Filed 3/7/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317938
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089324)
v.
JASON FELIX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. David Walgren, Judge. Affirmed with directions.
Derek K. Kowata, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jason Felix was arrested after being
stopped for a traffic violation in Utah and a consensual search of his
car resulted in the recovery of a handgun, ammunition and over five
kilograms of methamphetamine. While in custody in Utah on drug
charges, defendant became a suspect in two murders that occurred
in Southern California. Upon his return to California, defendant
invoked his right to counsel while being interviewed by the
detectives investigating one of the murders. Afterward, he was
placed in a cell with an undercover detective to whom he made
incriminating statements about both murders. The trial court
denied defendant’s motion to suppress the evidence recovered
during the Utah traffic stop and admitted, over his objection, his
incriminating statements made to the undercover agent. A jury
found defendant guilty of two counts of first degree murder.
On appeal, defendant contends the trial court erred in
denying his motion to suppress the evidence recovered from the
warrantless search of his car and in admitting his statements to the
undercover agent because he had previously invoked his right to
counsel while being interviewed by detectives. Defendant also
contends he is entitled to an additional day of presentence custody
credits, a point to which the People agree.
We remand with directions to the superior court to correct the
presentence custody credits and prepare a new abstract of
judgment. We otherwise affirm the judgment of conviction in its
entirety.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Murders
On March 27, 2017, Ricardo Mota was fatally shot in his neck
and chest with a .22-caliber gun. His body was discovered slumped
over in the driver’s seat of his car in the parking lot of a church in
Montebello. At the time of his death, Mr. Mota was under
2
investigation for drug trafficking. Detective Richard Ruiz of the Los
Angeles County Sheriff’s Department was in charge of investigating
the murder with his partner, Sergeant Robert Gray.
On June 15, 2017, Jorge Gonzalez-Ortega was fatally shot in
the head with a .22-caliber gun. His body was discovered by his
family in the converted shed where they lived behind an apartment
complex in San Fernando. A bindle of methamphetamine,
aluminum foil and tape were found at the scene. Detectives
Michael Valento and Amber Montenegro were assigned to
investigate that murder.
2. The Traffic Stop in Utah
Two days after the murder of Mr. Gonzalez-Ortega, defendant
was stopped by Sergeant Charles Taylor of the Utah Highway
Patrol. Defendant had been heading east on I-70 in southeastern
Utah, close to the Colorado border, and he failed to slow down as he
passed Sergeant Taylor who was parked on the side of the highway
in a marked patrol car. Utah law requires drivers to slow down
when passing any emergency vehicle.
In response to Sergeant Taylor’s request for a license and
registration, defendant provided a copy of an identification card
issued in Mexico and registration indicating the white Lincoln MKZ
he was driving was registered in California in the name of a third
party (Ricardo M. Aguilera). Sergeant Taylor gave that information
to his radio dispatcher. While awaiting a response to the records
check, Sergeant Taylor questioned defendant. Sergeant Taylor
eventually asked for and received consent from defendant to search
the car. The search resulted in the discovery of two cell phones, a
.22-caliber gun, magazine and ammunition, and 10 taped packages
of methamphetamine. Defendant was arrested and charged with
possession of methamphetamine with intent to distribute.
3
3. The August 2017 Interview in Utah
The investigations of the murders of Mr. Mota and
Mr. Gonzalez-Ortega eventually led to the discovery of evidence,
including surveillance videos, gun casings and fingerprints,
indicating the two murders might be connected and that defendant
was a possible suspect.
On August 1, 2017, Detectives Montenegro and Valento went
to Utah to interview defendant in connection with the shooting of
Mr. Gonzalez-Ortega. Defendant was read his rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436. During the course of the
interview, defendant admitted picking up drugs from Mr. Gonzalez-
Ortega at his home and shooting him in the head. Defendant said
he shot him in self-defense.
4. The September 2017 Interview in California
After defendant was extradited to California, he was taken to
the San Fernando Police Department. On September 21, 2017,
defendant was interviewed by Sergeant Gray and Detective Ruiz
regarding the shooting of Mr. Mota. Defendant was read his
Miranda rights. He did not immediately invoke his right to
counsel. Defendant answered some questions, mostly concerning
general background information. He also confirmed his cell phone
number and said he had borrowed the Lincoln MKZ from a friend.
When shown photographs of the victim, Mr. Mota, and of a 15-year-
old suspected accomplice in the murder, defendant denied knowing
either one. Defendant eventually invoked his right to counsel and
the interview was concluded.
