PEOPLE v. GOODWIN (1992)

Ronald Wayne Goodwin was convicted of first degree murder (Pen.Code, § 187) and residential burglary (Pen.Code, § 459).   The jury also found true the allegations that he personally used a firearm with respect to both crimes (Pen.Code, § 12022.5) and the special circumstance allegation that he committed the murder while engaged in the commission of, or in immediate flight after having committed, first degree burglary.  (Pen.Code, § 190.2, subd. (a)(17).)   Appellant was sentenced to the upper term of six years on the burglary conviction and a consecutive term of life imprisonment without possibility of parole on the murder conviction.   The court added a consecutive two-year term for each personal use of a firearm enhancement but stayed the enhancement on the murder conviction pursuant to Penal Code section 654.

 The issues on appeal are:  (1) Did the trial court err in denying appellant's motion to suppress statements he made in response to police-initiated interrogation because of one or more Miranda violations?  (2) Were appellant's statements to the police involuntary because they were induced by an implied threat or promise of leniency?  (3) Was appellant's statement to his wife either made in response to police-initiated interrogation or tainted by the Miranda violations? ¹  and (4) Was the error in admitting appellant's statements to the police obtained in violation of the Miranda right to counsel reversible per se, or was it reversible only under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705?

FACTS

The October 6th Burglary and Homicide

On October 6, 1987, at approximately 4 a.m., Rita Morelli, the victim's wife, was in bed when she heard her husband, who was in the kitchen, say, “What do you want?”   She then heard a shot and a thud.   Her husband was killed by a single gunshot to the head, fired at short range.   The police found a small flashlight, some coins, Mrs. Morelli's purse, and Mr. Morelli's pants in the garage.   They also found, in the driveway and along the street, a garage door opener, some more coins, and some pantyhose.   These items, along with two wristwatches, a set of cufflinks, and a large amount of money Mr. Morelli kept in his pants, had been taken from the Morellis' residence.   The police also found a pair of footprints in the garage made by “ProWings”-style tennis shoes.

The Interrogation

Appellant was arrested on another offense the morning of October 7, 1987.   The arresting officer noticed that appellant was wearing ProWings tennis shoes and turned them over to Sergeant Knief who was investigating the homicide.   Sergeant Knief then took appellant into an interrogation room and informed appellant that he was under arrest for robbery and auto theft.   Appellant was fully advised of, and waived, his Miranda rights.

The interrogation initially focused on the robbery.   After a break, the sergeant asked appellant about a gun that had been found in his car.   Then, without disclosing where it had been found, the sergeant asked appellant about the small white flashlight that had been found at the Morelli residence.   Appellant initially responded that he did not remember having a flashlight like that.   He then said, “I don't want to talk any more, I want to go to sleep.   I just want to go to sleep and get this taken care of and not be bothered.   Just go to sleep.”

The sergeant then informed appellant that he was investigating a shooting and a burglary that had occurred the prior day and asked what appellant could tell him about it.   Appellant said he knew nothing about it.   The sergeant then told appellant that an expert had identified the footprints in the garage as matching appellant's shoes.   Appellant said, “I don't see how they could be mine.”

The sergeant then asked whether the gun that had been found in appellant's car was the gun that shot Mr. Morelli.   First, appellant said “he didn't know what I was talking about.”   Then, he turned his head to the wall and said, “I think I should call an attorney.   All I want to do is go to the county and face this thing I got going now and go to sleep.”

The sergeant told appellant that if he wanted an attorney that was “his choice.   And then I confronted him with some evidence and statements.”   Specifically, he told appellant:  “I'm not going to shit you, the man died.   You know if that's the gun, you know if that's your flashlight, we know these are your footprints, at sometime even if you were wearing gloves you touched the flashlight and your fingerprints will be on it.   You know if you did it or not.   We know you did it.   The way it looks now is that this was an intentional shooting.   The person who did it will be looked at like some kind of an animal.   This is the last chance you will have to talk to us about this to get your side of the story.   It may have been accidental but only you can tell us what happened.   This could be a gas chamber case.   This is serious.   Not a simple burglary or stolen property case.   We know accidents happen.   From your background we know you are not a violent person, but that's the way it would be looked at.”

After a three- or four-minute silence, the sergeant asked, “if the gun in the car was going to be the gun.”   With tears in his eyes, appellant nodded yes three times and then proceeded to make “admissions that he had done it, that it was an accident, that he didn't know that the man had been shot.   It was not intentional.”   The sergeant asked if appellant would make a recorded statement to the district attorney and appellant agreed.

While waiting for the district attorney, appellant continued to provide details about the burglary and homicide.   The sergeant asked appellant “what he meant when he said he wanted to talk to an attorney.”   He asked whether appellant “actually had wanted to consult with a lawyer or did he say that just because he knew he had done the shooting and wanted to go to jail and get away from talking about it.”   According to the sergeant, appellant replied that “he wasn't actually asking for an attorney, just that he wanted to go to the jail.   He said he didn't know what to do, but he wanted to tell his side of the story.”

When the district attorney arrived, appellant was advised of and waived his Miranda rights a second time.   He then gave a detailed recorded statement in which he admitted the burglary and that he shot Mr. Morelli while trying to escape, but continued to describe the shooting as accidental.

At the conclusion of this first recorded statement, Sergeant Knief placed appellant under arrest.   Sergeant Knief testified that appellant was then permitted to make a telephone call to his wife.   Sergeant Stormes took appellant to a telephone.   In the middle of the telephone call Stormes asked Sergeant Knief to watch appellant.   Knief testified that when he entered the room, appellant was talking on the phone with his back to Sergeant Knief.   Knief heard appellant say:  “ ‘Someone just died and I did it.   He was probably a nice guy and his family won't see him again.   It was my fault.’ ”

The next evening, while still in custody and still unrepresented by counsel, appellant, after being re-Mirandized, gave another long statement along the same lines as the first recorded statement.

The Trial

Although appellant did not testify at the trial of the burglary and felony-murder charge, all of his statements to the police were admitted.   Appellant's statement to his wife was also admitted.   In addition, the People presented expert testimony that the footprints in the garage matched appellant's.   They also offered evidence that cufflinks belonging to Mr. Morelli were found in a hotel room near the Morelli residence registered under the name Ron Goodwin.   The People further offered evidence that a gun was found in a search of a car that Goodwin admitted belonged to him.   An expert testified that this gun was the murder weapon.

Appellant offered virtually no defense to the felony-murder charge, and did not even ask the jury to return a not guilty verdict.   Instead, he urged the jury to believe his statements to the police that admitted the burglary, and that he accidentally shot the victim.

