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Klein then entered the basement during the stabbing. Baker looked like he was enjoying stabbing Jim and called him a "faggot. Ackerman said he did not leave when Baker went upstairs because he was scared. When asked why they got together with Baker that night, Ackerman said Baker had called them out of the blue. Ackerman said Baker just wanted to talk. Ackerman thought they received this call when he and Klein were leaving Jim's house earlier. Ackerman said that while they were at Baker's apartment earlier, he and Baker went for a walk to get some meth and discussed taking Jim's property at that time.

Ackerman told Baker they would just "go in and go out," "just grab the games and whatever we could grab and leave. At one point while they were at Baker's apartment, Baker brought out his gun from his room, but then went back into the room with it. Ackerman said he did not think Baker was going to bring the gun with him to Jim's house. Ackerman explained that after they arrived at Jim's house, Baker text messaged Klein while they were waiting downstairs and asked if she was upstairs.

Ackerman denied that Baker was the muscle for the robbery. He said they brought Baker for "more hands" and because Baker said he needed money. The detective testified that, after the interrogation, he allowed Ackerman and Klein to visit together alone in the interview room, but they spoke in whispers unintelligible on the recording. A few hours after his arrest on June 12, Baker asked the patrol officer who was transporting him if he was a religious man. The officer said he went to church when he could and tried to do right, and "if that doesn't get me in, then I'm out of luck.

Before his arrest, Baker made incriminating statements to people he knew.

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Baker's cousin, Tyler Chalais, testified that Baker said he committed a robbery with Ackerman, whom Chalais knew and considered to be "shady. Chalais realized Baker was talking about Jim Arthur. Chalais had been to Jim's home a few times, knew he was gay, and described him as a "cool dude. Baker and Ackerman then entered. When Jim came downstairs, Ackerman hit him in the face with a skateboard. Baker pointed a gun at Jim and told him not to move. They tied him up. Ackerman stabbed him a couple of times with a knife.

Baker said Ackerman was not doing it right, so Baker took the knife and repeatedly stabbed Jim. They also stabbed him with gardening shears they found in the basement. They stabbed Jim a lot, and his body was "pretty messed up. They threw the knife out of the car.

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Baker threw his clothes into a dumpster. Baker said Ackerman and Klein got the property, and Baker "didn't see a dime from any of it. Chalais looked at them; they were from the 's. Baker did not give a reason for the robbery, but Chalais heard elsewhere that Jim had accused Ackerman of stealing some video games.

Baker also made admissions to his neighbor, Tim Nelson, whose ex-wife knew Peterson, Baker's girlfriend. One day, Baker asked to borrow some PlayStation games and said he was meeting someone and they were going to rob someone downtown. Nelson gave him some video games. The next morning, Baker returned the video games to Nelson and said he had just needed the games to get in the door of the place he went to rob. Nelson was "pretty doped up" on methamphetamine and did not remember exactly when Baker returned. Baker said the robbery "went bad," and he killed someone.

Nelson did not believe it, because Baker sometimes exaggerated stories. During their later conversations, Baker said he committed the robbery with "Jeremy and Nadine," and they robbed a "gay guy" who was supposed to have "like 25, in a bank account or something. Klein watched the door during the robbery, and they took a PlayStation 2.

Baker said they "tried to torture the guy into his money," but they went too far, and he died. They stabbed the victim, removed his eyes, and used gardening shears to cut his spine. Baker said they stabbed the victim "[t]o make him talk," but "the reason why he was dead [was] because he was gay. Baker said he later became paranoid about being arrested and threw the PlayStation into the trash.

He said the people with whom he committed the murder had "ratted him out. Nelson did not contact the police until a week or so before his testimony. He testified he came forward because of his conscience. Baker's uncle, Kevin Baker, testified that Baker worked for him as a laborer. He was speaking to Baker about absenteeism from his job when Baker said "he was involved in a robbery gone bad. The victim was stabbed because he "would not shut up. Baker said Peterson saw blood on his face when he got home.

The uncle did not believe the story because Baker was always exaggerating and making up stories. After Baker's arrest, the uncle talked to Peterson, who said she had asked Baker not to go to the robbery. Peterson told the uncle she was getting information about the case from her stepmother, who worked at the sheriff's department, and her uncle, who was a CSI on the case.

A detective testified Peterson's "source" was a records clerk in the sheriff's department who was not supposed to have access to police records but could access them. Klein testified in her own defense in front of Ackerman's and Baker's juries as well as her first jury. She was 20 years old at the time of the murder. She was Ackerman's girlfriend and had known him "[a] long time.

Klein was friends with Ruiz. The two began smoking crystal methamphetamine together in , and Klein became addicted. Klein was unemployed. Klein said Ruiz introduced her to Baker. Klein testified that she had only seen Baker one time before the murder and on that occasion, he bought drugs from Klein. Klein resided at her mother's home, but was always with Ackerman. They had no home and sometimes slept in her car. The victim let them spend time, use drugs, take showers, and use his computer at his house. Klein testified that Ruiz had introduced her to the victim in mid-January. Ackerman had met the victim about a year earlier.

