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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. David Kenneth KURTZMAN, Defendant and Appellant.

Crim. B022406.

Decided: November 25, 1987

Terrence L. Cannon, Santa Barbara, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Paul C. Ament, Deputy Atty. Gen., and David F. Glassman, Deputy Atty. Gen., Los Angeles, for plaintiff and respondent.

We affirm the second degree murder conviction of David Kenneth Kurtzman, who stabbed to death a transient sleeping in a Santa Barbara park.   We hold that the court did not err in instructing the jury, part way through deliberations, to consider and reach a verdict on the greater offense of second degree murder before considering the lesser included offense of manslaughter.   We also find that Kurtzman did not invoke his right to remain silent during questioning by police when he expressed a need to take a few moments to gather his thoughts.


In August of 1985, David Kenneth Kurtzman was a 17–year-old student at Santa Barbara's Northwestern Preparatory School.   He shared dormitory “B” with James Tramel and seven others.   On the night of August 2, 10 to 15 Northwestern students, including Tramel and 3 others from dormitory B, were involved in an altercation in downtown Santa Barbara with a gang called the City Rockers.   The confrontation stopped short of an actual fight, but one of the Northwestern students was kicked in the back as the incident was breaking up.

Upon returning to dormitory B, the four informed the others what had occurred.   Someone said that at least one of the City Rockers was armed with a knife.   The group planned to retaliate.   The next day Tramel told the students of dormitory B that retaliation required the purchase of dark clothing, knives, climbing ropes, grappling hooks and materials for making sodium bombs.

That evening, Kurtzman, Tramel and Eric Rixen, another student involved in the altercation, dressed in dark clothing and went out looking for local “hot spots” where the City Rockers would congregate.   They wished to warn other students to avoid those areas.   They were armed with a six inch military knife which Tramel had blackened over a candle so it would not glare in light.   Before leaving the dormitory Tramel told a fellow student that he might use the knife if he got into a fight.   The student asked “What do you want to do, kill somebody?   Kurtzman replied either “We have to” or “If we have to.”

The three youths walked around downtown Santa Barbara, eventually reaching the spot where the altercation with the City Rockers had occurred the night before.   Tramel and Kurtzman became separated from Rixen.   Tramel then thought he saw a member of the City Rockers and he and Kurtzman followed him for several blocks before losing him in a city park.

Kurtzman was holding the knife as the two crossed the park to meet Rixen at a predesignated rendezvous point.   They both climbed the steps of a gazebo in the park only to be startled when someone at the top sat up.   They exchanged a few words with the person, and Tramel said to Kurtzman that he thought this was one of the City Rockers.   Kurtzman started down the steps, turned and saw the person rolling a sleeping bag, and attacked him with the knife.

Kurtzman repeatedly stabbed and cut the throat of the person, Micheal Stephenson, a transient who had been sleeping in the park.   After returning to the dormitory, Tramel bragged to his fellow students that they had “bagged a Mexican.”   Kurtzman said “I killed him just like James showed me.”

A jury found Kurtzman guilty of second degree murder.   On appeal, Kurtzman argues that the trial court erred in instructing the jury that it must consider and reach a verdict on second degree murder before it may consider the lesser included offense of voluntary manslaughter.   Kurtzman also contends that the trial court erred in admitting a tape recorded confession of the murder made by Kurtzman assertedly in violation of his Miranda rights.

The Jury Instructions

At trial, Kurtzman relied on the defense of honest but unreasonable mistake of self-defense, producing evidence that he erroneously believed his victim to be a member of the gang which his friends had encountered the night before.   If accepted by the jury, this defense would negate the existence of malice, an element of murder, and result in a verdict of manslaughter.  (Pen.Code, §§ 187, 192;  People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1.)

Following five days of evidence and argument, the jury began deliberations.   Counsel for both sides agreed that the court would not instruct the jury concerning partial verdicts (CALJIC No. 8.75) unless the jury became deadlocked.   The court gave the lesser included offense instruction (CALJIC No. 17.10) instead.   This instruction informs the jury that if it is “not satisfied beyond a reasonable doubt that the defendant is guilty of the offense [s] charged and it unanimously so finds,” it may convict him of the lesser included offenses of second degree murder or voluntary manslaughter.  (CALJIC No. 17.10, 1984 rev.)   Counsel for Kurtzman objected to the court's giving CALJIC No. 17.10 because “it infers [sic ] to [the jurors] that they should start with the consideration of murder one.”

