

On or about January 6, 2010, law enforcement recovered a white GMC Yukon which had been stolen on December 30, 2009. DNA testing indicated a bloodstain found inside the Yukon matched Avalos’s DNA profile.

On January 12, 2010, law enforcement searched German’s home, discovering and collecting a .22-caliber semiautomatic rifle in his bedroom. The rifle had been hidden in his bed between a mattress and a box spring. The rifle had an aftermarket detachable magazine. Subsequent testing indicated this rifle fired the .22-caliber cartridges found at the scene of the homicides. At trial, McEver identified the rifle seized from German’s bedroom as the rifle he saw appellant holding during the invasion of his home.

C. Appellant’s confession.

On January 12, 2010, law enforcement interviewed appellant commencing at approximately 8:45 a.m. The interview was recorded and played for the jury. During the first interview, appellant said he wanted a lawyer and the interview immediately ceased. Appellant was released.

Later that same day following additional investigation, law enforcement established probable cause and arrested appellant approximately three hours after the first interview. They then interviewed him a second time and the second interview was also recorded and played for the jury. During the second interview, appellant initially denied being a shooter or knowing the identity of the shooters. Law enforcement placed appellant and German in the same room together to talk. German told appellant that law enforcement had the murder weapon, and knew appellant and Delatorre were the shooters. When the detectives reentered the interview room, German remained and appellant confessed three minutes later that he shot both victims with the .22-caliber rifle. He said Delatorre used the shotgun. Appellant denied being involved in the home invasion robbery at McEver’s residence.

D. Gang evidence.

The prosecution’s gang expert testified regarding the history of the Norteño and Sureño gangs. She opined that Avalos and Medina were active Sureño criminal street gang members on the day they were killed. She opined that appellant, German, Delatorre and Gonzalez were all active Norteño gang members as of the date of these shootings. She opined that the facts of the case indicate the crime was gang related, committed for the benefit of a criminal street gang, and it was intended to further criminal activity by gang members.

E. German’s trial testimony.

German testified at trial under a use-immunity agreement which he signed on the morning of his testimony. He was originally charged with murder but at the time of his trial testimony he was facing charges as an accessory after the fact. On January 4, 2010, he went to Walmart to service his vehicle, and he was accompanied by appellant, Delatorre and Gonzalez. As of that date, all four of them were members of the North Side Barrio Locos, a Norteño gang. They walked around Walmart and looked at bullets. They ate at the McDonald’s and then left. German dropped the others off and he went home. German denied being present at the scene of the homicides.

The next morning, German received a phone call from Delatorre, and he picked up Delatorre and appellant at the residence of Delatorre’s girlfriend. Appellant had the rifle and was wearing black clothes. On their drive back to Dos Palos, appellant told German that he and Delatorre had shot the two guys who lived “at that house.” Appellant told German that he “emptied the clip.”

A “couple of days” before these murders, German had been driving past Medina’s house on Highway 33 when someone threw a brick or a rock at his vehicle from that residence. German lived several miles from Medina’s residence, and he knew the two individuals there were gang members. At trial, German initially stated he was not angry that someone from Medina’s house threw a rock at his vehicle, but he then admitted he was “a little upset.” German told police it was a “Marcos” who threw the brick, whom appellant considered to be his enemy. Appellant told officers the brick was thrown at his vehicle on the same day he went to Walmart. He told police that the brick hit his vehicle, but he told the jury that the brick missed. He explained to the jury that he lied to police because he did not want to tell them the truth. On the way to pick up Delatorre, German drove past Medina’s residence and he saw law enforcement there. German told the jury he did not know why police were there and did not know anything about the murders.

German testified that appellant gave him the rifle because appellant was nervous after Mann visited appellant’s residence. According to German, appellant did not specifically tell him if the rifle had been involved in a shooting. German said he received the rifle a “couple of days” after the group went to Walmart. He hid the rifle in his bed and it had been there “[m]aybe a day” before the police searched his home on January 12, 2010. German, however, initially told police he had had the rifle in his car for a couple of days and appellant could not have handled it.

