Johnson v. Cullen (704 F. Supp. 2d 869, 2010)

ORDER RE CLAIMS F, G, H, I, J, K, L & W.

THELTON E. HENDERSON, District Judge.

INTRODUCTION

On December 17, 1987, petitioner was convicted by a San Mateo County jury of two counts of first degree murder, CaLPenal Code § 187, and one count of arson, CaLPenal Code § 451(b). The jury also found true the multiple murder special circumstance allegation, CaLPenal Code § 190.2(a)(3). The same jury fixed the penalty at death on February 5, 1988. On October 18, 1993, petitioner’s conviction and sentence were affirmed on direct appeal. See People v. Johnson, 6 Cal.4th 1, 23 Cal.Rptr.2d 593, 859 P.2d 673 (1993).

Petitioner filed a habeas petition on April 22,1997. On that same day, he also filed his second state habeas petition in the California Supreme Court. On May 2, 1997, respondent filed a motion to dismiss the federal petition on the ground that it contained unexhausted claims. On November 25, 1997, the California Supreme Court denied the second state habeas petition. Petitioner subsequently filed an amended federal petition in which he incorporated claims from the second state habeas petition.

Respondent originally filed an Answer, a Memorandum of Points and Authorities in Support of Answer and a Motion for Summary Judgment on October 22, 1999. The Motion was denied by the court as premature. After various matters were resolved, petitioner filed a Traverse; respondent subsequently filed a Supplemental Answer, which included briefing on procedural issues and on the merits of petitioner’s claims. Petitioner filed a responsive Memorandum of Points and Authorities in Support of Non-Hearing Claims; respondent subsequently filed, per court request, a supplemental brief. This court has previously issued an Order resolving respondent’s claims of procedural default and untimely filing. This Order will resolve guilt-phase claims for which the California Supreme Court issued a reasoned opinion on the merits. This includes Claims F, G, H, I, J, K, L and W. For the following reasons, Claims F, G, H, I, J, K, L and W are DENIED.

FACTUAL BACKGROUND

The Supreme Court of California summarized the factual background of this case as follows in its opinion disposing of petitioner’s direct appeal, People v. Johnson, 6 Cal.4th 1, 23 Cal.Rptr.2d 593, 859 P.2d 673 (1993). The state court’s factual findings are presumed to be correct pursuant to 28 U.S.C. § 2254.

On January 15, 1986, police officers and firefighters were summoned to a house fire in Daly City. Inside the house, the officers found the bodies of Maria Victoria Holmes, aged 52, and her daughter, Luisa Anna Castro, 32. The evidence indicated that two fires (one upstairs, and one downstairs) had been intentionally set, probably through the use of some flammable liquid. Victim Holmes evidently had been severely beaten and kicked. Her body showed extensive contusions and abrasions; her face was swollen and bloody. An autopsy indicated she died from 12 or more blows to her head and face. Victim Castro’s body was burned beyond recognition; a large knife was found nearby. An autopsy determined, however, that she had died from strangulation; a wire was found wrapped tightly around her neck.

Further investigation revealed the following facts: Victim Holmes was a hotel manager who wore expensive jewelry and possessed an extensive collection of gold jewelry from Central America. She shared her home with her daughter, victim Castro, a nightclub security guard, who was currently dating defendant [petitioner Laverne Johnson], a customer of the club. Castro also had a collection of gold jewelry and frequently boasted of it. On the night of the murders, Castro had prepared dinner for defendant at her home after they had driven her children to a babysitter. Later that evening, someone murdered the two women, stole their jewelry, and set fire to their home in an apparent attempt to cover up the crimes.

Defendant was arrested after a girlfriend, Roshaun Fuller, told police that he had admitted assaulting the women and taking their jewelry. According to Fuller, defendant stated he “knocked out” Castro and, when victim Holmes came upstairs to investigate, he knocked her down and kicked her in the head. Defendant had been seen wearing, and later pawning, some gold jewelry, although it could not positively be traced to the victims. Defendant also admitted to the investigating officers some facts regarding his relationship with Castro, including sharing dinner with her at her home on or about the night of the murders. According to defendant, he left the house after Castro had become intoxicated and fallen asleep. Although defendant denied killing the women, at one point he told the interrogating officer that, “I probably did do it, but you are not going to get me to say I did do it.”

The defense offered an alibi (defendant was seen engaging in a bar fight on the day in question) and evidence to cast doubts on Fuller’s testimony, which was frequently contradictory and inconsistent. According to a defense investigator, Fuller admitted lying to police regarding defendant’s admission that he assaulted both women.

At the penalty phase, the People admitted evidence of defendant’s prior crimes, including four prior felony convictions for robbery, burglary, disorderly conduct (transmitting a false alarm), and theft, and numerous unadjudicated offenses including rapes, oral copulation, robberies, batteries and assaults.

The defense relied primarily on background and character evidence, including testimony regarding defendant’s troubled childhood, his lack of parental guidance, and- the likelihood he would succeed in a supervised prison setting. Defendant personally testified regarding some of the foregoing matters, and attempted to mitigate some of the “prior crimes” evidence by explaining the extenuating circumstances surrounding them.

A defense psychologist, Dr. Fricke, testified regarding defendant’s sociopathic personality. On rebuttal, a prosecution psychiatrist stressed defendant’s anti-social and manipulative personality, and his potential dangerousness.

Johnson, 6 Cal.4th at 14-16, 23 Cal.Rptr.2d 593, 859 P.2d 673.