In the trial on the special circumstance allegation, appellant testified that the shooting was accidental.   The People did not offer any new evidence and, instead, relied primarily on inconsistencies in appellant's own description of the shooting in his statements to the police to establish that the killing was intentional.

ANALYSIS

I.The Miranda Violation

Appellant first contends that his statements to the police should have been suppressed because:  (1) his statement, “I don't want to talk anymore,” was an invocation of his Fifth Amendment right to remain silent which the police ignored (see Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313);  and (2) his statement, “I think I should call an attorney,” was an unequivocal assertion of his Fifth Amendment right to counsel (see, e.g., Edwards v. Arizona (1981) 451 U.S. 477, 484–485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378;  Minnick v. Mississippi (1990) 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489;  McNeil v. Wisconsin (1991) 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158).

The dispositive question is whether appellant invoked his Fifth Amendment right to counsel.   If he did, none of his subsequent statements in response to police-initiated interrogation should have been admitted.  (See, e.g., Edwards v. Arizona, supra, 451 U.S. at pp. 484–485, 101 S.Ct. at pp. 1885;  Minnick v. Mississippi, supra, 111 S.Ct. 486;  McNeil v. Wisconsin, supra, 111 S.Ct. 2204.)

 The United States Supreme Court recently explained the absolute bar on police-initiated interrogation absent the presence of counsel, once the Fifth Amendment right to counsel is invoked, as follows:  “In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we established a second layer of prophylaxis for the Miranda right to counsel:  once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation ‘until counsel has been made available to him,’ 451 U.S., at 484–485, 101 S.Ct., at 1884–1885—which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).   If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.   This is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.’  Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990).   The Edwards rule, moreover, is not offense-specific:  once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.  Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).”  (McNeil v. Wisconsin, supra, 111 S.Ct. at p. 2208, emphasis in original.) ²

 The trial court found that appellant's request for counsel was ambiguous and relied upon his subsequent statement, made in response to interrogation, that he had not really been asking for an attorney, to conclude that he had not invoked the right to counsel.³  Although this court must accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility, if they are substantially supported, we must “independently determine from the undisputed facts, and those properly found by the trial court” whether appellant invoked his right to counsel.⁴  (People v. Boyer (1989) 48 Cal.3d 247, 263, 256 Cal.Rptr. 96, 768 P.2d 610;  see also People v. Jennings (1988) 46 Cal.3d 963, 979, 251 Cal.Rptr. 278, 760 P.2d 475.)

 We fail to discern any ambiguity in the circumstances leading up to appellant's request for counsel or in the request itself.   In Miranda, the court held that if a defendant “indicates in any manner” and at any stage of the process that he wishes to consult with an attorney before speaking, “the interrogation must cease.”  (Miranda v. Arizona (1966) 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, emphasis added;  People v. Boyer, supra, 48 Cal.3d at p. 271, 256 Cal.Rptr. 96, 768 P.2d 610.)   A suspect may invoke his right to silence by any words or conduct inconsistent with willingness to discuss the case freely and completely.  (In re Joe R. (1980) 27 Cal.3d 496, 515, 165 Cal.Rptr. 837, 612 P.2d 927.)  “To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent.”  (People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.)   Thus, for example, the courts have found invocations of the right to counsel where the accused says, “I don't know if I should have a lawyer here or what.”   (People v. Russo (1983) 148 Cal.App.3d 1172, 1176–1177, 196 Cal.Rptr. 466.)  “ ‘Do you think we need an attorney?’ ” or “ ‘I guess we need a lawyer.’ ”  (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735–736, 125 Cal.Rptr. 798, 542 P.2d 1390.)  “ ‘Well, maybe I should talk to my attorney.’ ”  (People v. Munoz (1978) 83 Cal.App.3d 993, 995, 148 Cal.Rptr. 165.)   Or, “ ‘Tell me the truth, wouldn't it be best if I had an attorney with me?’ ”  (People v. Hinds (1984) 154 Cal.App.3d 222, 234, 201 Cal.Rptr. 104.)

 These cases illustrate that the interrogative form does not necessarily render the request for counsel ambiguous.   Moreover, the sergeant himself demonstrated that he understood appellant's statement as a request for counsel because he responded, that's “his choice.”   He further indicated his own awareness of the consequences of appellant's invocation of the right to counsel by telling appellant that it was his “last chance” to tell his side of the story, and confronting him with the evidence and the seriousness of the offense.   An additional factor supporting our conclusion is that, before making the statement, “I think I should call an attorney,” appellant had stated “I don't want to talk anymore” when the focus of the interrogation appeared to switch from the robbery to the murder.   Whether or not this was an attempt to invoke his right to remain silent, it was apparent that appellant was beginning to demonstrate some unwillingness to continue the interrogation once the interrogation began to focus on the murder.   His reluctance finally culminated in the assertion:  “I think I should call an attorney.”

Having concluded that appellant unambiguously invoked his right to counsel, we reject respondent's efforts to create an ambiguity based on appellant's responses to subsequent interrogation.   Appellant's later agreement with the sergeant that he hadn't really intended to invoke the right to counsel but simply wanted to stop talking and “go to jail” and “go to sleep” was made after all interrogation should have ceased.  (See Smith v. Illinois (1984) 469 U.S. 91, 97–98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488.)   In Smith, the court held that where “nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease” (id. at p. 98, 105 S.Ct. at p. 494), and subsequent statements may not be considered in determining whether the right to counsel was invoked.   The reason for rejecting the use of such after-the-fact characterizations of appellant's invocation of the right to counsel when the initial invocation is not ambiguous was explained in Smith v. Illinois, supra, 469 U.S. 91, 105 S.Ct. 490, as follows:  “ ‘No authority, and no logic, permits the interrogator to proceed ․ on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.’ ”  (Id. at p. 99, 105 S.Ct. at p. 494.)

Some California courts have adopted the view that if the invocation of Miranda rights is ambiguous, then the police are at least permitted to continue talking with the defendant for the limited purpose of clarifying whether the appellant is invoking his rights.  (See, e.g., People v. Carey (1986) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813;  People v. Russo (1983) 148 Cal.App.3d 1172, 1177, 196 Cal.Rptr. 466;  People v. Turnage (1975) 45 Cal.App.3d 201, 211, 119 Cal.Rptr. 237.)   These decisions, however, are of no help even if we were persuaded that appellant's invocation of his Miranda rights was equivocal, because the interrogation immediately following appellant's statement, “I think I should call an attorney,” was not directed towards clarifying whether he was invoking his right to counsel.   To the contrary, the sergeant responded by applying maximum pressure through the technique of confrontation with the evidence, calculated to induce appellant to make incriminating statements, despite his invocation of his right to counsel.

