People v. Lara CA4/2

• Court: California Court of Appeal
• Decided: May 17, 2021
• Docket: E074161
• Status: Unpublished

Opinion

Filed 5/17/21 P. v. Lara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074161

v. (Super.Ct.No. INF1501389)

DAVID DELEON LARA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Randall Donald White,

Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Joshua L. Siegel, under appointment of the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Daniel Hilton and Steve Oetting,

Deputy Attorneys General, for Plaintiff and Respondent.

1 I. INTRODUCTION

In an information filed in March 2016, defendant and appellant David DeLeon

Lara was charged with the murder of John Doe in 2011. (Pen. Code, § 187, subd. (a);1

count 1.) Defendant was only 16 years old at the time of the murder. It was further

alleged that defendant personally discharged a firearm in the commission of the murder

(§ 12022.53, subds. (d), (e)), and intentionally killed John Doe under the special

circumstance of lying in wait2 (§ 190.2, subd. (a)(15)). Defendant was tried as an adult.

In February 2019, a jury convicted defendant of first degree premeditated murder (§ 189,

subd. (a)) and found the firearm and special circumstance allegations true.

Before the jury was empaneled, defendant waived his right to a jury trial on the

gang allegation, and the court bifurcated the gang allegation, to be heard at a later bench

trial. After the jury returned its guilty verdict on the murder charge and found the firearm

and special circumstance allegations true, defendant admitted the gang allegation; but,

before sentencing, defendant moved to withdraw the admission. The motion was denied.

On November 1, 2019, defendant was sentenced to 50 years to life: consecutive terms of

1 Undesignated statutory references are to the Penal Code.

2 Defendant’s codefendant, Robert Parra, was charged in the same information with defendant, but he pled guilty to second degree murder before the jury was empaneled in what was to be a joint trial.

2 25 years to life for the murder and the firearm enhancement.3

In this appeal, defendant claims the court prejudicially erred in admitting

statements into evidence against him—statements that he made while he was incarcerated

in another case in 2014 to two informants who were working as law enforcement

agents—that he shot John Doe twice and admitting other details concerning the shooting.

He claims the admission of his statements to the informants (1) violated his Miranda4

rights because he had previously invoked his Miranda rights and refused to answer law

enforcement officers’ questions concerning the shooting, and (2) violated his due process

rights because his statements were involuntary.

We find no merit to defendant’s claims of Miranda and due process error. As we

explain, a suspect’s invocation of his Fifth Amendment right to counsel under Miranda

does not preclude the admission of a confession and related statements that the suspect

subsequently makes to persons whom the suspect is unaware are functioning as law

enforcement agents. (People v. Orozco (2019) 32 Cal.App.5th 802, 812-813 (Orozco).)

The admission of defendant’s statements also did not violate defendant’s due process

rights because the statements were voluntary under the totality of the circumstances.

3 Defendant was not sentenced to life without the possibility of parole (LWOP) for the murder, based on the special circumstance finding. (See § 190.5, subd. (b); Miller v. Alabama (2012) 567 U.S. 460, 465 [Eighth Amendment prohibits mandatory LWOP sentence for juvenile offender who commits homicide].) The court also expressly declined to exercise its discretion to strike the firearm enhancement. (§ 12022.53, subd. (h).)

4 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

3 Defendant also claims (1) the trial court prejudicially erred in denying his motion

to withdraw his admission of the gang enhancement allegation, (2) the matter must be

remanded for resentencing so the court may consider whether to impose a lesser firearm

enhancement, and (3) he is entitled to 196 additional days of presentence custody credits.

The People concede, and we agree, that defendant is entitled to 196 additional

presentence custody credits. (§ 2900.5.) We conclude, however, that the court did not

abuse its discretion in denying defendant’s motion to withdraw his admission of the gang

enhancement. And, given that no lesser firearm enhancement was pled or proved, the

trial court is not authorized to impose a lesser firearm enhancement. (People v. Yanez

(2020) 44 Cal.App.5th 452, review granted Apr. 22, 2020, S260819 (Yanez).) Thus, we

modify the judgment to award defendant 196 additional days of presentence custody

credits, and we affirm the judgment in all other respects.

II. BACKGROUND

A. The September 20, 2011 Shooting

On September 20, 2011, E.M. and her friend John Doe, whom she knew as D.J.,

met M.S. at a location where M.S. was remodeling a home. M.S. purchased a door from

John Doe, and all three of them used methamphetamine. While E.M. and John Doe were

still at M.S.’s workplace, two male Hispanic teenagers walked up to John Doe’s white

van and asked him to give them a ride to “Bitch Town” or “Browns Town,” which was in

Desert Hot Springs. E.M. identified defendant at trial as one of the two teenagers. John

Doe, E.M., defendant, and the other teenager left in John Doe’s van. John Doe was

4 driving, E.M. was in the front passenger seat, and defendant and the other teenager

squatted in the open back area of the van because there were no seats there.

While they were traveling in the van, E.M. received three phone calls from M.S.,

asking to speak to either one of the two teenagers, but neither would take the phone.