LEGAL FRAMEWORK

A. AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the [petitioner is not challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 1009-1010 (9th Cir. 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

According to AEDPA, the court should not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C § 2254(d). A federal court must presume the correctness of the state court’s factual findings, and the presumption of correctness may only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The “contrary to” and “unreasonable application” clauses of § 2254(d) have separate and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is “contrary to” clearly established United States Supreme Court law if it fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 413^414, 120 S.Ct. 1495. A decision is an “unreasonable application” of United States Supreme Court law if “the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 414,120 S.Ct. 1495.

“[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “While the ‘objectively unreasonable’ standard is not self-explanatory, at a minimum it denotes a great[ ] degree of deference to the state courts.” Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.2003).

Holdings of the Supreme Court at the time of the state court decision are the only definitive source of clearly established federal law under AEDPA. See Williams, 529 U.S. at 412, 120 S.Ct. 1495. While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied. See Clark, 331 F.3d at 1070.

When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, the court has no basis other than the record “for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). In such situations, federal courts must conduct an independent review of the record to determine whether the state court decision is objectively unreasonable. Id. While federal courts “ ‘are not required to defer to a state court’s decision when that court gives [them] nothing to defer to, [they] must still focus primarily on Supreme Court cases in deciding whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.’ ” Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir.2002) (quoting Fisher v. Roe, 263 F.3d 906, 914 (9th Cir.2001)). Furthermore, independent review of the record is not de novo review of the constitutional issue, but rather the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). However, if the state court did not reach the merits of a claim, federal review of the claim is de novo. Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir.2003).

Even if a petitioner meets the requirements of § 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637, 113 S.Ct. 1710, citing United States v. Lane, 474 U.S. 438, 439, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).

B. Teague

As amended by AEDPA, 28 U.S.C. 2254(d) codifies and amends the non-retroactivity principle announced in Teague v. Lane, 489 U.S. 288, 310-316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Williams v. Taylor, 529 U.S. 362, 379-380, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This principle prevents a federal court from granting habeas relief to a state prisoner based on a constitutional rule of criminal procedure announced after his conviction and sentence became final. See Teague, 489 U.S. at 310-16, 109 S.Ct. 1060; see also Penny v. Lynaugh, 492 U.S. 302, 313-314, 109 S.Ct. 2934, 106 L.Edüd 256 (1989) (the non-retroactivity principle is applicable in a capital sentencing context). It prohibits federal courts from either creating or applying new rules on collateral review. See Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). In pertinent part, section 2254(d) provides that no habeas relief may be granted as to any claim that was adjudicated on the merits in state court unless the prior decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. 2254(d)(1). Teague’s prohibition against reliance on new rules is the functional equivalent of section 2254(d)’s requirement of reliance on “clearly established law.” Williams, 529 U.S. at 379, 412, 120 S.Ct. 1495. AEDPA has also added the requirement that the “clearly established law” be limited to that “determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(1). This extends the Teague principle “by limiting the source of doctrine on which a federal court may rely in addressing the application for a writ.” Williams, 529 U.S. at 381-382, 120 S.Ct. 1495. Thus, AEDPA codifies Teague to the extent that Teague requires federal courts to deny relief contingent upon a rule of law that was not clearly established at the time that the state conviction became final. Id. at 380,109 S.Ct. 1060.

The Teague doctrine nonetheless survives as an independent inquiry from AEDPA. See Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (concluding that AEDPA and Teague inquiries are distinct). In addition to conducting any analysis under AEDPA, a federal court reviewing a habeas petition must conduct a threshold Teague analysis when the matter is properly raised by the state. Id.; see also Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (if the state argues Teague, the court must apply it before considering the merits of the claim).

Teague instructs that “[a] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 109 S.Ct. 1060. Put differently, a decision sets forth a new rule when it “breaks new ground or imposes a new obligation on the States or the Federal Government.” Butler, 494 U.S. at 412, 110 S.Ct. 1212. The new rule principle does not, however, foreclose the specific application of a previously established rule. The Supreme Court has explained that “if the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.” Williams, 529 U.S. at 383, 120 S.Ct. 1495 (quoting Wright v. West, 505 U.S. 277, 308-309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)).

In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. See Caspari, 510 U.S. at 390, 114 S.Ct. 948. First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted, and the time for filing a petition for a writ of certiorari has elapsed or a timely-filed petition has been finally decided.

Second, the court must “survey the legal landscape as it then existed” to determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he now seeks was then required by the Constitution. Id. The inquiry must focus on whether the rule was dictated by precedent, i.e., whether no other interpretation was reasonable. See Lambrix v. Singletary, 520 U.S. 518, 538, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). The Teague doctrine validates reasonable good faith interpretations of existing precedents made by the state courts even if they are shown to be contrary to later decisions. See O’Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). A federal court will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court. Id.

Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the non-retroactivity principle. See Caspari, 510 U.S. at 390, 114 S.Ct. 948. The first exception is for new rules that place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Teague, 489 U.S. at 307, 109 S.Ct. 1060 (internal quotations marks omitted). The second exception is for “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). The exceptions are rarely found. See, e.g., O’Dell, 521 U.S. at 167, 117 S.Ct. 1969 (a new rule that a capital defendant must be permitted to inform the jury that he will be parole ineligible if not sentenced to death is not within the “watershed rules” exception to Teague, as it does not alter the understanding of bedrock procedural elements of a fair trial).

