Filed 5/25/21 P. v. Gutierrez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302264
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA104376)
v.
ULISES JOSE GUTIERREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Marilee Marshall for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael Keller and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted defendant and appellant Ulises Jose
Gutierrez of two counts of first degree murder (Pen. Code, § 187,
subd. (a); counts 1 & 8)1 and three counts of willful, deliberate,
and premeditated attempted murder (§§ 664, 187, subd. (a);
counts 5, 6 & 7).2
The jury found true allegations that, as to counts 1, 5, and
7, defendant personally discharged a firearm (§ 12022.53,
subd. (d)); as to count 6, defendant personally used a deadly and
dangerous weapon (§ 12022, subd. (b)(1)) and caused the victim
great bodily injury (§ 12022.7, subd. (a)); as to count 8, a principal
personally discharged a firearm (§ 12022.53, subds. (d) & (e)(1));
and, as to counts 1, 5, 7, and 8, the offense was committed for the
benefit of, at the direction of, or in association with a criminal
street gang with the specific intent to promote, further, and
assist in criminal conduct by gang members (§ 186.22,
subd. (b)(1)(C).)
Finally, the jury found true a multiple murder special
circumstance allegation (§ 190.2, subd. (a)(3)) and, as to counts 1
and 8, the special circumstance allegation that defendant carried
out the murder to further the activities of a criminal street gang
of which he was an active participant (§ 190.2, subd. (a)(22)).
The trial court sentenced defendant to an aggregate term of
life without the possibility of parole plus 104 years to life in state
prison.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant was found not guilty of one murder count
(count 9).
2
In this timely appeal, defendant argues that his
incriminating statements to undercover jail informants were
coerced and, therefore, the admission of those statements at trial
violated his constitutional rights.
We affirm.
BACKGROUND3
I. Defendant’s Statements to Undercover Informants
As part of an investigation into the May 2013 shooting of
Raymond Vasquez (Vasquez),4 the Los Angeles County Sherriff’s
Department conducted a Perkins5 operation, which entailed
placing an undercover agent posing as an inmate in a cell with a
suspect to elicit incriminating statements. Defendant was
arrested on January 16, 2014, taken to the Sheriff’s Station in
San Dimas, and placed in a jail cell with two undercover
informants, who were paid for their participation in the Perkins
operation.
Defendant initiated a conversation by asking, “What’s up,
G?” Informant 2 asked defendant, “You a homie?” Defendant
responded that he was from the Northside Bolen gang. He told
the informants that he was 20 years old and had been with the
gang since he was 12 or 13 years old. Defendant stated: “I’ve
3 Because defendant does not challenge the sufficiency of the
evidence supporting his convictions and no prejudice analysis is
required, we only summarize the facts pertinent to defendant’s
claim that his incriminating statements were coerced.
4 Vasquez’s murder was the basis of count 1.
5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
3
been all over, my boy. When they call me for Eme,[6] like, all
over.”7
Defendant explained that he was being implicated in a
murder and that someone was “snitching[.]” At first, defendant
denied knowing about a murder. He asked the informants
whether the evidence that the police said they had—that is, a
witness who would testify, text messages, and phone calls—
would be sufficient. Informant 2 asked defendant, “Dude,
someone’s telling on you that was there?” Defendant responded,
“I know who it is. No, not that was there.”
Both informants told defendant that they were “red band”
meaning “[h]igh power.” Informant 2 stated: “I had the whole
county last time I was there, so they red band me every time I
go.”8 Informant 2 explained that he did a “job” for Fox—a “big
homie” who “got the county right now[.]”9 Informant 1 mentioned
that he was related to Fox. Informant 2 stated, “once we get
6 “Eme” refers to the Mexican Mafia.
7 Italicized text denotes translations from Spanish.
8 At trial, the defense gang expert, Martin Flores (Flores),
testified that “when somebody says ‘I had the county’ they were
literally running the operations in terms of the Surenos gang in
the Los Angeles County Jail and they work closely with one or
multiple [Mexican Mafia] members that may have been housed
during that time frame.”