5. The Undercover Operation
Following the September 2017 interview, an undercover
detective was placed in the same holding cell as defendant. The
undercover detective was wearing civilian clothes and acted like he
was a fellow detainee. He was wired to record audio of any
4
conversation. Defendant initiated a conversation with the
undercover detective, asking him if he spoke Spanish. The
undercover detective said yes and they began to talk about what led
defendant to being in custody.
Defendant told the undercover detective he had been in
custody in Utah on drug charges but the case had been “dropped.”
He said he had been transporting drugs (“ten pounds of crystal”)
and was on his way from Los Angeles to New York when he was
stopped for a traffic violation.
Sergeant Gray and Detective Ruiz stopped by the cell and
removed defendant. They told defendant they had received
evidence pointing to his involvement in the murder of Mr. Mota.
They returned defendant to the holding cell and told defendant to
think about what they had told him.
After the detectives left, defendant resumed his conversation
with the undercover detective. He said the detectives wanted him
to “snitch” on some kid who had killed a man. Defendant
eventually made incriminating statements about his involvement in
the murder of Mr. Mota. He said the kid who did the shooting was
15 years old and had already killed six people. He had given the
kid a nine-millimeter Beretta handgun and drove him to “do it”
outside of a church. Defendant said he never touched Mr. Mota and
his fingerprints were not on the gun because he cleaned it well
before giving it to the kid. As for the shooting of Mr. Gonzalez-
Ortega, defendant said there were no witnesses so he could say it
was self-defense.
6. The Charges
Defendant was charged with two counts of murder. (Pen.
Code, § 187, subd. (a).) As to the murder of Mr. Gonzalez-Ortega, it
was alleged defendant personally used and discharged a firearm in
the commission of the offense. (§ 12022.53, subds. (b)-(d).) As to the
5
murder of Mr. Mota, it was alleged a principal personally used and
discharged a firearm. (§ 12022, subd. (a)(1).)
7. The Motion to Suppress
Defendant moved to suppress all statements by Sergeant
Taylor, the Utah highway patrolman who stopped him two days
after the murder of Mr. Gonzalez-Ortega, and any other officer
involved in the Utah traffic stop, all of defendant’s statements
during the detention and all items seized from the car. Sergeant
Taylor, a 23-year veteran with the Utah Highway Patrol, testified
for the prosecution at the hearing on the motion. The dashcam
video from his patrol vehicle was played during his testimony and
showed the entire encounter beginning with defendant driving by
Sergeant Taylor’s parked patrol vehicle in violation of Utah’s “slow
down” law.
Sergeant Taylor testified that when he first walked up to the
Lincoln and spoke to defendant, he explained why he had pulled
him over and asked for the requisite paperwork. Defendant gave
him an identification or license card issued by Mexico and
registration paperwork showing the car was registered in California
to a third party. Defendant told Sergeant Taylor he was visiting
the United States on vacation and had borrowed the car from a
friend. Defendant said he was going to Salt Lake City to visit a
friend.
Sergeant Taylor said he was suspicious of defendant’s
response because he had been driving eastbound in the
southeastern part of Utah, almost at the Colorado border, and not
headed in the direction of, or anywhere near, the vicinity of Salt
Lake City. Defendant had already “passed four different highways
that he could have taken [toward Salt Lake City], and the last one
he passed [was] about 20 miles behind him.”
6
Sergeant Taylor asked defendant to come back to his patrol
car while he checked his records through the dispatcher. He had
defendant sit in the front passenger seat next to him. Sergeant
Taylor explained he often did that when a driver had foreign
identification documents because it helped to have the person next
to him so he could ask questions if he had difficulty deciphering the
documents.
Sergeant Taylor gave the radio dispatcher defendant’s name
(Jason Axel Bugarin Felix), date of birth and a description of the
white Lincoln he was driving. Sergeant Taylor explained that a
records check involving a Hispanic name can be more complicated
and time-consuming since Hispanics often have two middle names
or surnames as was the case with defendant. The records search
included attempting to verify defendant’s identity, the registration
on the Lincoln, and whether defendant had any outstanding
warrants. Sergeant Taylor also requested that a Spanish-speaking
officer come to the scene. He believed they were communicating
well in English, but he felt it would be appropriate to have the
assistance of a Spanish-speaking officer in case the need arose.