ANALYSIS

A. Claim F

In Claim F, petitioner maintains the trial court erred in admitting evidence of his alleged statement that he had killed before. Specifically, petitioner challenges the admission of Denise Lancaster’s testimony as irrelevant, inflammatory, prejudicial and unreliable.

The trial court had already excluded evidence of petitioner’s rape of Lancaster when the prosecution moved to introduce petitioner’s statement to Lancaster that he had killed before and could do it again. Petitioner’s counsel opposed introduction of the statement on relevancy and other grounds. After a hearing on the matter, the trial court found the testimony relevant and agreed first to allow Lancaster to testify at an in limine court hearing, before deciding whether her testimony could be presented at trial.

After the court hearing and argument by counsel, the trial court found Lancaster to be credible, her testimony relevant and that the probative value was not outweighed by its prejudicial effect. RT 3886-3888. The court further ruled that Lancaster could be questioned about her late reporting of the statement, but that the “thing to be avoided entirely is the reference to rape or anything that comes close to it.” RT 5439-5440.

At trial, Lancaster testified generally that she encountered petitioner after giving him a ride, and that during a confrontation he threatened to kill her. RT 5455-5467. After her initial report, she later recalled that petitioner had said that he had killed before. RT 5460. She was cross-examined by petitioner’s counsel, who asked her about the marijuana Lancaster admitted smoking with petitioner and about the fact that she had learned of the two homicides petitioner had been accused of before she recalled his specific statement that he had killed before. RT at 5463-5466.

The California Supreme Court addressed this issue in a reasoned opinion on direct appeal.

Defendant contends the court erred in allowing witness Denise Lancaster to testify at the guilt phase that defendant had threatened to kill her and had told her he had killed before. At an in limine hearing, Lancaster testified that she had picked up defendant in March 1986 while he was hitchhiking. (The charged murders occurred in January 1986.) He raped her, threatened to kill her, and told her he had killed before. The court ruled that Lancaster could not testify concerning the rape, but could relate the other statements. At trial, she did so, referring to the rape as a “physical confrontation” with defendant.

Defendant asserts Lancaster’s testimony that he had killed before was irrelevant because the statement was not linked to the charged murders. [Citation omitted.] Defendant suggests that admissions of prior criminal conduct unrelated to the charged offenses are inadmissible at the guilt phase, being essentially character evidence barred by Evidence Code section 1102, subdivision (b).

We think that defendant’s admission of a prior killing or killings, made soon after the charged murders were committed, was relevant as to the ultimate question of defendant’s guilt. The jury was entitled to infer that defendant was referring to the killing of Castro and Holmes. The fact that he could have been referring to an unrelated killing goes more to the weight of his statement than to its admissibility. Moreover, in light of the other evidence of defendant’s guilt, outlined above, any error in admitting Lancaster’s testimony concerning defendant’s admission of a prior killing was harmless.

We note that defendant does not argue the inadmissibility of Lancaster’s recital of defendant’s threat to kill her. Although this evidence seemingly would have little relevance to the issue of defendant’s guilt, it is at least arguable the threat confirmed defendant’s intent or state of mind to kill those who opposed him. [Citation omitted.] In any event, any error in admitting the statement was undoubtedly harmless in light of the remaining evidence of guilt.

Johnson, 6 Cal.4th at 33-34, 23 Cal. Rptr.2d 593, 859 P.2d 673.

The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986). The Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009) (finding that trial court’s admission of irrelevant pornographic materials was “fundamentally unfair” under Ninth Circuit precedent but not contrary to clearly established Federal law under § 2254(d)).

Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. See id. (citing Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984)). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995); Colley, 784 F.2d at 990. Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal, 926 F.2d at 920.

Here, petitioner cannot demonstrate that the state court’s reasoned opinion was contrary to, or an unreasonable application of, clearly established United States Supreme Court law or an unreasonable determination of the facts. Petitioner argues generally that Lancaster’s testimony was improper character evidence, but acknowledges in his pleadings that the admission at issue was unclear. Petitioner also maintains that Lancaster’s testimony was irrelevant, but can cite to no caselaw demonstrating that the state court’s determination that the testimony was “relevant as to the ultimate question of defendant’s guilt”, Johnson, 6 Cal.4th at 34, 23 Cal. Rptr.2d 593, 859 P.2d 673, was an unreasonable application of clearly established federal law. Given that the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ”, Holley, 568 F.3d at 1101, even if the testimony were irrelevant, petitioner would not be able to succeed on this claim.

Furthermore, petitioner has failed to establish that any purported state court error was prejudicial, ie. that it had a substantial and injurious effect or influence in determining the jury’s verdict. See Brecht, 507 U.S. at 638, 113 S.Ct. 1710. As the California Supreme Court found, “in light of the other evidence of defendant’s guilt ... any error in admitting Lancaster’s testimony concerning defendant’s admission of a prior killing was harmless.” Johnson, 6 Cal.4th at 34, 23 Cal.Rptr.2d 593, 859 P.2d 673. For the foregoing reasons, this claim is denied.

B. Claim G

In Claim G, petitioner maintains that admission at trial of various statements he made to the police was unconstitutional because the statements were illegally obtained. Petitioner was interviewed by police in March and April 1986. Motions to suppress were brought at the preliminary hearing and again prior to trial. On August 3, 1987, the trial court granted in part and denied in part petitioner’s motion. There were subsequent proceedings on exclusion to determine which of petitioner’s statements were excluded under the August 3,1987 order. RT 5374-5433.

