People v. Perez

Filed 1/8/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068690

Plaintiff and Respondent,

v. (Super. Ct. No. INF047207)

FABIAN FLORENCE PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County,

Richard A. Erwood, Judge. Reversed and remanded with directions.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Christine M. Levingston Bergman

and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
 I.

INTRODUCTION

The law is well established that a criminal defendant's statements to law

enforcement officers are "involuntary and inadmissible when the motivating cause of the

decision to speak was an express or clearly implied promise of leniency or advantage."

(People v. McCurdy (2014) 59 Cal.4th 1063, 1088.) In this case, during a custodial

interrogation of murder suspect Fabian Perez, a police sergeant told Perez that if he

"[told] the truth" and was "honest," then, "we are not gonna charge you with anything."

The sergeant continued, telling Perez that he was either a "suspect that we are gonna

prosecute," or a "witness," and added that Perez had "witnessed something terrible that

somebody did." The sergeant followed up this statement by telling Perez that if he was

honest and told the truth during the interview, "[Y]ou'll have your life, maybe you'll go

into the Marines . . . and you'll chalk this up to a very scary time in your life."

Immediately thereafter, Perez stated that he had "some information" and, shortly after

that, confessed his involvement in a robbery during which Perez's accomplice killed the

victim.

The People charged Perez with first degree murder (Pen. Code, § 187, subd. (a))1

and alleged that the murder had been committed in the course of a robbery (§ 190.2,

subd. (a)(17)). A jury found Perez guilty of first degree murder and found true the

1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2
robbery-murder special-circumstance allegation. The trial court sentenced Perez to life in

prison without the possibility of parole.2

On appeal, among other claims, Perez contends that the trial court erred in denying

his motion to suppress his statements to law enforcement officers. We conclude that

Perez's statements were clearly motivated by a promise of leniency, rendering the

statements involuntary, and that the trial court thus erred in denying Perez's motion to

suppress the statements.3 The People concede that, if we conclude that Perez's

statements should have been suppressed, the judgment must be reversed. We agree and

reverse the judgment. The People also concede that there is insufficient evidence to

support the robbery-murder special-circumstance finding in light of the California

Supreme Court's recent decision in People v. Banks (2015) 61 Cal.4th 788 (Banks). We

agree with this concession as well, and conclude that Perez may not be subjected to a

robbery-murder special-circumstance allegation at any retrial. (See People v. Lewis

(2008) 43 Cal.4th 415, 509.)4

2 Perez's accomplice, Christopher Jasso, was tried separately for murder. Jasso's
jury found him guilty of murder and the trial court sentenced him to death.
3 In part III.B., post, we reject Perez's claim that the trial court erred in refusing to
dismiss the charges against him on the ground that the prosecutor authorized the
interrogating officers to enter into a cooperation agreement with Perez.
4 Perez also argues that the trial court erred by permitting the prosecutor to pose
numerous leading questions to Manuel Rivera, a recalcitrant witness who refused to
answer any of the prosecutor's questions. Perez notes that the questions pertained to the
witness's prior statements to the police implicating Perez in the charged offense. Perez
argues that, in permitting this questioning, the trial court violated his confrontation rights
under Douglas v. Alabama (1965) 380 U.S. 415 (Douglas) and its progeny. Although we
need not address this claim in light of our reversal of the judgment on other grounds, we
reach the issue in part III.D., post, because we conclude that the trial court committed
3
 II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The robbery and murder

On the night of September 6, 2003, victim Carlos Cuellar Cardona was driving a

taxi van in Indio. Just after midnight, William Blackburn was standing outside his

stepdaughter's residence on Aztec Street in Indio. Blackburn saw a taxi van, later

determined to be Cardona's, drive north past his stepdaughter's residence, make a U-turn,

and park on the side of the street for a short time. The taxi then drove south on Aztec. A

dark colored Nissan Maxima followed the taxi van as it drove south on Aztec past

Blackburn. Blackburn heard a "pop." Although his view was partially obstructed,

Blackburn could tell that the taxi had stopped just down the street. A few minutes later,

as Blackburn, his stepdaughter, and her boyfriend, drove away from Blackburn's

stepdaughter's residence, they saw a body lying in the middle of Aztec Street. The taxi

van was stopped near the intersection of Aztec and Avenue 44, about 40 to 50 feet away

from the body. The group returned to the stepdaughter's residence and called 911.

Authorities found Cardona lying in the road with his face turned to the side and

blood pooling around his head. Cardona had suffered two close-range gunshot wounds to

the head and his wallet was missing. Cardona died from the gunshots.

serious error in allowing the questioning and want to ensure that this error does not recur
in a retrial.
Finally, in light of our reversal of the judgment, we need not, and do not, address
Perez's claim that the prosecutor committed misconduct during his closing argument or
that the cumulative error doctrine applies, because neither issue is likely to recur on
remand.
4
B. The investigation

Responding officers found a .25 caliber shell casing on the driver's seat of the taxi

van and a second .25 caliber shell casing in the street. Police later found Christopher

Jasso's fingerprints on a newspaper left on the seat behind the driver's seat. Investigators

also discovered that Jasso was depicted with Cardona's taxi van on a video recorded by a

convenience store surveillance camera near the site of the murder, just minutes before the

murder. On the video, Jasso is seen walking into the store, going to the counter, leaving

the store, and walking back to Cardona's taxi van.

Jasso lived with his girlfriend, Dolores Pinela (Dolores), Dolores's brother,

Benjamin Pinela (Pinela), Dolores's mother, and Dolores's mother's husband, Jack

Duke. On September 6, the day leading up to the murder, while at the family residence,

Duke saw Pinela hand Jasso something shiny that looked like a gun. Jasso then left the

family residence in a dark car. Duke thought that Pinela got the gun from Manuel

Rivera. Duke later asked Rivera why he gave Pinela a gun. Rivera did not answer.

Pinela and Rivera both told Duke that Jasso had gotten the gun "dirty" and that it had

been thrown into the Salton Sea.

Police conducted several searches of Jasso's residence during which they found a

wallet matching the description of the victim's wallet, shorts that matched the shorts Jasso

was wearing in the surveillance video recorded just before the murder, and two spent .25

caliber shell casings. A criminalist determined that the shell casings found at Jasso's

residence and those found at the crime scene had all been fired from the same gun.

5
C. Rivera's statements to police

Almost three months after the murder, in December 2003, police interviewed

Rivera. As discussed in part III.D., post, Rivera told police that the gun used in the

murder was his and that Perez had confessed his involvement in the robbery to him. As

a result of their interview with Rivera, authorities contacted Perez.5

D. Perez's interview with police officers

Two days after their interview with Rivera, police conducted a search of Perez's

apartment and found marijuana, drug paraphernalia, a scale, and two gun scopes. Police

requested that Perez come to the Indio Police Station to be interviewed. Perez agreed and

accompanied officers to the station.