The jury deliberated for four days, over which time it asked the court a series of questions on the definition of malice and reasonable doubt, the distinctions between second degree murder and voluntary manslaughter, and its duties regarding greater and lesser included offenses.

After the first full day of deliberations the jury informed the court that although it was unable to agree on the question of murder, it had reached agreement on the lesser included offense of manslaughter.   In order to “make sure ․ you're doing this right,” the court gave CALJIC No. 8.75 orally, instructing the jury that it should deliberate on the question of first degree murder only “[b]efore you get to the other lesser included offenses․”   The jury resumed deliberations for a few minutes before returning a verdict of not guilty on first degree murder.

The court then asked the jury to deliberate on the issue of second degree murder.   Soon after, the jury informed the court that a unanimous decision had not been reached, and that the breakdown on second degree murder was eight to four.

After additional deliberations, the jury asked the court whether “a man who is found guilty of murder in the second degree [is] also guilty of manslaughter?”   The court returned a note to the jury explaining that “[m]anslaughter is a lesser included offense to the crime of murder in the second degree and, therefore, if a person is guilty of murder in the second degree, he is also necessarily guilty of manslaughter.   A person guilty of manslaughter is not necessarily guilty of murder in the second degree.”

Later the jury forwarded another question to the court, asking “[i]f an individual juror finds the defendant is guilty of second degree murder, must that juror also find the defendant is guilty of manslaughter?”  (Emphasis in the original.)

The court responded with a note stating “[y]ou should vote for only that charge you feel has been sustained.”

Later that same day, the jury was brought back into the courtroom, and the following colloquy between the judge and the jury foreperson took place:

“THE COURT:  ․ Ms. Blades, I received your note.   I am still a little unclear about something.   I take it from the note that I have just received that you have been unable to agree on the guilt or innocence of the defendant on the charge of murder in the second degree;  is that correct?


“THE COURT:  Would you tell me again, without telling me who is for guilt or acquittal, the numerical ratio?

“FOREPERSON BLADES:  On just second degree?

“THE COURT:  Just second.

“FOREPERSON BLADES:  Eight to four.

“THE COURT:  Eight to four, the same as this morning?


“THE COURT:  You understand that I wanted you to deliberate on that issue and that issue alone?


“THE COURT:  I take it from your note there has been discussion in the manslaughter area as well.


“THE COURT:  I take it you were not able to agree on that as well, although I question whether you should be able to deliberate on that.   You were unable to deliberate [sic ] on that as well?


“MR. CANNON [DEFENSE COUNSEL]:  Would you clarify what the Court just said, that you have some question—

“THE COURT:  Clarified in the sense that my understanding is that you were to—I thought I instructed you to deliberate on second, in that area first.”

After a weekend adjournment, the jury resumed deliberations on Monday morning.   That afternoon the judge again called the jury into the courtroom to determine if further deliberations would be of any use.   The foreperson informed the court that the vote was still eight to four on the question of second degree murder, and the following colloquy ensued:

“FOREPERSON BLADES:  We did want to say one thing.   I don't know if it's okay to say it.   Although the numbers in our vote are the same, they are the opposite of what they were Friday.

“THE COURT:  That is fine.   That is fine.   So, it doesn't matter at all.   We are looking for you to reach a consensus.   Nobody is telling you you have to reach a consensus one way or the other.

“FOREPERSON BLADES:  We should continue to consider the second degree offense.

“THE COURT:  You tell me what you want to do next.   If you feel that the deliberations are significant—obviously, at this point, you have reached a substantial change, from what you tell me.   So, your deliberations have made a substantial difference.

“FOREPERSON BLADES:  This is true.