The California Supreme Court addressed this claim in a lengthy, reasoned opinion on direct appeal.

C. Admissibility of Defendant’s Statements

Defendant contends the court erred in admitting certain statements he made to police officers on March 28 and April 3, 1986. We conclude the statements were properly admitted, and in any event, any Miranda error was harmless beyond a reasonable doubt.

1. March 28 interview

On March 28, 1986, defendant was interviewed by Officers McCarthy and Keate concerning the murders of Castro and Holmes. Officer McCarthy told defendant the purpose of the interview and defendant replied, “fíne.” When McCarthy brought out a tape recorder, defendant objected, stating “No tape recording, I don’t want to incriminate myself.” The recorder was not used.

Officer McCarthy thereupon read defendant his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436, 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694 [parallel citations omitted]), and defendant confirmed that he understood those rights and wished to talk with the officers. Defendant was also informed he could terminate the interview at any time. The ensuing interview lasted around two and one-half hours. During its course, McCarthy explained that defendant would be charged with the two murders, and defendant (1) bragged that his mother would hire a “high price lawyer out of New York” to defend him, (2) inquired of possible penalties for the murders, and (3) initiated the possibility of a plea bargain.

When informed that he might be charged with offenses carrying the death penalty, defendant stated, “Maybe I ought to talk to a lawyer, you might be bluffing, you might not have enough to charge murder.” Officer McCarthy thereupon asked defendant if he wanted to talk to a lawyer at that point, and defendant made no direct reply except to repeat that he thought McCarthy was “bluffing.”

Defendant, stating “this is off the record,” next asked Officer McCarthy if a 10-year sentence was possible for the murder charges. McCarthy replied that the matter of sentence was up to the district attorney, the court and defendant’s counsel. Defendant acknowledged he was worried about receiving a death sentence. (As explained below, the foregoing “off the record” discussion about sentencing was ruled inadmissible.)

Defendant next asked Officer McCarthy to “Tell me what you have and I might make you a proposition.” McCarthy replied that he customarily did not disclose evidentiary details. Defendant indicated that he would not “say” anything “without some kind of arrangement.” He also declared that “I probably did do it, but you are not going to get me to say I did do it.” Defendant then asked McCarthy to approach the district attorney and negotiate a 10-year sentence for the murder charges.

2. April 3 interview

On April 2, Officer Quinn received a phone call from a person identifying himself as “Antonin.” (Defendant was also known as Antonin Capriano.) Antonin indicated he was confined at the San Mateo County jail and wished to speak to the officer. Officers Quinn and McCarthy visited defendant and again read him his Miranda rights. Defendant again confirmed he understood these rights and wished to talk with the officers.

At one point in the interview, the officers asked defendant to tell what happened in regard to Castro and Holmes. Defendant insisted the discussion be “off the record,” stating that he was not going to incriminate himself by telling what happened. He added that he would plead guilty to manslaughter “for two years.” After terminating the interview (“I don’t want to say anything else”), he called officers back and told them to see if the district attorney would “go for twenty straight years for the case.”

According to the Attorney General, and not disputed by defendant’s appellate counsel, none of defendant’s statements at the April 3 interview was introduced at trial. Accordingly, it is apparent that defendant could not have been prejudiced by any asserted Miranda errors occurring during that interview, and we do not discuss defendant’s claims in that regard.

3. Trial court’s rulings

Defendant moved the trial court to suppress his statements, asserting that the interviews continued after he had invoked his rights to remain silent and to consult with any attorney. The court disagreed, finding that defendant had voluntarily waived those rights and did not reinvoke them. The court also ruled, however, that in light of defendant’s “off the record” assertions during the course of both interviews, any statement immediately following these assertions would be inadmissible. The affected statement related to possible plea bargains or potential sentences for the murders.

4. Discussion

As we stated in People v. Boyer (1989) 48 Cal.3d 247, 263, 256 Cal.Rptr. 96, 768 P.2d 610, reviewing a similarly claimed Miranda violation, “The scope of our review of constitutional claims of this nature is well established. We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]”

a. “No tape recorder” remark

Defendant contends that he invoked his right to remain silent at the outset of the March 28 interview by remarking: “No tape recorder. I don’t want to incriminate myself.” The trial court found that this remark was ambiguous and did not necessarily disclose an intent to “cut off’ all questions, as opposed to merely expressing an objection to the use of a tape recorder to memorialize defendant’s responses. In the trial court’s view, defendant’s remarks indicated only a “partial restriction” on his willingness to speak to the officers. Accordingly, they were entitled to continue the interrogation once they clarified the situation by giving Miranda advisements and obtaining defendant’s express consent to be interviewed. We agree. As indicated previously, the advisements, and defendant’s agreement to talk, occurred immediately following his “no tape recorder” remark and clearly confirmed his general willingness to speak to the officers.

Defendant asserts his remarks showed that he was unwilling to “freely and completely” discuss his case with the police. (See People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Randall (1970) 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 464 P.2d 114 [parallel citations omitted].) We find the foregoing cases inapposite. They recite the familiar rule that police interrogation must cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney. Neither case, however, stands for the proposition that a defendant automatically invokes those rights by imposing conditions (such as “no tape recorder”) governing the conduct of the interview.

