NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ROTHSCHILD, Acting P. J.

Thien Van Pham appeals from the judgment entered after a jury convicted him of one count of first degree residential robbery and one count of first degree burglary. Pham contends that the trial court erred by denying his motion to suppress the videotape of his police interrogation and that presentation of the videotape to the jury during trial violated his right against self-incrimination. We agree with Pham and thus reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

The information, dated October 25, 2007, charged Pham with one count of first degree residential robbery (Pen. Code, § 211)1 and one count of first degree burglary (§ 459). As to both counts, the information specially alleged that the victim, Bay Nguyen, was elderly and said disability and condition was known or reasonably should have been known to Pham (§ 667.9, subd. (a)).

2. The Evidence Presented at Trial

On February 16, 2007, Nguyen, who is in her eighties and wheelchair bound, lived in Alhambra in a house (Nguyen's house) with her two daughters, Helen Hang and Cuc Hang, her son-in-law, Sam Tran, and her three grandchildren. That morning, Tran left the house to go to work. About 11:00 a.m., both Helen and Cuc2 left the house to pick up their children, leaving Nguyen at home alone.

Soon after, as Nguyen sat in her wheelchair in the dining room, two men entered the house through a sliding glass door fifteen to twenty feet from Nguyen. While one of the men went upstairs, the other approached Nguyen and removed her wedding ring from her finger. Nguyen had never before seen either of the men, and neither of the men said anything to her while in the house.

Nguyen's neighbor, Juan Navarro, was standing in his driveway after 11:00 a.m. on the same day. He saw two men, one of whom was carrying a small, pocket-size bag, leave Nguyen's house and get into a vehicle. Navarro wrote down the car's license plate number.

About 11:20 a.m., Helen and Cuc returned home. Helen, who had latched the gate on the side of the house before leaving, noticed that the gate was unlatched. When Helen opened the front door and she and Cuc entered the house, Cuc noticed that the sliding glass door was open. Nguyen told Helen that two men had entered the house and said that Helen should go upstairs. When Helen went upstairs, she found that her bedroom had been ransacked. Her jewelry, including a set of wedding rings and a diamond ring, was missing. Helen immediately called Tran, her husband.

Tran left work and returned home. Navarro described to Tran the vehicle driven by the men who had exited the home. Tran soon called all of his relatives, including his brother. Tran asked his brother if he knew anyone who drove a car matching the description that Navarro had provided. His brother said that a man by the name of "David" drove such a car and also provided Tran with David's telephone number, which Tran gave to the police. Tran was afraid of his brother, who was unemployed and would come to Nguyen's house, remain outside and ask for money.

An Alhambra police officer interviewed Navarro, who gave her the license plate number, along with a description of the vehicle. The officer also interviewed Nguyen, using Helen as an interpreter to translate for Nguyen who spoke Vietnamese.

A few days after the incident, Nguyen identified Pham from a photographic lineup as the man who had taken her wedding ring, but she was unable to identify Pham as the perpetrator at the preliminary hearing or at trial. On February 19, 2007, another officer was assigned to go to a hotel room in Westminster to arrest two men. In the hotel room, the officer found Pham and Phuang Huynh and arrested them. She discovered a rock of cocaine and a pipe in the hotel room. Outside the hotel room was a parked car with a license plate number and description matching the car seen by Navarro.

On February 20, 2007, a police detective questioned Pham in custody. The interrogation was videotaped and played for the jury at trial. A transcription of the interrogation, part of which included a translation from Vietnamese to English, was distributed to the jury for use during the playing of the videotape and admitted into evidence. On the videotape, in response to the detective's questions, Pham stated that he had driven "Cao," who the detective believed was Tran's brother, and another man to Nguyen's house to borrow money to buy drugs. While Cao and the other man went inside, Pham remained outside and picked grapefruit from a tree, denying that he had entered the house. After the detective told Pham that witnesses had seen him enter the house and his fingerprints had been found on the sliding glass door and on Nguyen's wheelchair (although no fingerprints had been taken), Pham stated that, when he became tired of waiting outside for Cao, he decided to enter the house. He said that Cao had told him that Nguyen was Cao's grandmother and had instructed him to remove the ring from her finger, which he did and gave the ring to Cao. After the men left the house, Cao contacted a drug dealer and exchanged the jewelry taken from the house for drugs. Pham said the drugs in the hotel room belonged to Huynh.3

3. The Jury's Verdict and Sentencing

The jury found Pham guilty of one count of first degree residential robbery and one count of first degree burglary. As to both counts, the jury found true the special allegation that Nguyen was elderly and said disability and condition was known or reasonably should have been known to Pham. The trial court sentenced Pham to seven years in state prison on the robbery count, consisting of the upper term of six years, plus one year for the special allegation. The court also imposed a seven-year term on the burglary count, but stayed execution of sentence pursuant to section 654.