Detective Darren Flagg and Sergeant Richard Banasiak of the Indio Police

Department conducted the interview. During the initial portion of the interview, Perez

repeatedly denied any knowledge of, or involvement in, the crimes. After approximately

25 minutes of questioning during which Perez continued to deny any involvement,

Sergeant Banasiak told Perez that if he were to "tell the truth and be honest," then "we are

not gonna charge you with anything." Perez responded by telling the officers that he had

"some information" and then confessed his involvement in a robbery during which Jasso

5 As discussed in part III.D., post, the People called Rivera as a witness at trial, but
Rivera refused to answer any questions and was cited for contempt of court. Among the
questions that the prosecutor asked were numerous questions pertaining to the statements
that Rivera made to police during his December 2003 interview. In addition, Detective
Flagg testified concerning Rivera's statements to police. As discussed in fn. 13, post,
during Detective Flagg's testimony, the trial court instructed the jury that Rivera's
statements were not offered for their truth, but only to show the basis for the actions that
law enforcement officers took based on Rivera's statements.
6
shot and killed Cardona.6 Perez told the officers that, on the night in question, he agreed

to give Jasso a ride in order to assist Jasso in the commission of a robbery. Perez was

driving a black Nissan Maxima. After being unable to find a suitable potential victim,

Jasso formulated a plan to rob a taxi driver. Jasso planned to call a taxi, and then, during

the ride, take money from the driver and run away. Perez would follow behind the taxi in

the Maxima and pick up Jasso immediately after the robbery. After briefly discussing the

plan, Jasso called a taxi and shortly thereafter, got into a taxi minivan. Perez knew that

Jasso had a silver .25 caliber gun in his possession when he got into the taxi. Perez

described the route that the taxi van drove, explaining that he followed behind the taxi

van in his Maxima.

Perez stated that the taxi van drove down Aztec Street and that after the taxi van

performed a U-turn on Aztec Street and headed back toward Avenue 44, he saw the

taillights of the taxi van bouncing. Shortly thereafter, Jasso got out of the taxi van, ran

down Aztec and turned onto a side street. Perez followed Jasso and picked him up. Jasso

had the gun and a black wallet in his hand. Jasso looked through the wallet, gave Perez

$100, and kept the rest, about $200. Jasso told Perez to take the gun completely apart and

throw it into a dumpster. Perez did so the following day.

After the interview, Perez got into a car with Detective Flagg, Sergeant Banasiak

and an investigator from the district attorney's office, and showed them the route that he

drove on the night of the murder. During the ride, Perez repeated his description of the

6 In part III.A., post, we discuss in detail the circumstances of the interview leading
to Perez's confession.
7
events of the robbery and murder and explained the details of the crime as he had during

his interview.

Police did not arrest Perez until about five months later, in May 2004.7

III.

DISCUSSION

A. The trial court erred in denying Perez's motion to suppress his statements to
police officers; the statements were involuntary because they were obtained
pursuant to a promise of leniency

Perez claims that the trial court erred in denying his motion to suppress the

statements he made during his police interview because the statements were obtained as

the result of a promise of leniency and therefore, were involuntary as a matter of law.

Where, as here, a defendant's statements to law enforcement officers are recorded, the

voluntariness of the confession is reviewed de novo. (People v. Linton (2013) 56 Cal.4th

1146, 1177 (Linton).)

1. Governing law

"Both the state and federal Constitutions bar the prosecution from introducing a

defendant's involuntary confession into evidence at trial." (Linton, supra, 56 Cal.4th at p.

1176.) In People v. Tully (2012) 54 Cal.4th 952 (Tully), the California Supreme Court

described the law governing the determination of whether a confession is involuntary

because it was obtained pursuant to an express or implied promise of leniency from law

enforcement officers:

7 The parties do not discuss the circumstances leading to the delay between Perez's
arrest in May 2004 and his murder trial in the spring of 2014.
8
 " 'In general, a confession is considered voluntary "if the accused's decision to speak is
entirely 'self-motivated' [citation], i.e., if he freely and voluntarily chooses to speak
without 'any form of compulsion or promise of rewards. . . .' [Citation.]" [Citation.]
However, where a person in authority makes an express or clearly implied promise of
leniency or advantage for the accused which is a motivating cause of the decision to
confess, the confession is involuntary and inadmissible as a matter of law.' " (Tully,
supra, at p. 985.)

The Tully court explained the requisite causal connection between the promise and

the confession as follows:

" 'A confession is "obtained" by a promise within the proscription of both the federal and
state due process guaranties if and only if inducement and statement are linked, as it
were, by "proximate" causation. . . . The requisite causal connection between promise
and confession must be more than "but for": causation-in-fact is insufficient.' [Citation.]
'This rule raises two separate questions: was a promise of leniency either expressly made
or implied, and if so, did that promise motivate the subject to speak?' [Citation.] To
answer these questions ' "an examination must be made of 'all the surrounding
circumstances—both the characteristics of the accused and the details of the
interrogation.' " ' " (Tully, supra, 54 Cal.4th at pp. 985-986.)

2. Factual and procedural background

a. Perez's statements to police officers

As noted in part II.D., ante, Detective Flagg and Sergeant Banasiak conducted an

interview of Perez. At the outset, Sergeant Banasiak stated that Perez had been

cooperative and suggested that if he continued to cooperate, he would be allowed to go

home at the end of the interview:

"[Sergeant Banasiak]: . . . When you and I talked at the very beginning, when we went to
your house[,] you said, um, am I going down or going wherever I'm going in, [sic] and I
told you, if you didn't do anything wrong, you're not going anywhere. Didn't I tell you
that?

"[Perez]: Yeah.

"[Sergeant Banasiak]: I believe that, [Detective Flagg] believes that. You had little issues
down at, at your home, you were up front with us, we're going to ask you about that, you
stay with your cooperation, I don't think it's going to be a problem. And then we'll ask
you some questions about what we're investigating, and I don't see why you won't go
home."

9
 After being advised of his Miranda8 rights, Perez agreed to speak with the

officers. Sergeant Banasiak began the interrogation by asking Perez about the contraband

found in his apartment. After a brief period of questioning concerning this topic,

Sergeant Banasiak told Perez that the main reason that police had searched his apartment

was because they were investigating a homicide. Banasiak told Perez that the

investigators had obtained fingerprints, videotapes and other evidence pertaining to the

crime, and that Perez's "name came up in the homicide." Sergeant Banasiak stated that

police did not believe that Perez had committed the homicide.

Sergeant Banasiak explained to Perez that the information that police had obtained

indicated that Perez was "there when it happened but you didn't do it." Banasiak also told

Perez, "We don't want you. We're not after you." Banasiak explained, "We would just

assume [sic] give you the benefit of the doubt." Banasiak continued by saying that he

wanted Perez's "cooperation," and told him, "I don't want you to go to jail for murder.

Okay. I don't want you to ruin your life." Banasiak then told Perez, "We're trying to give

you the chance to save yourself."

Sergeant Banasiak proceeded to explain that police did not believe that Perez had

shot the victim and that the evidence suggested that Jasso had committed the shooting.

However, Banasiak explained that it was likely that Jasso would blame Perez for the

killing and suggested that Jasso may have already done so. Sergeant Banasiak continued:

"I want you to think about that because the military is still a possibility. You can go
home today. I'm telling you, you can go home today. You can live the life that you want
to live. You put yourself in a situation, somebody acted inappropriate, something really

8 (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
10
 bad happened, I don't think you were part of that, but it happened. And now you've got to
decide Fabian, where you're at. You can't sit over there, you can't sit over here, you're
either going to be on this side with [Jasso] or you're going to be on this side for yourself."