As they waited for a response on the records check, Sergeant
Taylor continued to collect information relevant to writing a
citation, including verifying defendant’s height and weight and
other biographical data. He also tried to verify the purpose of
defendant’s trip. It concerned him that defendant’s story continued
to change. Defendant told him he had no address or phone number
for the friend he was supposed to be visiting. He then said the
person was actually a friend of his girlfriend and when he got to
Salt Lake City he was going to call his girlfriend, who lived in Las
Vegas, and she would arrange their meeting. Then defendant said
he was actually going to pick up some clothes for his girlfriend that
7
had been mailed from Mexico and that she could not do it because
she had to work.
Sergeant Taylor said defendant’s changing and often illogical
answers continued to raise his suspicions, as did the fact that
defendant seemed nervous. Sergeant Taylor could see his pulse
beating in his neck. While they continued to wait on the records
check, Sergeant Taylor asked defendant if he was doing anything
illegal or transporting anything illegal, like drugs or guns.
Defendant said no.
The dispatcher then reported to Sergeant Taylor that no
state-issued license had come back for defendant using any
variation of the names provided. There were records of defendant
having made multiple border crossings and being involved in credit
card fraud, but no outstanding warrants. At this point, the
Spanish-speaking officer arrived on the scene and briefly spoke
with defendant.
Sergeant Taylor testified he repeated some questions to
defendant to confirm defendant’s answers. He asked for and
received confirmation from the dispatcher that it was not possible to
run a check on the Mexican identification card. He asked the
dispatcher to verify that a search had been done under the name of
the registered owner of the Lincoln.
Sergeant Taylor said he decided to give defendant a warning
instead of a citation and to ask for consent to search the car. He
explained this portion of the dashcam video by saying, “So at this
point I’m going to ask for consent. You hear me print off a warning,
and along with that is a consent form that I’ve asked if he would fill
out for me and sign.” Defendant orally agreed the car could be
searched. Sergeant Taylor explained to defendant that he was
issuing just a warning and not a citation and returned his
documents to him.
8
Sergeant Taylor then gave defendant the consent form which
was written in both English and Spanish. He asked him to “[r]ead
it and then sign here if you agree.” Defendant reviewed the form
for approximately two minutes and then signed it. At that point,
the dispatcher responded that the further check on the Lincoln and
its registered owner, Ricardo M. Aguilera, came back “inconclusive.”
Sergeant Taylor proceeded with the search of the car which
resulted in the discovery of 10 taped packages of methamphetamine
(5.4 kgs.), a .22-caliber handgun, magazine and ammunition, and
two cell phones.
The parties stipulated to various time stamps on the dashcam
video relevant to the detention. Defendant did not present any
witnesses or evidence. After entertaining argument, the court
denied defendant’s motion.
8. The Verdict and Sentencing
The jury found defendant guilty of two counts of first degree
murder and found true the firearm use allegations as to both
counts. Defendant was sentenced to 75 years to life plus one year,
calculated as follows: consecutive terms of 25 years to life on each
murder count, plus a consecutive 25 years to life for the personal
firearm use enhancement on count 1 and a consecutive one-year
term for the principal firearm use enhancement on count 2. The
court awarded defendant 1,547 days of presentence custody credits.
This appeal followed.
DISCUSSION
1. The Denial of Defendant’s Motion to Suppress
Defendant contends the court erred in denying his motion to
suppress because the traffic stop was unreasonably prolonged in
violation of his Fourth Amendment rights, and his subsequent
consent to the warrantless search of the car was invalid as a
product of his wrongful detention.
9
“ ‘The standard of appellate review of a trial court’s ruling on
a motion to suppress is well established. We defer to the trial
court’s factual findings, express or implied, where supported by
substantial evidence. In determining whether, on the facts so
found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.’ ” (People v.
Redd (2010) 48 Cal.4th 691, 719.) “Thus, while we ultimately
exercise our independent judgment to determine the constitutional
propriety of a search or seizure, we do so within the context of
historical facts determined by the trial court.” (People v. Tully
(2012) 54 Cal.4th 952, 979 (Tully).)
Here, the trial court found the prosecutor had proven a lawful
detention for the traffic violation, Sergeant Taylor acted diligently
in conducting his investigation, the detention was not unduly
prolonged, and defendant’s consent to the search of the car was
voluntary and free from coercion. We conclude substantial evidence
supports those findings and agree that defendant’s Fourth
Amendment rights were not violated.