9 Flores testified that Fox was a member of the Mexican
Mafia, who “had major influence in Los Angeles County Jail.”
4
downstairs, we’re gonna have everything we want.”10 He also
said that he had been “down there with Lalo” and “Fly.”11
Informant 2 suggested that he could do defendant “a favor”
regarding the witness. This piqued defendant’s interest; he
wanted to hear more about how Informant 2 could “help” him.
Soon after, a deputy sheriff came to the cell to get defendant for
more interviews. Informant 2 asked if the deputy was going to
bring him back. The deputy asked defendant if he wanted to
come back to the cell. Defendant responded, “I’ll feel fucked up
by myself in a cell.”
Defendant later returned to the cell with the informants
per his request. He told them that he was now being implicated
in other murders and attempted murders, and was facing the
death penalty.
Informant 2 again suggested that he could kill the witness
for defendant but could not make any promises. He told
defendant: “[I]f I find the fool for you, if I whack him, you’re
gonna owe me a favor. You know that; right?” Defendant
responded: “I’m a rider,[12] dog. I’ll do anything you say.”
10 Flores explained at trial that “‘going downstairs’ is
basically going to where decisions are made . . . . In this case it
would be most likely Men’s Central Jail which is where the high
ranking Mexican Mafia members will be housed and/or where the
most action is taking place.”
11 Per Flores’s trial testimony, Lalo and Fly were Mexican
Mafia members. Fox, Lalo, and Fly were “three of the most
powerful individuals in Los Angeles County Jail[.]”
12 According to the Sheriff’s Department report regarding the
Perkins operation, a rider is “street slang for an individual who is
committed to the gang[.]”
5
Informant 2 said that he needed defendant to tell him
“everything” so that he “could do all [his] homework . . . .” He
told defendant: “[W]hen I ask you a question, I want you to
answer·me honestly and not lie to me and bullshit me.”
Informant 2 asked how he could know if defendant was a
“rider[,]” and defendant said that the informant should ask
people in Pelican Bay13 about him. Defendant stated that he had
been “gangbanging” for seven years.
Defendant explained that the police knew about three
murders and an attempted murder. Regarding why he shot one
of the victims, defendant stated: “Because his son, he had beef
with the barrio. I said, ‘Well, I’m going to go.’ So I went to the
hood.” There was also an incident involving “Maria” during
which she “got shanked up.”14 Defendant said that he “was this
close to kill [sic] her” but was stopped.
Informant 2 told defendant: “We’re gonna get you out, but
remember you’re willing to do anything for me; right?”
Defendant responded, “I’m gonna do everything, my boy.”
Informant 2 clarified, “Even kill people; right?” Defendant
replied, “Shhh, and that ain’t nothing to me.”
II. Relevant Trial Court Proceedings
On November 13, 2018, defendant filed a motion to exclude
all evidence obtained through the Perkins operation conducted in
13 Defendant was presumably referring to Pelican Bay State
Prison.
14 The attempted murder of Maria Moreno with a knife was
the basis of count 6.
6
January 2014.15 Defendant argued that “the operation . . . went
far beyond merely ‘listening’ to statements by a suspect.
Rather, . . . [the informants] used their age and experience to
play upon the fears, naivete, and youthfulness ([defendant] was
20 at the time) of the defendants, by making promises and
exacting commitments as part of their shared gang culture.”
During oral argument on August 28, 2019, defense counsel
contended that defendant’s statements to the undercover
informants were the result of implied coercion because they
followed “very intense . . . pressure being put on him by these
very obviously older and larger individuals[16] who have spoken to
him about politics at the jail. What he’s gonna have to do about
the Mexican Mafia individuals that they’re familiar with who run
the county, mentioning a Fox and a Lalo. . . . [T]his is all part of
their efforts to exert some sort of coercion. It’s not the rubber
hose treatment, of course. But, nonetheless, . . . coercion can be
implied.”
The trial court denied the motion to exclude, and a
recording of defendant’s conversations with the undercover
informants was played for the jury as part of the People’s case-in-
chief.