DISCUSSION

1. The Trial Court Erred by Denying Pham's Motion to Suppress the Videotape of His Police Interrogation

In Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), the United States Supreme Court established procedural safeguards to protect a person's right against self-incrimination in the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment. An individual subjected to a custodial police interrogation "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded to him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." (Id. at p. 479.)

A valid waiver must be "`voluntary, knowing, and intelligent.' [Citation.] A valid waiver of Miranda rights depends on the `totality of the circumstances, including the background, experience, and conduct of defendant.' [Citation.] [¶] There is a presumption against waiver. [Citation.] The prosecution bears the burden of proving by a preponderance of the evidence that a defendant knowingly and intelligently waived his Miranda rights. [Citation.] To satisfy this burden, the prosecution 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.' [Citation.] The government's burden to make such a showing `is great,' and the court will `indulge every reasonable presumption against waiver of fundamental constitutional rights.' [Citation.]" (United States v. Garibay (9th Cir. 1998) 143 F.3d 534, 536-537; see also People v. Bradford (1997) 14 Cal.4th 1005, 1034 ["state must demonstrate the validity of defendant's waiver by a preponderance of the evidence"].)

"[T]he Miranda warnings are `prophylactic' (citation) and need not be presented in any particular formulation or `talismanic incantation.' [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 236.) "In determining whether a defendant knowingly and intelligently waived his Miranda rights, we consider, as one factor, any language difficulties encountered by the defendant during custodial interrogation." (United States v. Garibay, supra, 143 F.3d at p. 537.) A translation of a suspect's Miranda rights into the language spoken by the defendant need not be perfect so long as the defendant understands the meaning of the rights. (United States v. Hernandez (10th Cir. 1996) 93 F.3d 1493, 1502.) The main inquiry is whether the translated warnings reasonably conveyed to the individual his Miranda rights. (Duckworth v. Eagan (1989) 492 U.S. 195, 203.)

In reviewing a challenge that "a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda . . ., [the reviewing court] accept[s] the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although [it] independently determine[s] whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained (citation), [it] `"give[s] great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (People v. Wash, supra, 6 Cal.4th at pp. 235-236.)

Pham contends that, because he was not properly advised of his Miranda rights, the trial court erred in denying the motion to suppress his videotaped police interrogation and in allowing the videotape to be played for the jury. According to Pham, the first two Miranda prongs—the right to remain silent and the right to know that anything said can be used against him in a court of law—were not adequately conveyed to him in Vietnamese and the evidence does not show that he was sufficiently fluent in English to understand the rights when the detective read them to him in English. Having independently reviewed the videotaped interrogation (People v. Wash, supra, 6 Cal.4th at p. 238), we agree with Pham.

The detective began his custodial interrogation of Pham by asking Pham if he could speak English. Pham replied that he could speak a "little bit" of English. The detective told Pham to let him know if Pham did not understand him and asked Pham what language he spoke. Pham said that he spoke Vietnamese. The detective asked Pham in English whether he had ever been arrested and whether he had ever been "read [his] rights." Pham responded "no." The detective then read Pham his Miranda rights in English and asked Pham whether he understood each of the rights. Pham replied, "I don't understand about . . .," without completing his thought, and then indicated that the detective talked too fast. At that point, the detective asked Pham if he wanted someone to speak to him in Vietnamese, and Pham responded affirmatively by nodding his head.