Defendant contends that prior cases have held a suspect’s refusal to permit a tape-recorded interview constitutes an invocation of his right to remain silent. (See People v. Hinds (1984) 154 Cal.App.3d 222, 235-236, 201 Cal.Rptr. 104; People v. Nicholas (1980), 112 Cal.App.3d 249, 169 Cal.Rptr. 497 [parallel citations omitted].) In both these cases, however, the suspect’s refusal to permit a recording was accompanied by other facts disclosing his clear intent to speak privately and in confidence with the officers. [citations omitted].

In the present case, by contrast, the trial court found no such clear intent on defendant’s part. Although defendant asked that the proceedings go “off the record” at various points during the interviews, he expressed no general expectation of privacy covering the entire interview.... As another recent case observes, “it was for the trial court to determine whether [the defendant’s] refusal to ... be recorded was in fact an invocation of his right to silence. The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable and we will not disturb it on this appeal. [Citations.]” (People v. Maier (1991) 226 Cal.App.3d 1670, 1678, 277 Cal.Rptr. 667.)

Defendant observes that he linked the “no tape recorder” remark with the explanation that “I don’t want to incriminate myself,” a statement defendant deems an explicit invocation of his self-incrimination privilege. But the trial court reasonably could find that the remark, being linked to defendant’s insistence on “no tape recorder,” merely expressed his assumption that only recorded statements could incriminate him at trial. Immediately after defendant made this remark, the officers read defendant the Miranda advisements and asked defendant if he wished to talk to them. These advisements included the unqualified admonition that anything defendant said to the officers could be used against him in a court of law. The trial court reasonably could find that this admonition cleared up any possible misconception defendant previously may have entertained regarding the admissibility of his unrecorded statements to the officers.

Several California cases have indicated that if a defendant expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights, the officers may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (See People v. Carey (1986) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813 [additional citations omitted].) We approve the rule of these cases and find it applicable here. Giving defendant full Miranda warnings and obtaining his waiver of his Miranda rights was a legitimate method of clarifying any ambiguities inherent in defendant’s “no tape recorder” remark.

b. Defendant’s references to securing a lawyer

Midway during the March 28 interview, Officer McCarthy indicated (as he had already done several times during the interview) that murder charges would be brought against defendant. He replied that “My mother will put out money for a high price lawyer out of New York.” McCarthy asked for the name of defendant’s lawyer, but he refused to furnish it, stating, “I don’t want you talking to my lawyer.”

Thereafter, following a discussion (initiated by defendant) of the possible penalties that might be imposed for the murders, including death or life without possibility of parole, defendant stated, “Give me a minute, I might tell you something you want to hear.” After a few moments of silence, defendant then said, “Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder.” Officer McCarthy immediately asked defendant if he wanted to talk to a lawyer before answering more questions, and defendant simply repeated that he thought McCarthy was bluffing. He made no further mention of lawyers during this interview.

Defendant contends that each of the foregoing references to lawyers invoked his right to counsel and should have induced the officers to terminate the interview. The trial court ruled that defendant’s initial remark regarding his mother securing a “high price” lawyer was “not an expression of an intent to terminate the interview at that time, but instead related to a future trial and not to present questioning.” We agree.

The cases hold that if a defendant indicates in any manner that he wishes to consult with an attorney, the interrogation must cease. (Miranda v. Arizona, supra, 384 U.S. at pp. 444^445, 86 S.Ct. 1602 [citations omitted.] The California courts have found invocations of the right to counsel in such varying statements or inquiries as “ T don’t know if I should have a lawyer here or what’ ” (People v. Russo, supra, 148 Cal.App.3d at p. 1177, 196 Cal.Rptr. 466), “ ‘Do you think we need an attorney?’ ” and “ T guess we need a lawyer.’ ” (People v. Superior Court (Zolnay), 15 Cal.3d 729, 735-736, 125 Cal.Rptr. 798, 542 P.2d 1390), [“ Well, maybe I should talk to my attorney, Mr. Corbin’ ”] (People v. Munoz) (9178) 83 Cal.App.3d 993, 995, 148 Cal.Rptr. 165), and “‘Tell me the truth, wouldn’t it be best if I had an attorney with me?’ ” (People v. Hinds, supra, 154 Cal.App.3d at p. 234, 201 Cal.Rptr. 104.)

Yet we have found no case suggesting that a suspect’s statement concerning the possible retention of a lawyer for future proceedings would require termination of a police interrogation.... In our view, the trial court properly deemed defendant’s statement mere bragging about his ability to secure high priced legal representation for future proceedings, and not a request to consult with an attorney during the present interrogation. This interpretation of defendant’s remarks is reinforced by his refusal or inability to give Officer McCarthy the name of his lawyer.

Defendant’s second remark, “Maybe I ought to talk to a lawyer,” is considerably more troublesome. The trial court ruled that the word “maybe” rendered the statement equivocal, and that in context the reference to a lawyer was not intended as an invocation of defendant’s right to remain silent. Defendant’s intent to continue the interview was confirmed by his failure to respond to McCarthy’s immediate inquiry as to whether defendant wanted an attorney, and by defendant’s subsequent request of McCarthy to “Tell me what you have and I might make you a proposition.”

As previously indicated, the courts have found Miranda violations despite considerable equivocation by the defendant. We briefly review the apposite decisions.