“THE COURT:  I am going to ask you to continue to deliberate․”

The jury next sent a note to the judge asking “[c]an we find the defendant guilty of manslaughter without unanimously finding him not guilty of murder in the second degree?”   After conferring with counsel, the judge, relying on CALJIC No. 8.75, sent back a note which said, “No.   You must unanimously agree on the second degree murder offense before considering voluntary manslaughter.”

The next morning, the jury returned a verdict of guilty of second degree murder.

On appeal Kurtzman contends that by instructing the jury to confine its deliberations to second degree murder and by requiring a unanimous verdict on second degree before the jury could consider manslaughter, the trial court compelled and coerced a verdict contrary to the jury's “true will.”

Kurtzman argues that by following these instructions, the jury was precluded from considering the nonexistence of circumstances which negate malice, thus relieving the People of its burden to prove all elements of murder beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072–73, 25 L.Ed.2d 368;  Mullaney v. Wilbur (1975) 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508.)   He also asserts the instruction denied him his constitutional right to have the jury determine every material issue presented by the evidence.  (People v. Wickersham (1982) 32 Cal.3d 307, 335, 185 Cal.Rptr. 436, 650 P.2d 311.)

Kurtzman claims that the trial court erroneously interpreted Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809 as authority for instructing the jury that it must acquit the defendant of the greater charge before it may consider the lesser included offense.   Kurtzman argues that this instruction interfered with the jury's right to reach consensus, thus violating his due process rights.



 Case law has not been helpful in resolving the question of whether a trial court may require a jury to reach a unanimous verdict on the greater offense before considering the lesser included offenses.

In Stone v. Superior Court, supra, our Supreme Court recognized that a criminal defendant has a right to a partial verdict from a jury which has reached a unanimous decision of acquittal on the charged offense but is deadlocked on lesser included offenses.  (31 Cal.3d at p. 519, 183 Cal.Rptr. 647, 646 P.2d 809.)   The Supreme Court suggested the trial courts may follow one of these two procedures for providing partial verdicts:

“When a trial judge has instructed a jury on a charged offense and on an uncharged lesser included offense, one appropriate course of action would be to provide the jury with forms for a verdict of guilty or not guilty as to each offense.   The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense, and that if it finds the defendant guilty of the greater offense, or if it is unable to agree on that offense, it should not return a verdict on the lesser offense.

“Alternatively, the court may decide to wait and see whether the jury is unable to reach a verdict;  if it is, the court should then inquire whether the jury has been able to eliminate any offense.   If the jury declares itself hopelessly deadlocked on the lesser offense yet unanimous for acquittal on the greater offense, and the court is satisfied that the jury is not merely expressing a tentative vote but has completed its deliberations, the court must formally accept a partial verdict on the greater offense.   It is within the discretion of the court to order further deliberations if it perceives a reasonable probability that a verdict will be reached that will dispose of the entire proceeding.”  (Stone v. Superior Court, supra, 31 Cal.3d at pp. 519–520, 183 Cal.Rptr. 647, 646 P.2d 809.)

Kurtzman argues that despite a literal reading of the first option in Stone, the Supreme Court did not intend that trial courts require a jury to first reach a unanimous verdict on a greater charge before considering a lesser included charge.   The comment accompanying the text to CALJIC No. 8.75 states in part that the “language used in this instruction has been drafted to conform with the two alternatives [sic ] permitted by Stone without precluding the jury from deliberating on the charged and lesser included offenses in whatever order they wish.   The jury is merely precluded from returning a verdict on a lesser offense without also returning a verdict on the greater offense[s].”  (Com. to CALJIC No. 8.75 (4th ed. 1987 pocket pt.) pp. 123–124, emphasis in original.)   A similar comment accompanies CALJIC No. 17.12.  (Com. to CALJIC 17.12 (4th ed. 1987 pocket pt.) p. 81.)

The language in CALJIC Nos. 8.75, 17.10 and 17.12, however, suggests the opposite.   CALJIC No. 8.75, for example, reads in part that “You must unanimously agree that defendant is not guilty of second degree murder before you find him guilty or not guilty of voluntary or involuntary manslaughter.”   CALJIC No. 17.10 states that “If the jury is not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged and it unanimously so finds, it may convict him of any lesser offense․”   This language hardly informs the jury that it may deliberate in any order it chooses.