Ruiz suggested they go to the victim's home to smoke methamphetamine because the victim "had money to do it. Klein acknowledged she and Ackerman benefited from their relationship with the victim, because he bought drugs from them, which enabled them to get more for themselves; he gave them gas money; and he let them hang out and smoke at his home and use his shower and computer. Klein and Ackerman both liked the victim and had no issue with his sexual orientation. The victim drove Klein back to a friend's apartment. Klein asked if they wanted to get together later. Ruiz had to work, but the victim was interested and gave Klein his cell phone number, which she entered into her cell phone.

In the early morning hours of Tuesday, June 2, Klein texted the victim to see if he wanted to hang out. This is the text that started with "Nadine, you know, Jeremy['s] girl. Klein and Ackerman left, went to buy more meth from Contreras, and went to the mall. Klein testified she did not recall texting the victim between a. She said Ackerman had the phone during that time or it was in the car. Later, while she was driving, Klein asked Ackerman to see if the victim wanted to smoke a "bong. Ackerman stepped outside to take an incoming call from Baker while they were at the victim's house.

Klein testified she did not send any texts after leaving the victim's home on this occasion. Klein and Ackerman went to Baker's apartment, arriving about one to two hours after he called. While they were there, Ackerman was getting a lot of phone calls and she asked him why. Ackerman told Klein that the victim had accused him of stealing video games.

Klein testified Ackerman seemed annoyed, "but that's just how he is when he smokes. Around midnight, Ackerman and Baker left the apartment for about 30 minutes. Klein said Ackerman had the phone and she was unaware of any texts or calls. She denied sending the texts that said, "Guess you're not giving me the money you promised" at a.

Ackerman and Baker returned to Baker's apartment at some point. While driving around, Ackerman suggested they go back and hang out at the victim's place. Klein testified that she did not really want to go because she and Ackerman had been awake for five days, and she was tired, but she agreed to go because she did not want to argue with Ackerman. Baker did not have a car and Ackerman did not have a license, so Klein drove Ackerman and Baker to the victim's place.

Ackerman had the phone. The drive is about 30 minutes from Baker's apartment in Carmichael to the victim's home. On the way to the victim's house, Ackerman and Baker commented that the only nice things the victim had were his laptop and PlayStation, but Klein said she did not think they intended to steal from the victim. She thought they were just going to hang out. Klein parked behind the victim's place. The victim was outside smoking a cigarette. He looked annoyed and gave Klein money, which she believed was for gas.

Klein testified that all four of them went into the basement and smoked. The victim and Ackerman, and possibly Baker, were playing video games. The victim accused Ackerman and Klein of stealing his games. Ackerman and Baker kept calling the victim "fag. Baker left. Thereafter, Klein, Ackerman, and the victim went upstairs.

Klein went to the kitchen area. Ackerman texted on the phone and plugged the charger into an outlet. Klein testified the two phone calls from Baker around a. Ackerman told her Baker was calling but did not answer. The victim wanted to make prank calls, and Klein gave him Contreras's phone number. The victim went downstairs to the basement.

Ackerman went to the front of the house and then walked back toward Klein and went downstairs. He left the phone upstairs, still charging. Klein denied sending the and a. After Ackerman went downstairs, Klein heard the victim screaming and pleading, "sorry" and "please stop. The yelling continued for five minutes. The victim was screaming loud enough that Klein thought the neighbors might hear. Klein said she was not sure whether she texted Baker's phone "U need to keep him [quiet]. While she was upstairs, Klein heard someone say someone was "not doing it right," but she did not know if it was Baker or Ackerman.

She testified that she heard Baker threaten Ackerman during the assault, but when asked what kind of threats, Klein testified she could not remember. Klein went downstairs, but when she got to the basement door, Ackerman told her to stop. At that point, she could still hear "a little bit" of screaming. She saw the victim on the bed and thought he might be dead. After the screaming and yelling stopped, Ackerman took the victim's duffel bag that was in the basement and filled it with the laptop, PlayStation, video games, and wine.

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Eventually, all three of them left in Klein's car. Klein said she did not know who stabbed the victim. She testified she previously gave false statements to the police that she saw Baker carrying a bloody knife, raising gardening shears over his head, and bringing them down in a stabbing motion.

Klein testified she saw Ackerman kick gardening shears, which were on the floor, toward the bed.


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Ackerman later told Klein he had hit the victim with the skateboard. On the way back to Baker's apartment, Baker threw a bag containing the knife out the car window and said something about being afraid they might get stopped for littering. At Baker's home, the laptop and PlayStation were taken out of the duffel bag and left in Klein's car. The duffel bag went into Baker's apartment. Baker put his clothes in a plastic bag in his closet and took a shower.