M.S. later told deputies that he told E.M. that the teenagers, who were known as “G” and

“Little Crazy,” had a “beef” or a problem, and to pull the van over; but E.M. said that it

was “too late.” During the third call from M.S., E.M. handed the phone to John Doe,

who listened to what M.S. had to say, then hung up the phone without saying anything.

Shortly after John Doe hung up the phone, the teenager who was with defendant

told John Doe to “stop the car.” John Doe stopped the van, and E.M. recalled that

“everything got quiet.” E.M. heard one gunshot, turned, and saw defendant hand a .45-

caliber revolver to the other teenager. The rear doors to the van did not work, so the

teenagers told E.M. to open the front passenger door in order to let them out of the van,

and E.M. did so. E.M. saw that John Doe’s “head was back,” and he had been shot.

Defendant and the other teenager told E.M. to run, and E.M. ran in one direction while

defendant and the other teenager ran in the opposite direction.

E.M. went to a nearby house with an open garage and asked for help. E.M. was

“terrified,” said that her boyfriend had been shot in a white van, and pointed toward the

van. E.M. also said that the person who shot her boyfriend was chasing her. One of the

people who lived in the house where E.M. went for help heard two gunshots. Another

person who was in his car and leaving for work also heard two gunshots; he then saw two

5 Hispanic males walking behind his car, but he did not see their faces. Several people

called the police or 911.

A Riverside County Sheriff’s deputy responded to the scene, went to the van, and

found John Doe inside with no pulse. The van was still running and in the drive position,

and John Doe’s foot was resting on the brake pedal. The passenger door was open, and

no one was near the van.

An autopsy showed that John Doe died, within seconds or minutes, as a result of

two gunshot wounds fired at close range in the right side of his neck. The gun used in the

shooting was not found, and no shell casings or DNA were found inside the van.

Defendant’s fingerprints were also not found inside or on the outside of the van.

Deputies interviewed various witnesses, including M.S. and E.M., both of whom had

prior felony convictions.

M.S. told the deputies that the two teenagers who got into John Doe’s van were

known as “G” and “Little Crazy.” Also before trial, M.S.’s stepdaughter, A.N., identified

a photograph of defendant as “Little Crazy.” E.M. told a detective that “G” was in the

van and later identified defendant as the shooter; but E.M. initially identified a person

other than defendant as the shooter. Both defendant and the person whom E.M. initially

identified as the shooter had “Patricia” tattooed on their necks.

6 B. The “Perkins5 Operation”

On August 19, 2014, detectives conducted what they called “a Perkins operation,”

in which they had defendant placed in a jail holding cell with two other individuals who

were working as law enforcement agents or confidential informants, and to whom

defendant made incriminating statements about the September 20, 2011 shooting. The

informants were Hispanic former gang members, who had shaved heads and a lot of

tattoos. The conversation between defendant and the informants was video- and audio-

recorded, and it was monitored “live” by law enforcement officers. The recording of the

conversation was played for the jury.

When defendant first entered the holding cell, one of the informants asked whether

he was a “homie” and “active,” and defendant said, “Yeah. I’m a homie—Crazy, from

West Drive.” The informants introduced themselves as “Rino” and “Lonely” and stated

their gang affiliations. The three men discussed life in the prisons from which they had

each been transferred.

After defendant was placed in the holding cell with the two informants,

investigator Campos (the lead investigator of the Sept. 20, 2011 shooting) entered the

cell. Campos addressed defendant, asked defendant whether he remembered him,

identified himself as “Campos—doing the investigation on the 2011 murder [in] DHS,”

and told defendant he wanted to talk to him.

5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).

7 Defendant said he remembered Campos. Defendant was then removed from the

holding cell to participate in a “mock” lineup—during which he was asked to step

forward and turn around, which was intended to suggest to him that he was being

identified, but no one was “behind the glass” to identify him.

After he was returned to the holding cell following the lineup, defendant told the

informants that law enforcement had been trying to “get” him for a 2011 murder. He

indicated he believed that he had been placed in the lineup because there were witnesses.

He also told the informants that he had previously been brought to the jail for a DNA test,

and he did not tell detectives anything at that time.

The informants then asked defendant whether anyone could “put” him “there” or

implicate him in the murder, and defendant said he had a “crimee” or cohort in the

shooting named, “Gangster”; but he did not think that Gangster would implicate him. He

also said that the murder occurred during the daytime, and Gangster was the only witness.

Later during the conversation, when asked whether he stabbed or shot John Doe,

defendant said he shot John Doe in the “dome” with a “357” revolver. Still later,

defendant said he had to step forward and turn around during the lineup. Thereafter,

defendant said, “They do got me, dog. They got me.” And, when asked whether he had

gotten rid of the gun or “cuete” used in the shooting, defendant said, “they don’t got none

of that,” but expressed concern that there was a witness to the shooting, whom he

described as a “tweeker, heina, hooker bitch,” who might be able to identify him.