For this same reason we see no analogy between the facts of this case and those of People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 212 Cal.Rptr. 605, upon which respondent relies.   In Bestelmeyer the defendant expressed confusion about the meaning of the Miranda rights, and the police engaged in a polite and low-key discussion with the defendant, attempting to explain those rights to him.   The defendant's statements in Bestelmeyer were clearly tentative, and nothing more than thinking aloud, as he sought further explanation of his rights.   By contrast, in this case appellant expressed no confusion over his Miranda rights.   Instead of seeking clarification when appellant attempted to reinvoke those rights, the sergeant escalated the pressure of the interrogation with his “gas-chamber” speech.

We therefore conclude that all of appellant's statements to the police after appellant invoked his Fifth Amendment right to counsel should have been suppressed because they were obtained by police-initiated interrogation without the presence of counsel.  (See, e.g., Edwards v. Arizona, supra, 451 U.S. at pp. 484–485, 101 S.Ct. at pp. 1885;  Minnick v. Mississippi, supra, 111 S.Ct. 486;  McNeil v. Wisconsin, supra, 111 S.Ct. 2204.)

II.

Appellant's Statements Were Not Induced by Threats or an Implied Promise of Leniency

Appellant further contends that not only were his statements obtained in violation of Miranda, but also that his statements were in fact involuntary because they were induced by an implied threat that he would face the death penalty if he didn't confess, and an implied promise that if he did confess he would receive more lenient treatment.⁵

 We are not persuaded by appellant's contention that his subsequent confession was actually involuntary.   The fact that an interrogation was calculated to secure a confession does not necessarily mean that it was coerced in a manner prohibited by the Fifth Amendment.  (People v. Benson (1990) 52 Cal.3d 754, 780, 276 Cal.Rptr. 827, 802 P.2d 330.)   Interrogation techniques that are calculated to obtain a confession but are not deemed “coercive” include, “exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.”  (People v. Andersen (1980) 101 Cal.App.3d 563, 576, 161 Cal.Rptr. 707.)   The police, however, must scrupulously “avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession.”  (People v. Nicholas (1980) 112 Cal.App.3d 249, 264–265, 169 Cal.Rptr. 497.)   It is often a fine line between a “threat (or a promise) and a statement of fact or intention.”  (People v. Thompson (1990) 50 Cal.3d 134, 169, 266 Cal.Rptr. 309, 785 P.2d 857.)   We conclude, however, that the sergeant's statement fell on the side of permissible and effective interrogation.⁶

We are satisfied that the primary impact of Sergeant Knief's statement was to inform appellant that the police already had powerful evidence pointing to appellant and that, based on the investigation, they believed the killing was intentional and occurred while appellant was attempting to escape following the commission of first degree burglary, and that therefore it could be a death penalty case.   Sergeant Knief also noted that appellant's prior record demonstrated that he was “not a violent person,” and that accidents can happen.   All of the foregoing amounts to no more than confrontation of appellant with the evidence and with the police theory of the events based on the facts as then known.   These are permissible interrogation techniques.   (People v. Andersen, supra, 101 Cal.App.3d at p. 576, 161 Cal.Rptr. 707.)

The only implied “benefit” to appellant of talking was that he might be able to provide information to support some other theory of how the shooting occurred.  “[I]t is settled that [w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, the subsequent statement will not be considered involuntarily made.”  (People v. Thompson, supra, 50 Cal.3d at p. 170, 266 Cal.Rptr. 309, 785 P.2d 857 (internal quotation marks omitted) [holding that confession not induced by implied threat or promise of leniency where interrogators stated that they had “two alternative theories of the crime—an accidental killing and an intentional one to prevent identification” and that they were tending to believe that the killing was intentional (id. at pp. 169–170, 266 Cal.Rptr. 309, 785 P.2d 857);  see also People v. Andersen, supra, 101 Cal.App.3d at p. 582, 161 Cal.Rptr. 707 [confession voluntary despite statements by interrogators that they didn't believe the suspect's story, and that if the shooting took place in the heat of an argument as the police suspected, the suspect would be better off explaining her intent to the judge and jury than persisting in a denial contrary to all the evidence].)   Any doubt about the interpretation of the sergeant's statements is resolved by appellant's own repeated acknowledgement that, “you guys didn't promise me anything.   That I would get off or get anything different than what they are going to give me.” ⁷

 We further are not persuaded that a statement, based on the facts then known to the police, that the offense may be subject to the death penalty, necessarily constitutes a “threat” prohibited by the Fifth Amendment.   We think the line between a statement of fact and a “threat” is crossed when the interrogating officer suggests that if the suspect does not confess, he will be charged with a death penalty offense because of his failure to cooperate;  and irrespective of whether the facts support such a charge, or that they will abandon the theory that would make the offense subject to the death penalty only if the suspect confesses.  (See, e.g., People v. Benson, supra, 52 Cal.3d at pp. 780–781, 276 Cal.Rptr. 827, 802 P.2d 330 [mentioning “ ‘[t]here is no death penalty here’ ” does not constitute an implied threat or promise of leniency where statement did not induce confession and where circumstances of killing suggested alternative theories of accidental or intentional killing, and where, absent evidence refuting one theory, both would be asserted;  and no suggestion that police would abandon the theory of intentional killing simply because the suspect confessed].)

 Sergeant Knief stated only that the facts suggested that the crime might be subject to the death penalty depending on the circumstances of the killing.   We have already explained that it is perfectly permissible for the police to inform a suspect of their theories of how the offense occurred, to suggest that they are pursuing alternative theories, one of which would be less serious than the other, and even to tell the suspect that absent further information they are inclined to believe the more serious offense occurred.   (See, e.g., People v. Thompson, supra, 50 Cal.3d at pp. 166–170, 266 Cal.Rptr. 309, 785 P.2d 857.)   The fact that the police further inform the suspect that their investigation supports the conclusion that a death penalty offense may have occurred should not automatically transform an otherwise non-coercive interrogation technique into a coercive one.

The cases relied upon by appellant are distinguishable because each involved additional coercive circumstances beyond mere mention that the offense could be a death penalty offense.   For example, in People v. Hinds, supra, 154 Cal.App.3d 222, 201 Cal.Rptr. 104, the suspect was an immature 19–year–old.   The police suggested that the suspect could get the death penalty, or “turn around and walk out the door,” clearly implying that they would abandon the death penalty theory if the suspect talked.   Then, when the suspect did talk and maintained that the shooting was accidental, the police told him his refusal to admit an intentional shooting was cowardly and would “make things worse” for him.   The police thereby implicitly threatened him that, if he did not admit to the intentional shooting theory, he would face the death penalty.