In People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, our Supreme Court by implication may have given support to the view that CALJIC No. 17.10 requires that a jury acquit first on the more serious charge before it considers the less serious charge.   It wrote that the jury there “may not have realized that if it acquitted defendant of robbery it could consider his guilt of the lesser included offense․”  (At p. 378, fn. 25, 208 Cal.Rptr. 236, 690 P.2d 709, emphasis added.)

Other cases are in conflict.   In People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182, disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, a case predating Stone, the trial court gave CALJIC No. 17.10 and later instructed the jury that “I've instructed you if you have a reasonable doubt whether the defendant is guilty or not guilty ․ then ․ find him not guilty․   You may then consider the second verdict form․”  (Reeves, supra, at p. 70, 176 Cal.Rptr. 182.)   The appellate court agreed with the defendant that the jury should have been instructed to consider the charged offense and the lesser offenses together, and if a reasonable doubt arose as to which was committed, to convict of the lesser offense.   The error was held not to be prejudicial because the jury knew it had the option of convicting the defendant on the lesser charge if it entertained doubt about the greater offense.  (Ibid.)

Disagreeing with Reeves is People v. Gonzalez (1983) 141 Cal.App.3d 786, 190 Cal.Rptr. 554.   The Gonzalez court concluded that “[w]e see no practical difference between an instruction which commands the jury to apply the concept of reasonable doubt ‘serially,’ considering each charge in turn, and one which requires them to inspect the offenses ‘together.’   In either case, ․ acquittal of the greater offense [is required] if the prosecution has not sustained its burden of proof ․ [and] the jury knows that it must choose the lesser offense if it entertains any reasonable doubt as to the greater.”  (At pp. 793–794 and fn. 8, 190 Cal.Rptr. 554.)

In People v. Zwiers (1987) 191 Cal.App.3d 1498, 237 Cal.Rptr. 123 the jury had to decide whether defendant had committed a burglary.   Also at issue was whether defendant had committed an attempted burglary.   The jury was given CALJIC No. 17.10.   The trial judge directed the jury to “ ‘[b]e very careful․   Only if you have found the defendant not guilty do you turn to the second possible verdict․’ ” of attempted burglary, a lesser included offense.  (Zwiers, supra, at p. 1502, 237 Cal.Rptr. 123.)

On appeal of the burglary conviction, the defendant argued that CALJIC No. 17.10 and the additional comment by the judge resulted in a denial of due process.   The jury's ability to compromise and to choose the level of culpability was limited, resulting in the coercion of the guilty verdict on the greater offense.  (Id. at p. 1503.)   The People responded that the instruction does not preclude the jury from considering the lesser offenses while deliberating but merely prohibits the jury from returning a verdict on the lesser offense before acquitting on the greater.  (Ibid.)

The appellate court agreed with the People, holding that the instruction does not compel the jury to adopt an “all-or-nothing approach” and that the jury knows it may convict the defendant of the lesser offense if the greater charge is rejected.   The court held that Stone merely requires acquittal of the greater offense before returning a verdict on (rather than before considering) the lesser offense, and that CALJIC No. 17.10 does not purport to control the jury's deliberation process.  (People v. Zwiers, supra, 191 Cal.App.3d at p. 1506, 237 Cal.Rptr. 123.)

Notwithstanding the trial court's admonition to the jury to not “turn to” the lesser included offense unless it first finds defendant not guilty of the charged offense, the appellate court concluded in a footnote that because CALJIC No. 17.10 does not preclude consideration of lesser offenses along with greater offenses, “we need not decide the validity of an instruction proscribing simultaneous consideration of greater and lesser offenses.”  (Id. at p. 1504, fn. 3, 237 Cal.Rptr. 123.)   Yet that is what the trial court did.

 There is no inherent constitutional flaw in requiring a jury to acquit first on a greater offense before deliberating on a lesser included offense.  (See United States v. Harvey (9th Cir.1983) 701 F.2d 800, 806;  Catches v. United States (8th Cir.1978) 582 F.2d 453, 459.)