15 Apart from defendant, there were four other subjects of the
Perkins operation. On appeal, defendant only challenges the
admission of his own statements.
16 At the time, one of the informants was in his early to mid
30’s, weighed 275 to 325 pounds, and was between 5 feet 8 inches
and 5 feet 11 inches tall. The other informant was in his late 20’s
to early 30’s and between 5 feet 6 inches and 5 feet 8 inches tall.
7
The defense called Flores, a gang expert, to testify. Flores
was familiar with the two men used as undercover informants in
the Perkins operation and believed that they could be
“intimidating to a new person being incarcerated.” According to
Flores, by mentioning Fly, Lalo, and Fox, one of the informants
was showing that he had a connection to “major players” and had
“influence with them at the county jail.” Flores also opined that
younger gang members have a tendency to boast in the presence
of older gang members, especially “in a setting where somebody is
going to be housed at for a period of time” like the county jail.
DISCUSSION
The sole issue raised in this appeal is whether defendant’s
statements to the undercover informants during the Perkins
operation were coerced and, therefore, inadmissible.
I. Standard of Review
Whether defendant’s incriminating statements were
voluntary or coerced is a mixed question of law and fact affecting
constitutional rights, to which we apply de novo review. (People
v. Cromer (2001) 24 Cal.4th 889, 901.)
II. Applicable Law
The constitutional protections set forth in Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda) do not apply when a
criminal suspect does not know that he is speaking to a law
enforcement officer or an undercover informant. (Perkins, supra,
496 U.S. at p. 294; People v. Davis (2005) 36 Cal.4th 510, 554.)
The concerns underlying Miranda—“that a ‘police-dominated
atmosphere’ generates ‘inherently compelling pressures’ that
‘undermine the individual’s will to resist’ questioning”—
“evaporate when, as here, an inmate speaks freely to someone he
8
believes is a fellow inmate.” (People v. Rodriguez (2019) 40
Cal.App.5th 194, 198 (Rodriguez).)
The due process clauses of the federal and California
Constitutions nevertheless bar the admission of an involuntary
confession regardless of whether the suspect knows he is
speaking to law enforcement. (Rodriguez, supra, 40 Cal.App.5th
at p. 199.) “Involuntariness means the defendant’s free will was
overborne.” (People v. DePriest (2007) 42 Cal.4th 1, 34
(DePriest).) “‘A confession may be found involuntary if extracted
by threats or violence, obtained by direct or implied promises, or
secured by the exertion of improper influence.’ [Citation.]
However, ‘no single factor is dispositive in determining
voluntariness . . . rather[,] courts consider the totality of
circumstances.’” (People v. Wall (2017) 3 Cal.5th 1048, 1066
(Wall).)
“Deception does not necessarily invalidate an incriminating
statement.” (People v. Maury (2003) 30 Cal.4th 342, 411 (Maury);
see also People v. Orozco (2019) 32 Cal.App.5th 802, 819 (Orozco)
[“‘“[p]olice trickery . . . does not, by itself, render a confession
involuntary[]”’”].) “‘The courts have prohibited only those
psychological ploys which, under all the circumstances, are so
coercive that they tend to produce a statement that is both
involuntary and unreliable.’” (Maury, supra, at p. 411.)
III. Analysis
Based on the totality of the circumstances surrounding
defendant’s conversations with the undercover informants (see
Wall, supra, 3 Cal.5th at p. 1066), we conclude that his
incriminating statements were voluntary and not the product of
coercion.
9
Both informants made statements conveying their
connections to the Mexican Mafia and influential gang figures.
Informant 2, in particular, encouraged defendant to speak in
detail about his crimes. “Certainly,” the informants were “more
than . . . passive listener[s].” (People v. Fayed (2020) 9 Cal.5th
147, 166.) But the informants did not physically threaten
defendant with violence, use other tactics likely to procure an
unreliable response, or make promises. (See ibid. [incriminating
statements made to a cellmate, who “coaxed and prodded [the]
defendant when he hesitated to speak,” were not coerced]; cf.