Defendant explained he was sitting in a van, behind the woman, with Gangster

next to him, when he shot John Doe twice in the head. The van was stopped at the time

8 of the shooting. John Doe was not in a gang but was from “Browns Town,” so defendant

considered John Doe an “enemy” and the shooting “somewhat” gang-related. Defendant

said, “It has to be that bitch” who was implicating him because he left no evidence

behind. His gang had destroyed the revolver he used in the shooting, there were no

cameras, and he had never talked about the shooting over the phone.

Before defendant spoke to the informants, the sheriff’s department publicly

released information about the shooting, but they had not publicly released any

information about where on his body the decedent was shot or that a female was in the

van at the time of the shooting.

III. DISCUSSION

A. The Admission of Defendant’s Statements to the Informants Did Not Violate

Defendant’s Miranda or Due Process Rights

For two reasons, defendant claims the court prejudicially erred in admitting his

statements to the two informants who were acting as law enforcement agents: (1) the

statements were obtained in violation of his Miranda rights, given that he invoked his

Miranda rights to Campos shortly before he made the statements to the informants; and

(2) his statements were coerced and involuntary, and for this reason their admission

violated his due process rights.

We independently review the trial court’s legal determinations on these questions,

and we uphold the court’s underlying factual findings if supported by substantial

evidence. (Orozco, supra, 32 Cal.App.5th at p. 811.) As defendant concedes, the

9 operative facts are undisputed. Based on the undisputed facts, we find no merit to

defendant’s claims of Miranda and due process error.

1. Proceedings in Limine

Defendant moved in limine to exclude his recorded statements to the informants as

violative of his Miranda rights and his due process rights. When he made the statements

to the informants on August 19, 2014, defendant was serving a seven-year state prison

sentence for robbery, but he had not been charged with any crime in connection with the

September 20, 2011 shooting.

On August 19, 2014, defendant was transported from state prison to local custody,

where he was placed in a holding cell with the two informants, whom the People

acknowledged were “paid operators” or agents of law enforcement. Defense counsel

proffered, and the court accepted, that defendant invoked his Miranda rights by telling

Campos that he did not want to talk about the shooting and that he wanted an attorney,

either before he was placed in the holding cell or when he was taken out of the cell to

participate in the mock lineup.

As noted, the conversation between defendant and the informants was recorded

and monitored “live” by Campos. The informants ultimately got defendant to admit to

them that he shot John Doe twice in the head and to provide other details, not known to

the public, concerning the shooting. The trial court ruled that, in light of Perkins, the

admission of defendant’s statements to the informants would not violate defendant’s

Miranda rights. The court also found that defendant’s statements to the informants were

voluntary, noting that there was “a conversational tone throughout” defendant’s

10 discussion with the informants, and “there did not appear to be any coercion” from

defendant’s perspective.6

2. There Was No Miranda Violation

The Fifth Amendment, which applies to the states by virtue of the Fourteenth

Amendment (Malloy v. Hogan (1964) 378 U.S. 1, 6), provides that “[n]o person . . . shall

be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5th

Amend.) Miranda established the now familiar rule that any statements of a criminal

suspect that stem from a custodial police interrogation are inadmissible against the

suspect in the prosecution’s case-in-chief, unless the suspect has been advised of certain

rights—including the right to remain silent and to the presence of an attorney—and the

suspect has expressly or implicitly waived those rights. (Miranda, supra, 384 U.S. at

pp. 444-445; see Dickerson v. United States (2000) 530 U.S. 428, 443 [“Miranda has

become embedded in routine police practice to the point where the warnings have

become part of our national culture.”]; Orozco, supra, 32 Cal.App.5th at p. 811

[summarizing Miranda rule and required Miranda warnings].) “Miranda was designed

to protect and preserve an accused’s Fifth Amendment privilege against self-

6 The court also found that the Perkins operation did not violate defendant’s Sixth Amendment right to counsel, given that defendant had not been charged with a crime in connection with the shooting of John Doe before he was placed in the holding cell with the informants. (Massiah v. United States (1964) 377 U.S. 201, 204-206 [After a suspect has been charged with a crime, the government’s use of an undercover agent to elicit incriminating statements from the suspect violates the suspect’s Sixth Amendment right to counsel.].)

11 incrimination during incommunicado interrogation of individuals in a police-dominated

atmosphere.” (People v. Plyler (1993) 18 Cal.App.4th 535, 544 (Plyler).)

Perkins limited Miranda’s application by holding that a conversation between an

incarcerated suspect and an undercover agent posing as a fellow inmate did not implicate

the concerns underlying Miranda: “It is the premise of Miranda that the danger of

coercion results from the interaction of custody and official interrogation. . . . When the

suspect has no reason to think that the listeners have official power over him, it should

not be assumed that his words are motivated by the reaction he expects from his

listeners.” (Perkins, supra, 496 U.S. at p. 297, italics added.) In other words, when a

suspect is unaware that he is speaking with police or an agent of law enforcement, the

coercive, police-dominated atmosphere of which Miranda was concerned is lacking, and

Miranda advisements are not required. (Perkins, at p. 296.)