Defendant concedes his initial detention by Sergeant Taylor
for the traffic violation was valid and did not violate his rights.
Indeed, the law is well settled that a “seizure for a traffic violation
justifies a police investigation of that violation.” (Rodriguez v.
United States (2015) 575 U.S. 348, 354 (Rodriguez); Arizona v.
Johnson (2009) 555 U.S. 323, 327, 333 [police may lawfully detain a
vehicle and its occupants pending investigation of possible traffic
violation].)
The first six minutes of defendant’s detention consisted of
Sergeant Taylor explaining to defendant why he had pulled him
over, requesting identification and registration and asking where
defendant was headed, all of which qualify as the type of ordinary
inquiries an officer is allowed to conduct during a traffic stop.
10
(Rodriguez, supra, 575 U.S. at p. 355 [“ ‘ordinary inquiries’ ” include
such things as “checking the driver’s license, determining whether
there are outstanding warrants against the driver, and inspecting
the automobile’s registration and proof of insurance”]; Tully, supra,
54 Cal.4th at pp. 980–981.)
Sergeant Taylor gave the radio dispatcher the information he
obtained from defendant to run a records check and also requested
that a Spanish-speaking officer be sent to the scene. While
awaiting a response from the dispatcher, Sergeant Taylor continued
to ask questions relevant to writing a citation, including verifying
certain biographical data. He also asked questions aimed at
dispelling the reasonable suspicions raised by defendant’s confusing
answers for why he was in Utah and where he was headed,
including asking whether defendant was transporting anything
illegal.
These questions, including the ones not directly related to the
traffic violation, were permissible and did not unlawfully extend the
duration of defendant’s detention as they occurred while Sergeant
Taylor was awaiting a response on the records check.
“ ‘Questioning during the routine traffic stop on a subject unrelated
to the purpose of the stop is not itself a Fourth Amendment
violation. Mere questioning is neither a search nor a seizure.
[Citations.] While the traffic detainee is under no obligation to
answer unrelated questions, the Constitution does not prohibit law
enforcement officers from asking.’ ” (People v. Gallardo (2005)
130 Cal.App.4th 234, 239; Arizona v. Johnson, supra, 555 U.S. at
p. 333 [“An officer’s inquiries into matters unrelated to the
justification for the traffic stop . . . do not convert the encounter into
something other than a lawful seizure, so long as those inquiries do
not measurably extend the duration of the stop.” (Citation
omitted.)].)
11
Defendant says the detention became illegal once the
dispatcher provided a response to the records check and Sergeant
Taylor continued to ask questions and detain him for another five to
six minutes, instead of writing a citation or releasing him. We
disagree with defendant’s characterization of what transpired
during this time period.
There is no bright-line rule establishing an outside time limit
for traffic violation detentions. (Williams v. Superior Court (1985)
168 Cal.App.3d 349, 358.) “[T]he circumstances of each traffic
detention are unique” and “the reasonableness of each detention
period must be judged on its particular circumstances.” (Ibid.)
The circumstances here involved a foreign national driving a
car that did not belong to him. It was entirely reasonable, and
within the scope of the appropriate inquiries for the traffic stop, for
Sergeant Taylor to make further inquiries of the dispatcher
regarding the registered owner of the car. It was also reasonable
for Sergeant Taylor to take a few minutes to repeat some of his
questions to defendant in the presence of the Spanish-speaking
officer, who had only just arrived, in order to confirm that he had
properly understood defendant’s responses.
When Sergeant Taylor initially asked for consent to search
the car, the lawful detention for the traffic violation was still
ongoing. It did not end the moment the dispatcher gave the initial
results of the records check to Sergeant Taylor. And it was not
illegal for Sergeant Taylor to request consent from defendant. A
separate reasonable suspicion of wrongdoing is not required to ask
for consent to search during the course of a traffic stop. (Tully,
supra, 54 Cal.4th at p. 982.)
Almost immediately thereafter, Sergeant Taylor told
defendant he was giving him a warning only and not issuing a
citation. Sergeant Taylor printed out a warning slip along with a
12
consent form. He returned defendant’s identification documents to
him and gave him the warning slip and the consent form, written in
both English and Spanish. He asked defendant to read the consent
form and sign it “if you agree.” It took defendant a little over
two minutes to read the form and sign it, without any further
prompting or comments by Sergeant Taylor. The radio dispatcher
then responded with information that the search on Ricardo M.