The detective located a police cadet who spoke Vietnamese to translate for Pham. The detective asked the police cadet to translate the Miranda rights to Pham in Vietnamese from a piece of paper that the detective had provided to the cadet. As translated, the cadet advised Pham: "OK, you are not allowed to talk. One thing is that you are not allowed to talk. Things you want to say, you can say anything you want. Here they record everything, whatever you say the Court will know all. You want to speak to an attorney, you can have an attorney present here, if you so desire. If you don't have money to pay the attorney, the State will pay for you." The cadet asked Pham whether he understood each right, and Pham nodded his head. The detective asked the cadet to confirm that Pham understood his rights. The cadet translated, asking Pham, "Yes, is it right? You understood all 4 things, didn't you?" Pham leaned forward, nodded his head and did not ask any questions regarding his rights. The detective asked Pham whether he wanted to give up his right to remain silent, which the cadet translated, questioning Pham, "Do you want, want to talk? Because today the police are asking you whether you want to talk." Pham affirmatively nodded his head, indicating that he wanted to talk. The detective then asked Pham a series of questions, through the cadet, as to what happened at Nguyen's house on February 16, 2007.4

Looking at the Vietnamese translation, the first two Miranda prongs, as translated, did not sufficiently advise Pham that he had the right to remain silent and that anything he said could be used against him in a court of law. The cadet told Pham, "[Y]ou are not allowed to talk. One thing is that you are not allowed to talk. Things you want to say, you can say anything you want. Here they record everything, whatever you say the Court will know all." The detective later asked Pham if he wished to give up his right to remain silent, which the cadet translated to, "Do you want, want to talk? Because today the police are asking you whether you want to talk." This translation was ambiguous and confusing. First the translator told Pham that he could not talk, then the translator told Pham that he could say anything he wanted and finally the translator questioned Pham whether he wanted to talk because the police were inquiring. Based on these mixed messages, the translator did not reasonably convey to Pham that he had the right to remain silent. Moreover, the cadet's statement to Pham that whatever he said the court would know failed to reasonably convey to Pham that what he told the detective could be used against him in a court of law. As a result, although the Vietnamese translation of the first two Miranda prongs was not required to match the English version word for word, the translation provided did not reasonably convey to Pham his rights. Pham's nodding his head after the cadet asked him if he understood his rights does not remedy the inadequacy of the translation.

Nor does the detective's reading Pham his rights in English before the Vietnamese translation demonstrate that Pham understood and knowingly and voluntarily waived his rights. As noted, Pham initially told the detective that he spoke a "little bit" of English. After the detective had completed reading the Miranda rights, Pham said that he did not "understand about . . ." but did not complete his thought. He then communicated that the detective spoke too fast. At that point, the detective asked Pham whether he wanted someone to speak to him in Vietnamese, and Pham said he did. This exchange does not establish that Pham understood the Miranda rights as read to him in English. Moreover, no evidence suggests that Pham, based on the "little bit" of English that he spoke, would credit the prior English version read to him by the detective and not rely on the translation in his own language. Although Pham spoke some English during the interrogation in responding to the detective's questions, nothing he said indicated that he understood that he had the right to remain silent and that what he was telling the detective could be used against him in a court of law.

Based on the record, the evidence is not sufficient to support a finding that the People met their burden to prove a knowing and voluntary waiver. Accordingly, the trial court erred by denying Pham's motion to suppress the videotape of his police interrogation, and it should not have been presented to the jury.

2. Presentation to the Jury of the Videotape of Pham's Police Interrogation Was Not Harmless Beyond a Reasonable Doubt

Admission at trial of a defendant's statement obtained in violation of Miranda is subject to the harmless-beyond-a-reasonable-doubt standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sims (1993) 5 Cal.4th 405, 447.) During the interrogation, which the jury viewed in its entirety by videotape and had in the form of a transcript, Pham ultimately admitted that he had entered Nguyen's house and taken her ring off her finger. The prosecution relied heavily on this admission in arguing to the jury that the evidence demonstrated beyond a reasonable doubt that Pham was guilty of the crimes with which he was charged. Absent evidence of Pham's admission, the strongest evidence of his involvement in the crimes at Nguyen's house was Nguyen's identification of Pham in a photographic lineup three days after the incident as the man who had taken her ring off her finger. Nevertheless, she was unable to identify Pham at the preliminary hearing or at trial. Navarro, Nguyen's neighbor who saw two men outside Nguyen's house, never was asked to identify Pham as one of them. In addition, although the car Navarro saw at Nguyen's house was the same car as that found outside the hotel room where Pham was arrested, no evidence was presented to show that the car was Pham's. Given the state of the evidence, and the People's focus on the Pham's admission during his police interrogation, we cannot say that the erroneous denial of Pham's motion to suppress the videotape of his police interrogation was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is reversed.

We concur:

CHANEY, J.

JOHNSON, J.