In Zolnay, supra, 15 Cal.3d at page 735,125 Cal.Rptr. 798, 542 P.2d 1390, we observed that the suspects’s question. “ ‘Do you think we [referring to himself and a codefendant] need an attorney?’ ” and his statement, “ T guess we need a lawyer,’ ” were “a direct result of the interrogation. The record discloses that the query interrupted the interrogation at a point when defendants’ choice seemed all but limited to confession or silence. Moreover, defendants’ subsequent specific request that the deputies recommend an attorney indicates both their continuing concern and their specific and pointed desire to consult counsel. We think the record discloses sufficient indication of their right to remain silent.” We stressed in Zolnay (id. at p. 736, 125 CaLRptr. 798, 542 P.2d 1390) that “ ‘no particular form of words or conduct is necessary’ ” to invoke the self-incrimination privilege....

The present case is factually distinguishable from Zolnay, supra, in several respects. Initially, on this record it is highly unlikely that defendant’s references to an attorney disclosed his confusion or uncertainty about continuing the interview. A reading of Officer McCarthy’s notes of the interrogation reveals that from start to finish defendant maintains a confident, “cocky” attitude, verbally sparring with the officer, expressing doubts about the strength or admissibility of the evidence against him, negotiating with McCarthy for a possible reduced sentence, and bragging about his good looks, his various girlfriends, his ability to produce an alibi for “any date you want,” and his mother’s ability to hire an expensive lawyer. As McCarthy noted, defendant appeared to “almost relish []his role as the focus of our attention.... ” Unlike the situation in Zolnay, supra, defendant never asked the deputies to recommend an attorney, and he declined to respond to McCarthy’s attempts to learn his lawyer’s name or to determine whether he in fact truly wanted to speak to an attorney.

In People v. Munoz, supra, 83 Cal.App.3d 993, 148 Cal.Rptr. 165, the officers took a robbery suspect to an interview room and began to interrogate him. As soon as the interrogating officer introduced himself, the suspect stated, “Well, maybe I should talk to my attorney, Mr. Corbin.” Rather than terminate the interview, the officer agreed that the suspect could talk to his attorney, but first the officer wanted to explain what information he had, and what he needed to learn. Eventually, the suspect confessed.

The Munoz court, citing our Zolnay decision, supra, 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390, held that the continued interrogation was improper. The court noted that although the suspect’s remark was “ambiguous,” it could be construed “as an invocation of his right to speak to an attorney before questioning.” (83 Cal.App.3d at p. 996, 148 Cal.Rptr. 165.) The court also relied on the fact that suspect had mentioned his attorney by name, indicating he already had retained counsel. (Ibid.)

People v. Bestelmeyer, supra, 166 Cal.App.3d 520, 527-528, 212 Cal.Rptr. 605, seems more closely on point. There, after the suspect was arrested for molesting his stepdaughter, the arresting officer gave Miranda warnings and commenced an interview. At the outset, after being told he could terminate the interview at any time, the suspect was asked by one officer what he was thinking. The suspect replied, “ T was just thinkin’, maybe I shouldn’t say anything without a layer and then I thinkin’ ahh.’ ” (Id. at p. 524, 86 S.Ct. 1602.) The officer continued explaining to the suspect that he could waive his rights, agree to talk to the officers, and then reinvoke his rights and stop talking to them. The suspect made no further references to an attorney, and eventually he made incriminating statements.

The Bestelmeyer court found that the suspect’s initial remark was too ambiguous to amount to an invocation of his right to the presence of counsel, and that substantial evidence supported the lower court’s finding that the suspect knowingly waived that right. (166 Cal. App.3d at pp. 527-528, 212 CaLRptr. 605.)

Turning to the present case, we think that in light of the whole record, including defendant’s overall conduct and demeanor during the interrogation, the ambiguous and tentative nature of his reference to any attorney, Officer McCarthy’s immediate attempt to clarify defendant’s remark, and defendant’s refusal to respond thereto, there was substantial evidence to support the trial court’s determination that defendant did not invoke his right to counsel. Accordingly, it is unnecessary to determine whether the asserted Miranda error was prejudicial. (See pt. III. C.4.d., post.)

c. The “off-the-record request

As noted above, at one point in the March 28 interview, after Officer McCarthy had assured defendant that he was not “bluffing” about charging defendant with murder, defendant abruptly stated, “This is off the record.” McCarthy replied, “You’re doing all the talking, don’t let me stop you, go ahead.” Defendant thereupon asked McCarthy, “Can you get me 10 years?” The ensuing discussion concerned possible penalties that might be imposed. (All of these “sentencing” discussions were excluded at trial.) Soon thereafter, defendant asked McCarthy, “Tell me what you have and I might make you a proposition.” After McCarthy falsely told defendant that McCarthy knew that defendant had pawned some of the victims’ jewelry, and that victim Holmes had identified defendant before she died, defendant stated that his name was not on any pawn slip, that it would be his word against the pawnshop owner, and that a dying declaration from victim Holmes “would convict me of killing her ... but not [victim Castro], but it’s close in time, but I am not saying I did it. [¶] ... I probably did do it, but you are not going to get me to say I did do it.” (This latter statement was introduced at trial.)

Immediately thereafter, defendant again said, “This is off the record,” and McCarthy told him to go ahead. Defendant then directed McCarthy to go to the district attorney and “get me ten straight ... years, and I will give you something you want.” The remaining discussion concerned possible arrangements for reduced sentences in return for defendant’s statement about the murders.

The trial court found that defendant’s “off the record” requests pertained only to the sentencing and plea bargain discussions which immediately followed those requests, and that accordingly any statements not pertaining to sentencing were admissible. The court ruled that only the sentencing discussions would be inadmissible at trial.