Aguilera, the registered owner of the car, had come back as
“inconclusive.” Nothing that occurred during the five to six minutes
that elapsed after the dispatcher’s initial response transformed the
detention into an unlawful one.
Because we conclude defendant’s detention was lawful and
not unduly prolonged, we reject defendant’s contention his consent
was invalid as the product of an unlawful detention. The record
demonstrates defendant’s consent to search was voluntary and
freely given during the course of a lawful traffic stop and “not the
result of duress or coercion, express or implied.” (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 248.)
2. The Admission of Defendant’s Statements to the
Undercover Detective
Defendant argues the court erred in admitting the
incriminating statements he made to the undercover detective
because he had invoked his Fifth Amendment right to counsel
during his earlier interrogation by Detectives Ruiz and Gray. He
says the court erred in overruling his objection and allowing the
undercover detective to testify.
It is undisputed that after defendant asserted his right to
counsel during the interrogation by Detectives Ruiz and Gray, the
interrogation ended, defendant was placed in a holding cell, and
defendant made numerous incriminating statements to the
undercover detective. In reviewing the propriety of the trial court’s
13
order overruling defendant’s objection and allowing the statements
to be admitted, we independently determine whether the
statements were illegally obtained based on those undisputed facts.
(People v. Elizalde (2015) 61 Cal.4th 523, 530.)
We conclude the trial court correctly overruled defendant’s
objection.
In Illinois v. Perkins (1990) 496 U.S. 292, 300 (Perkins), the
Supreme Court held that an “undercover law enforcement officer
posing as a fellow inmate need not give Miranda warnings to an
incarcerated suspect before asking questions that may elicit an
incriminating response.” Perkins came to this conclusion because
“[c]onversations between suspects and undercover agents do not
implicate the concerns underlying Miranda. The essential
ingredients of a ‘police-dominated atmosphere’ and compulsion are
not present when an incarcerated person speaks freely to someone
whom he believes to be a fellow inmate. Coercion is determined
from the perspective of the suspect. [Citations.] When a suspect
considers himself in the company of cellmates and not officers, the
coercive atmosphere is lacking.” (Id. at p. 296.)
Perkins made clear that “Miranda forbids coercion, not mere
strategic deception by taking advantage of a suspect’s misplaced
trust in one he supposes to be a fellow prisoner.” (Perkins, supra,
496 U.S. at p. 297.)
Defendant acknowledges Perkins but says it did not address
the issue of whether undercover agents may be used to elicit
statements from a suspect after the suspect has invoked his
Miranda rights. Defendant also acknowledges that California
courts have relied on Perkins to assess the validity of statements
made to an undercover agent even after a defendant has asserted
Miranda rights during a prior custodial interrogation. (See, e.g.,
People v. Orozco (2019) 32 Cal.App.5th 802, 815 (Orozco) [rejecting
14
the argument that a defendant’s invocation of right to counsel
under Miranda precluded the admission of a subsequent confession
made to an undercover agent].)
Nonetheless, defendant says Perkins is not controlling,
relying on Justice Brennan’s concurrence in Perkins and in
particular, a footnote in which Justice Brennan said that while he
agreed with the majority, if Mr. Perkins had previously invoked his
right to counsel or his right to remain silent under Miranda, the
relevant inquiry would be whether he knowingly waived that right,
citing Edwards v. Arizona (1981) 451 U.S. 477, 484–485 (Edwards)
(holding in part that once an accused invokes right to counsel under
Miranda, he “is not subject to further interrogation” until counsel is
made available or the accused initiates further communication).
Orozco rejected the same argument, aptly noting that
“Perkins had a seven-justice majority . . . so Brennan’s concurrence
was not the critical fifth vote; as a consequence, the concurrence is
dicta.” (Orozco, supra, 32 Cal.App.5th at p. 815.) Moreover, the
United States Supreme Court has never adopted Brennan’s
position. But, the court has said that while “ ‘[f]idelity to the
doctrine announced in Miranda requires that it be enforced
strictly’ ” it should only be enforced in “ ‘those types of situations in
which the concerns that powered the decision are implicated.’ ”
(Howes v. Fields (2012) 565 U.S. 499, 514, italics added.) This is so
because “ ‘[v]oluntary confessions are not merely a proper element
in law enforcement, they are an unmitigated good, essential to
society’s compelling interest in finding, convicting, and punishing
those who violate the law.’ ” (Ibid.)