They stayed at Baker's home until about a. Klein denied later exchanging texts with Baker about the laptop or money. She testified that she and Ackerman took the laptop to Dillon's house but did not try to sell or trade it. She denied knowing that Dillon was interested in buying a laptop. She claimed a man named Mike was "holding on to" the laptop and PlayStation, but he did not buy them from her and Ackerman.

Mike was "looking through the hard drive.


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  • She denied seeing or using the victim's cell phone after the murder. Klein said she called twice but hung up because Ackerman argued with her, and she was afraid to report the crimes. Ackerman told her Baker had threatened him. She knew the victim was dead when they left his place. She was scared that Ackerman and Baker would get in trouble. When asked whether she was scared about getting herself in trouble, Klein replied, "A little bit. Klein testified she was under the influence of methamphetamine when she was interviewed by detectives after her arrest.

    She saw a recording of the interview; the drugs made her more talkative than normal. She tried to protect Ackerman and blame Baker. She did the same when she spoke to her mother a few days later, because she did not want her mother to think Ackerman was a killer. She said she did not see who killed the victim. On cross-examination by the prosecutor, Klein said she lied when she told detectives: That Baker hit the victim with a skateboard after learning he was gay; that the victim fought back with Baker; that Klein left Baker at the victim's home during the assault; and that she did not go inside Baker's apartment after they left the victim's house.

    When asked whether her version of the events changed after the detectives confronted her with the text messages, Klein testified, "possibly. She did not see the assault. Her statement to police was what Ackerman had told her to say after they were arrested at the welfare office, specifically that she should say Baker had a gun and pointed it at her, forcing her to do things.

    Klein admitted making other incriminating statements to the police, but also recanted those statements during her testimony. She had said she told Ackerman she did not want Baker to come along because she did not trust Baker and he gave her a bad feeling. When asked why she made that statement to the detectives, Klein replied, "I just did. She told detectives she sent the a. She admitted she told detectives that she sent the a. She had told the detectives that they planned to use three of her games as an excuse to visit the victim, but that was a lie. She admitted she told detectives that the victim had accused Ackerman of stealing video games, and Ackerman was tired of being accused, and for that reason wanted to bring Baker.

    But she testified she had lied about that because Ackerman had told her to tell the police that story when they were arrested at the welfare office. Klein claimed to have lied when she told police that Ackerman and Baker spoke about wanting to take the victim's laptop and PlayStation on the drive from Baker's apartment to the victim's place. She told the police she had become aware Ackerman was setting the victim up to be robbed on the way to the victim's house, but said that was also a lie; she claimed she said this to the police only because she was "trying to cover for them.

    Klein testified she lied when she told detectives that Baker put a gun in the victim's mouth and told Ackerman to get rope. Klein said she never saw a gun before the murder, she never saw anyone with a gun in the basement and the first time she saw the gun was in the courtroom. She denied that Baker's ownership of a gun was the reason for bringing him along with them. Ackerman's jury heard Klein testify that, after the preliminary hearing, Baker gave her a "dirty look" when they were being transported within the courthouse.

    Baker called Klein a "bitch," and she called him a "bitch. Ackerman's jury also heard recordings of Klein's two interviews with police, in which she told multiple versions about what had happened to the victim. Her first statement was made in a patrol car outside the welfare office where she was arrested.

    After being told she was in custody on minor warrants and being advised of her rights, she said she had been waiting to talk to the city police about the "murder on 22nd Street. Klein told the police Baker "found out Jim was gay" and "flipped out" and said, "What, were you checking me out all night?

    Ackerman was in the bathroom at the time. Klein said she got scared, so she left and then she saw it on television the day before her arrest. In Klein's first version of the story she gave at the police station, she said she drove Ackerman and Baker to the victim's home.

    They were all "getting high on meth," but she had been "clean. Klein said she was in the bathroom at the time. Klein became scared and made Ackerman leave with her. Ackerman went back inside to break up the fight but returned to the car and said Baker had a gun and the victim was dead. Baker took some property to make it look like a burglary. Klein went back to the victim's house and picked up Baker. He had a PlayStation and laptop in a duffel bag. He removed his clothes, put them in a plastic bag, and took them to his apartment.

    He did not have "that much blood" on him. He threw a knife out the car window. The second version began with the detective's question about whether she was actually there "when this all happened? She said she tried to run out the door and Baker ordered her to "get back in here" at gunpoint. She stood in the laundry room. Baker pointed the gun at Ackerman's head and made Ackerman tie up the victim.

    Ackerman was crying. She heard the victim screaming. She was crying and asked Baker to stop. He told her to shut up. She said she felt bad for introducing them. Klein said after the victim said he was gay, Baker "flipped out" and they got in a fistfight. Baker hit the victim in the head with a skateboard. The victim said, "Wait, I didn't mean it. Baker put his gun inside the victim's mouth. Baker pointed the gun at Ackerman and Klein and said, "Stop being chicken and you need to help me. This is your fault too.