Arizona v. Fulminante (1991) 499 U.S. 279, 288 [alleged child
murderer’s confession to fellow inmate was coerced because it
was motivated by “fear of physical violence, absent protection
from his friend (and Government agent)”].) To the contrary,
Informant 2 emphatically stated that he wanted defendant to be
honest with him. Informant 2 also explicitly told defendant that
he could not make any promises about killing the witness.
Nor, having listened to the recordings of the conversations
and reviewing the transcripts, do we find anything to suggest
that defendant was fearful of the informants. Defendant
initiated the conversation and early on boasted about his gang
bona fides. He frequently laughed with them and asked
questions. He repeatedly used the terms “fool” and “my boy” to
refer to the informants casually and with familiarity. When
defendant was removed from the cell for additional interviews
with detectives, he requested to be returned to the same cell as
the informants. Thus, given the opportunity to be separated from
them, defendant actively sought to return to them.
Urging us to find coercion, defendant asserts that he
invoked his Miranda rights when interrogated by detectives
10
following his arrest17 and was subsequently placed in the cell
with the undercover informants. Defendant claims that he did
not make any incriminating statements to the informants until
after he was removed from the cell for further interrogation by
detectives (during which he was told about several additional
charges against him) and then returned to the cell with the
informants. Defendant acknowledges that Miranda is
inapplicable to his statements to the informants because he was
unaware at the time that they were acting under the direction of
law enforcement. (Perkins, supra, 496 U.S. at p. 294.) He
nevertheless contends that interspersing his contact with the
informants with further police interrogation was a coercive tactic
meant to evade Miranda, which also violated his rights under
Massiah v. United States (1964) 377 U.S. 201 (Massiah).
We are unpersuaded.
First, while defendant was more forthcoming with the
informants when he returned to the cell following the additional
interviews with detectives, he had still made incriminating
statements before he was removed for those interviews. For
example, he stated that the witness was not someone who was
present at the crime. Defendant had also already expressed
interest in the possibility of Informant 2 killing the witness.
Thus, the record undermines the suggestion that “defendant’s
17 The People argue that the appellate record does not
demonstrate that defendant actually invoked his Miranda rights
when he was interviewed by detectives. The record is ambiguous
in this respect, but for the sake of argument we accept
defendant’s representation that he did invoke his rights.
11
free will was overborne” (DePriest, supra, 42 Cal.4th at p. 34) by
the additional questioning by law enforcement.
Second, even if police engaged in “deliberate circumvention
of Miranda’s protections by disregarding defendant’s requests for
counsel and orchestrating the monitored conversation between
defendant and” the informants, due process was not violated.
(Orozco, supra, 32 Cal.App.5th at p. 819.) To find otherwise here
would be “to expand Miranda under the aegis of due process.
This we may not do[.]” (Orozco, supra, at p. 820.) This remains
true even though defendant’s contact with the informants was
interrupted by additional interviews with detectives. (See id. at
pp. 808–809, 819–820 [no violation of due process where a
defendant confessed to killing his daughter during a conversation
with the child’s mother, which followed the defendant’s
invocation of his Miranda right to counsel and an interruption of
his conversation with the mother by law enforcement].)
Third, defendant’s conversations with the undercover
informants preceded the initiation of formal judicial proceedings
in this case. Accordingly, Massiah, supra, 377 U.S. at p. 206,
which held that a defendant’s incriminating statements elicited
after his indictment and in the absence of his counsel violated the
Sixth Amendment, is inapplicable. (See Rothgery v. Gillespie
County, Texas (2008) 554 U.S. 191, 198 [Sixth Amendment right
to counsel commences with the initiation of adversary criminal
proceedings through formal charges, preliminary hearing,
indictment, information, or arraignment]; Perkins, supra,
496 U.S. at p. 299 [where no charges had been filed on the subject
of the interrogation, Sixth Amendment was inapplicable].)
12
Having concluded that defendant’s statements to the
undercover informants were not coerced, we find no error in the
trial court’s admission of those statements at trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
13