As defendant concedes, the operative facts are undisputed. Defendant was

unaware that the two informants were acting as law enforcement agents when he

confessed to them that he shot John Doe twice in the head and provided other details of

the shooting. Thus, Miranda did not apply. That is, no Miranda warnings were required

to be given to defendant before he was questioned by the informants, even if he was in

custody for Miranda purposes at the time the informants questioned him. (Cf. People v.

Moore (2011) 51 Cal.4th 386, 394-395 [“An interrogation is custodial, for purposes of

requiring advisements under Miranda, when ‘a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.’ ”]; with Maryland v.

Shatzer (2010) 559 U.S. 98, 11-14 [A suspect who is currently incarcerated for other

12 crimes is not necessarily in custody for Miranda purposes.].) “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 argues that Perkins does not govern his statements to the informants

because Perkins “did not address surreptitious questioning of a suspect after the suspect

had invoked his or her Miranda rights.” Indeed, the defendant in Perkins did not invoke

his Miranda rights, nor was he given any Miranda advisements, before he confessed to

undercover agents that he had committed a murder. (Perkins, supra, 496 U.S. at p. 294-

295.) Defendant was also not advised of his Miranda rights before he was placed in the

holding cell with the informants. But defendant invoked his Miranda rights to silence

and to an attorney when he told Campos that he did not want to talk about the 2011

shooting, and that he wanted an attorney—before he confessed to the informants that he

had shot and killed John Doe.

In support of his claim that Perkins does not govern, defendant cites Edwards v.

Arizona (1981) 451 U.S. 477 (Edwards), which held that a suspect’s invocation of his

Miranda right to counsel precludes “further police-initiated custodial interrogation,”

unless and until counsel is present or the suspect “initiates further communication” with

the police. (Edwards, at pp. 484-485.) Defendant also relies on a statement by Justice

Brennan that appears in a footnote to the justice’s concurring opinion in Perkins:

“Nothing in the Court’s opinion suggests that, had respondent previously invoked his

Fifth Amendment right to counsel or right to silence, his statements would be admissible.

If respondent had invoked either right, the inquiry would focus on whether he

13 subsequently waived the particular right. (See Edwards v. Arizona (1981) 451 U.S. 477;

Michigan v. Mosley (1975) 423 U.S. 96, 104.) As the Court made clear in Moran v.

Burbine (1986) 475 U.S. 412, 421, the waiver of Miranda rights ‘must [be] voluntary in

the sense that it [must be] the product of a free and deliberate choice rather than

intimidation, coercion or deception.’ (Emphasis added.) Since respondent was in

custody on an unrelated charge when he was questioned, he may be able to challenge the

admission of these statements if he previously had invoked his Miranda rights with

respect to that charge.” (Perkins, supra, 496 U.S. at pp. 300-301, fn.* (conc. opn. of

Brennan, J.).)

Defendant argues that the situation described by Justice Brennan in his concurring

opinion in Perkins is precisely what happened in his case and that Edwards, not Perkins,

governs his case. Citing Edwards, he argues that “further custodial interrogation outside

the presence of counsel was prohibited” after he invoked his Fifth Amendment rights to

silence and to counsel, and that “the relevant question here is whether [he] validly waived

his rights to silence or counsel.” This argument was thoroughly addressed and rejected in

Orozco, where the court framed the question as follows: “When a suspect invokes his

Miranda right to counsel [and silence] and law enforcement subsequently orchestrates a

conversation between the suspect and someone the suspect does not know is an agent of

law enforcement, which decision controls—Edwards or Perkins?” (Orozco, supra,

32 Cal.App.5th at p. 812.)

The defendant in Orozco confessed to his girlfriend that he had killed their infant

child—without knowing his girlfriend was acting as an agent of the police—while the

14 defendant was in custody and after he had invoked his Miranda right to counsel.

(Orozco, supra, 32 Cal.App.5th at pp. 806-809.) For three reasons, Orozco concluded

that Perkins, not Edwards, controls when a suspect makes statements to persons the

suspect does not know are law enforcement agents after the suspect has invoked his

Miranda rights.

Orozco first explained that language in Edwards and its progeny “dictate[d]” that

Edwards did not apply. In sum, Edwards and its progeny applied Edwards’s prohibition

on further questioning of the suspect to “interrogation” of the suspect. (Orozco, supra,

32 Cal.App.5th at p. 813, citing Edwards, supra, 451 U.S. at pp. 478, 482, 484-486 and

cases following Edwards.) “For purposes of Miranda, ‘interrogation’ means ‘express

questioning’ or ‘words or actions on the part of the police . . . that the police should know

are reasonably likely to elicit an incriminating response.’ ” (Orozco, at p. 813, quoting

R.I. v. Innis (1980) 446 U.S. 291, 300-301 (Innis).) “Whether the police action is

‘reasonably likely to elicit an incriminating response’ is judged by what the suspect

perceives, not what the police intend. [Citation.] Implicit in the definition of

‘interrogation’ is that (1) the suspect is talking to the police or an agent of the police, and

(2) the suspect is aware that he is talking to the police or one of their agents. This is why

a suspect can be subject to ‘interrogation’ when he knowingly interacts with the police or

their agents.” (Orozco, at p. 813, and cases cited.) “Conversely, there is no

‘interrogation’ when a suspect speaks with someone he does not know is an agent of the

police.” (Id. at p. 814, and cases cited.) Orozco concluded that, “[b]ecause there is no

15 ‘interrogation’ in these circumstances, there is also no basis to apply Edwards’s

restrictions on further ‘interrogation.’ ” (Ibid.)