    You were here. You'll get in trouble too. When Ackerman tied the victim, Baker told Ackerman that he was "doing it all wrong" and grabbed what was used to tie the victim. Klein told the detectives that she, Ackerman, and Baker had been hanging out when the victim called around p.

    Baker had drugs but she and Ackerman did not. The victim had never met Baker before but asked Ackerman to bring Baker to the victim's place.


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    • The victim gave her the gas money after they arrived. The victim, Ackerman, and Baker smoked methamphetamine and played video games. The victim said he wanted to buy an eight ball one-eighth ounce or 3. Instead, they stayed and played Guitar Hero while Klein used the victim's laptop. In discussion it came up that the victim was gay. Baker stopped, had a weird look in his eye, looked at the victim for a while, grabbed the victim's skateboard, said "You've been lookin at me all night," and struck the victim in the head with it. Baker removed a gun from his waistband, pointed it at the victim, and accused the victim of looking at him in a sexual manner.

      Klein said she did not know Baker had brought his gun with him. Klein tried to leave, but Baker pointed the gun at her and said, "Stop. Don't even think about going outside. Baker pointed the gun at Ackerman with orders to get something to tie up the victim. The victim sat on the bed saying he was sorry, but Baker said, "I don't want to hear your bullshit. Ackerman was shaking. He found a cord and started to tie the victim, but Baker grabbed the cord and said Ackerman was doing it wrong.

      While Baker finished tying the victim, Klein moved to the laundry area, closer to the door. Baker pointed the gun at her and said, "You're in this too. You're here. Don't even think about leaving. She could see that Ackerman was crying. She was crying and did not leave because she was scared and thought Baker would probably kill Ackerman if she tried to leave.

      Baker picked up a duffel bag from the floor, threw it to Ackerman, and told him to "Get all the shit. Klein knew Baker had stabbed the victim because she saw Baker walk around holding a bloody knife.

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      From her vantage point in the laundry room, she could only see the victim's legs, which were not moving. Baker grabbed gardening shears from the laundry room and raised them over the victim. Klein retreated further into the laundry room out of view. She then heard Baker say, "Now the job is definitely done. Klein estimated the amount of time that elapsed between the time the victim was hit with the skateboard and the time they left the victim's house was 30 minutes.

      She said the victim "screamed for his life for about" 10 minutes and then was silent. Klein assumed the victim was dead but did not go look. She thought the neighbors would have heard his screams. In this version, Klein told the detectives she took no part in the stabbing and knew Ackerman did not either.

      Though she could not see him at all times, she knew Ackerman would not do that, and there was no blood on his clothes. Baker called for her to come and help but she did not. Baker had Klein drive to his home. He said, "If I go down for this, so will you guys, because you were [t]here.

      Baker threw a folding knife out the window, then worried the police would stop them for littering. At Baker's home, they left the PlayStation 2 and laptop in Klein's car and took the other items in the duffel bag up to his apartment. Baker said he would burn the bag. Peterson was there. Baker took a shower. Baker did not have much blood on his clothes, just spots on his pants and sweatshirt sleeve. He put his clothes in a plastic bag and put it in the back of his closet with the gun.

      He said he was going to burn the clothes. Around a. Klein did not tell anyone about the murder because she was scared Baker would find out. Klein told detectives she thought the victim was killed because he was gay and because Baker wanted to rob him. Klein said she and Ackerman already knew but she did not tell Baker because she did not think it mattered. Klein said she had only known the victim a couple of months. Ackerman knew him for a few years but the victim had been away at college. Ackerman met the victim through Maegan Ruiz and "Craig," who were "crystal dealers.

      Ruiz did not believe it and told Baker what Klein said. Regarding the text messages, Klein told the police the exchange about owing money and returning video games was between Ackerman and the victim, in part because the victim accused Ackerman of taking his video games. Klein told detectives she texted the victim about having dropped off Ackerman. The victim had asked her as she was leaving to come back alone to help look for the video games. She asked if the victim was alone because he had called her earlier and said his boyfriend was coming over. Klein said she "guess[ed]" the texts about finding something and asking if the victim was okay were from Ackerman.

      Ackerman emptied her trunk. Klein first told detectives she did not know who sent the text about finding three games; she later told them Ackerman wrote the message. Though Ackerman did not take the victim's games, he gave the victim some of Klein's games after the victim complained his games were missing. Klein also said they texted the question about whether the victim was home alone because he did not smoke when his mother was home and she was due to return that day.

      Later, she said Ackerman made her write that text. Klein denied there was a plan to rob the victim and denied knowing that Ackerman and Baker had planned to rob him. When the detectives later asked why Ackerman had "set this up," Klein said, "I don't think he meant for him to get killed. She said she did not realize they were setting the victim up for a robbery "until we were already on our way there. Klein admitted that they went to the victim's house with the intent of taking the victim's PlayStation, laptop, and money.