After Perez continued to deny any knowledge of the homicide, Sergeant Banasiak

falsely told Perez that police had found his fingerprints in the taxi van and that Perez was

depicted on a store's security video that was recorded shortly before the victim was killed.

Banasiak continued to pressure Perez to speak to the officers by telling Perez that

"[l]egally it's your way out," and "[m]orally it's your way out," and "[t]o God and you

ethically, right and wrong is your way out."

Shortly after this exchange and approximately 25 minutes after Perez first denied

his involvement in a homicide, the following colloquy occurred:

"[Perez]: Explain to me what will happen if this case went through and what will happen,
if, let's say, it did.

"[Sergeant Banasiak]: Oh, it's gonna go through.

"[Perez]: Okay, then what would happen?

"[Sergeant Banasiak]: Honestly, I am not a lawyer, and I am not going to tell you that,
but I'll tell you where we're at with this to be honest with you. Here– here's our posture,
and we talked about this earlier. Our posture is this: if you do what I think you should do
and tell the truth and be honest, then I –what I told you earlier Fabian– will work, and this
is what's going to happen: you're gonna be honest, you are gonna answer the questions
we want you to answer, you're gonna be– tell the truth, ok?

"[Perez]: Mm-hm.

"[Sergeant Banasiak]: And we are not gonna charge you with anything. Simply that's it.
Now, I'll be honest with you. Remember I told you about the line that you are on? On
this side, you're a suspect that we are gonna prosecute. On this side, you're a witness. Do
you understand? You witnessed something terrible that somebody did. That's where we
want you to be. That's how it goes. There's no other way. You're in, the sad part about,
is you're in a bad position because there's all these things go [sic] on, but we don't have
any other places for you. There's no other positions for you. Right, [Detective Flagg]?

"[Detective Flagg]: That's right. Either one side or the other.

"[Sergeant Banasiak]: And sadly to say, the person who put you in that situation, okay,
maybe a little a smoke, maybe a little whatever, I want you to be here. I gave you my
word this morning and I am going to give it to you again. You be honest, you tell the
truth, you tell us– the way it's supposed to be, as far as I can see, you're gonna go home at

11
 the end of the day. You'll, you'll have your life, maybe you'll go into the Marines like
you will, and you'll chalk this up to a very scary time in your life.

"[Perez]: Look, I'm going to be honest with you guys. I do have some information. I do
have some information, but I had nothing to do with that fucking murder. I didn't pull no
fucking trigger[.] It was a surprise, shit went to hell, and I didn't– quite frankly I was at
the wrong place at the wrong time."

Perez then told the investigators about the planned robbery of the taxi driver, his

having acted as Jasso's getaway driver, Jasso's unexpected shooting of the driver, and

Perez's subsequent disposal of the gun that Jasso had used to commit the murder, as

described in part II.D., ante.

After Perez admitted to assisting Jasso in the robbery and disposing of the gun,

Sergeant Banasiak told Perez that Jasso might still attempt to blame him for the killing.

Sergeant Banasiak added:

"The only way that you're ever going to be, even have a chance with this, whenever,
whoever decides what they're going to do with you and what they're not going to do with
you, is if you're honest and up front. That includes everything. Do you agree?"

Perez responded, "Un-huh."

Later during the interview, Sergeant Banasiak told Perez:

"The district attorney– and this, this [is] what I was going to tell you, you're either here,
witness, suspect here. Okay. Don't ever forget whatever they ask and do and decide
because they have the ultimate power of saying, okay, there, there's robbery issues that
was [sic] potentially involved here and you have some place in that. Ultimately
somebody died. So you want to stay on this side with your behavior and attitude. Do
you agree?"

Perez responded," I understand, yeah, I agree."

As discussed in part II.D., ante, immediately after his interview, Perez agreed to

go for a car ride, together with Detective Flagg, Sergeant Banasiak and an investigator

from the district attorney's office, to several locations at which significant events took

place on the night of the murder. At the outset of the ride, Sergeant Banasiak asked Perez

12
why he was agreeing to cooperate with the investigators. Perez responded, "Because an

innocent man died—shouldn't have died." Toward the beginning of the ride, Sergeant

Banasiak told Perez that the district attorney would make the decision as to how to

proceed and advised Perez to continue cooperating because "that makes it easier for them

to decide how they're going to handle you and your case." During the ride, Perez

described the events that had occurred at the various locations and repeated his

confession.

b. Perez's motion to suppress his statements

As noted in part I., ante, the People charged Perez with first degree murder (§ 187,

subd. (a)) and alleged that the murder was committed in the course of a robbery (§ 190.2,

subd. (a)(17)). Prior to trial, Perez filed a motion to suppress the statements he made to

law enforcement officers during the interview and ride-along on the ground that the

statements were involuntary. In support of this contention, Perez argued that his

confession was obtained through a promise of leniency. Perez emphasized that he had

repeatedly denied any knowledge of, or involvement in, the homicide until immediately

after Sergeant Banasiak promised that he would not be charged if he was honest and told

the truth.

The People filed an opposition to the motion to suppress in which they argued that

the totality of the circumstances supported the conclusion that the Perez's confession was

voluntary. With respect to Sergeant Banasiak's statement that "we are not gonna charge

you," the People argued that "[t]he 'we' cannot reasonably be viewed to include the

13
[district attorney's] [o]ffice [and] as the interview continues this understanding is made

clear by both parties."

c. The trial court's ruling on the motion to suppress

After further briefing, and oral argument, the trial court denied the motion,

reasoning:

"[T]he officers made it clear that the ultimate decision was going to come from the
district attorney's office. And they also told [Perez] during the interview, before he made
any admissions, that basically they're – you know, . . . – they didn't just grab him off the
street to talk to him. They already had information about his involvement. They might
not have used those words, but they said, "We know what happened." And that's when
he started moving towards talking about the – about the event. [¶] The fact that on
multiple occasions they made clear to [Perez] that it was the District Attorney that made
the decision on whether or not he would be charged, I find that that wasn't misleading.
That was, in fact, what happened. [¶] And so I'm going to deny [the] motion."

d. Perez's statements to law enforcement officers are played for the
jury at trial

At trial, the People played both the audio recording of Perez's interview with

Detective Flagg and Sergeant Banasiak described above9 and the video and audio

recording of Perez's ride with law enforcement officers during which Perez repeated his

confession and described the events that occurred at the various locations on the night of

the murder.

3. Application

During his interview with Detective Flagg and Sergeant Banasiak, Perez denied

any knowledge of the murder for approximately 25 minutes, until Sergeant Banasiak told

him that if he were to "tell the truth and be honest," then "we are not gonna charge you

with anything." (Italics added.) Sergeant Banasiak then told Perez that he was either a

9 The audio that was played at trial contained minor redactions that are not relevant
to the issue on appeal.
14
"suspect that we are gonna prosecute," or a "witness." The sergeant emphasized that he

was giving Perez his "word," and that Perez could have his "life" if he were to cooperate.