After the police searched his home on January 12, 2010, German went to the police station where he was given his Miranda rights and agreed to talk. At trial, German admitted he lied to the police because he did not want to be a snitch. At that time, he considered appellant and Delatorre as his friends. German initially told police he found the rifle on a canal bank, and then he said he bought it “from some black guy” for $75. He said the “black fool” was at that shooting and German paid him $75 to go kill somebody. In a later story, German said two members of a different gang gave him the rifle and those two individuals committed the murders. At trial, German agreed he had trouble remembering everything he said to police because much of what he said was a lie.

F. Appellant’s recorded jail calls.

While in jail, appellant made two telephone calls which were recorded and played for the jury. In the first call, appellant told a family member he was getting charged for murder. The family member indicated law enforcement had no evidence against him. Appellant replied that they found the rifle at German’s house. Appellant later repeated that law enforcement found the gun.

In the second recorded phone call, the same family member asked what appellant said to police. Appellant said that German “snitched” and appellant told police he “did it” and told police “it was me” because German made him. When asked why he would do that, appellant said he did not know why and it was “stupid.” Appellant said he felt pressured once German was put into the room with him and he felt like “they” were going to kill him if he did not.

II. Defense Evidence.

Appellant called two witnesses in his defense. His uncle testified he had known appellant since he was a child. Appellant was not a violent person and was “mild mannered and good hearted.” Appellant’s uncle believed appellant told the truth.

A clinical psychologist, Dr. Bobby Tehrani, opined appellant had below-average to borderline intellectual functioning, a low IQ, a learning disability, a bad memory, poor verbal skills, difficulty paying attention, and poor problem-solving skills. Appellant was in special education classes since fourth grade and did not graduate from high school. Appellant appeared confused by questioning and verbal instructions.

DISCUSSION

I. The Trial Court Prejudicially Erred When It Failed to Apply Shatzer.

A. Background.

Prior to trial, the court conducted a suppression hearing regarding the admissibility of appellant’s statements to law enforcement. The prosecution elicited testimony from five witnesses, all of whom worked for the Merced County Sheriff’s Department: (1) Charles Hale, a sergeant; (2) Jason Jacklitsch, a deputy; (3) Corey Gibson, a sergeant; (4) Alex Barba, a deputy; and (5) Jason Goins, a deputy. The defense called a single witness, Thomas Gary Menzel, who is related to appellant.

1. Relevant evidence from the suppression hearing.

Hale interviewed appellant twice on January 12, 2010. The first interview occurred at approximately 8:45 a.m. at the Los Banos station of the Merced County Sheriff’s Office. A search warrant had been executed at appellant’s residence earlier that morning and appellant had been transported to the station.

We have reviewed the recording of the first interview. Appellant is seen wearing handcuffs as the interview begins. At no time during this 16-minute interview are the handcuffs removed. On cross-examination, Hale was asked if appellant was handcuffed during the first interview. The following exchange occurred:

“[Hale]: He might have been when he was brought in, but I think they were taken off during the interview. I think the video shows that.
“[Prosecutor]: The first interview we saw handcuffs at the very beginning.
“[Hale]: Right. That’s—
“[Defense counsel]: I would just say that I believe it’s been agreed between the defense and the prosecution that [appellant] was, in fact, handcuffed at that first meeting as is apparent from the video.
“[Hale]: Yes.
“[Defense counsel]: Does that refresh your recollection?
“[Hale]: That’s what I said.”

Hale told appellant he was detained but not under arrest. Hale had a search warrant for appellant’s DNA, which he would discuss later. Appellant was read his Miranda rights, which he waived. During the interview, appellant asked for a lawyer and the interview was terminated. Hale believed appellant was then transported back to Dos Palos.

However, Menzel, who is related to appellant by marriage, testified that he picked up appellant at the police substation at approximately 10:30 a.m. after the first interview ended. Menzel drove appellant home and then to a recycling center in Dos Palos. Menzel described appellant as calm when he picked him up. At approximately 1:30 p.m. that same day, deputies arrived at the recycling center and appellant left with the deputies.

At the end of appellant’s first interview, law enforcement did not have sufficient probable cause for his arrest. After appellant was released, however, law enforcement obtained probable cause based on interviews with other people, including German. Jacklitsch was dispatched to locate appellant and bring him back to the substation. At that point, it was law enforcement’s intent to arrest appellant for murder. Jacklitsch went to appellant’s residence and was told he was at a recycling center. Jacklitsch located appellant at approximately 1:00 p.m. at a local recycling center and detained him with handcuffs. Appellant was driven to the Los Banos substation, which took about 20 minutes.