      Klein claimed she "really didn't think they were gonna take anything. Klein told detectives that Ackerman "took the stuff" and Baker did all the stabbing. She did not know about any check. When Baker hit the victim in the head with a skateboard, Ackerman was yelling at the victim for accusing him of stealing. Baker did not know the victim was gay before that night. During the assault, Baker called the victim "faggot" and accused the victim of "looking at" him.

      Klein told detectives that Ackerman did not tell her about his part in the assault. He told her he "didn't want [her] to know. Ackerman's jury also heard testimony from criminalist Kristen Burke as an expert on the effects of methamphetamine and other drugs on the system. She testified Ackerman's blood, drawn shortly after his police interrogation, revealed 0. The latter is a metabolite of methamphetamine. Burke could make no determination whether Ackerman was impaired based solely on the blood levels, but someone with those levels could exhibit irrational behavior, diminished mental capacity, hallucinations, sleepiness, and problems with speech, coordination, and processing information.

      The effects of intoxication vary, depending on the individual's pattern of use and drug tolerance. Burke also testified the victim's liver tissue tested positive for methamphetamine and a level of amphetamine consistent with it being a metabolite of methamphetamine. Burke could draw no conclusions from this test, other than concluding the victim used methamphetamine at some point before his death. Ackerman's jury and Klein's jury also heard testimony from Tim Nelson that he was good friends with Baker before Baker's arrest. They saw each other every day and smoked methamphetamine most of the time they were together.

      About a week before his arrest, Baker borrowed four PlayStation 2 games from Nelson and returned them later that night or the next morning. On both visits, Baker and Nelson smoked an eight ball of methamphetamine, which was about double their usual amount. Baker was "Real wiry. Real jittery. Ackerman called as a witness the patrol officer who transported Baker to jail and was asked by Baker if he was religious.

      The officer answered and asked Baker the same question. Baker said, "Well, I have tattooed on my neck. So that should tell you something. Baker's other tattoos were "Pain 4 glory" on his chest and " at the top within a circle," a star, and some sort of animal head on his neck. A backpack seized from Baker's apartment contained a Satanic Bible. Klein testified that Ackerman had been physically and mentally abusive toward her. They argued about going back to the victim's place, and her decision to go was influenced by Ackerman's abusive behavior.

      She wanted to call after the murder, but Ackerman stopped her. When Ackerman discovered her calling the police, they fought, and he hit her. Klein testified that from to June , Ackerman "punched" her "a lot," causing bruises. She said she required medical attention in when he punched her, grabbed her arm, and threw her off the bed, which "re-broke" her arm. Klein lied to medical personnel at the time, saying she fell. Ackerman accidentally burned Klein with a cigarette during a fight.

      He yelled, called her "all kinds of bitches and everything," and told her "nobody else would want [her]. Klein's mother contacted the police about Ackerman's abuse, but Klein lied to police and denied that he hit her because she was afraid of him. Ackerman's jury returned verdicts finding him guilty of first degree murder, burglary, and robbery. The trial court sentenced Ackerman to life in state prison without possibility of parole for the first degree special-circumstance murder. The court imposed and stayed sentence on the remaining counts and allegations. Baker's jury found him guilty of first degree murder, burglary, and robbery.

      The trial court initially sentenced Baker to life in state prison without possibility of parole for first degree murder, plus a total determinate term of 12 years for the enhancements alleged as to murder — 10 years for the firearm, one year for the gardening shears, and one year for the knife. While this appeal was pending, and after the Department of Corrections and Rehabilitation brought to the trial court's attention that the sentence improperly imposed multiple enhancements, the trial court vacated imposition of sentence on the enhancements attached to murder and robbery and reimposed sentence on Baker, imposing a determinate term of 10 years for firearm use designated as the principle term, to be served consecutively to the indeterminate sentence , but imposing and staying sentence on the other two enhancements for personal use of knife and gardening shears, and imposing and staying sentence on the weapon use enhancements attached to the robbery.

      The court entered an amended abstract of judgment. Ackerman argues: 1 he did not waive his Miranda rights, and 2 the detectives coerced his confession by exploiting his "severe physical pain" from kidney stones, manipulating his sleep-wake cycle to induce confusion and disorientation, making "skillful" suggestions of leniency, and "feeding information to induce [him] to agree with the story that investigators said they would accept as the truth.

      Ackerman did not argue in the trial court that his statement was coerced or that it was involuntary because the police manipulated his sleep-wake cycle, suggested leniency, or the police fed him information to induce him to agree with the story they would accept as the truth. Thus, he has forfeited these coercion theories. People v. Williams 49 Cal. Because the People had no incentive to introduce evidence to rebut these theories, the failure to assert these theories of coercion in the trial court deprived the People of the opportunity to develop the record on the matter.