We conclude that Perkins applies here. When defendant
invoked his right to counsel during the interrogation by Detectives
Ruiz and Gray, the interrogation ended. During his conversation
with the undercover detective that followed, defendant was not
15
subjected to coercive interrogation of the type of which Miranda
was concerned. The incriminating statements he freely made to
someone he believed to be a fellow inmate were properly admitted.
Defendant contends that Detectives Ruiz and Gray violated
his prior invocation of Miranda when they removed him from the
cell to tell him they had received evidence pointing to his
involvement in the murder of Mr. Mota and then returned him to
the cell. We do not agree.
Orozco is instructive. There, the defendant was in police
custody following the death of his infant daughter and he invoked
his right to counsel during questioning. (Orozco, supra,
32 Cal.App.5th at pp. 807–808.) The officers thereafter arranged for
the defendant’s girlfriend to speak with him in an interview room.
The conversation was recorded, and the defendant was not aware
his girlfriend was acting as an agent of the police. (Id. at pp. 808–
809, 816.) The officers interrupted the meeting and told them the
autopsy findings showed their daughter had been beaten and asked
them if they had anything they wanted to say. The defendant said
nothing. (Id. at pp. 808–809.) The defendant argued that even if
the undercover operation had been proper at the beginning, it
became a custodial interrogation when the officers interrupted and
sought to provoke a response. (Id. at p. 816.)
Orozco rejected the argument, explaining that defendant said
nothing in response to the officers’ comments and simply waited for
them to leave. (Orozco, supra, 32 Cal.App.5th at p. 816.) The
defendant then “resumed his one-on-one conversation with [his
girlfriend], completely unaware she was an agent of the police. His
subsequent confession to her was accordingly not the product of an
interrogation.” (Ibid.)
Similarly here, defendant was not subjected to additional
interrogation when Detectives Ruiz and Gray told him they had
16
additional evidence. He made no incriminating statements to
Detectives Ruiz and Gray. Rather, like the defendant in Orozco, he
waited for them to leave and then resumed his voluntary
conversation with the undercover detective, believing him to be a
fellow inmate. His subsequent incriminating statements were not
the result of coercive interrogation and were properly admitted.
The dissent cites Edwards, supra, 451 U.S. at page 484 in
support of the statement that “as long as the second interrogation is
initiated by the police, even under the guise of a Perkins agent, such
an interrogation cannot occur without a valid waiver.” (Dis. opn.,
post, at p. 2.) Edwards does not support that proposition, as there
was no Perkins agent involved in Edwards. The Supreme Court’s
opinion in Perkins, nine years after Edwards, expressly rejected
that proposition. We repeat that, in Edwards, the Supreme Court
held that an “undercover law enforcement officer posing as a fellow
inmate need not give Miranda warnings to an incarcerated suspect
before asking questions that may elicit an incriminating response.”
(Perkins, supra, 496 U.S. at p. 300.)
The dissent fails to address the primary concern of Miranda
and its progeny: coercion. (Ariz. v. Mauro (1987) 481 U.S. 520,
529–530 [“In deciding whether particular police conduct is
interrogation, we must remember the purpose behind our decisions
in Miranda and Edwards: preventing government officials from
using the coercive nature of confinement to extract confessions that
would not be given in an unrestrained environment.”].) Defendant
was not subjected to coercive interrogation with the undercover
detective. By focusing on the fact defendant had previously invoked
without assessing whether he was subjected to coercive
interrogation, the dissent seeks to change the law, not follow or
extend the law with analysis to support the proposed change. But,
“to construe Miranda to reach the noncoercive police conduct in this
17
case is to untether Miranda from its purpose and, in so doing,
undermine its legitimacy as one of the many bulwarks protecting
the constitutional rights of criminal defendants.” (Orozco, supra,
32 Cal.App.5th at p. 817.)
Finally, defendant argues we should apply a due process
analysis to the court’s decision to admit his statements. We decline
to do so. Defendant’s objection in the trial court was based only on
a violation of the Fifth Amendment arising from his assertion of the
right to counsel during the interview with Detectives Ruiz and
Gray. Defendant did not object in the trial court on the grounds
that the use of the undercover operation to obtain a statement from
him was a violation of his due process rights. Constitutional claims
may not be raised for the first time on appeal unless the new claim
does not “ ‘invoke facts or legal standards different from those the
trial court itself was asked to apply.’ ” (Tully, supra, 54 Cal.4th at
p. 979.) A defendant “ ‘cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct.’ ” (Id. at p. 980.)