Similarly, in People v. McClary (1977) 20 Cal.3d 218, 223–224, 142 Cal.Rptr. 163, 571 P.2d 620, the police incorrectly stated that the suspect would face the death penalty, that they believed she was either a principal or an accessory after the fact, and told her that unless she admitted that she was at least an accessory after the fact, she would be tried as a principal.   Here again the police went beyond informing the suspect of the potential seriousness of the offense and of their theory of the case.   They suggested that, in exchange for a confession to a less serious offense, they would abandon their theory that a more serious offense had occurred, and simultaneously suggested that if she did not confess, in retaliation for her lack of cooperation, she would be tried as a principal, regardless of the actual facts.

In People v. Denney (1984) 152 Cal.App.3d 530, 199 Cal.Rptr. 623, the police preceded mention of the death penalty with a hypothetical story in which the actual triggerman in an “accidental” felony/homicide, who cooperated with the police, received only a five-year manslaughter sentence, while those who refused to cooperate were sentenced to life in prison without possibility of parole.  (Id. at p. 536, 199 Cal.Rptr. 623.)   Then, when the suspect invoked his right to counsel, the police told him if he insisted on the presence of counsel, they couldn't “help” him, and that “ ‘We want to keep you from getting the gas chamber.’ ”  (Id. at p. 539, 199 Cal.Rptr. 623.)   In Denney, unlike this case, the police clearly suggested that the only way to avoid the death penalty would be to confess, and the “hypothetical” illustrated that cooperation with the police would lead to a lighter sentence regardless of the confessor's actual degree of culpability.⁸

III.

Appellant's Statement to His Wife

In his petition for rehearing the Attorney General belatedly contends that, even if appellant's statements to the police must be presumed involuntary, appellant's statement to his wife was nonetheless admissible, because it was not made in response to custodial interrogation and was in fact voluntary.   Appellant counters that allowing him to speak to his wife was the functional equivalent of custodial interrogation because the police should have anticipated that he would make incriminating statements to his wife.  (See Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297.)   He also asserts that, in any event, even if his statement was voluntary, it must nonetheless be suppressed because it is the “fruit of the poisonous tree.”

The facts in this case are virtually indistinguishable from those in Arizona v. Mauro (1987) 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 in which the court concluded that allowing a suspect to talk to his wife after he had invoked his Fifth Amendment right to counsel did not constitute custodial interrogation.   In Mauro, the defendant, who was in custody for the killing of his son, invoked his Fifth Amendment right to counsel.   The police stopped the interrogation and placed the defendant in the police captain's office.   (Id. at pp. 521–522, 107 S.Ct. at 1932–1933.)   The defendant's wife, who was also a suspect, insisted on speaking to her husband.   The police finally agreed on the condition that an officer be present in the room.   The meeting between the defendant and his wife then took place with a police officer and tape recorder in plain sight.   The defendant told his wife she should wait until she had an attorney before saying anything, and also told her several times that she had done her best to stop him.   The tape recording was introduced at trial, over defendant's objection, in order to rebut the defendant's claim that he was insane at the time of the killing.   The court held that allowing the defendant to speak to his wife was not a psychological ploy or subterfuge amounting to the functional equivalent of interrogation, even though the police had anticipated the possibility that the defendant would incriminate himself when speaking with his wife.   The court explained, “[o]fficers do not interrogate a suspect simply by hoping he will incriminate himself.”  (Id. at p. 529, 107 S.Ct. at p. 1936.)   The court noted that it was the defendant's wife who initiated the conversation with her husband.   Moreover, the police presence in the room did not suggest a subterfuge because the police had independent reasons for insisting on being present, including protection of the wife, and insuring that the two suspects did not collude with one another to concoct a defense.  (Id. at pp. 527–530, 107 S.Ct. at pp. 1935–1937.)

 Similarly, in this case, it was appellant who asked to telephone his wife.   The call was not suggested by the police.   Appellant had just been placed under arrest and was apparently aware that a police officer was present in the room.⁹  The police had legitimate security reasons for remaining in the room because appellant had just been placed under arrest.   The simple fact that it was likely that appellant would make incriminating statements to his wife after having tearfully admitted the burglary and shooting the victim does not transform the police decision to honor the defendant's request to call his wife into custodial interrogation.  (Arizona v. Mauro, supra, 481 U.S. at pp. 528–529, 107 S.Ct. at pp. 1936;  see also People v. Guilmette (1991) 1 Cal.App.4th 1534, 2 Cal.Rptr.2d 750 [no custodial interrogation occurred after suspect invoked Fifth Amendment right to counsel, where suspect telephoned victim and made incriminating statements unaware that the police had responded to victim's complaints about threatening telephone calls and were recording the conversation].)

The more difficult question is whether, even though appellant's statement was volunteered, it must nonetheless be suppressed as the “fruit of the poisonous tree” on the theory that appellant would never have made such an admission in the presence of a police officer if the police had ceased all interrogation when appellant invoked his Fifth Amendment right to counsel.   Appellant reasons that once the first unrecorded and the second recorded statements had been given, the “cat was out of the bag,” and he therefore had no reason not to make the further statement to his wife in the presence of a police officer.

Appellant relies on Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 and Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.   In Wong Sun the court set forth the test for determining whether a Fourth Amendment violation tainted evidence discovered thereafter.   The court held that “[w]e need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.   Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”  (Wong Sun, supra, 371 U.S. at pp. 487–488, 83 S.Ct. at p. 417.)

In Brown v. Illinois, supra, 422 U.S. 590, 95 S.Ct. 2254, the court again considered the effect of a Fourth Amendment violation on the admissibility of a confession after Miranda warnings were given and waived.   The court rejected the proposition that the giving of a Miranda warning necessarily purges the taint of an illegal arrest and renders an ensuing confession “ ‘sufficiently an act of free will to purge the primary taint.’ ”  (Id. at p. 602, 95 S.Ct. at 2261.)   Instead, the court held that the fact that the confession is voluntary under the Fifth Amendment is only the threshold requirement for its admission.   In determining whether the Fourth Amendment violation taints a voluntary confession, the giving of the Miranda warning is only a factor in determining whether a confession is tainted by an illegal arrest.   The other factors to be considered are, “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances ․, and, ․ the purpose and flagrancy of the official misconduct.”  (Id. at pp. 603–604, 95 S.Ct. at pp. 2261–2262, fn. omitted.)

