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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Homero Flores PINEDA, Defendant and Appellant.*

No. E007762.

Decided: January 11, 1991

David L. Tucker, Jr., Ocotillo, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen., and William M. Wood, Deputy Atty. Gen., for plaintiff and respondent.


Defendant appeals from the judgment entered below upon his conviction by jury of second degree murder.  (Pen.Code, §§ 187, 189.) 1


Given the limited nature of the issue raised by defendant on appeal, there is no need for an extended or seamless rendition of the facts underlying the murder charge brought against defendant.   By way of a general description, it suffices to say that defendant was charged, together with another person, with the beating death of a man who had displayed a growing personal interest in a woman with whom defendant had had an ongoing and intimate relationship.

The murder occurred on April 17, 1988.   It was not until twelve days later, on April 29, 1988, that the victims's body was found in an open field.   By May 3, 1988, the investigating law enforcement officers had established at least an indirect connection between the victim and defendant.   One week later, on May 10, 1988, law enforcement officers arrested defendant (pursuant to warrant) for the homicide.

Defendant was taken to a police station to be interviewed immediately following his arrest.   Before the interview began, defendant was advised of his Miranda rights.2  Defendant waived his Miranda rights, and the interview was then conducted by two officers.3  Because defendant is a native of Mexico who speaks virtually no English, one officer (McGready) served primarily as a “question asker,” while the other (Hernandez) served primarily as a Spanish interpreter.   It was Hernandez who had advised defendant of his Miranda rights and who had received a waiver of those rights by defendant before the actual interview began.   During the course of the interview, defendant made a number of damaging admissions—although he steadfastly maintained that it was another person who had actually beaten the victim.

Following a preliminary hearing, defendant was held to answer for murder and robbery and an information was filed alleging both of those offenses.   The robbery charge was dismissed prior to trial.

Before a jury was impaneled for his trial, defendant moved the trial court in limine (both orally and in writing) for an order excluding the statements he had made to the law enforcement officers during the above-described interview.   The basis of the motion was defendant's assertion that the dialect of Spanish which he speaks is sufficiently different from that spoken by Hernandez that he (defendant) had not truly understood Hernandez' Miranda advisement—and, thus, that his waiver of Miranda rights had not been knowing and intelligent, rendering his Miranda waiver invalid and his statements inadmissible as evidence against him.   The trial court carefully read two translated transcripts of the interview,4 and briefly viewed a videotape recording of the interview.   In addition, the trial court considered both written and oral argument from defendant and the People on the issue.   Thereafter, the trial court denied the motion.

When the People introduced defendant's May 10, 1988, interview statements into evidence against him at trial, defendant's counsel made no objection to such introduction.

After the close of the evidentiary phase of the trial, the jury deliberated and then convicted defendant of murder in the second degree.   At sentencing, defendant received a sentence of 15 years to life in state prison.

On appeal, defendant raises one issue—the same issue which he addressed to the trial court in his motion in limine.   Defendant contends that his inability to understand Hernandez' Spanish interpretation rendered his waiver of Miranda rights unknowing and unintelligent, and that the trial court erred in denying his in limine motion and admitting his interview statements into evidence against him.

As we discuss below, we find that defendant has failed to properly preserve his assertion of evidentiary error for appellate review.   Thus, we find it unnecessary to reach the merits of defendant's assertion in order to reach a disposition in this appeal.   However, to “forestall claims of ineffective assistance” [of counsel], we do briefly address the merits of defendant's contention of evidentiary error in the concluding portion of this opinion.   (People v. Turner (1990) 50 Cal.3d 668, 708, 268 Cal.Rptr. 706, 789 P.2d 887, petition for writ of certiorari pending before the United States Supreme Court.)

Additional facts will be referred to, as needed, in the discussion which follows.



 Recently, our Supreme Court very clearly and explicitly established a new rule in the form of a “reiteration requirement” concerning the preservation of an issue such as the one raised in this case for appellate review.   The Supreme Court stated:  “As we have noted on several occasions, in limine trial court rulings on nonstatutory motions to exclude evidence are not binding, since a court must remain free to alter its ruling upon full information at trial.   Hence, in general, ‘when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.   [Citations.]․’  (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 [251 Cal.Rptr. 278, 760 P.2d 475].)”  (People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610;  accord:  People v. Turner, supra, 50 Cal.3d at p. 708, 268 Cal.Rptr. 706, 789 P.2d 887, People v. Mattson (1990) 50 Cal.3d 826, 849–850, 268 Cal.Rptr. 802, 789 P.2d 983.)