Second, Orozco explained that the rationale underlying Miranda dictated that

Perkins, not Edwards, controlled. The court noted that Miranda rights were “designed to

dispel the ‘compelling’ ‘psychological’ ‘pressures’ that are part and parcel of ‘in-custody

interrogation.’ ” (Orozco, supra, 32 Cal.App.5th at p. 814, quoting Miranda, supra,

384 U.S. at pp. 448-449, 467.) Because the Edwards rule is based on the same pressures,

and because Edwards implements Miranda, “so should” Edwards “be limited to the evil

Miranda was created to combat.” (Orozco, at p. 814.) Third, Orozco reasoned that

California courts had “uniformly” and “not surprisingly” concluded that “Perkins

controls when a suspect invokes his Miranda right to counsel but later speaks with

someone he does not know is an agent of the police.” (Id. at p. 815, citing People v.

Guilmette (1991) 1 Cal.App.4th 1534, 1540-1541 (Guilmette) [First Dist., Div. Four];

Plyler, supra, 18 Cal.App.4th at pp. 544-545 [First Dist., Div. Two].)

Defendant counters that Miranda’s rationale “dictates” the conclusion that he was

being subjected to police interrogation, in violation of Miranda and Edwards, when the

informants questioned him about the shooting after he invoked his Miranda rights to

silence and to counsel. He relies on Innis, supra, 446 U.S. 291, where the high court

expanded the definition of “interrogation,” for Miranda purposes, to include “either

express questioning or its functional equivalent. That is to say, the term ‘interrogation’

under Miranda refers not only to express questioning, but also to any words or actions on

16 the part of the police . . . that the police should know are reasonably likely to elicit an

incriminating response.” (Innis, at pp. 300-301, italics added.)

Based on Innis, defendant argues that “the officers’ scheme of having [him]

participate in the fake line-up and then placing him in a cell with confidential informants

were ‘actions on the part of the police.’ ” (Innis, supra, 446 U.S. at p. 301, italics added.)

He also argues that law enforcement officers knew, or should have known, that their

“ploy” of having him placed in the cell with the informants, whose job was to get him to

talk about the shooting, was “ ‘reasonably likely to elicit an incriminating response.’ ”

(Ibid., italics added.) These arguments are unavailing for two reasons: (1) none of the

law enforcement officers involved in the “Perkins operation,” including Campos,

questioned defendant about the shooting after he invoked his Miranda rights to counsel

and silence; and (2) defendant was not “interrogated” by the informants because he did

not know that the informants were acting as law enforcement agents when they

questioned him about the shooting. (Orozco, supra, 32 Cal.App.5th at pp. 813-814;

Perkins, supra, 496 U.S. at pp. 296-297.)

Defendant argues that Orozco, Plyler, and Guilmette were wrongly decided and

should not be followed. He specifically questions Orozco’s interpretation of Miranda,

and Orozco’s rationale that there is no “interrogation” unless the suspect knows he is

speaking to agents of law enforcement. (Orozco, supra, 32 Cal.App.5th at p. 813.) He

argues that Orozco’s interpretation of “interrogation” is “not what the high court meant”

when it “expounded upon” the definition of “ ‘interrogation’ ” in Innis as including

“words or actions on the part of the police officers that they should know are reasonably

17 likely to elicit an incriminating response from the suspect.” (Innis, supra, 446 U.S. at pp.

300-301.) He argues that “plac[ing] a suspect in a cell with an undercover officer or

informant for the purpose of eliciting incriminating statements from the suspect, as

occurred here,” amounts to “ ‘actions’ that the officers at least ‘should know are

reasonably likely to elicit an incriminating response.’ ” (Id. at p. 301.) Thus, he argues,

Orozco’s conclusion that there is no interrogation unless the suspect knows he is

speaking to a law enforcement agent is “incorrect.”

This argument misapplies Innis and disregards Perkins. Unlike Perkins, Innis did

not involve an in-custody suspect’s incriminating statements to persons whom the suspect

did not know were law enforcement agents. Rather, Innis involved police officers’

statements while transporting a suspect to a police station, after the suspect was arrested

for shooting a taxicab driver and invoked his Miranda rights to silence and counsel.