Immediately after Banasiak made these statements, Perez responded that he "d[id] have

some information," and proceeded to confess his involvement in the crimes. In light of

these facts, there can be no doubt that Sergeant Banasiak made an express promise of

leniency that was a motivating cause of Perez's confession. Accordingly, the confession

must be suppressed. (See Tully, supra, 54 Cal.4th at p. 985 [" 'where a person in

authority makes an express or clearly implied promise of leniency or advantage for the

accused which is a motivating cause of the decision to confess, the confession is

involuntary and inadmissible as a matter of law' "]; People v. Vasila (1995) 38

Cal.App.4th 865, 875 [concluding confession was involuntary where "defendant was

given bald promises that, if he provided the necessary information, he would not be

prosecuted federally and would be released from custody"]; U.S. v. Lall (11th Cir. 2010)

607 F.3d 1277, 1287 ["It is inconceivable that [the defendant], an uncounseled twenty-

year-old, understood at the time that a promise by [a police detective] that he was not

going to pursue any charges did not preclude the use of the confession in a federal

prosecution"]; compare with People v. Carrington (2009) 47 Cal.4th 145, 174

[concluding confession was voluntary where "[t]he statements made by the officers did

not imply that by cooperating and relating what actually happened, defendant might not

be charged with, prosecuted for, or convicted of the murder" (italics added)].)10

10 During Perez's trial, defense counsel asked Detective Flagg whether the
15
 The People's arguments to the contrary are not persuasive. The People begin by

arguing, "Substantial evidence supports the trial court's ruling." However, our review is

de novo. (Linton, supra, 56 Cal.4th at p. 1177 ["The facts surrounding an admission or

confession are undisputed to the extent the interview is tape-recorded, making the issue

subject to our independent review."])

The People note that in finding Perez's statements to be voluntary, the trial court

relied on the fact that Sergeant Banasiak told Perez that the district attorney would make

the ultimate decision with respect to whether he would be charged. This argument is

unpersuasive because Banasiak did not make this statement to Perez until after he had

elicited the incriminating statements from Perez based on the promise that Perez would

not be charged. Statements made to Perez after he confessed cannot be causally related

to his decision to confess. (See Tully, supra, 54 Cal.4th at p. 985 [court must examine

"causal connection between promise and confession," in determining voluntariness].)

Further, the fact that Perez did not immediately object to Sergeant Banasiak's statements

that the district attorney would make the ultimate charging decision does not render his

statements voluntary. Perez's failure to object at this juncture is most reasonably

attributable to Perez attempting to continue to cooperate with the officers after having

confessed, and not as reflecting Perez's understanding that Sergeant Banasiak had

statement—" 'We're not going to charge you with anything' "—was a "ruse." Detective
Flagg responded in the affirmative. Defense counsel then asked, "And that's when Mr.
Perez started telling you what he knew?" The detective responded, "Yes." Thus,
Detective Flagg recognized that Sergeant Banasiak had made a false promise of leniency
in order to elicit information from Perez, and that this statement caused Perez to confess
to his involvement in the crime.
16
promised him only that the police would not charge him, but that the district attorney

might. This interpretation is reinforced by the fact that just after telling Perez that "we

are not gonna charge you with anything," Sergeant Banasiak told Perez that if he did not

cooperate he would be a "suspect that we are gonna prosecute," implying that "we"

referred to both the police and the prosecutor. (Italics added.) Perez would reasonably

have understood Sergeant Banasiak's statements as a promise that Perez would not be

charged or prosecuted if he were to cooperate with the officers.

The People also note that the trial court suggested that Perez confessed after the

officers referred to, in the People's words, "the evidence mounting up against him." This

argument is not supported by the facts. The transcript of the interview plainly

demonstrates that Perez denied knowledge of the murder, even after the officers told him,

falsely, that his fingerprints had been found in the van and that he was depicted on

security videos recorded shortly before the murder. Perez continued to deny any

knowledge of, or involvement in, the crimes until immediately after Sergeant Banasiak

told him that if he cooperated and told the truth, he would not be charged.

The People also contend that the "circumstances of the interview and the personal

characteristics of [Perez]," support the conclusion that the confession was voluntary. In

support of this contention, the People note that Perez had completed high school and that

there was no "deprivation of food or sleep." True enough. But falsely promising a

defendant that he will not be charged with a crime, in order to elicit a confession, renders

that confession involuntary even when the defendant is well-educated, rested, and fed. In

short, the fact that other circumstances that might render a confession involuntary are not

17
present in this case does not demonstrate the legality of the confession that was obtained

through a false promise not to charge the suspect.

The People also argue that Perez's statement that he was cooperating with the

police officers because "an innocent man died," demonstrates that Sergeant's Banasiak's

promise of leniency was not the motivating cause of Perez's confession. However, Perez

made this statement well after he made his initial confession—a confession that was

immediately preceded by the sergeant's false promise of leniency. Thus, Perez's

statement that he was cooperating with police because an innocent man died does not

demonstrate the lack of "an express or clearly implied promise of leniency or advantage

for the accused which is a motivating cause of the decision to confess." (See Tully,

supra, 54 Cal.4th at p. 985.)

The People also note that a confession may be deemed voluntary despite the fact

that law enforcement officers emphasize the moral and psychological benefits of

confessing (People v. Carrington, supra, 47 Cal.4th at pp. 171-172), encourage a

defendant to tell his "side" of the story (People v. Hensley (2014) 59 Cal.4th 788, 812), or

promise to intercede with the district attorney on the defendant's behalf (People v. Jones

(1998) 17 Cal.4th 279, 297-298). The People contend that, similarly, in this case, the

officers "properly encouraged [Perez] to tell his side of the story so that a charging

recommendation could be made to the prosecutor." (Italics added.) This contention

grossly misrepresents what Sergeant Banasiak actually said. Sergeant Banasiak told

Perez,"[W]e are not gonna charge you with anything. Simply that's it." The sergeant did

far more than simply exhort Perez to tell the truth and promise to make a charging

18
recommendation to the prosecutor. He clearly promised Perez that Perez would not be

charged with a crime.

Finally, the People suggest that Sergeant Banasiak's promise was merely one "not

[to] file charges against [Perez] at that time." (Italics added.) We reject this argument

because Sergeant Banasiak's promise was unqualified, and was followed by statements to

the effect that if Perez were to cooperate, he would be able to "have [his] life," that he

could potentially "go into the Marines," and that he could "chalk this up to a very scary

time in your life." Under these circumstances, no reasonable person would understand

Sergeant Banasiak's unqualified promise not to charge Perez as meaning that the sergeant

was merely promising not to charge Perez on the day of the interview.

Accordingly, we conclude that the trial court erred in denying Perez's motion to

suppress his statements to law enforcement officers.

4. The error requires reversal

The People concede that if this court "finds that [Perez's] pretrial statement was

admitted erroneously, it must reverse the conviction." We agree. Perez's statements

constituted the only evidence directly linking him to the robbery and murder.

Accordingly, the improper introduction of such statements constitutes prejudicial error

under any standard of prejudice and the judgment must be reversed.

B. The trial court did not err in refusing to dismiss the case on the ground that the
prosecutor authorized a cooperation agreement between Perez and law
enforcement

Perez contends that the trial court erred in denying his motion to dismiss the case

on the ground that the prosecutor authorized a cooperation agreement providing that law

19
enforcement officials would "not . . . prosecute Perez in exchange for Perez's truthful

statements about the events surrounding the taxi driver's homicide . . . ." We review de

novo whether the prosecutor authorized such a cooperation agreement. (People v. C.S.A.