This “reiteration requirement” has been thoroughly analyzed in a recent opinion published by the Second District, Division Five:  People v. Bloodsaw (1990) 224 Cal.App.3d 1610, 1614–1617, 274 Cal.Rptr. 653 (Petition for Review pending.)   In Bloodsaw, the court identified the two limited exceptions to the reiteration requirement which have been acknowledged by our Supreme Court:  (1) Where the parties to the action have stipulated that pretrial rulings will be binding at trial, there is no need to renew an evidentiary objection (see People v. Jennings, supra, 46 Cal.3d at p. 975, fn. 3, 251 Cal.Rptr. 278, 760 P.2d 475);  and (2) where the pretrial ruling is a binding, statutory ruling—such as a section 1538.5 ruling—there is no need to renew an evidentiary objection (People v. Boyer, supra, 48 Cal.3d at pp. 270–271, fn. 13, 256 Cal.Rptr. 96, 768 P.2d 610.) 5  Neither of those exceptions apply in this case.

 Defendant has argued that we should recognize yet another exception to the general reiteration requirement.   Defendant argues that inasmuch as this is a case in which “[n]o new evidence on the point [of the knowingness and intelligence of defendant's Miranda waiver] was presented between that time [at which the trial court issued its pretrial ruling on the motion in limine ] and the moment the statements were offered in evidence,” this is not the kind of case considered in Jennings and Boyer where the trial court must be free to alter its pretrial rulings “upon full information at trial” (Boyer, op. cit.).   In short, defendant argues for the existence of a “futility exception”—that is, that the reiteration requirement should not be applied in those cases in which no new evidence is adduced at trial on which the trial court could base a decision to alter its pretrial evidentiary rulings.   We are not persuaded.

Rather, we are persuaded by the reasoning in Bloodsaw that defendant's argument in favor of recognizing yet another implied exception to the reiteration requirement must be rejected.  Bloodsaw expressed a concern (which we share) that an expansive recognition by the courts of generalized, implied exceptions to the reiteration requirement “would begin an inexorable pedagogical process which would lead to the abolition of the general rule.”   (Bloodsaw, 224 Cal.App.3d at p. 1617, 274 Cal.Rptr. 653.)  Bloodsaw then went on to list numerous specific factors that weigh against any such expansion by the lower appellate courts of the list of recognized exceptions to the reiteration requirement.  (Ibid.)  Among the factors which are thus listed in Bloodsaw and which also warrant a rejection of defendant's argument for an implied “futility exception” in this case are:  (1) The fact that the reiteration requirement is a general requirement to which our Supreme Court has acknowledged only limited, narrowly construed exceptions without suggesting that other exceptions might exist;  (2) the fact that there is no reason to hold to the view that a reiteration of the Miranda objection necessarily would have been futile in this case; 6  and (3) the fact that defendant has cited no authority for his position on the matter.

Inasmuch as defendant failed to renew his Miranda objection when his interview statements were offered into evidence at his trial, defendant must be deemed to have waived the issue of the propriety of the trial court's pretrial Miranda ruling for purposes of appellate review.




The judgment is affirmed.


1.   Unless otherwise indicated, all statutory section-number citations refer to the Penal Code.

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   Actually, a third officer participated in the interview in a minor and (for our purposes) irrelevant way.

4.   The interview had been recorded on both audio and video tape.   One of the transcripts reviewed by the trial court had been prepared by law enforcement personnel, while the other had been prepared by a defense translator.

5.   As noted in Boyer (op. cit.):  “Binding pretrial suppression rulings under section 1538.5 are an exception to these principles, but a section 1538.5 motion is limited to evidence obtained by illegal search or seizure;  it does not extend to Miranda claims.  [Citation.]”

6.   As noted in Bloodsaw, “[t]rial court judges are extremely conscientious and often change their minds in the face of arguments by lawyers.”  (People v. Bloodsaw, supra, 224 Cal.App.3d at p. 1617, 274 Cal.Rptr. 653.)

FOOTNOTE.   See footnote **, ante.

TIMLIN, Associate Justice.

DABNEY, Acting P.J., and McDANIEL, J.†, concur.