The relevance of Brown and Wong Sun to our analysis is questionable because both Brown and Wong Sun concerned the admission of subsequent confessions to the police, whereas here the issue concerns a statement that appellant volunteered to his wife.   More importantly, in both Brown and Wong Sun there was an underlying violation of substantive constitutional rights under the Fourth Amendment.   By contrast, in this case the violation is only of the prophylactic rights set forth in Miranda.  (See, e.g., Oregon v. Hass (1974) 420 U.S. 714, 721–723, 95 S.Ct. 1215, 1220–1221, 43 L.Ed.2d 570;  Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405;  People v. Mickey (1991) 54 Cal.3d 612, 648, 286 Cal.Rptr. 801, 818 P.2d 84;  People v. Harper (1991) 228 Cal.App.3d 843, 852, 279 Cal.Rptr. 204;  People v. Harris (1989) 211 Cal.App.3d 640, 651, 259 Cal.Rptr. 462.) ¹⁰

The court explained the distinction in Oregon v. Elstad (1985) 470 U.S. 298, 306–307, 105 S.Ct. 1285, 1291–1292, 84 L.Ed.2d 222, as follows:  “[A] procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the ‘fruits' doctrine.   The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits.   Dunaway v. New York, 442 U.S. 200, 216–217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979);  Brown v. Illinois, 422 U.S. at 600–602, 95 S.Ct. at 2260–2261.  ‘The exclusionary rule, ․ when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.’  Id., at 601, 95 S.Ct. at 2260.   Where a Fourth Amendment violation ‘taints' the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence.  Taylor v. Alabama, supra, [457 U.S. 687 (1982) ] at 690 [102 S.Ct. 2664, 2667, 73 L.Ed.2d 314].   Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.  [¶] The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.   It may be triggered even in the absence of a Fifth Amendment violation.   The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony.   Failure to administer Miranda warnings creates a presumption of compulsion.   Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.   Thus, in the individual case, Miranda 's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.   See New York v. Quarles, supra, [467 U.S. 649 (1983) ] at 654 [104 S.Ct. 2626, 2630, 81 L.Ed.2d 550];  Michigan v. Tucker, 417 U.S. 433, 444 [94 S.Ct. 2357, 2364, 41 L.Ed.2d 182] (1974).  [¶] But the Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted․”  (Fn. omitted.)

Having established that the application of the “fruits” analysis should be much narrower where there is no Fourth Amendment violation, nor actual compulsion in violation of the Fifth Amendment, but instead only a violation of the prophylactic Miranda rights, the Elstad court rejected the argument that once a confession is obtained without giving the Miranda warnings, all subsequent confessions obtained after proper Miranda warnings were given must be suppressed because the first, presumptively involuntary confession, let the “cat out of the bag.”   The Elstad court explained:  “[E]ndowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect's informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions.   As the court remarked in Bayer:  ‘[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed.   He can never get the cat back in the bag.   The secret is out for good.   In such a sense, a later confession may always be looked upon as fruit of the first.   But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.’  [United States v. Bayer (1946) ] 331 U.S. [532] at 540–541 [67 S.Ct. 1394, 1398, 91 L.Ed. 1654].”  (Oregon v. Elstad, supra, 470 U.S. [298] at p. 311 [105 S.Ct. 1285, 1294, 84 L.Ed.2d 222 (1985) ].)   The Elstad court concluded that “the admissibility of any subsequent statement should turn ․ on whether it is knowingly and voluntarily made.”  (Id. at p. 309, 105 S.Ct. at p. 1293.)

 We recognize that this case differs from Elstad in that Elstad involved a failure to give the Miranda warning, whereas in this case the warnings were given but the police continued interrogation after appellant invoked his right to counsel.   As we have held, there is no question that under Edwards the remedy for the Miranda violation is that all of appellant's subsequent statements to the police in response to police-initiated interrogation without the presence of counsel must be suppressed, even if one or more of these statements was otherwise voluntary.   However, we have also found that none of appellant's statements to the police were actually coerced.  (See ante, part II.)   Moreover, the statement to appellant's wife was not even made in response to police interrogation, and therefore was clearly volunteered.   There being no underlying constitutional violation of the Fourth or Fifth Amendments, we may give great weight to the intervening act of free will, i.e., appellant's request to phone his wife and his decision to confide in her.   Moreover, appellant, who was experienced in the criminal justice system, had been advised of his Miranda rights twice and unequivocally waived them at least for the purpose of giving the first recorded statement, which preceded his telephone call to his wife.¹¹

 The only lingering compulsion influencing appellant at the time he made the statement to his wife was his own need to confide in her, and perhaps some psychological sense that “the cat was out of the bag.”   As in Elstad, the “cat-was-out-of-the-bag” theory is the only reason appellant advances for the suppression of this statement.   The statement was voluntary and no interrogation or coercion was involved.   We think the Elstad court's rejection of the “cat-out-of-the-bag” psychological compulsion argument applies equally to this case where there has been no underlying violation of the Fifth Amendment, and where appellant has obtained the remedy he is entitled to under Miranda and Edwards, i.e., the suppression of all subsequent statements he made to the police in response to police-initiated interrogation.   The statement to his wife, however, was not the product of police interrogation, nor the inevitable result of exploitation of the disregard of his request for counsel.   Rather, the statement was made because of his own intervening decision to call and confide in his wife.

We conclude that any “taint” flowing from the violation of appellant's prophylactic Miranda rights was attenuated by appellant's own intervening act of free will.   Appellant's statement to his wife was therefore properly admitted and may be considered in determining whether the erroneous admission of his other statements requires reversal.

IV.

Standard for Determining Whether the Erroneous Admission of Appellant's Statements to the Police Requires Reversal

We must now determine if the error in admitting appellant's statements made in response to the police-initiated interrogation statement is reversible per se (People v. McClary, supra, 20 Cal.3d at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620) or whether the error is reversible only under the standard set forth in Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824.¹²

In Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, the United States Supreme Court held that admission of a coerced confession does not require automatic reversal and that, instead, the court must determine whether the error is harmless beyond a reasonable doubt under Chapman.   The court explained that “[t]he evidentiary impact of an involuntary confession, and its effect upon the composition of the record, is indistinguishable from that of a confession obtained in violation of the Sixth Amendment—of evidence seized in violation of the Fourth Amendment—or of a prosecutor's improper comment on a defendant's silence at trial in violation of the Fifth Amendment,” all of which are errors reversible under the Chapman standard.  (Id. at p. ––––, 111 S.Ct. at p. 1265.)