Later that same day, appellant was interviewed again. Three detectives, Hale, Gibson and Barba, were involved. The second interview was recorded. The following exchange occurred at the very outset of the second recorded interview.

“Gibson: . . . Okay, I know that you wanted to talk to an attorney before, um at that time you were down here on your own free will basically just here for the D.N.A. sample. . . .

“[Appellant]: (Unintelligible) I talked to my grandma and she said, ‘Bryan, why’d you do that, you make yourself look like you’ve done something . . .’ And I was like, ‘I’m sorry grandma I know I shouldn’t but’ so I listen to my grandma basically, sir. I ain’t the very smartest person, I do have a very bad memory.

“Hale: Okay.

“[Appellant]: And what not. And I was listening to her. I listen to my grandma that’s it. That’s all I got you know.

“Hale: Okay.

“[Appellant]: So.

“Hale: Well we’re in here again um, things have changed now obviously.

“[Appellant]: Okay.

“Hale: Um, I will tell you, you’re under arrest.

“[Appellant]: Am I?

“Hale: Yeah and I want to give you another opportunity um if you want to provide a statement.

“[Appellant]: What am I under arrest . . .

“Hale: Okay.

“[Appellant]: For though [sic] sir?

“Hale: You’re under arrest for murder.

“[Appellant]: For murder?

“Hale: Yeah, for murder. Actually two murders.

“[Appellant]: I’m under arrest for two murders?

“Hale: Yeah.

“[Appellant]: Why?

“Hale: Okay, you need to back up. Okay, you told me earlier that you wanted a lawyer.

“[Appellant]: Yeah.

“Hale: Okay.

“[Appellant]: Because I was scared about what was going on.

“Hale: Okay, but that’s your right.

“[Appellant]: I didn’t know what was going on dude.

“Hale: That’s your right and so I can’t ask you any more questions about that. That means our communication, once you tell me you want a lawyer, our communication has to stop. Okay since that time, okay things have changed.

“[Appellant]: Okay.

“Hale: I’m being straight up and honest with you. Okay, I’m not beating around the bush. I just told you, you’re under arrest.

“[Appellant]: Okay.

“Hale: Okay and I am going to give you another opportunity to talk. Do you want to provide a statement?

“[Appellant]: I’ll provide everything I know.”

Thereafter, appellant was read his Miranda rights, which he waived, and he agreed to talk. Appellant eventually admitted he shot both victims with the .22-caliber rifle and Delatorre used the shotgun.

2. The trial court’s ruling.

Following argument by counsel, the trial court made several factual findings. It took judicial notice that appellant’s interviews occurred on a Tuesday, which was a working day. It took judicial notice that the interviews occurred at the sheriff’s substation, which is in a center containing the courthouse, the district attorney’s offices, and the offices of the public defender. The court determined appellant was out of custody between the first and second interviews for a period no less than two hours and no more than three and a half hours.

The court noted that this was not a lengthy break and it found People v. Storm (2002) 28 Cal.4th 1007 [124 Cal.Rptr.2d 110, 52 P.3d 52] (Storm) to be instructive. The court stated the issue was whether appellant had had a reasonable opportunity to consult with counsel, and the court determined appellant made no effort to consult with counsel between interviews. The court did not find law enforcement used the break in custody to coerce appellant or to break him down. The court found the break’s duration to be “minimally sufficient” for someone to contact counsel if they had wanted, but appellant chose not to do so and went about his daily life. The court denied appellant’s motion to suppress, in part, because it determined a sufficient break in custody occurred.

The prosecutor briefly mentioned Shatter during oral arguments, and Shatter was cited in the prosecution’s written opposition. However, during oral arguments, neither the trial court nor counsel discussed the scope of Shatzer or whether Shatter demanded the granting of appellant’s motion to suppress.

B. Standard of review.

“An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 730 [94 Cal.Rptr.2d 396, 996 P.2d 46].) An appellate court “examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual.” (Ibid.)