      Additionally, the trial court has been deprived of the opportunity to resolve material factual disputes and make any necessary factual findings on these theories. Ray 13 Cal. Nevertheless, because of Ackerman's ineffective assistance of counsel claim, we will address the merits of his new theories based on the record before us. We reject his Miranda claim and all claims of coercion. As noted, Ackerman filed in the trial court a motion to exclude evidence of his June 12 police interrogation, which was introduced at trial.

      The trial court held an Evidence Code section hearing, which included evidence of Ackerman's medical history, methamphetamine use, and prior experiences with law enforcement. The only witnesses were Ackerman and his grandfather, Joseph Tyler. The parties later stipulated that the trial court could consider as evidence a crime report of one of Ackerman's prior contacts with law enforcement in which he indicated he understood his rights and invoked them without making any statements.

      The grandfather testified that Ackerman complained of kidney pain during two visits to the grandfather's home, one in early February and the other in late May. Regarding the February episode, Ackerman testified, "I was in a lot of pain. I was bent over. I couldn't move. I couldn't walk. I couldn't do anything. I wouldn't be able to have this conversation with you right now. The second time, the pain was worse, and Ackerman collapsed in the shower and was taken to the hospital by ambulance.

      A doctor gave him painkillers and told him to drink lots of fluids to help pass the kidney stone. Ackerman did not say what type of pain killers he was given on this occasion but he said they did not last very long. Ackerman was still in a pain at a follow-up visit a week later. Around June 1, Ackerman went to the emergency room for radiator burns.

      He was still having kidney pain and was taking unspecified painkillers. Ackerman testified that his pain level at the time of the murder was a 5 or 6 out of 10, but he did not remember if the pain debilitated him. He said his pain level at the time of his arrest was "about an 8," about the same as the pain that sent him to the hospital. He claimed that he thought if he answered the detectives' questions quickly, then maybe they would get him medical assistance. However, he admitted the detectives did not condition the provision of medical treatment on his providing a statement.

      Ackerman submitted his medical records, which showed he was examined in the emergency room on February 18 for shortness of breath. He was released but later returned complaining of abdominal pain. Among the findings were: "The kidneys have a normal appearance. On March 6, a doctor prescribed pain medication for his complaint of low back pain. On April 8, an ambulance brought him to the hospital for a complaint of sudden, severe right flank pain. The records state, "Differential includes kidney stone, kidney infection, lung process, i. Pneumonia though doubt.

      Plan for labs, pain control. No kidney stone noted on recent CT, though the patient had IV contrast which may obscure a small stone. On May 29, defendant received emergency room treatment for second degree burns to the forehead and cheeks from a radiator and right flank pain. The medical records state, "The kidneys have a normal appearance.

      The jail medical records contain a June 19 entry seven days after Ackerman's arrest that Ackerman complained of "kidney stones" for which he had been treated at Kaiser before he went to jail. Thereafter, defendant complained to jail staff of various problems including chronic back pain, for which he received medication such as Ibuprofen. Ackerman admitted on cross-examination that he had three prior unrelated contacts with law enforcement, which occurred in February , May , and February He remembered being read his rights in and In the instance, he invoked his right to an attorney, and the officers stopped asking him questions.

      Ackerman testified that the incident was different because he was in his own home when he asked to talk with a lawyer, but the parties later stipulated to a police report which said the officers contacted Ackerman at his home, had a conversation with him, then took him to the police station where they advised him of his Miranda rights and he invoked his right to counsel.

      Ackerman also testified that this time was different, because he was locked in a small room, was in physical pain, and was under the influence of methamphetamine, having smoked "close to a gram" of methamphetamine that day. He did not know what effect the drug had on him, but he had been confused and did not understand why he was arrested.

      He did not say anything about pain while being transported to the police station, though he was in pain. During the interrogation, he was in pain and told the detectives he had kidney stones, but said "[t]hey didn't seem to care that I was in pain. Ackerman testified he did not understand he really had a right not to talk to the detectives.

      He thought reading the rights was just something the detectives had to do and did not think he really had those rights. He claimed he thought he had to talk to the detectives. He claimed he did not understand that anything he said could be used against him in court and did not understand what having a lawyer meant. He said he did not understand the rights on the prior occasion when they were read to him. He "kind of" understood but was thinking about other things due to the influence of methamphetamine.

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      He did not explain what these other things were. Ackerman testified that he asked about the reason for all of the questions after he was asked to talk about the last time he saw the victim because he "didn't understand why I was being asked all of these questions.

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      When asked about the purpose of his question to the detectives, Ackerman said he was "[t]rying to find out why they were asking all the — what they're asking, because of" the threats he mentioned on the next page of the transcript. He felt intimidated by the detective's body language and "pressured to meet their demands. When I tried to ask them questions, they just asked me more questions. He made me feel like I had to answer the question.