 Our own Supreme Court presaged the recognition that the Chapman standard should apply to this type of error in People v. Boyer, supra, 48 Cal.3d at pp. 279–280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610.   The court stated:  “California has followed the rule that ‘the improper introduction of a confession [i.e., a declaration of defendant's intentional participation in a criminal act] is considered reversible per se [citations], whereas wrongful introduction of an admission [i.e., the recital of facts tending to establish guilt when considered with the remaining evidence in the case] is deemed prejudicial unless the People show beyond a reasonable doubt that the error complained of did not contribute to the verdict.  [Citations]․’  (People v. McClary, supra, 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620, italics in original.)   This California distinction, never expressly divorced from federal law, is doubtful in light of Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 [citations].  Rose emphasized that even federal constitutional errors are not subject to a per se reversal standard unless they render the entire trial ‘fundamentally unfair.’   The court acknowledged that a per se standard applies to introduction of a coerced confession,¹³ complete denial of the right to counsel, or adjudication by a biased judge.   However, ‘if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis․'  [Citations.]   Under this reasoning, if a wrongfully introduced confession is invalid only for Fourth Amendment or prophylactic Miranda reasons, harmless-error analysis may be appropriate.”  (People v. Boyer, supra, 48 Cal.3d at pp. 279–280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610, original emphasis.)

Appellant contends that we are bound by prior California Supreme Court decisions holding that the erroneous introduction of a confession obtained in violation of Miranda is reversible per se.  (People v. Porter (1990) 221 Cal.App.3d 1213, 270 Cal.Rptr. 773.)   In Porter, which was decided before Arizona v. Fulminante, supra, 499 U.S. 279, 111 S.Ct. 1246, the court held that it was bound by prior decision of the California Supreme Court in People v. McClary, supra, 20 Cal.3d at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620, to apply the reversible per se standard when a confession, obtained after the police ignored the defendant's attempt to halt an interrogation by invoking his right to remain silent, was erroneously admitted.  (Porter, supra, 221 Cal.App.3d at pp. 1220–1223, 270 Cal.Rptr. 773.)

If we were to adopt appellant's position, we would be applying a standard for reversal based on federal constitutional error that is in clear conflict with a decision of the United States Supreme Court.   Appellant's argument is premised on the assumption that California has adopted an independent and more stringent standard, based on the state Constitution, for determining whether a federal constitutional error requires reversal of a criminal conviction.   We hold only that the decisions of our Supreme Court have not yet articulated any such separate state constitutional standard for reversal.¹⁴  (See People v. Boyer, supra, 48 Cal.3d at pp. 279–280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610;  but see People v. Asay (1990) 224 Cal.App.3d 608, 612–615, 273 Cal.Rptr. 737.)

 The decisions of the United States Supreme Court are binding on this court and our California Supreme Court on issues of federal constitutional law.  (See, e.g., People v. Greenwood (1986) 182 Cal.App.3d 729, 734, 227 Cal.Rptr. 539, revd. on other grounds in California v. Greenwood (1988) 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30;  People v. Rooney (1985) 175 Cal.App.3d 634, 644, 221 Cal.Rptr. 49.)   In this case, not only has our state Supreme Court never expressly based the application of the per se standard for reversal on the state Constitution, it has clearly stated that its decisions on the subject have never been “expressly divorced from federal law.”  (People v. Boyer, supra, 48 Cal.3d at p. 280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610.)   We therefore are not bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, to follow decisions of our California Supreme Court interpreting federal law that are now clearly in conflict with the most recent pronouncements of the United States Supreme Court.

 We now turn to the question whether, under Chapman, the erroneous admission of appellant's statements was harmless beyond a reasonable doubt.   The Attorney General does not challenge this court's determination that the erroneous admission of appellant's statements to the police in the special circumstance trial could not be deemed harmless under the Chapman standard.   The prosecutor relied almost exclusively upon appellant's statements describing the details of the shooting to support the inference of “intent to kill,” which at the time of trial was a necessary element of the Penal Code section 190.2, subdivision (a)(17), felony-murder special circumstance.¹⁵  Although there was some independent physical evidence ¹⁶ that supports the inference that the shooting was not accidental as appellant claimed, we cannot say beyond a reasonable doubt that the admission of appellant's statements did not contribute to the finding that the special circumstance finding was true.¹⁷  There is no question that appellant's own statements provided many of the details supporting the inference of an “intent to kill” in this case.   Our conclusion that appellant's statement to his wife that “[s]omeone just died and I did it” was admissible does not change this analysis because this statement admits only that appellant shot the victim but is not inconsistent with appellant's defense that the killing was accidental.

 The more difficult question is whether the admission of appellant's statements with regard to the burglary and the felony murder convictions also constitutes reversible error under Chapman.   Prior to the petition for rehearing, the Attorney General argued only that reversal was not required because:  “Appellant's footprints were found in the Morelli garage.   The gun which killed Mr. Morelli was found in appellant's car.   Some of the stolen property was found in appellant's possession.” ¹⁸  In our original opinion we found, by analogy to People v. Boyer, that the evidence cited by the Attorney General, although strong, was circumstantial.   In People v. Boyer, supra, 48 Cal.3d at p. 280, 256 Cal.Rptr. 96, 768 P.2d 610, the court found reversible error under the Chapman standard even though, once the illegally obtained statements were excluded, there was strong circumstantial evidence against the defendant.¹⁹  We further noted that, excluding the statements appellant made to the police, the evidence was only circumstantial and there would have been room, had appellant's statements been suppressed, for appellant to create a reasonable doubt as to whether he was the burglar or the killer.   Appellant's admission to his wife that someone just died and “I did it,” however, eliminates any doubt as to the identity of the killer;  and, when combined with the fact that appellant's footprints were found in the victim's garage, the gun was found in appellant's car, and the victim's property found in appellant's possession, constitutes overwhelming evidence that appellant had committed the burglary and the felony murder.   Thus, we are satisfied beyond a reasonable doubt that even if appellant's statements to the police had been excluded, he nonetheless would have been convicted of the burglary and the felony murder.

In sum, we conclude that the erroneous admission of appellant's statement to the police requires that the special circumstance finding be stricken, but that the error was not prejudicial with respect to the burglary and felony murder convictions and their attendant personal use of gun enhancements.²⁰

CONCLUSION

The special circumstance finding must be stricken and the matter is remanded for further proceedings consistent with this opinion.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   The Attorney General raised this issue for the first time in his petition for rehearing.   The Attorney General made no reference to the statement in its summary of facts or its own analysis of harmless error.   Ordinarily this court would deny a petition for rehearing that raises a new issue which could and should have been raised in the respondent's brief.   (See, e.g., Sanders v. Howard Park Co. (1948) 86 Cal.App.2d 721, 195 P.2d 898;  People ex rel. Dept. of Public Works v. Mascotti (1962) 206 Cal.App.2d 772, 24 Cal.Rptr. 679.)   The failure of the Attorney General to raise the issue in a timely fashion has caused inexcusable delay in the processing of this appeal and is a waste of the time and resources of the court and of the parties.   The Attorney General's proffered excuse for failing to raise the issue is that the admissibility of appellant's statement to his wife was merely a factual question that this court should sua sponte have considered in determining whether any error in the admission of appellant's other statements to the police was harmless.   To the contrary, as illustrated by the briefs submitted after we granted rehearing, the admissibility of appellant's statements to his wife raises a host of new legal questions, such as whether permitting appellant to speak to his wife was a form of custodial interrogation and whether the statement was “tainted” by the prior Miranda violations.   The Attorney General's complete silence on these issues in its brief in the original appeal strongly supported the inference that it had waived the issue of the admissibility of appellant's statement to his wife, that was raised but never reached in the proceedings below.   We strongly disapprove of the Attorney General's performance in acknowledging his oversight.   We nonetheless exercised our discretion to grant the petition for rehearing in light of the seriousness of the offense and in the interests of justice.