Other jurisdictions have sanctioned this approach.  (See State v. Wussler (1984) 139 Ariz. 428, 679 P.2d 74;  Dresnek v. State (Alaska App.1985) 697 P.2d 1059;  People v. Boettcher (1987) 69 N.Y.2d 174, 513 N.Y.S.2d 83, 505 N.E.2d 594;  Lamar v. State (1979) 243 Ga. 401, 254 S.E.2d 353;  State v. Wilkins (1977) 34 N.C.App. 392, 238 S.E.2d 659;  State v. McNeal (1980) 95 Wis.2d 63, 288 N.W.2d 874.)

 Here the trial judge told the jury it must reach a unanimous verdict on the second degree murder charge before it could consider voluntary manslaughter.   This was in response to the jury's question whether it could find the defendant guilty of manslaughter without unanimously finding him not guilty of second degree murder.   In the context of the question and answer, the court did not preclude the jury from discussing the elements of manslaughter so as to better understand the elements of second degree murder by comparing the two.   The judge did, however, instruct the jury to reach a unanimous verdict on the second degree murder charge before considering the guilt or innocence of Kurtzman on the manslaughter charge.

In United States v. Tsanas (2d Cir.1978) 572 F.2d 340, certiorari denied 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84, the appellate court weighed the merits of an acquittal first instruction against one that allowed the jury to consider the lesser included offense once it merely could not reach unanimous agreement on the greater offense.   The Tsanas court held that an instruction requiring the jury to acquit on the greater offense first before deliberating on lesser included offenses no more prejudices the defendant than an instruction allowing the jury to consider lesser included offenses when it merely cannot reach agreement on the greater offense.  (Id. at p. 346.)

The Tsanas court found that the acquittal first instruction benefits the prosecution on the one hand by assuring that the jury will adequately consider the greater offense and not move too quickly on the lesser.   On the other hand, the prosecutor runs the risk that the jury will remain deadlocked on the greater offense, and thus not reach the lesser offense where unanimity may otherwise be found, and require a retrial.  (United States v. Tsanas, supra, 572 F.2d at p. 346.)

An acquittal first instruction carries an equal benefit and risk to the defendant.   By preventing the deadlocked jury from reaching the lesser included charge, where there may be unanimity, the result may be no conviction at all.   But the defendant faces the possibility that dissenting jurors favoring the lesser offense may vote for the greater offense rather than risk a mistrial, even though there might have been unanimous agreement on the lesser offense.   The appellate court concluded that neither instruction was wrong as a matter of law, and the federal trial courts may give either instruction preferred by the defendant.  (United States v. Tsanas, supra, 572 F.2d at p. 346.)

Kurtzman contends that by requiring the jury to focus on and reach unanimity on second degree murder alone, the court effectively prevented the jury from considering his defense of honest but unreasonable self-defense, and directed the jury's attention away from an instruction regarding the prosecutor's burden to disprove the existence of such circumstances.

We disagree.   The jury was not instructed to disregard the factors which would favor manslaughter over murder.   When early in deliberations, the jury stated that it had reached unanimous agreement on the lesser offense of manslaughter but was unable to reach unanimity on murder, the court attempted to focus the jury's attention.   The jury was directed to deliberate in an orderly and logical manner, from the most serious charged offense to the least included offenses.

During a conference with counsel the trial court explained that “[t]he problem that we have is that there is still, obviously, deliberation on both manslaughter and second degree.   It seems to me that we have to somehow get them to deliberate on second degree and, if they are unable to agree on that issue, they then go to manslaughter.   They are obviously not doing that.”

The instruction conformed with the spirit of CALJIC No. 8.75.   The prosecution has a right to expect a jury to exhaust its resources on the greater offense before turning to the lesser offense.

To withhold such direction from the jury would allow and encourage a jury to work from the lesser offense on up.   In this method of deliberation, a not guilty verdict on the more serious charge may result from the jury eschewing the task of grappling with hard issues on more serious charges.   By focusing on the less serious charges first, where unanimity may be easy to reach, the search for the truth may be diminished.   Once agreement is reached on the lesser included offense, jurors may be less willing to undertake the painstaking efforts required to deliberate on the greater offense.