      Ackerman said he felt he could not refuse to talk about last seeing the victim because the detective talked about providing protection and that they were not there to get him "in any kind of harm," but they were just asking for the truth. But Ackerman did not explain why that statement made him feel that way. Ackerman was asked, "Other than the kidney pain and methamphetamine use, was there anything going on with you, either physically or mentally, that you think might have played a role in your talking with detectives that day? He said, "Emotionally, I was having a lot of problems, but that might have played a role in it.

      He "was more worried about those threats than what was going on in the conversation, what they were asking me. Later, Ackerman was again asked, "And other than what we have talked about in court this morning and briefly this afternoon, was there anything else working on you in terms of your willingness to cooperate with the officers by answering their questions that day?

      Nor did he say that he talked to the officers because of promises made to him. On cross-examination by the prosecutor, Ackerman denied that he went to the hospital just to try to get prescription drugs. He denied selling prescription drugs, but had offered them for free to people who wanted them. He admitted writing a letter to Klein while she was in jail that read, "I only got one pills [ sic ] with your letters so don't send them through those guys anymore" and "Just bring what you want to give me to court. Thank you. I need to know the name of the pill so I can sell them. He denied being told his kidneys appeared normal; he said he was told there was "something, but it wasn't that large.

      He was given muscle relaxers and Ibuprofen for back pain. At the Evidence Code section hearing, defense counsel argued Ackerman was coerced into talking and the detectives should have stopped the interrogation when Ackerman "began to express doubt" by asking, "Is there a reason for all this conversation?

      In argument, the prosecutor questioned whether Ackerman really had kidney stones, as opposed to a penchant for prescription drugs and sympathy, but even if he was in pain, the pain did not prevent a knowing and intelligent Miranda waiver. The prosecutor argued Ackerman asked why he was being questioned because he wanted to find out what the police knew, and he calculated that if his story was going to be that he was an innocent bystander forced at gunpoint to witness a murder, he had better tell the police the story at that time.

      After reviewing the video-recorded interrogation and considering the police report from the arrest, the trial court concluded the Miranda warnings here were legally satisfactory, that Ackerman understood his rights and that Ackerman's acquiescence to questioning was an implied waiver of his Miranda rights.

      The court disbelieved Ackerman's testimony that he did not understand his rights were real and noted Ackerman had previously received the Miranda advisements on multiple occasions and had even invoked his rights on one of those occasions. The court concluded that Ackerman voluntarily participated in the interrogation and that his queries about why the police were asking him questions did not constitute an invocation of the right to remain silent.

      The trial court observed it was unclear whether Ackerman was actually in pain or actually had kidney stones, or whether he simply invented complaints to get drugs. The court nevertheless found that, whether Ackerman was in pain or not, he "plainly understood, he was lucid — this also goes to the drug issue. Absolutely lucid and responsive and coherent and clear in his conduct.

      While he did complain of pain and indeed may have been suffering pain, as I indicated it's hard to know, it was certainly not any pain that rendered him without free will or unaware of the circumstances or unable to exercise his rights. None of that is evidenced. The edited version of the hour video recording of Ackerman's jail interview was shown to Ackerman's jury only. A transcript was available but was not admitted into evidence.

      We have reviewed the unedited video recording reviewed by the trial court for the Evidence Code section hearing. We note that at no point did Ackerman say he did not want to talk with the detectives, indicate he wanted to stop the interrogation, or say he wanted an attorney. Nor did he say he was in too much pain to proceed or that he wanted to stop the interrogation for reasons related to pain. Nor did he request medical attention. To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of evidence that the waiver was knowing, intelligent, and voluntary.

      Berghuis v. Thompkins U. Nelson 53 Cal. There are two distinct dimensions to this requirement: 1 The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and 2 the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

      Berghuis, supra, U. However, the waiver need not be express. Butler U. Berghuis, at p. Butler, at pp. Here, Ackerman did not expressly waive his Miranda rights but spoke with the detectives after being informed of and expressly indicating his understanding of his Miranda rights. On appeal, Ackerman argues the prosecution did not meet its "heavy burden" to overcome the presumption against waiver of constitutional rights.

      We disagree. Here, the video recording shows Ackerman was read his rights, affirmed his understanding of each right individually with a both a verbal "yes" and an affirmative nod of the head, and acknowledged he had been in trouble with the law before and had received Miranda warnings on past occasions.

      Although Ackerman testified at the hearing that he did not understand his rights this time and thought he had to talk to the police, the trial court did not find him credible and noted Ackerman admitted he was advised of his Miranda rights on previous occasions and had even invoked his rights on one of those occasions. Our review of the video recording confirms the trial court's ruling. Ackerman was alert, attentive, and immediately responsive when asked if he understood each of the rights and if he understood them collectively.

      The way he simultaneously responded "yes" and gave an affirmative head nod immediately after the questions as to whether he understood each of the rights portrayed confidence and self-assurance, not hesitance or equivocation. There was nothing about defendant's demeanor or response to the questions as to each right that would suggest he did not understand.