Defendant contends that all statements following his initial “off-the-record” request should have been suppressed, because McCarthy never informed him that the interview was no longer “off the record.” He cites no cases imposing such a rigid requirement, and we have found none so holding. The main inquiry should be whether defendant knowingly and intelligently waived his right to remain silent. Here, the trial court found the waiver remained valid as to discussions not involving sentencing. (See People v. Silva (1988) 45 Cal.3d 604, 629-630, 247 Cal.Rptr. 573, 754 P.2d 1070) [parallel citation omitted] [suspect’s refusal to discuss certain subjects not conclusive indication of intent to terminate interrogation]; People v. Hayes (1985) 38 Cal.3d 780, 784-786, 214 Cal.Rptr. 652, 699 P.2d 1259 [parallel citation omitted] [defendant’s expressed reluctance to discuss “details” of confession did not invoke Miranda right to silence].... We find the record amply supports the trial court’s finding. It seems unlikely defendant would have repeated his “off-the-record” request if he had intended or assumed the proceedings remained off the record following his initial request.

It could be argued that defendant’s request that the interview proceed “off the record” disclosed his confusion about the admissibility of his statements to the officers, thereby vitiating the Miranda waiver. In People v. Braeseke, supra, 25 Cal.3d at pages 702-703, 159 Cal.Rptr. 684, 602 P.2d 384, we held that a defendant’s “off-the-record” request, acceded to by the officers, was inconsistent with a knowing waiver of self-incrimination rights. As we stated in that case, “defendant’s request revealed a marked lack of understanding of the Miranda warnings. [Citation and fn. omitted.].” (See also Frazier v. United States (D.C.Cir.1969) 419 F.2d 1161, 1168-1169 ... [officers’ obligation to clarify the defendant’s misconception regarding admissibility of oral admissions].)

Braeseke, supra, 25 Cal.3d 691, 159 CaLRptr. 684, 602 P.2d 384, is distinguishable, however, because there the trial court permitted admission of the defendant’s statements despite his request for “off-the-record treatment.” In the present case, as we have indicated, the trial court excluded those statements regarding possible sentencing to which the off-the-record request was directed. Moreover, it is arguable that an “off-the-record” request no longer necessarily demonstrates confusion on the defendant’s part because, following Braeseke, such a request effectively insulates the affected portion of the interview from subsequent courtroom use. As with defendant’s statement that “maybe I ought to talk to a lawyer,” because we find no Miranda violation in connection with defendant’s “off the record” remark, it is unnecessary to determine the prejudicial effect of such error. Nonetheless, because it seems apparent that no prejudice resulted from any such violation, we address that subject briefly, as follows:

d. Prejudice

The principal inculpatory statement made by defendant after he indicated he “maybe” needed counsel and requested “off-the-record” treatment was his statement that “I probably did do it [kill victim Castro], but you are not going to get me to say I did do it.” The prosecutor emphasized this statement in his closing argument to the jury. The statement, though somewhat softened by the word “probably,” nonetheless reasonably could be viewed as a confession or admission of guilt. We note, however, that (as disclosed to the jury) during the same interview defendant repeatedly denied his guilt of either murder. In context, the jury could have viewed defendant’s “probably guilty” remark as more of a taunt to the interrogating officer than an outright admission of guilt.

Under federal law, the test for prejudice for admitting a coerced confession is the Chapman test, requiring reversal unless the error was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 [parallel citation omitted]; Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 [parallel citation omitted].) Presumably, the federal courts would apply the same test to a confession adduced in violation of Miranda. Similarly, under state law, we recently rejected a per se reversible error standard for coerced confessions, concluding that a conviction may be affirmed despite the erroneous admission of an involuntary confession, when the record shows that the admission of the confession was harmless beyond a reasonable doubt. (See People v. Cahill (1993) 5 Cal.4th 478, 509-510, 20 Cal.Rptr.2d 582, 853 P.2d 1037 [parallel citation omitted].)

Was any Miranda error in this case harmless beyond a reasonable doubt? On this record, we believe it was. Defendant, before suggesting that he “maybe” should see his lawyer, and before asking to go “off the record,” admitted to Officer McCarthy that he knew Castro and had visited her on or about the night of the murders. According to defendant, on the last such visit, he drove Castro’s children to a babysitter, had “sex” with her and drank with her until be became intoxicated and fell asleep. Her mother, victim Holmes, called from downstairs to inquire of Castro, and defendant told her Castro was asleep. All this evidence of defendant’s involvement with the two victims on or about the night they were murdered was seemingly untainted by defendant’s subsequent claimed invocations of his Miranda rights.

In addition, defendant’s girlfriend, Roshaun Fuller, testified at trial that defendant had admitted to her that he “knocked out” victim Castro, “hit” victim Holmes on the back of her head, and thereafter stole $200 and a ziploc bag of heavy gold jewelry from them. Other witnesses placed defendant with Castro on or about the night of the murders, and later observed him wearing expensive gold jewelry and new clothes.

Significantly, other than pointing to flaws and inconsistencies in witness Fuller’s testimony, the defense failed to rebut the foregoing evidence or to raise any credible defenses to the murder charges. In light of the strong incriminating evidence that was properly admitted at trial, we conclude that admission of defendant’s equivocal statement that he “probably did it” was harmless beyond a reasonable doubt.

Johnson, 6 Cal.4th at 23-33, 23 Cal. Rptr.2d 593, 859 P.2d 673.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that certain warnings must be given before a suspect’s statement made during custodial interrogation can be admitted in evidence. Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts. See id. at 443-445, 86 S.Ct. 1602. The requirements of Miranda are “clearly established” federal law for purposes of federal habeas corpus review under 28 U.S.C. § 2254(d). Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir.2005); Jackson v. Giurbino, 364 F.3d 1002, 1009 (9th Cir.2004).