Verdicts of guilt on a lesser included offense may thus often be the result of compromise.   Where a significant but not unanimous bloc of votes favoring conviction on the greater offense is assured of unanimity on the lesser offense, a jury might be more willing to relinquish its original position.   Nevertheless, a court is under no duty to ease the burden on jurors by encouraging deal making.  “ ‘Our courts are not gambling halls but forums for the discovery of truth.’ ”  (People v. Geiger (1984) 35 Cal.3d 510, 520, 199 Cal.Rptr. 45, 674 P.2d 1303 quoting People v. St. Martin (1970) 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 463 P.2d 390.)

In any event, the jury here was not denied an opportunity to reach a compromise.   The jury was fully instructed on lesser included offenses, and early in its deliberations it acquitted Kurtzman of first degree murder and informally agreed that he was guilty of, at the least, voluntary manslaughter.   The jury knew that an acquittal of second degree murder would likely result in a verdict of manslaughter.  (People v. Zwiers, supra, 191 Cal.App.3d at p. 1506, 237 Cal.Rptr. 123.)

Nor did the instructions prevent the jury from fully considering the lesser included offenses.   The essential distinction between murder and manslaughter is the existence of malice.  (Pen.Code, §§ 187, 192.)   Malice is one of the elements of second degree murder.   In deliberating on second degree murder, the jury necessarily considered whether or not malice was present.  (CALJIC Nos. 8.10, 8.30.)   This could involve a discussion of the elements of voluntary manslaughter without deliberating on the question of whether Kurtzman was guilty or innocent of that charge.

 Kurtzman concedes that the jury gave “serious consideration” to his self-defense theory for as long as four days before confining its inquiry to the question of second degree murder.   The court's instruction therefore did not create a situation where he was deprived of the jury's full consideration of evidence which might negate the elements of murder.  (People v. Hyde (1985) 166 Cal.App.3d 463, 474, 212 Cal.Rptr. 440;  People v. Wickersham, supra, 32 Cal.3d at p. 335, 185 Cal.Rptr. 436, 650 P.2d 311.)   Nor was the instruction effectively a failure to instruct on lesser included offenses.

Kurtzman relies on United States v. Jackson (9th Cir.1984) 726 F.2d 1466, where the court, citing Tsanas, reversed the verdict because the trial court gave the jury an acquittal first verdict despite the defendant's objections.  (United States v. Jackson, supra, 726 F.2d at pp. 1469–1470.)   The Jackson decision was based on the likelihood that “jurors harboring a doubt as to defendant's guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offense at all.”  (At p. 1470.)   The problem envisioned by the Jackson court is not present here where the jury seemed to agree that Kurtzman was guilty of at least manslaughter before receiving the instruction at issue.   Moreover, the jury was instructed that a reasonable doubt as to the existence of malice would require an acquittal on second degree murder, thus placing the burden of proof squarely on the prosecution.  (CALJIC Nos. 8.30, 8.40, 8.72;  see People v. Reeves, supra, 123 Cal.App.3d at p. 70, 176 Cal.Rptr. 182.)

 Nor is there evidence supporting Kurtzman's contention that the court coerced or compelled the jury into reaching a verdict of guilty of second degree.   The instruction did not amount to an improper comment on the evidence.   The record shows the trial court conscientiously advised the jury to reach its own verdict, whatever that may be, and that it probed the jury to ascertain if further deliberations would be fruitful or not.   That jurors voting in the minority face the possibility of causing a deadlock and may change their vote to avoid a mistrial does not create a reversible verdict.  (People v. Zwiers, supra, 191 Cal.App.3d at p. 1506, 237 Cal.Rptr. 123.)   There was no undue pressure to convict of the greater offense.


 Over Kurtzman's objection the trial court admitted into evidence a tape recording of a confession he made to Detective Robert (Bob) Zapata of the Santa Barbara Police.   Kurtzman argues on appeal that the confession should have been excluded because the detective continued to interrogate him after he invoked his Fifth Amendment privilege to remain silent under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Detective Zapata read Kurtzman his Miranda rights before beginning the interrogation and obtained a valid waiver.   Zapata asked Kurtzman, “[w]hy don't you tell me about last night.”   Kurtzman began to narrate the events, but soon hesitated:

“D.K. [Kurtzman]:  Yes.   And uh so we went downtown and basically we uh, I don't feel I should talk right now sir.