The finding of whether a suspect initiated further communication with law enforcement is reviewed for substantial evidence. (People v. Waidla, supra, 22 Cal.4th at p. 731.)

C. Analysis.

Appellant asserts the trial court committed error when it relied upon Storm, supra, 28 Cal.4th 1007, and failed to apply Shatter, supra, 559 U.S. 98. He argues the error was prejudicial, requiring reversal of his convictions and a remand for retrial.

1. The relevant case law.

Pursuant to Miranda, supra, 384 U.S. 436, a suspect who is subjected to custodial interrogation must be informed of his rights to remain silent and the presence of an attorney. If a suspect invokes his right to counsel, all further interrogation must cease until an attorney is present. (Id. at pp. 473-474.) Invoking the right to counsel under Miranda must be unambiguous and unequivocal. (Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 114 S.Ct. 2350].)

In Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378, 101 S.Ct. 1880] (Edwards), the high court held that once counsel is requested the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Id. at pp. 484-485.) Under Edwards, “[i]f further conversations are initiated by the police when there has not been a break in custody, the defendant’s statements are presumed involuntary and inadmissible as substantive evidence at trial. This is true even when the defendant again waives his Miranda rights and his statements are voluntary under traditional standards.” (People v. Thomas (2012) 54 Cal.4th 908, 926 [144 Cal.Rptr.3d 366, 281 P.3d 361].)

The Edwards rule “is not offense specific.” (McNeil v. Wisconsin (1991) 501 U.S. 171, 177 [115 L.Ed.2d 158, 111 S.Ct. 2204], italics omitted.) “Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” (Ibid., italics omitted.) The purpose of the rule in Edwards is to preserve “ ‘the integrity of an accused’s choice to communicate with police only through counsel,’ [citation], by ‘preventing] police from badgering a defendant into waiving his previously asserted Miranda rights,’ [citation].” (Shatzer, supra, 559 U.S. at p. 106.) It “is not a constitutional mandate, but judicially prescribed prophylaxis.” (Id. at p. 105.) Application of the Edwards rule “is ‘justified only by reference to its prophylactic purpose’ ” and its presumption is not to be uncritically extended. (Id. at p. 106.) As the high court observed in Shatzer, “[t]he Edwards presumption of involuntariness is justified only in circumstances where the coercive pressures have increased so much that suspects’ waivers of Miranda rights are likely to be involuntary most of the time.” (Id. at pp. 115-116.)

In Storm, supra, 28 Cal.4th 1007, our Supreme Court analyzed whether a break in custody vitiated the Edwards no-recontact rule. In Storm, the defendant volunteered to undergo a polygraph test at the police station as part of an investigation into his wife’s murder. The defendant was given Miranda warnings, which were waived, but during the course of the test he invoked his right to counsel. (Storm, supra, 28 Cal.4th at p. 1012.) Rather than cease questioning, the polygraph operator encouraged the defendant to keep talking, and he admitted he killed his wife but claimed it was assisted suicide. {Ibid.) The defendant was allowed to leave the station but detectives came to his home two days later. After assuring him no arrest would occur, the detectives interviewed the defendant again without new Miranda warnings. The defendant gave a more detailed version of his wife’s death. The Storm court determined that the recognized “break-in-custody exception to the Edwards no-recontact rule” governed. (Ibid.) Following the break in custody, the defendant “had ample time, opportunity, and incentive to consult counsel outside the coercive atmosphere of custody.” (Id. at p. 1013.) Storm upheld the admission of the later home interview into evidence, concluding the interview occurred in a noncustodial setting so that new Miranda warnings were not required. (Ibid.)

Storm explained that, under the rule set forth in Edwards, supra, 451 U.S. 477, a suspect’s statements to police are presumed involuntary and inadmissible once the right to counsel is invoked and the suspect’s statements are then obtained in an encounter initiated by police without counsel present. (Storm, supra, 28 Cal.4th at p. 1023.) However, Storm held that Edwards is not violated when the police recontact a suspect after a break in custody so long as the suspect has a reasonable time and opportunity to consult counsel if desired. (Id. at pp. 1024-1025.) Storm determined that the two-day custodial break, occurring midweek, was “sufficient to dissipate custodial pressures and permit defendant to consult counsel.” (Id. at p. 1025, fn. omitted.)