2.   By contrast, if the police obtain an initial confession by disregarding the suspect's invocation of his right to remain silent, the police are not barred from reinitiating interrogation if there is some intervening change in circumstances, and subsequent confessions given in response to police-initiated interrogation are not automatically presumed involuntary.  (Michigan v. Mosley, supra, 423 U.S. 96, 96 S.Ct. 321.)   The rationale for applying the presumption of involuntariness to all statements made in response to subsequent police-initiated interrogation when the suspect invokes the Fifth Amendment right to counsel, but not when the suspect invokes the right to remain silent, is elusive at best.  (See Minnick v. Mississippi, supra, 498 U.S. 146, ––––, 111 S.Ct. 486, 496–497, 112 L.Ed.2d 489, 504–505, citing Kamisar, The Edwards and Bradshaw Cases:  The Court Giveth and the Court Taketh Away, in 5 The Supreme Court:  Trends and Developments 157 (J. Choper, Y. Kamisar, & L. Tribe eds. 1984 [“[E]ither Mosley was wrongly decided or Edwards was”].)   This case illustrates the impact of the sweeping presumption of involuntariness in the case of disregard of a suspect's invocation of the Fifth Amendment right to counsel because, if appellant had only invoked his right to remain silent, we would have little difficulty concluding under Mosley that at least the third statement to the police was admissible in light of the two intervening proper Miranda warnings and voluntary waivers of those rights, and the passage of time.   Nonetheless, under Edwards the subsequent statements made in response to police-initiated interrogation must be presumed involuntary and therefore should have been excluded.

3.   The court explained its conclusion as follows:  “If you read it in a certain way, it can sound like a question by the defendant.   I think his later statement [i.e., the unrecorded statement agreeing with the sergeant that appellant had not actually wanted an attorney but had only wanted to ‘go to the jail’ and get it over with] clarifies what he was actually saying, that he was not actually asking for an attorney.”

4.   The requirement that this court independently determine whether appellant invoked his right to counsel is particularly appropriate in this case because there was no conflicting evidence regarding the exchange that took place between the sergeant and appellant, and there is no recording of that part of the interview in which appellant claims to have invoked his right to counsel that would require an evaluation of inflection.

5.   In our original opinion we did not reach the question whether appellant's statements were actually coerced, because under Edwards they all had to be suppressed, regardless of any actual coercion, because they were made in response to police-initiated interrogation after he had invoked his Fifth Amendment right to counsel and therefore were presumed involuntary.   However, as we shall explain in part III of this opinion, whether appellant's statements were actually coerced and therefore obtained in violation of substantive Fifth Amendment rights, instead of merely presumed involuntary because obtained in violation of Miranda, affects our analysis of the scope of the “taint” and therefore the admissibility of appellant's statement to his wife.   Therefore, in light of the new arguments raised in the petition for rehearing, we must now resolve the question whether appellant's statements were actually coerced.

6.   The trial court specifically found that appellant's statements were voluntary.   When reviewing that finding, this court must “ ‘examine the uncontradicted facts ․ to determine independently whether the prosecution’ ” proved that the statements were voluntarily given.   Where conflicting evidence or inferences may be drawn, this court must resolve these conflicts in support of the trial court's finding of voluntariness.   (People v. Thompson, supra, 50 Cal.3d at p. 166, 266 Cal.Rptr. 309, 785 P.2d 857.)

7.   Appellant also stated in both recorded statements that he hadn't realized that he had actually shot and killed the victim until Sergeant Knief informed him of that fact right after he had invoked his right to counsel in the first interview.   He frequently expressed remorse over the fact that the victim had died.   He also acknowledged that he knew “that they are going to, you know, slap it to me.”   These statements suggest that appellant, rather than being induced to confess by an alleged threat or promise contained in Sergeant Knief's speech, was motivated by the shock of learning he had in fact shot the victim and that the victim had died.   (See, e.g., People v. Benson, supra, 52 Cal.3d at p. 778, 276 Cal.Rptr. 827, 802 P.2d 330 [implied threat or promise must actually have been the inducement for making the statement].)

8.   Appellant also cites, without discussion, People v. Flores (1983) 144 Cal.App.3d 459, 192 Cal.Rptr. 772.   In that case, after the suspect effectively waived his Miranda rights, the police repeatedly told appellant they didn't believe his denial that he knew the victim or had been with the victim at the place where the victim was killed.   The police further informed the suspect that it looked like murder but suggested that perhaps it was self-defense, and they wanted his side of the story.   When appellant continued to deny that he was with the victim, the police told him that it looked like a robbery and murder and that he could go to the gas chamber.   When the suspect said, I'm “dead anyway,” they told him that “[w]hat you tell us may help you in the long run.”  (Id. 144 Cal.App.3d at p. 466, 192 Cal.Rptr. 772.)   The court held that all of appellant's statements after the death penalty was mentioned were involuntary.  (Id. at p. 472, 192 Cal.Rptr. 772.)   To the extent that this case may be interpreted to mean that merely mentioning the death penalty is coercive, we respectfully disagree with it.   A more narrow interpretation of the case is that it was the coupling of the mention of the death penalty offense with the statement that “[w]hat you tell us may help you” that rendered the confession involuntary, especially in light of the fact that the police had made it clear that they would not believe him unless he admitted at least to being with the victim and having some knowledge of how the killing occurred.

9.   According to Sergeant Knief's testimony, appellant had his back to the sergeant when he told his wife that “[s]omeone just died and I did it.”   Appellant, however, does not contend that he thought his conversation with his wife was private, or that he was unaware that a police officer was present.