(2010) 181 Cal.App.4th 773, 778 (C.S.A.) ["when a cooperation agreement embraces a

promise to dismiss or reduce charges, whether the promise is authorized and enforceable

usually is a legal question reviewed de novo"].)

1. Governing law

A cooperation agreement generally involves "an agreement between a defendant

and a law enforcement agency." (C.S.A., supra, 181 Cal.App.4th at p. 778.) "As with a

plea agreement, '[t]he government is held to the literal terms of [a cooperation]

agreement . . . . And, like a plea agreement, 'an agreement to cooperate may be analyzed

in terms of contract law standards.' " (Id. at pp. 778-779.)

However, and of particular importance to this case, " '[a] defendant who seeks

specifically to enforce a promise, whether contained in a plea agreement or a freestanding

cooperation agreement, must show . . . that the promisor had actual authority to make the

particular promise . . . .' " (C.S.A., supra, 181 Cal.App.4th at p. 779, italics added.)11 In

California, "state and local prosecutors are invested with the prosecutorial power of the

state." (Id. at p. 783, italics added.) "And just as federal law enforcement officers have

11 The C.S.A. court explained that "there is a 'narrow' exception to this requisite
showing, where failure to enforce an unauthorized cooperation agreement would render
the prosecution 'fundamentally unfair.' " (C.S.A., supra, 181 Cal.App.4th at p. 779.)
However, for reasons that we explain in footnote 12, post, we need not consider whether
the conditions necessary for the applicability of this narrow exception for unauthorized
cooperation agreements are met in this case.
20
no independent authority to make promises about the filing and prosecution of federal

criminal charges, state and local law enforcement officers have no independent authority

to make promises about the filing and prosecution of state criminal charges." (Ibid.)

Thus, in order to enforce a cooperation agreement in California, the defendant must show

that a state or local prosecutor authorized the agreement, thereby granting the law

enforcement officer " 'actual authority' " to enter into the agreement. (Id. at p. 779; see

also id. at p. 784 [concluding that trial court erred in dismissing charges based on law

enforcement officer's " 'apparent authority' " to enter into cooperation agreement], italics

added.)

2. Factual and procedural background

Prior to trial, Perez filed a motion to dismiss the case on the ground that the

prosecutor authorized Sergeant Banasiak and Detective Flagg to enter into a cooperation

agreement with him pursuant to which Perez agreed to discuss the events related to the

robbery and murder in exchange for an agreement not to charge him with any crime. In

support of this contention, Perez lodged a transcript of his interview with Sergeant

Banasiak and Detective Flagg discussed in part III.A.2., ante; notes of a defense

investigator concerning his interviews with Sergeant Banasiak and Detective Flagg

regarding the circumstances of the officers' interview of Perez; and Detective Flagg's case

report summarizing the investigation.

The People filed an opposition in which they contended that there was no evidence

that Perez had entered into any cooperation agreement with law enforcement officers and

21
that there was no evidence that the prosecutor had authorized any such agreement. The

trial court denied Perez's motion.

3. Application

The only evidence that Perez cites in support of his contention that the prosecutor

authorized the police officers to enter into a cooperation agreement with Perez are

Sergeant Banasiak's statements to a defense investigator that Deputy District Attorney

Patricia Kelly authorized that "Perez be treated as a witness instead of a suspect" and that

Kelly insisted that Perez be provided with Miranda warnings prior to his interview.

Perez speculates that Deputy District Attorney Kelly "anticipated that Perez would make

incriminatory statements and that he would be waiving his right to counsel and his right

against self incrimination in exchange for the cooperation promise not to treat him as a

suspect."

We are not persuaded. Evidence that Deputy District Attorney Kelly agreed with

investigators that Perez be treated as a witness during an interview and insisted that that

Perez be admonished pursuant to Miranda falls far short of demonstrating that the

prosecutor authorized Sergeant Banasiak to promise Perez that he would not be charged

with any crime in exchange for Perez's truthful statements concerning the events

surrounding the robbery murder. Perez also notes in his brief that Deputy District

Attorney Kelly sent two investigators from her office to "monitor . . . and assist"

Detective Flagg and Sergeant Banasiak with their interview of Perez. However, Perez

makes no argument with respect to the significance of this fact. In any event, there is

nothing in the record that suggests that the investigators from the district attorney's office

22
influenced the interview in any way, much less that the investigators authorized a

cooperation agreement between law enforcement officials and Perez. We therefore

conclude that the trial court did not err in refusing to dismiss the case on the ground that

the prosecutor authorized a cooperation agreement between Perez and law enforcement

officials.12

C. There is insufficient evidence to support the robbery-murder special-circumstance
true finding

Perez contends that there is insufficient evidence to support the robbery-murder

special-circumstance true finding (§ 190.2, subd. (d)). The People concede that under

Banks, supra, 61 Cal.4th 788, the evidence is insufficient to support the finding.

12 We need not consider whether there was breach of an unauthorized cooperation
agreement with Perez. "[T]he remedy for breach of an unauthorized cooperation
agreement usually is a sanction short of dismissal." (C.S.A.,181 Cal.App.4th at p. 780,
citing, inter alia, State of North Carolina v. Sturgill (1996) 121 N.C.App. 629 [469
S.E.2d 557, 568-569] [concluding exclusion of evidence, rather than dismissal of charges,
was proper remedy for defendant's reliance on unauthorized cooperation agreement and
stating, "[W]e are not required, as a result of the 'constable's blunder,' to place defendant
in a better position than he enjoyed prior to making the agreement with the police"].)
We concluded in part III.A., ante, that Perez's statements to law enforcement
officers must be suppressed as the product of a false promise of leniency. Perez does not
contend that he is entitled to some remedy beyond suppression based on the alleged
breach of an unauthorized cooperation agreement in this case. Accordingly, even
assuming, strictly for the sake of argument, that there was a breach of an unauthorized
cooperation agreement in this case, we agree with Perez that "exclusion of Perez's
statements rather than dismissal of the criminal charges is the appropriate remedy," under
the circumstances of this case. Since we have already concluded that Perez's statements
must be suppressed in connection with his involuntary confession argument (see pt.
III.A., ante), we need not consider whether there was in fact a breach of an unauthorized
cooperation agreement because Perez would be entitled to no greater remedy than
suppression of his statements for such a breach.
23
 In Banks, as in this case, a jury found the defendant guilty of first degree murder

under a felony-murder theory and found true a felony-murder special circumstance.

(Banks, supra, 61 Cal.4th at p. 794.) The Banks court concluded that evidence that the

defendant had acted as a getaway driver for an armed robbery during which the

defendant's accomplice shot and killed a victim was insufficient as a matter of law to

support a robbery murder special circumstance. (Ibid.) After reviewing United States

Supreme Court case law on which section 190.2, subdivision (d) is based, the Banks court

reasoned that evidence that the defendant acted as the getaway driver did not establish

that the defendant had acted " 'with reckless indifference to human life and as a major

participant' " in the felony resulting in death (§ 190.2, subd. (d)), as is required. (Banks,

supra, at p. 794.)

We accept the People's concession and conclude that there is insufficient evidence

to support the robbery-murder special-circumstance finding under Banks. Thus, Perez

may not be subjected to a robbery-murder special-circumstance allegation at any retrial.