In Shatzer, supra, 559 U.S. 98, the United States Supreme Court considered whether a break in custody ends the presumption of involuntariness set forth in Edwards. In Shatzer, the defendant was incarcerated in prison pursuant to a prior conviction when he was questioned by a police detective about allegations he had sexually abused his son. The defendant invoked his right to have counsel present and the detective terminated the interview. The defendant was released back into the general prison population. More than two years later another officer again initiated questioning about the sexual abuse. The defendant waived renewed Miranda warnings and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Edwards did not apply because the defendant had experienced a break in Miranda custody prior to the second interrogation. The Maryland Court of Appeals reversed.

The Shatzer court noted that lower courts, including the California Supreme Court in Storm, supra, 28 Cal.4th at pages 1023-1024, had uniformly held that a break in custody ends the Edwards presumption of involuntariness. (Shatzer, supra, 559 U.S. at p. 105.) Shatzer endorsed this uniform approach, stating “[t]he only logical endpoint of Edwards disability is termination of Miranda custody and any of its lingering effects.” (Id. at p. 108.) The Supreme Court noted law enforcement needed to know with certainty when a renewed interrogation is lawful after a suspect invokes his right to counsel. Shatzer held that a period of 14 days must pass, which “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” (Id. at p. 110.) Shatzer commented that the 14-day limitation avoided “gamesmanship” by law enforcement whereby a suspect could invoke his right to counsel, be released from custody briefly to end the Edwards presumption, and then be promptly brought back into custody for reinterrogation. (Id. at pp. 110-111.) Under its facts, Shatzer determined the defendant’s return to the general prison population was a break in custody of sufficient duration to end the Edwards presumption so that suppression of his statements was not warranted. (Id. at p. 117.)

Here, appellant was handcuffed during his first interview with law enforcement. The trial court impliedly determined that appellant was in custody during his first interview, noting repeatedly that a break in custody occurred between the two interviews. Appellant’s break in custody was far less than the 14 days required under Shatzer, supra, 559 U.S. at page 110. Consequently, appellant’s second interview was conducted in violation of the Edwards rule, as interpreted by Shatzer, when the second interview occurred only hours after appellant invoked his right to counsel and was released from custody. (Id. at pp. 110-111.) Accordingly, all statements appellant made during the second interview were taken in violation of Miranda and Edwards, and should have been suppressed.

Our reading and interpretation of Shatzer is consistent with sister tribunals. (See U.S. v. Linder (D.S.D. 2010) 759 F.Supp.2d 1133, 1143 [statements suppressed pursuant to Shatzer from second interrogation occurring three days after suspect invoked right to counsel and was released from custody]; Commonwealth v. Thomas (2014) 469 Mass. 531, 548 [21 N.E.3d 901, 917] [defendant’s statements during second police interview suppressed despite occurring before Shatzer’s publication after defendant invoked right to counsel and was released from custody for a few hours]; State v. Wessells (2012) 209 N.J. 395, 409-413 [37 A.3d 1122, 1130-1132] [Shatzer given retroactive effect and found to be a bright-line rule resulting in inadmissibility of the defendant’s statements after he invoked right to counsel and was reinterrogated following a nine-day break in custody]; Coleman-Fuller v. State (2010) 192 Md.App. 577, 604 [955 A.2d 985, 1001] [seven-day break in custody not sufficient under Shatzer resulting in reversal of conviction following admission of the defendant’s statements during second interrogation].)

To fall outside the 14-day rule in Shatzer, respondent suggests appellant re-initiated communication with law enforcement. At the beginning of the second interview, appellant stated his grandmother told him he should not have invoked his right to an attorney, and he obeys his grandmother. Hale explained at the suppression hearing that he understood appellant’s statement about his grandmother as an indication appellant wanted to speak further with the police. We disagree with this argument.

A suspect initiates dialogue with law enforcement when he or she speaks words or engages in conduct that can be “fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 [77 L.Ed.2d 405, 103 S.Ct. 2830] (plur. opn.).) If a suspect does initiate dialogue, the police may commence an interrogation if the suspect validly waives his rights. (Id. at p. 1046 (plur. opn.).)