10.   Appellant contends that there is a difference between obtaining a confession after an inadequate Miranda advisement and obtaining a confession in disregard of a suspect's invocation of his Fifth Amendment right to counsel.   He argues that the former entails only a violation of the prophylactic Miranda rights, whereas the latter constitutes a substantive violation of the suspect's Fifth Amendment rights.   Not so.   The Fifth Amendment privilege against self-incrimination is violated only if the prosecution is permitted to use a statement that is actually coerced.   The giving of the Miranda warnings and the right to have counsel present during interrogation are only prophylactic rights developed by the courts in order to counteract the inherently coercive atmosphere of custodial interrogation.  “The United States Supreme Court has found no valid distinction between a defective warning and a proper one whose negative response [was] not heeded.”  (People v. Harris, supra, 211 Cal.App.3d at p. 651, 259 Cal.Rptr. 462.)   In both cases the statement had been obtained in violation of only the prophylactic protections of Miranda and are presumed involuntary and, therefore, inadmissible in the prosecution's case-in-chief.  (Ibid.)

11.   Although we are required under Edwards to presume that this waiver was involuntary for purposes of admission of the statement to the police that followed, we are unaware of any authority that precludes us from considering the effect of these intervening events for purposes of determining whether the effect of the initial disregard of the request for counsel was attenuated by the time appellant made the statement to his wife.

12.   California courts have, in the past, held that the erroneous admission of a confession is reversible per se, whereas the erroneous introduction of an admission is reversible only if the People could not demonstrate that its introduction was harmless under Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.  (People v. McClary, supra, 20 Cal.3d at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620.)   Appellant assumes that appellant's statements constituted a “confession,” which is defined as a declaration of a defendant's intentional participation in a criminal act (ibid.) or a statement in which the defendant “disclos[es] his guilt of the crime with which he is charged and exclud[es] the possibility of a reasonable inference to the contrary.”   (People v. Jones (1965) 237 Cal.App.2d 499, 502, 47 Cal.Rptr. 40.)   Arguably, only appellant's statements regarding the burglary qualify as confessions because his statements regarding the killing all claim it was accidental rather than intentional as charged.   It is unnecessary, however, to engage in a convoluted analysis of which statements constituted a confession and which were merely admissions, because we shall hold that the distinction previously drawn in California between the effect of erroneous admission of confessions as opposed to admissions is no longer valid.   In either case the issue is whether the error is harmless under Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.

13.    Boyer was decided before the decision in Arizona v. Fulminante, which, as we have explained, clarifies that the per se standard does not apply even to a coerced confession.   A fortiori, it does not apply to a confession that is presumed involuntary for “prophylactic Miranda reasons.”

14.   It is unquestionably within the power of our Supreme Court to declare more stringent standards for the protection of state constitutional rights.   We need not decide here whether application of the more stringent automatic reversal standard under the state Constitution would violate Proposition 8.   The issue is currently before our Supreme Court.   On May 14, 1992, review was granted in People v. Fuller (S025928) formerly at 3 Cal.App. 4th 1220, 5 Cal.Rptr.2d 112, in which the Court of Appeal held not only that the Chapman standard applies, but further held that Proposition 8 would preclude the application of the automatic reversal standard under the state Constitution.

15.   The “intent to kill” requirement imposed by Carlos v. Superior Court (1983) 35 Cal.3d 131, 138–154, 197 Cal.Rptr. 79, 672 P.2d 862, was disapproved in People v. Anderson (1987) 43 Cal.3d 1104, 1138–1147, 240 Cal.Rptr. 585, 742 P.2d 1306.   It was agreed at trial that the instant crimes were committed during the “window” period between Carlos and Anderson.

16.   The independent physical evidence included the fact that the murder weapon did not have a “hair trigger”;  the close range at which the victim was shot;  and that the angle of the wound suggested that the victim might have been ducking.

17.   At the special circumstance portion of this trial, appellant testified in support of his defense that the shooting was accidental.   His testimony was for the most part consistent with statements that he made to the police.   We cannot, however, rely on his testimony as an independent basis for supporting the special-circumstance finding because it cannot be shown beyond a reasonable doubt that he would have testified at all absent the previous introduction of his illegally obtained statements.  (See, e.g., People v. Boyer, supra, 48 Cal.3d at p. 280, 256 Cal.Rptr. 96, 768 P.2d 610 [court cannot assume the defendant would have testified conceding his identity as the killer if the illegally obtained statements had not been admitted];  People v. Spencer (1967) 66 Cal.2d 158, 163–169, 57 Cal.Rptr. 163, 424 P.2d 715;  Harrison v. United States (1968) 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047).

18.   Appellant contends that many of the connections between appellant and the evidence cited by the Attorney General were provided by appellant's own statements.   For example, he points out that the car in which the stolen property was found was located in a city parking lot and was registered to persons named Margaret and Vic Ritter.   He contends that the only connection between appellant and the car is that appellant admitted the car belonged to him.   It is unclear from the record, however, whether this particular admission was made before or after appellant invoked his right to counsel.   Obviously only those statements made after appellant invoked his right to counsel must be suppressed.   However, appellant's argument does illustrate the more general proposition that, in the absence of appellant's statements to the police, and if his statement to his wife was inadmissible, the defense strategy might have been quite different because appellant might have challenged more vigorously the significance of the footprint identification and some of the other physical evidence linking him to the crime.

19.   In Boyer, the admissible evidence included eyewitness testimony that the defendant had been in the victims' residence at the time the homicides occurred, and had seen defendant emerge from the house with a knife, a stab wound, and a suspicious story about how it had occurred.   As the witness drove the defendant away from the scene of the crime, the defendant rummaged through several wallets and threw them out the window.   The defendant then told his girlfriend a different story about how he was wounded, and told her he had done something wrong.   His girlfriend burned a jacket defendant had been wearing, and a bloodstained knife and pants with blood similar to the victim's was found in defendant's residence.   A wallet belonging to the victims was found in a location described by the defendant.   The court nonetheless concluded that it could not say beyond a reasonable doubt that the jurors would have convicted the defendant of the crimes had they not heard his taped statements.  (People v. Boyer, 48 Cal.3d at pp. 279–280, 256 Cal.Rptr. 96, 768 P.2d 610.)

20.   Appellant also raises a sentencing issue.   He contends that pursuant to Penal Code section 654, the court should have stayed his six-year sentence for the burglary because the murder conviction was based on felony murder and the burglary was the underlying felony.   We did not reach the issue in our original opinion because we reversed the judgment in its entirety.   We now think it is premature to resolve the issue in light of our disposition reversing the special circumstance finding, which leaves open the possibility that appellant will, in any event, be resentenced on the felony-murder conviction.

STEIN, Associate Justice.

NEWSOM, Acting P.J., and DOSSEE, J., concur.