(See People v. Lewis, supra, 43 Cal.4th at p. 509 ["Because sufficient evidence does not

support the lying-in-wait special-circumstance allegation, retrial of that allegation is

barred."].)

D. If the case is retried and Rivera refuses to answer the prosecutor's questions, the
trial court shall not permit the prosecutor to pose leading questions to Rivera in
front of the jury pertaining to Rivera's prior statements to police

Perez claims that the trial court erred in permitting the prosecutor to pose leading

questions to Rivera in front of the jury pertaining to Rivera's prior statements to police,

when the prosecutor knew that Rivera would refuse to answer any questions. Although

24
we need not address this claim in light of our reversal of the judgment on other grounds,

we consider the issue because it may recur on remand.13

1. Factual and procedural background

a. Proceedings outside the presence of the jury

Prior to trial, Perez orally moved to exclude the statements that Rivera made to the

police. The court deferred ruling on the motion, with the anticipation of conducting a

hearing for the purpose of determining whether Rivera would testify at Perez's trial.

During a subsequent hearing, outside the presence of the jury, Rivera was sworn as a

witness and testified that he would not answer any of the prosecutor's questions. The trial

court held Rivera in contempt of court and ordered him "back to the jail."14

During the trial, outside the presence of the jury, the court held a hearing for the

purpose of determining the manner by which it would permit the prosecutor to examine

13 Perez also claims that the trial court prejudicially erred in permitting Detective
Flagg to testify concerning Rivera's statements for the purpose of explaining Detective
Flagg and Sergeant Banasiak's states of mind in interviewing Perez. Specifically, during
his cross-examination of Detective Flagg, defense counsel asked the detective whether
the officers had lied to Perez when they told him that he was seen on a surveillance video
and that his fingerprints were found inside the taxi van. On redirect, the trial court
permitted the prosecutor to ask Detective Flagg questions concerning Rivera's statements
in an attempt to demonstrate that the officers had a good faith basis for the questions that
they asked Perez. The court instructed the jury that Rivera's statements were not offered
for their truth, "just that those words were communicated to law enforcement officers
and, based upon that communication, they did certain things."
We need not consider whether the trial court erred in admitting Rivera's statements
for this purpose. Rivera's statements clearly will not be admissible during any retrial to
demonstrate the officers' states of mind in interviewing Perez because we have concluded
that Perez's statements to the officers must be suppressed.
14 It appears that Rivera was in custody on an unrelated matter.
25
Rivera in front of the jury. The prosecutor requested that he be "allowed to put

questions" to Rivera because Rivera might decide to answer the prosecutor's questions.

The court stated, "I think you have the right to ask specific questions and ask all

the questions you want, and he doesn't even take the Fifth because he doesn't have the

Fifth Amendment privilege [against self-incrimination]. So he just refuses to answer and

I hold him in contempt."15

Defense counsel objected to the proposed procedure. Counsel stated that he had

no objection to the prosecutor asking a few preliminary questions, but that no questions

should be asked beyond those needed to establish that Rivera would not provide any

substantive testimony. Defense counsel argued that it would be "terribly prejudicial for

Mr. Perez to allow [the prosecutor] to basically state his . . . case as to what he expects

the witness to say, parade it before the jury." Defense counsel maintained that such a

procedure would violate Evidence Code section 35216 and noted that he would not be

15 During this hearing, the prosecutor stated that Rivera was "not charged with
anything," and "I think we've established he doesn't have any Fifth Amendment
privilege." It is unclear from the record why Rivera did not have a Fifth Amendment
privilege, given the evidence suggesting his possible involvement in the robbery and
murder. However, Rivera did not assert a Fifth Amendment privilege at trial and Perez
raises no assertion with respect to this issue on appeal. Thus, we assume for purposes of
our analysis that Rivera did not have such a privilege. To the extent that Rivera in fact
had a Fifth Amendment privilege not to testify, it would be "improper to require him . . .
to invoke the privilege in front of a jury; such a procedure encourages inappropriate
speculation on the part of jurors about the reasons for the invocation." (People v.
Morgain (2009) 177 Cal.App.4th 454, 466 (Morgain).)
16 Evidence Code section 352 provides, "The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury."
26
able to cross-examine Rivera. Defense counsel argued further that to allow the

prosecutor to "relat[e] all these statements," would be "very unfair to the defense."

The court ruled that the prosecutor "should be given the opportunity to go into all

the questions he wants to see if [Rivera will] answer any of them." After defense counsel

asked for clarification as to how many questions the court would allow, the trial court

responded that defense counsel would be able to raise an objection and that "if they

become repetitive or we're going over the same question about the same subject matter

that has already been addressed, then you know you'll probably have a good objection."

b. Proceedings before the jury

The People called Rivera as a witness. After being sworn, Rivera gave his name,

but refused to answer any of the prosecutor's questions. The trial court permitted the

prosecutor to treat Rivera as a hostile witness and ordered Rivera to answer the

prosecutor's questions concerning the statements he had made to the police, over defense

counsel's repeated objections. The court held Rivera in contempt for each refusal to

answer.

For example, the prosecutor asked, "Mr. Rivera, on December 16th, 2003, were

you at the Indio Police Department?" Rivera refused to answer the question, and the court

held him in contempt.

The prosecutor then asked, "Mr. Rivera, did you tell . . . Detective Sergio Carrillo

on December 16th, 2003, that it was your gun, a .25 caliber, that killed the taxi cab

driver?"

27
 Defense counsel stated, "[A]t this point I'm going to object to this line of

questioning. I think it's clear the witness is refusing to answer, and he's therefore

unavailable for that line of questioning, and I would object to this line of questioning."

The court overruled the objection.

Following this objection, a similar pattern of questioning continued, with the

prosecutor asking Rivera numerous questions about the statements he had made to police.

Among the questions that the prosecutor asked were whether Rivera had told police that:

(1) he had left the murder weapon with Pinela when Rivera had gone to Arizona two

weeks before the shooting; (2) his "best friend" Perez warned him not to return from

Arizona because the police were serving search warrants; (3) Perez told him what had

occurred on the night of the homicide; (4) Perez told him that on the night leading up to

the murder, he made plans with Jasso to rob somebody because they needed money;

(5) Perez told him that Perez and Jasso made a plan to rob the taxi driver; (6) Perez told

him that after the robbery, Jasso gave Perez $80 and Jasso kept the taxi driver's wallet;

(7) Perez told him that Perez kept the gun and disposed of it; and (8) Rivera's gun was a

.25 caliber and chrome and shiny in color. Rivera refused to answer all of the questions.

In addition, during his questioning of Rivera, and over defense counsel's objection,

the prosecutor showed Rivera a transcript of his statements to police and asked him

whether the transcript refreshed his recollection concerning the statements he had made

to police. Rivera refused to answer.

28
 After the prosecutor completed his questioning, defense counsel stated that he had

no questions for Rivera. The court then instructed the jury that the prosecutor's

unanswered questions did not constitute evidence.