Here, at the end of his first interview, appellant asked for an attorney and questioning ceased. Several hours later, a sheriff’s deputy located appellant away from his home and informed him that Hale wished to speak with him further about the homicide investigation. Appellant was handcuffed, searched for weapons and transported back to the police station. This record does not establish that appellant initiated the second dialogue with police.

Appellant cites Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 107 S.Ct. 708] (Griffith) and contends the holding of Shatzer applies to his case even though the Supreme Court filed its opinion on February 24, 2010, approximately a month and a half after his January 12, 2010, interrogation. Respondent’s opposition brief does not address the retroactive effect of Shatzer.

In Griffith, supra, 479 U.S. 314, the high court announced the rule of retroactivity. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” (Id. at p. 328.)

Here, we agree with appellant that Shatzer applied to his case. At the time of his suppression hearing, Shatzer set forth a new rule for the conduct of criminal prosecutions. (Griffith, supra, 479 U.S. at p. 328.) Accordingly, the trial court was bound to apply Shatzer in resolving appellant’s suppression motion. Because the trial court failed to apply Shatzer, we must address the prejudicial effect of this error.

2. The erroneous admission of the confession was prejudicial.

Whenever a confession is erroneously admitted in a California trial, the prejudicial effect of the confession must be determined under the federal standard when the confession was obtained in violation of the federal Constitution. (People v. Cahill (1993) 5 Cal.4th 478, 509-510 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) Under federal law, the test of prejudice for the erroneous admission of a confession is the standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). (People v. Cunningham (2001) 25 Cal.4th 926, 994 [108 Cal.Rptr.2d 291, 25 P.3d 519]; People v. Johnson (1993) 6 Cal.4th 1, 32-33 [23 Cal.Rptr.2d 593, 859 P.2d 673].) The Chapman standard of review requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, at p. 24.) Reversal is required if there is a “ ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” (Chapman, at p. 23; Yates v. Evatt (1991) 500 U.S. 391, 402-403 [114 L.Ed.2d 432, 111 S.Ct. 1884] (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385, 112 S.Ct. 475].)

“To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous.” (Yates, supra, 500 U.S. at p. 403.) “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] ... did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error].” (Id. at pp. 403-404.) “[T]he appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 113 S.Ct. 2078], italics original.)” (People v. Quartermain (1997) 16 Cal.4th 600, 621 [66 Cal.Rptr.2d 609, 941 P.2d 788] [erroneous admission of defendant’s statement was prejudicial]; accord, People v. Neal (2003) 31 Cal.4th 63, 86 [1 Cal.Rptr.3d 650, 72 P.3d 280] [erroneous admission of defendant’s confessions was prejudicial].)

“A confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.’ [Citations.] While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision.” (Arizona v. Fulminante (1991) 499 U.S. 279, 296 [113 L.Ed.2d 302, 111 S.Ct. 1246].)

Here, the record suggests the jury considered appellant’s confession to be critical. The prosecutor opened his closing arguments with appellant’s confession and argued appellant’s own words established murder. The prosecutor referenced appellant’s confession on approximately three additional occasions during his final arguments.

During deliberations, the jury sent two notes to the judge. The first note arrived approximately 78 minutes after deliberations started. The jury asked for the manuscripts of appellant’s interviews and a computer to watch the videos. The court told the jury it would be allowed to watch the video in conjunction with the transcripts in the courtroom. The second note arrived approximately 33 minutes later, asking , to watch the second interview with appellant and to read the transcript in the courtroom. The jury made no further requests after sending the second note, and it reached a verdict later that afternoon approximately two and half hours after sending the second note.

Based on this record, we cannot state that the guilty verdicts actually rendered in this trial were surely unattributable to the admission of appellant’s confession. (People v. Quartermain, supra, 16 Cal.4th at p. 621; accord, People v. Neal, supra, 31 Cal.4th at p. 86.) Respondent, however, contends the remaining evidence against appellant was “overwhelming” so that the trial court’s admission of appellant’s confession was harmless beyond a reasonable doubt. Respondent points to the following four areas of evidence. We find these contentions unpersuasive.

a. German’s testimony.