“B.Z. [Zapata]:  You upset?

“D.K.:  I am kinda.   Its not like every day something like this happens to you.

“B.Z.:  Do you want to relax for a minute?

“D.K.:  No, I figure its fine for me to sit here for a second and I'll be ok.

“B.Z.:  If you would like some coffee or something like that or a Coke.

“D.K.:  Yeah could I have some coffee please, coffee sounds fine.”

The detective ordered coffee and asked Kurtzman, “[a]re you ready to go on?”

Kurtzman replied:  “Just give me a second to think things out here.”

After a few moments of silence, the detective and Kurtzman engaged in small talk about the Boy Scouts.   The detective again asked Kurtzman if he was ready to go on.   He said he was, and confessed to the killing.

Before the trial court and here on appeal, Kurtzman contends that he invoked his right to remain silent when he said “I don't feel I should talk right now sir,” and that questioning by Detective Zapata should have ceased.

In Miranda v. Arizona, supra, 384 U.S. at pages 473–74, 86 S.Ct. at pages 1627–28, the United States Supreme Court said, “[o]nce warnings have been given, the subsequent procedure is clear.   If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.   At this point he has shown that he intends to exercise his Fifth Amendment privilege;  any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”

Whether Kurtzman has indeed invoked his right to silence, however, “is a question of fact to be decided in the light of all the circumstances:  ‘A desire to halt the interrogation may be indicated in a variety of ways,’ and the words used by the suspect ‘must be construed in context.’  (In re Joe R. (1980) 27 Cal.3d 496, 515, 165 Cal.Rptr. 837, 612 P.2d 927.)”  (People v. Hayes (1985) 38 Cal.3d 780, 784–85, 214 Cal.Rptr. 652, 699 P.2d 1259.)

In ruling the confession admissible, the trial court said:

“Based on what I've seen, there might be some equivocation if you look just at the transcript.   But after listening to the tape, I am satisfied beyond a reasonable doubt that there was no intent on behalf of the defendant to invoke any kind of rights at all.

“He wanted a second to collect himself, and that's all.   After listening to the tape where he says, ‘I don't feel I should talk right now, sir,’ the emphasis is really on ‘right now,’ not on ‘talk.’   He was indicating, and certainly the clear and—it's clear to the Court that he just wanted a moment to collect himself.   He was not in any way attempting to invoke his Fifth Amendment right.”

We have also listened to the tape recording of the confession, and agree that Kurtzman did not intend to invoke his right to remain silent.   Even our review of the transcript alone compels the same conclusion.   The interrogation did not violate Miranda.

Kurtzman's initial statement that he did not wish to talk “right now” was not a statement which “ ‘reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time FN. omitted’  (People v. Randall [1970] 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 464 P.2d 114)․” (People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793, emphasis in original.)   The expression in his voice made it reasonable for the trial court to draw the same inference as did Detective Zapata—that Kurtzman was not invoking his rights but merely sought a moment to collect himself and gather his thoughts before continuing to discuss a difficult and uncomfortable subject.  (People v. Hayes, supra, 38 Cal.3d at p. 786, 214 Cal.Rptr. 652, 699 P.2d 1259.)

Kurtzman did not repeatedly and unequivocally answer “No,” or “I just don't want to,” or “I ain't got nothin' to say” when asked if he wanted to continue the interrogation.  (Cf. People v. Marshall (1974) 41 Cal.App.3d 129, 115 Cal.Rptr. 821;  People v. Carey (1986) 183 Cal.App.3d 99, 227 Cal.Rptr. 813.)   Instead he told the detective that he just needed “to sit here for a second and I'll be ok ․” and that he wanted “a second to think things out here.”   After a minute or two, he resumed his narrative.

The record does not support the conclusion that Kurtzman sought to halt the interrogation.  (In re Joe R. (1980) 27 Cal.3d 496, 516, 165 Cal.Rptr. 837, 612 P.2d 927.)

The conviction is affirmed.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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