2. Governing law

In Douglas, supra, 380 U.S. 415, the United States Supreme Court held that a trial

court violated a defendant's right to confrontation by permitting a prosecutor to pose a

series of questions to a witness, Loyd, concerning Loyd's prior statement to police, which

Loyd refused to answer. (Id. at p. 419.) The prosecutor asked Loyd a series of questions

concerning the charged crime. (Id. at p. 416.) Although Loyd invoked his Fifth

Amendment privilege against self-incrimination, the trial court ruled that Loyd had no

privilege to invoke and ordered him to answer the prosecutor's questions. (Ibid.) Despite

the court's order, Loyd continued to refuse to answer any questions. (Ibid.) The

prosecutor proceeded to read a statement that Loyd had allegedly made to the police in

which Loyd inculpated the defendant in firing a shotgun with the intent to murder. (Id. at

pp. 416, 419.) During his reading of the statement, the prosecutor repeatedly asked Loyd

whether he had made the statement. (Id. at p. 416.) Loyd refused to answer the

questions. (Id. at pp. 416-417.)

The United States Supreme Court held that the defendant's inability to cross-

examine Loyd as to the statement he allegedly made to the police "plainly denied" the

defendant his constitutional right to confrontation. (Douglas, supra, 380 U.S at p. 419.)

The Douglas court reasoned in part:

29
 "Although the [prosecutor's] reading of Loyd's alleged statement, and Loyd's refusals to
answer, were not technically testimony, the [prosecutor's] reading may well have been
the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and
Loyd's reliance upon the privilege created a situation in which the jury might improperly
infer both that the statement had been made and that it was true. . . . [¶] . . . [E]ffective
confrontation of Loyd was possible only if Loyd affirmed the statement as his. However,
Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide
whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for
the purposes of deciding petitioner's claim under the Confrontation Clause that no
suggestion is made that Loyd's refusal to answer was procured by the petitioner,
[citation]; on this record it appears that Loyd was acting entirely in his own interests in
doing so." (Id. at pp. 419-420.)

California cases have repeatedly relied on Douglas to conclude that a defendant's

right to confrontation is violated where, in examining a recalcitrant witness, the

prosecutor poses leading questions that provide the details of prior statements the witness

made to police regarding a defendant's commission of a crime. (E.g., People v. Murillo

(2014) 231 Cal.App.4th 448, 456 (Murillo) [concluding that victim witness's "refusal to

answer over 100 leading questions while the prosecutor read to the jury from his police

interviews denied [defendant] the opportunity to cross-examine the victim on what was

tantamount to devastating adverse testimony"]; People v. Rios (1985) 163 Cal.App.3d

852, 864 (Rios) ["the admission of a prior statement made by a witness who stonewalls at

trial and refuses to answer any question on direct or cross-examination denies a defendant

the right to confrontation which contemplates a meaningful opportunity to cross-examine

the witness"]; People v. Shipe (1975) 49 Cal.App.3d 343, 355 (Shipe)["[the prosecutor]

succeeded in creating the distinct impression that [the witnesses] had talked to the

authorities, that they described the events vividly depicted in the prosecutor's questions

and that their statements were true"].)

The Murillo court succinctly explained the nature of the error under the

circumstances of that case:
30
 "A prosecution witness takes the witness stand but refuses to answer any questions. The
trial court allows the prosecutor to ask the witness more than 100 leading questions
concerning the witness's out-of-court statements to prove defendant guilty of several
criminal offenses. The questions create the illusion of testimony. This deprived
defendant of a fair trial because he could not exercise his constitutional right of cross-
examination. Instructions that cautioned the jury not to regard the prosecutor's questions
as evidence did not overcome the extreme prejudice to defendant." (Murillo, supra, 231
Cal.App.4th at pp. 449-450.)

3. On remand, the trial court shall not permit the prosecutor to ask Rivera
questions in front of the jury pertaining to his prior statements to police

In this case, in permitting the prosecutor to pose numerous questions to the

recalcitrant Rivera concerning his statements to police, the trial court committed the same

error condemned in Douglas and its progeny. The prosecutor asked numerous leading

questions concerning Rivera's out-of-court statements to the police implicating Perez in

the commission of the charged offense in order to prove Perez guilty. Although, as in

Douglas, the prosecutor's questions and Rivera's refusals to answer were "not technically

testimony" (Douglas, supra, 380 U.S. at p. 419), the questions "create[d] the illusion of

testimony" (Murillo, supra, 231 Cal.App.4th at p. 450), were "tantamount to devastating

adverse testimony" (id. at p. 456), and clearly violated Perez's right to confrontation.

The People's arguments to the contrary are, at best, not persuasive. The People

contend, "There was no confrontation clause violation here because no testimony was

provided." This contention is directly contrary to Douglas, which, as discussed above,

concluded that the trial court violated a defendant's right to confrontation even though the

prosecutor's questions and the witness's refusals to answer were "not technically

testimony." (Douglas, supra, 380 U.S. at p. 419.)

The People also contend that Douglas and Shipe are distinguishable on the ground

that in those cases, "the witnesses had a legal justification for not answering questions,
31
having invoked their valid rights against self-incrimination." This argument is entirely

unpersuasive since both the Douglas and the Shipe courts expressly stated that they need

not decide whether a witness had validly invoked the privilege against self-incrimination

in ruling on defendant's confrontation clause claim. (See Douglas, supra, 380 U.S. at p.

420 ["We need not decide whether Loyd properly invoked the privilege."]; Shipe, supra,

49 Cal.App.3d at p. 349 [stating that the court was "not concerned" with the trial court's

ruling that the witnesses were not entitled to assert their Fifth Amendment privilege]; see

also Murillo, supra, 231 Cal.App.4th at p. 456 [applying Douglas and Shipe with respect

to recalcitrant witness who "did not invoke the privilege against self-incrimination"].)

We are similarly unpersuaded by the People's citation to cases in which courts

have concluded that it is proper in a criminal case to allow the prosecutor to call as a

witness a person who refuses to answer questions, where the person does not have a valid

claim of legal privilege. (E.g., People v. Lopez (1999) 71 Cal.App.4th 1550, 1554

(Lopez) [noting that while it is improper to require a witness who has a valid Fifth

Amendment privilege to invoke the privilege in front of the jury, "where a witness has no

constitutional or statutory right to refuse to testify, a different analysis applies"]; People

v. Sisneros (2009) 174 Cal.App.4th 142, 151 (Sisneros) [citing Lopez and concluding trial

court did not abuse its discretion in permitting prosecutor to call witness to stand

knowing that she would refuse to testify].) Lopez and Sisneros are distinguishable from

this case because the prosecutors in those cases did not ask the witnesses about their out-

of-court statements. (Lopez, supra, at p. 1554; Sisneros, supra, at p. 150.) Thus the

defendants' confrontation clause rights under Douglas and its progeny were not

32
implicated. In Lopez, the prosecutor was permitted only to ask a recalcitrant witness

about the witness's commission of a crime, for purposes of establishing a pattern of

criminal gang activity. (Lopez, supra, at p. 1553.) In Sisneros, the trial court permitted

the prosecutor to call the witness in front of the jury, but did not permit the prosecutor to

ask any questions. (Sisneros, supra, at p. 150.) Neither case had any occasion to discuss

Douglas or the California cases that follow Douglas.

A third case, on which the People rely, Morgain, supra, 177 Cal.App.4th 454, is

also distinguishable. In Morgain, the prosecutor granted the defendant's girlfriend

(Wallace) use immunity, and called her as a witness at the defendant's murder trial. (Id.

at p. 460.) Wallace testified that she was defendant's girlfriend, the mother of his child,

and that she lived with him at the time of the charged offense. (Ibid.) Wallace also

provided testimony concerning the defendant's whereabouts on the day of the shooting.