Although German implicated appellant as one of the shooters, telling the jury that appellant admitted shooting the victims, the murder weapon was located in German’s bedroom, and he testified under a use-immunity agreement signed on the morning of his testimony. German was originally booked on a charge of murder, but at the time of his trial testimony he was facing prosecution as an accessory after the fact. German gave numerous differing stories to police regarding how the rifle came into his possession. On cross-examination, German admitted he lied about everything he told the police because he did not want to tell them the truth “at all.” He testified he did not want the officers to think he did the shooting.

Under CALCRIM No. 334, the jurors were instructed that, if they decided German was an accomplice, then they could not convict appellant of murder based on German’s statement or testimony alone. The jury was instructed it could use German’s statement or testimony to convict appellant only if it was supported by other evidence the jury believed was independent of German’s statement or testimony and which tended to connect appellant to the commission of the crimes.

In closing arguments, the prosecutor stated it was “undisputed” that both German and appellant lied to the police. The prosecutor reminded the jury they were instructed about corroboration of an accomplice, and he asked the jury to treat German as if he were an accomplice. He argued that if German’s testimony was taken “completely out of the case,” appellant was still connected to the commission of the crime from his own confession. Because of that, the prosecutor argued the jury could consider German’s testimony and use it to convict appellant.

This record demonstrates obvious credibility issues associated with German’s testimony. In the absence of appellant’s confession, it is not clear how much weight, if any, the jury would have given German. German’s testimony is insufficient for us to say beyond a reasonable doubt that the admission of appellant’s confession was harmless error.

b. Appellant’s jail calls.

While in jail, appellant spoke with a family member during two recorded phone calls. When told the police had no evidence against him, appellant said they did because they found the gun at German’s house. When asked what he told police, appellant said German “snitched” and he (appellant) told police “it was me” and he “did it.”

Respondent argues the jury would have still heard appellant’s incriminating jail calls even if the confession was suppressed. Although these statements are incriminating, they fall short of a confession. Moreover, appellant said he felt pressured to make these statements to law enforcement because German was in the room with him and “they” were going to kill him if he did not. These recordings are not enough for us to say beyond a reasonable doubt that the admission of appellant’s confession was harmless error.

c. The .22-caliber rifle.

Respondent contends there was “a multitude” of evidence linking appellant to the .22-caliber rifle which was involved in these homicides and which was located in German’s bedroom. At trial, McEver identified appellant as a person who broke into his residence the day before these homicides, and he identified the same rifle as the weapon which appellant used. German testified appellant gave him the rifle after appellant became nervous following Mann’s visit.

Although there was evidence linking appellant to this rifle, no forensic evidence established that appellant used this rifle during these homicides. As noted above, German’s credibility was in doubt and the prosecutor argued the jury could use appellant’s confession to give credibility to German’s testimony. Although there is evidence tying appellant to the murder weapon, we cannot say that this evidence establishes beyond a reasonable doubt that the error was not prejudicial.

d. Appellant’s “veiled reference” to the homicides.

Finally, respondent points to appellant’s statements to Mann as a “veiled reference” to these homicides. When Mann visited appellant the day after the shootings, he asked if appellant knew why he was there. Appellant said yes, “because of the stuff that happened on the highway.” Mann was surprised and explained he was there regarding stolen property. Appellant would not permit Mann to enter his residence even though Mann pleaded with him, reminding appellant that he had entered his residence before numerous times to provide medical aid for his grandmother.

Although this encounter suggests appellant was aware of the homicides, this evidence does not establish beyond a reasonable doubt that appellant participated in the shootings. Even when all of the evidence above is viewed cumulatively, we cannot say this evidence is sufficient to establish beyond a reasonable doubt that the error was not prejudicial.

Based on this record, reversal is required because there is a reasonable possibility appellant’s erroneously admitted statements and confession after the first interview might have contributed to the convictions. (Chapman, supra, 386 U.S. at p. 23; Yates, supra, 500 U.S. at p. 403; People v. Quartermain, supra, 16 Cal.4th at p. 621.)

II.-VL

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion.

Kane, J., and Detjen, J., concurred. 
      
       All future statutory references are to the Penal Code unless otherwise noted.
     
      
       Marcos Medina is the brother of Leonel Medina.
     
      
      See footnote, ante, page 887.
     