(Innis, supra, 446 U.S. at p. 293-294.) At the time, the shotgun used in the shooting of

the taxicab driver was missing. (Id. at p. 294.) On the way to the police station, two of

the officers who were transporting the defendant began discussing between themselves

that, because a school for handicapped children was nearby, one of the children might

find the shotgun and hurt or kill themselves with it. (Id. at pp. 294-295.) The defendant

then interrupted the officers’ conversation, told the officers to turn the police car around,

and showed police where the shotgun was located. (Id. at p. 295.)7

7 Innis concluded that the officers’ discussion about the shotgun in the defendant’s presence did not amount to the “functional equivalent” of police questioning or interrogation. (Innis, supra, 446 U.S. at pp. 302-303.)

18 In expanding the definition of interrogation beyond express questioning to include

its functional equivalent—that is, “any words or actions on the part of the police . . . that

the police should know are reasonably likely to elicit an incriminating response from the

suspect”—Innis noted that “[t]he concern of the Court in Miranda was that the

‘interrogation environment’ created by the interplay of interrogation and custody would

‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege

against compulsory self-incrimination.” (Innis, supra, 446 U.S. at pp. 299-301.)8

Perkins similarly construed Miranda as “protect[ing] the Fifth Amendment rights

of a suspect faced with the coercive combination of custodial status and an interrogation

the suspect understands as official. On the other hand, even if a suspect happens to be in

custody, ‘[t]here is no empirical basis for the assumption that [when] speaking to those

whom he assumes are not officers, [he] will feel compelled to speak by the fear of

reprisal for remaining silent or in the hope of more lenient treatment should he confess.’ ”

(People v. Tate (2010) 49 Cal.4th 635, 685, quoting Perkins, supra, 496 U.S. at pp. 296-

297.) Thus, defendant’s reliance on Innis is misplaced. Orozco correctly concluded that

Perkins, not Edwards, governs, and that no interrogation occurs when an in-custody

suspect is questioned by and confesses to persons whom the suspect does not know are

law enforcement agents. (Orozco, supra, 32 Cal.App.5th at pp. 813-815.)

8 Innis also pointed out that the “practices” that evoked this concern of Miranda included “several that did not involve express questioning” of the suspect by police. (Innis, supra, 446 U.S. at p. 299.) These included subjecting suspects to faux lineups, in which the suspects were falsely identified in order to induce them to confess. (Ibid.) “It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation.” (Ibid.)

19 Defendant correctly points out that courts “do not tolerate similar forms of

deception” as was used to obtain his confession here, “when it comes to obtaining

consent to police searches and seizures.” (See, e.g., Pagán-González v. Moreno (1st Cir.

2019) 919 F.3d 582, 597 [FBI agents unlawfully gained access to the defendant’s

dwelling and computer by falsely telling him that the computer was sending viruses to

government computers.]; People v. Reyes (2000) 83 Cal.App.4th 7, 9, 13 [The defendant

was unlawfully searched, without a warrant or probable cause, after police lured him out

of his home by falsely telling him they had accidentally hit his car.]; People v. Reeves

(1964) 61 Cal.2d 268, 271 [Police unlawfully gained access to the defendant’s hotel room

by having a hotel manager falsely tell the defendant there was a letter for him at the front

desk.].) Indeed, the high court has said that the Fifth Amendment right against self-

incrimination and the Fourth Amendment right against unreasonable searches and

seizures “enjoy an ‘intimate relation’ in their perpetuation of ‘principles of humanity and

civil liberty . . . .’ [Citation.] They express ‘supplementing phases of the same

constitutional purpose—to maintain inviolate large areas of personal privacy.’ ” (Mapp

v. Ohio (1961) 367 U.S. 643, 657, fn. omitted.) But Perkins held that Miranda warnings

need not be given before an in-custody suspect is questioned by, and makes incriminating

statements to, a person the suspect does not know is operating as a law enforcement

agent. (Perkins, supra, 496 U.S. at p. 300.) We are not at liberty to adopt a rule that is

inconsistent with Perkins.

20 3. Defendant’s Statements Were Voluntary

Apart from his Miranda claim, defendant claims the admission of his statements to

the informants violated his due process rights under the Fifth and Fourteenth

Amendments because his statements were involuntary.

“Independent of whether a defendant’s rights under Miranda were observed, his or

her statements may not be admitted unless they were voluntary. ‘The court in making a

voluntariness determination “examines ‘whether a defendant’s will was overborne’ by the

circumstances surrounding the giving of a confession.” ’ ” (People v. Krebs (2019)

8 Cal.5th 265, 299.) “ ‘ A statement is involuntary if it is not the product of “ ‘a rational

intellect and free will.’ ” [Citation.] The test for determining whether a confession is

voluntary is whether the defendant’s “will was overborne at the time he confessed.” ’ ”

(People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) Whether a confession is

voluntary depends upon the totality of the circumstances surrounding the confession.

(People v. Carrington (2009) 47 Cal.4th 145, 169.)

“ ‘On appeal, the trial court’s findings as to the circumstances surrounding the

confession are upheld if supported by substantial evidence, but the trial court’s finding as

to the voluntariness of the confession is subject to independent review.’ ” (People v.