(Ibid.) In addition, Wallace stated that she did not recall talking to police after the

incident, and denied having made several statements to the police concerning the

defendant's whereabouts on the day of the shooting. (Id. at pp. 460-461.) After Wallace

provided this testimony, the prosecutor asked her several additional questions about the

charged offense, including whether the defendant had confessed to her that he had shot

the victim several times. (Id. at pp. 461-462.) Wallace refused to answer the questions

and the trial court held her in contempt. (Ibid.) Later in the trial, defense counsel moved

to strike Wallace's testimony in its entirety. The trial court granted the motion. (Id. at p.

462.)

33
 On appeal, appellant contended that the "court violated his right of confrontation

when it permitted the prosecutor to ask Wallace whether she told police appellant

confessed to the shooting." (Morgain, supra, 177 Cal.App.4th at p. 463.) The Morgain

court acknowledged that "[a] defendant's confrontation rights may be violated where a

prosecutor examines a recalcitrant witness and poses questions that relate to prior

statements made by that witness, in circumstances where the witness's recalcitrance

effectively prevents cross-examination concerning those prior statements." (Ibid.)

However, the Morgain court concluded that there had been no such violation in that case

because the trial court had struck Wallace's testimony in its entirety and had instructed

the jury not to consider the prosecutor's questions as evidence, and because there was

independent evidence of appellant's guilt. (Id. at pp. 465-466.)

Morgain is distinguishable for two important reasons. To begin with, unlike

Rivera, Wallace testified at trial. (See People v. Dement (2011) 53 Cal.4th 1, 24 ["unlike

the witness in Douglas . . . [the witnesses in Dement] did not invoke their Fifth

Amendment privilege against self-incrimination and refuse to answer any questions about

the crime, a circumstance that would have rendered them 'totally unavailable at the trial

for any kind of cross-examination' "].) Rather, Wallace answered a number of the

prosecutor's questions, and specifically stated that she did not recall making certain

statements to the police. She subsequently denied having made the statements at issue.

(Morgain, supra, 177 Cal.App.4th at pp. 460-461; compare with Rios, supra, 163

Cal.App.3d at pp. 864 -865 [stating that Douglas may apply where a witness "stonewalls

at trial"], italics added.) In addition, the bulk of the prosecutor's questions in Morgain did

34
not concern Wallace's out-of-court statements to police. (Morgain, supra, at pp. 459-

461.) Rather, the questions sought to elicit testimony concerning the charged offense

(ibid.), and thus did not violate the defendant's right to confrontation. In this case, in

contrast, virtually all of the questions that the prosecutor posed to Rivera concerned

Rivera's out-of-court statements to police that implicated Perez in the murder. In short,

Morgain cannot reasonably be read as permitting a prosecutor to "create the illusion of

testimony" by asking a recalcitrant witness about the witness's out-of-court statements to

police. (Murillo, supra, 231 Cal.App.4th at p. 450.)

Accordingly, we conclude that on remand, if Rivera refuses to answer the

prosecutor's questions at a retrial, the trial court shall not permit the prosecutor to pose

questions to Rivera in front of the jury pertaining to Rivera's prior statements to police.

4. Rivera's prior statements may not be admitted as prior inconsistent
statements in the event that he refuses to testify at a retrial

The People claim that, to the extent Rivera refuses to testify without legal

justification, his prior statements to police should be admissible as prior inconsistent

statements pursuant to Evidence Code sections 1235 and 770.17 This argument is

contrary to both California and federal law. In Rios, supra, 163 Cal.App.3d 852, after

17 Evidence Code section 1235 provides, "Evidence of a statement made by a witness
is not made inadmissible by the hearsay rule if the statement is inconsistent with his
testimony at the hearing and is offered in compliance with Section 770."
Evidence Code section 770 provides:
"Unless the interests of justice otherwise require, extrinsic evidence of a statement made
by a witness that is inconsistent with any part of his testimony at the hearing shall be
excluded unless:
"(a) The witness was so examined while testifying as to give him an opportunity
to explain or to deny the statement; or
"(b) The witness has not been excused from giving further testimony in the
action."

35
noting that a witness's prior statements are not admissible pursuant to Evidence Code

section 1235 where the witness has no recollection of the underlying facts as to which he

is being questioned,18 this court rejected this precise argument:

"We conclude there is no relevant legal difference between the situation where the
stonewalling witness refuses to answer any questions and the situation where the witness
totally recalls no facts, for purposes of determining inconsistency under Evidence Code
section 1235. In both situations there is simply no 'statement' in the record which is
inconsistent, or for that matter consistent, with prior statements; there is no 'express
testimony' at all from which to infer or deduce implied inconsistency. [Citations.] [¶]
[Evidence Code] [s]ection 1235, by its express terms, requires a witness give testimony
from which an inconsistency, express or implied, may be determined. Where, as here,
the witnesses give no testimony, there is no evidence to support a finding of
inconsistency. [Evidence Code] [s]ection 1235 simply does not apply." (Rios, supra, at
p. 864.)
In People v. Homick (2012) 55 Cal.4th 816 (Homick), the Supreme Court endorsed

the reasoning of Rios, explaining that while selectively refusing to answer some questions

at trial, "expos[es] the witness to impeachment under Evidence Code section 1235"

(People v. Homick, supra, at p. 859), no such impeachment is permissible where the

witness refuses to testify at all. (Id. at p. 860 ["This is not a case where a witness took the

stand and refused to testify at all, thus providing no basis for the trial court to find

inconsistency in effect," citing Rios, supra, 163 Cal.App.3d at pp. 860-861].)

The introduction of Rivera's prior statements under these circumstances would

also violate Perez's confrontation clause rights under Douglas and its progeny. (See Rios,

supra, 163 Cal.App.3d 852, 864 ["the admission of a prior statement made by a witness

who stonewalls at trial and refuses to answer any question on direct or cross-examination

18 The Rios court noted that a witness's prior statements may be admissible where the
"court finds a witness falsely claiming failure to remember facts in order to deliberately
avoid testifying as to those facts." (Rios, supra, 163 Cal.App.3d at pp. 863-64, italics
added.) In such a circumstance there is said to be an "implied" (id. at p. 863)
inconsistency between the prior statement and the witnesses trial testimony. (Id. at pp.
863-864, citing People v. Green (1971) 3 Cal.3d 981, 986-989.)
36
denies a defendant the right to confrontation which contemplates a meaningful

opportunity to cross-examine the witness"].) Thus, on remand, if Rivera refuses to

answer the prosecutor's questions at a retrial, the trial court shall not permit the People to

introduce Rivera's statements to police pursuant to Evidence Code section 1235.

IV.

DISPOSITION

The judgment is reversed. Perez's conviction for first degree murder is reversed.

The robbery-murder special-circumstance true finding is reversed for insufficient

evidence.

The People may retry Perez on a charge of murder within the time limit set forth in

section 1382, in a manner consistent with this opinion. Perez may not be subjected to a

robbery-murder special-circumstance allegation during any retrial.

The trial court may conduct any necessary ancillary proceedings consistent with

this opinion.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

37