      We accept the trial court's evaluation, supported by the evidence, that Ackerman lied about not understanding the Miranda advisements. Hawthorne 4 Cal. This lie and his lie about the circumstances under which he invoked his rights in also diminishes Ackerman's credibility in other particulars. After Berghuis, the rules related to implied Miranda waivers must be regarded as settled. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.

      Here, after acknowledging that he understood his rights, defendant spoke with the officers. As the court observed in Berghuis, " had [defendant] wanted to remain silent, he could have said nothing in response to [the officer's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. Ackerman did neither. Throughout the interrogation, he was alert, responsive to questions, and calculating in his responses. He gave no indication that he was in such pain as to require medical attention or a cessation of the interrogation.

      Ackerman impliedly waived his Miranda rights and, as we shall explain next, he never invoked those rights. For the first time, Ackerman argues on appeal that he invoked his right to remain silent by asking the reason for the questioning, asking to use the restroom, and asking to see Klein. An accused who wants to invoke his right to remain silent must do so unambiguously. Tom 59 Cal. Scott 52 Cal.

      Here, as in Scott, "[a]t no time did defendant decline to speak, ask to end the interview, or seek counsel. Whether a suspect has invoked his Miranda rights is an objective inquiry; the suspect must articulate his or her desire to cease the questioning or to obtain counsel sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request to stop the questioning or a request for an attorney.

      Davis v. United States U. Villasenor Cal. Near the beginning of the interrogation when Ackerman was asked to talk about the last time he had seen the victim, he asked, "Is there a reason for all these questions? Defendant said he understood, and then repeated, "I'd just like to know the reason for all your questions. We're doing an investigation right now. I think you have a very good idea why we're asking these questions.

      In fact, I know you know why we're asking these questions. All right. And I mean things could be better. So let's talk about the last time you saw Jim. Tell us about that day and that night because that's what we want to know about. Be honest. I understand.

      No reasonable officer could have concluded Ackerman had invoked his Miranda rights from that exchange. Rather, it reasonably appeared that Ackerman was attempting to find out what the detectives knew. Indeed, when asked about the purpose of the questions at the Evidence Code section hearing, Ackerman gave a vague answer about "trying to find out why they were asking all the — what they're asking" because of his fears about Baker's threats, which he had not yet mentioned. He did not testify he was trying to cut off the questioning or otherwise invoke his rights by his questions about the reasons for the detectives' inquiry.

      In any event, from a reasonable officer's perspective, Ackerman's questions at most indicated trepidation about discussing something that was "hard" for him. And when one of the detectives explained the reason for the questions by saying they were doing an investigation, Ackerman indicated he understood and instead of saying he did not want to talk, he continued to answer questions.

      From the perspective of a reasonable officer, Ackerson's request to use the bathroom and numerous requests to see his girlfriend could not be seen as anything other than what they were — a request to relieve himself and a request to talk to Klein. Indeed, at one point when Ackerman asked to see Klein, he told the detective, "I don't care if you guys are there.

      I just want to see her. We reject Ackerman's belated and meritless argument that these statements invoked his right to remain silent. As we next explain, Ackerman's statements were voluntary. Peoples 62 Cal. Williams 16 Cal. Other factors include a defendant's sophistication and prior experience with law enforcement.

      Dowdell Cal. Vasila 38 Cal. Williams, supra, 16 Cal. Rundle 43 Cal. Doolin 45 Cal. McWhorter 47 Cal. Hill 66 Cal. Vasila, supra, 38 Cal. At the time of the interrogation, Ackerman was almost 21 years old. He is a high school graduate. His use of words and manner of presentation during the interrogation did not suggest intellectual impairment.

      Additionally, as previously noted, Ackerman had prior contacts with law enforcement where he had been Mirandized and on one occasion showed enough sophistication to invoke his rights and refuse to talk to the police. Ackerman was in the interview room for approximately 10 hours. However, by our calculation, he was interrogated for approximately six hours 30 minutes.

      The video starts at p. Slightly more than an hour went by before the interrogation started. After the interrogation began, there were two long breaks, one spanning three hours 25 minutes and the other spanning two hours 19 minutes. During those breaks Ackerman had an opportunity to sleep and, as we discuss post, it appears he did sleep during some of that time period.

      There were also several other shorter breaks. Just before the longest break p. He was provided the food of his choice at p. Also known as Bryan Baker. Includes Address 6. Resides in Scottsdale, AZ. Includes Address 6 Phone 3 Email 3. Resides in San Antonio, TX. Includes Address 8. Resides in Flagstaff, AZ. Includes Address 7 Phone 7 Email 1. Resides in Portland, OR. Also known as Rh Baker. Includes Address 6 Phone 1 Email 1. Resides in Yakutat, AK. Includes Address 5 Phone 2. Resides in Mesa, AZ. Includes Address 3 Phone 1. Resides in Medford, NY. Includes Address 4 Email 1.

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