Holloway (2004) 33 Cal.4th 96, 114.) As we have noted, the operative facts concerning

the voluntariness of defendant’s confession and other statements to the informants are

undisputed. The trial court found that defendant’s confession and statements were

voluntary. On independent review, we agree.

21 As the trial court noted, there was a “conversational tone” throughout the

discussion between defendant and the informants in the holding cell. From defendant’s

perspective, the informants did not appear to be coercing or pressuring defendant to

confess to the shooting or to make any other statements. (Innis, supra, 446 U.S. at p. 301

[Coercion is determined from the defendant’s perspective.].)

Indeed, the informants only sporadically asked defendant about the shooting.

They also talked to defendant, and between themselves, about things other than the

shooting, including food, gang life, prison life, music, and sex in prison. The informants

often laughed with defendant.

Defendant argues that the law enforcement officers overseeing the Perkins

operation used “deception and manipulation” to get him to confess to the shooting

because they falsely led him to believe that he had been identified in the mock lineup

before he confessed to the informants that he had shot John Doe. He notes that “[l]ies

told by the police to a suspect under questioning can affect the voluntariness of an

ensuing confession” if there is “a proximate causal connection between the deception or

subterfuge and the confession.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.)

But such lies or deception “are not per se sufficient to make [a confession] involuntary.”

(Ibid.) Rather, the lies or deception must be “ ‘likely to procure an untrue statement.’ ”

(People v. Fayed (2020) 9 Cal.5th 147, 165; People v. Thompson (1990) 50 Cal.3d 134,

167 [discussing cases].)

The mock lineup, in which defendant was asked to step forward and turn around,

was a deception, intended to make defendant believe he had been identified by a witness

22 to the shooting and to prompt him to talk to the informants about the shooting. But the

mock lineup, including the part in which defendant was asked to step forward and turn

around in order to make him think he had been identified, was not likely to induce

defendant to falsely confess to the informants that he shot John Doe, or to make any other

false statements about the shooting.

Defendant further argues that the informants appeared to be “bigger, older gang

members”; that the informants “barraged” him with questions about the shooting; and

that his confession to the informants amounted to “jailhouse bravado.” Again relying on

Justice Brennan’s concurring opinion in Perkins, he notes that “the pressures of custody

make a suspect more likely to confide in others and to engage in ‘jailhouse bravado.’ . . .

The State is in a unique position to exploit this vulnerability because it has virtually

complete control over the suspect’s environment. Thus, the State can ensure that a

suspect is barraged with questions from an undercover agent until the suspect confesses.”

(Perkins, supra, 496 U.S. at pp. 302-303 [conc. opn. of Brennan, J.).)

But, as noted, the informants did not “barrage” defendant with questions about the

shooting. Rather, they intermittently asked defendant about the shooting while talking to

him, and between themselves, about various things other than the shooting. When they

talked to defendant about the shooting, the informants appeared to be trying to help

defendant determine who might be able to identify him, and what other evidence the law

enforcement officers may have had that would implicate defendant in the shooting. The

informants were friendly and familiar with defendant and did not appear to be

intimidating him. Under the totality of the circumstances, defendant’s confession and

23 other statements to the informants were voluntary, and not the product of coercion or an

overborne will.

B. The Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to Withdraw

his Admission to the Gang Enhancement

Defendant claims the court prejudicially erred and violated his due process rights

in denying his motion to withdraw his admission of the gang allegation.9 He claims his

prior counsel rendered ineffective assistance of counsel in failing to advise him that his

“appellate chances on the underlying jury verdict” would be “impaired” if he admitted

the gang allegation. We find no error in the court’s denial of the motion.

1. Background

Before the jury was empaneled, defendant waived his right to a jury trial on the

gang allegation, and the court bifurcated the bench trial on the gang allegation from the

jury trial on all other charges and allegations. After the jury returned its guilty verdict on

the murder charge and found the firearm and special circumstance allegations true,

defendant admitted the gang allegation as part of his guilty plea in another criminal case

(Super. Ct., Riverside, No. RIF1704088). Before sentencing, and after new counsel was

appointed to represent him, defendant filed a motion to withdraw his admission of the

gang allegation on the ground his prior counsel had misadvised him of a direct

consequence of the admission—namely, that the admission would “impair” his “appellate

chances on the underlying jury verdict.” The People filed an opposition to the motion.

9 Defendant obtained a certificate of probable cause. (§ 1237.5.)

24 The court denied the motion following a brief hearing, at which the parties submitted on

the motion and opposition papers. In denying the motion, the court noted, “it appears to

the court that all of the proceedings [concerning the admission] were proper and

appropriate.”

2. Analysis

As relevant here, section 1018 provides that a court “may” permit a guilty plea to

be withdrawn, and a plea of not guilty entered, “for a good cause shown,” “any time

before judgment.” Section 1018 provides that it “shall be liberally construed” to effect its

“objects and to promote justice.” We review the denial of a motion to withdraw a plea

for an abuse of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894.)