Petitioner argues in part that the state court’s opinion was unreasonable because it relied primarily on state precedent involving Miranda. Petitioner is mistaken. The Supreme Court has made clear that as long as the reasoning of the state court does not contradict Supreme Court precedent, AEDPA’s deferential standard applies. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (qualification for AEDPA deference requires neither citation to United States Supreme Court cases nor awareness of them, as long as neither the reasoning nor the result of the state court decision contradicts them). Thus, the state court’s reliance on state court precedents does not automatically deem it unreasonable under AEDPA.

Petitioner also maintains that, even if the state court’s reasoned opinion is entitled to deference, the opinion is contrary to, or an unreasonable application of, clearly established United States Supreme Court law. Petitioner also argues that the state court’s opinion was based on an unreasonable determination of the facts.

To begin with, petitioner argues that he was attempting to assert his rights against incrimination and to terminate questioning when he told McCarthy “no tape recorder—I don’t want to incriminate myself.” According to petitioner, even though he was read his Miranda rights after this statement, he did not knowingly and intelligently waive his right to remain silent, and was operating under the belief that by giving an untaped statement, he would not be incriminating himself.

Once properly advised of his rights, an accused may waive them voluntarily, knowingly and intelligently. See Miranda, 384 U.S. at 475, 86 S.Ct. 1602. The distinction between a claim that a Miranda waiver was not voluntary, and a claim that such waiver was not knowing and intelligent is important. Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir.2008). The voluntariness component turns on the absence of police overreaching, i.e., external factors, whereas the cognitive component depends upon the defendant’s mental capacity. Id.

A valid waiver of Miranda rights depends upon the totality of the circumstances, including the background, experience and conduct of the defendant. See United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986). The government must prove waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Terrovona v. Kincheloe, 912 F.2d 1176, 1180 (9th Cir.1990). The waiver need not be express as long as the totality of the circumstances indicates that the waiver was knowing and voluntary. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Juan H., 408 F.3d at 1271. To satisfy its burden, the government must introduce sufficient evidence to establish that under the totality of the circumstances, the defendant was aware of “the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

A showing that the defendant knew his rights generally is sufficient to establish that he knowingly and intelligently waived them. See, e.g., Sechrest v. Ignacio, 549 F.3d 789, 805-806 (9th Cir.2008) (finding petitioner’s waiver knowing and voluntary where officer’s questions to petitioner after petitioner was read his Miranda rights were requests for clarification of petitioner’s unclear statements regarding his desire to speak to police); Paulino v. Castro, 371 F.3d 1083, 1086-1087 (9th Cir.2004) (statement that suspect understood his rights and wanted to talk to officer sufficient to waive right to counsel); United States v. Doe, 60 F.3d 544, 546 (9th Cir.1995) (officer’s unrebutted testimony established by preponderance of evidence that juvenile knowingly and voluntarily waived his Miranda rights); United States v. Rodriguez-Rodriguez, 364 F.3d 1142, 1146 (9th Cir.2004) (suspect suffering from mild or moderate heroin withdrawal who was “coherent and responsive” voluntarily waived his Miranda rights after they were read to him in English and Spanish). And although the burden is on the government to prove voluntariness, a waiver cannot be held involuntary absent official compulsion or coercion. See Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988). See generally Derrick v. Peterson, 924 F.2d 813, 820-24 (9th Cir.1990) (explaining waiver analysis in detail).

Here, petitioner cannot demonstrate that the California Supreme Court’s reasoned opinion was contrary to, or an unreasonable application of, the clearly established federal law detailed supra. Nor can he demonstrate that the opinion was based on an unreasonable determination of the facts. As petitioner acknowledges, he was read his Miranda rights immediately after he made his “no tape recorder” comment. Petitioner does not dispute that the Miranda rights included an advisement that anything he said could be used against him in a court of law. As the state court concluded, “[g]iving [petitioner] full Miranda warnings and obtaining his waiver of his Miranda rights was a legitimate method of clarifying any ambiguities inherent in defendant’s “no tape recorder” remark.” Johnson, 6 Cal.4th at 27, 23 Cal. Rptr.2d 593, 859 P.2d 673. Because a showing that a defendant knew his rights generally is sufficient to establish that he knowingly and intelligently waived them, see, e.g., Sechrest 549 F.3d at 805-806, this portion of petitioner’s claim must be denied.

Petitioner also argues that his “off the record” requests indicate that he did not knowingly and intelligently waive his Miranda rights, and that he was unaware that the statements he made could incriminate him. The trial court decided that petitioner’s “off the record” requests pertained to the sentencing and plea bargaining discussions that followed those requests, and ruled that those particular statements were not admissible. To the extent petitioner is arguing that additional statements ought to have been suppressed, his argument must fail. As before, petitioner cannot demonstrate that the California Supreme Court’s reasoned opinion regarding this issue was contrary to, or an unreasonable application of, clearly established federal law, nor that it was a based on an unreasonable determination of the facts. Johnson, 6 Cal.4th at 30-32, 23 Cal.Rptr.2d 593, 859 P.2d 673.

Petitioner also maintains that his statements referring to securing a lawyer indicated a request for an attorney and should have resulted in the officer terminating any questioning. Accordi