The trial court was not asked to conduct a due process analysis.
The contention has been forfeited.
3. The Custody Credits
The People concede that defendant is entitled to an additional
day of presentence custody credits. We agree.
DISPOSITION
The case is remanded with directions to the superior court to
award 1,548 actual days of presentence custody credits and to
prepare an amended abstract of judgment and forward it to the
18
Department of Corrections and Rehabilitation. The judgment of
conviction is affirmed in all other respects.1
GRIMES, J.
I CONCUR:
WILEY, J.
1 After briefing was completed, defendant wrote a letter asking
this court to order the trial court to transmit the exhibits to this
court for review. Defendant offered no explanation for the request.
As is clear from this opinion, defendant did not contend there was
not substantial evidence to support the judgment. We obtained the
exhibits but see nothing out of order. Defendant’s request was
improper and a misuse of court resources. Defendant did not file a
Wende brief, pursuant to People v. Wende (1979) 25 Cal.3d 436, and
we have no duty to independently search for error in the admission
of exhibits in this case.
19
Stratton, P.J., Dissenting in part.
Appellant invoked his right to counsel. The police then
immediately stopped their overt questioning of him and put him
in a cell with a Perkins agent who proceeded to covertly get the
information and confession the police wanted to elicit. (Illinois v.
Perkins (1990) 496 U.S. 292 (Perkins).) I do not agree with the
majority that it was permissible for a Perkins agent to
interrogate appellant after he invoked his right to counsel
without getting an express waiver of that right. In my view, this
issue is not governed by Perkins nor does it implicate the
principles underlying Miranda; it is governed by Edwards v.
Arizona (1981) 451 U.S. 477 (Edwards).
Edwards could not have put it more succinctly: “[W]hen an
accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-
initiated custodial interrogation even if he has been advised of
his rights. We further hold that an accused . . . having expressed
his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself
initiated further communication, exchanges, or conversations
with the police. (Edwards, supra, 451 U.S. at pp. 484–485, fn.
omitted.) “It is reasonably clear under our cases that waivers of
counsel must not only be voluntary, but must also constitute a
knowing and intelligent relinquishment or abandonment of a
known right or privilege, a matter which depends in each case
‘upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the
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accused.’ ” (Id. at p. 482; see also People v. Storm (2002)
28 Cal.4th 1007, 1023.)
Perkins proceeded on the premise that conversations in a
jail between an undercover agent and an accused are, indeed,
“custodial interrogations.” (Perkins, supra, 496 U.S. at pp. 297,
299 [the suspect was the “subject of the interrogation”].)
Statements made during these types of interrogations, however,
are not, in and of themselves, coerced. That is so because they
occur when the accused is unaware that they are speaking with
law enforcement. Because they are not considered the product of
coercion, statements made to Perkins agents are generally
considered voluntary under Miranda v. Arizona (1966) 384 U.S.
436, 462. But, importantly, Edwards applies even if the
subsequent interrogation after invocation of the right to counsel
is not coercive. Under Edwards, no police-initiated interrogation
whatsoever is to occur unless the accused has given a valid
waiver of the right to counsel they previously invoked. (Edwards,
supra, 451 U.S. at p. 484.) The subsequent interrogation might
occur, for example, without coercion, at home, in jail, on the
street, in a coffee house. But as long as the second interrogation
is initiated by the police, even under the guise of a Perkins agent,
such an interrogation cannot occur without a valid waiver.
Edwards is not about coercion; it is about securing a valid and
knowing waiver of an invoked right. (Ibid.) I would find that
Edwards governs the analysis here.
Using a Perkins agent here was a law enforcement
procedure calculated to deceive appellant, so that he would not
know to whom he was incriminating himself. He was not given
an opportunity to knowingly and intelligently waive his
previously asserted right to have counsel present during
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questioning. Admission of the statements without a valid waiver
was error under Edwards. (Edwards, supra, 451 U.S. at p. 483.)
I would further find that admission of the statements
appellant gave to the Perkins agent in contravention of his
asserted right to counsel was not harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18.) They were
full-on compelling confessions that guaranteed his conviction. I
would remand to the trial court with directions to vacate the
denial of the motion to suppress, vacate the convictions, suppress
the statements appellant made to the Perkins agent after
invocation of his right to counsel, and set a new trial date.
STRATTON, P. J.
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