For purposes of section 1018, “ ‘ “[g]ood cause” [to withdraw a plea] means

mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free

judgment and must be shown by clear and convincing evidence.’ [Citation.] A defendant

seeking to withdraw a plea based on the failure to advise on the direct consequences of a

conviction must show actual ignorance of those consequences.” (People v. Dillard

(2017) 8 Cal.App.5th 657, 665 (Dillard).) Generally, “ ‘[a] consequence is deemed to be

“direct” if it has a “ ‘ “definite, immediate, and largely automatic effect on the range of

the defendant’s punishment.” ’ ” ’ ” (Id. at p. 664.) “The defendant also must show

prejudice in the form of a reasonable probability that he or she would not have entered

the plea had a proper advisement been given. [Citations.] A plea may not be withdrawn

simply because a defendant has changed his or her mind.” (Id. at p. 665.)

25 Here, the trial court did not abuse its discretion in denying defendant’s motion to

withdraw his admission of the gang enhancement allegation. Defendant’s motion did not

demonstrate good cause to withdraw the admission, actual ignorance of the consequences

of the admission, or prejudice. In support of the motion, defendant adduced his own

declaration, claiming only that his prior counsel failed to advise him that a “direct

consequence” of his admission of the gang allegation would be “an impairment” of his

“appellate chances on the underlying jury verdict.” This statement was entirely too vague

to constitute good cause for withdrawing the admission.

Indeed, defendant’s declaration did not specify how his admission of the gang

allegation would “impair” his “appellate chances on the underlying jury verdict.” He also

failed to show prejudice, or “a reasonable probability,” that he would not have made the

admission had he been advised of these unspecified direct consequences of the

admission. (Dillard, supra, 8 Cal.App.5th at p. 665.) Notably absent from defendant’s

motion was a declaration from his prior counsel regarding what advisements prior

counsel gave defendant before defendant made the admission. And, although defendant’s

motion stated that he was not advised that he would be unable to appeal the gang

enhancement, this assertion was not included in his declaration, and he does not assert

this claim on appeal. As the People point out, defendant “fail[ed] to identify any direct

consequences of which counsel failed to advise him, and therefore he cannot show the

trial court abused its discretion or violated his rights to due process” in denying the

motion to withdraw the admission.

26 Defendant claims that the withdrawal of his admission would not prejudice the

People and suggests that the admission “only involved the gang enhancement.” This is

not the case. Defendant admitted the gang allegation as part of his plea in another

pending criminal case after the jury returned its guilty verdict on the murder charge and

its true findings on the firearm and special circumstance allegations in this case.

Specifically, defendant agreed to admit the gang allegation, pled guilty to one count of

assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) in the

other criminal case, and admit a great bodily injury enhancement (§ 12022.7) in that other

case in exchange for a seven-year sentence to run concurrent to his sentence in this case.

In exchange, the People agreed to dismiss two other charges in the other criminal case

along with prior conviction allegations. Thus, on this record, defendant has not shown

that his admission of the gang enhancement was not voluntary, intelligent, and made with

full advisement of his constitutional rights and of direct consequences of the admission.

(Dillard, supra, 8 Cal.App.5th at p. 664 [“A change of plea must be voluntary and

intelligent, with a defendant being advised of his or her constitutional rights, and of the

27 direct consequences of the conviction [or admission].”)10

C. The Trial Court Is Not Authorized to Impose a Lesser Firearm Enhancement

Defendant claims the matter must be remanded for resentencing, so the trial court

may consider whether to impose a lesser firearm enhancement under section 12022.53,

subdivision (b) or (c), in lieu of the 25-year-to-life term that the court imposed for the

firearm enhancement, which was charged and found true under section 12022.53,

subdivisions (d) and (e). We find no merit to this claim.

At sentencing on November 1, 2019, defense counsel urged the trial court to

exercise its discretion, under section 12022.53, subdivision (h), to strike the

section 12022.53, subdivisions (d) and (e) firearm enhancement, but the court expressly

declined to do so. The court did not consider, nor was it asked to consider, whether to

impose a lesser firearm enhancement under section 12022.53, subdivisions (b) or (c).

10 Defendant claims that, if he is allowed to withdraw his admission of the gang allegation, the People would be able to proceed on the allegation “merely by presenting court records and law enforcement witnesses. It is even possible that the prosecution might decide to simply dismiss this allegation, since [the] enhancement does not actually serve to increase [his] sentence on his first degree murder conviction.” In support, he cites People v. Lopez (2005) 34 Cal.4th 1002. Lopez concluded that the 10-year additional term for a gang enhancement on a violent felony conviction, under section 186.22, subdivision (b)(1)(C), does not apply to first degree murder; rather, a defendant who is convicted of first degree murder with a gang enhancement is ineligible for parole until the defendant has served a minimum of 15 years of the defendant’s indeterminate sentence under section 186.22, subdivision (b)(5). (Id. at pp. 1007-1011.) It is unclear from the record whether the People agreed to forego the 15-year minimum parole eligibility period on defendant’s 25-year-to-life sentence for the murder in exchange for defendant’s admission of the gang enhancement, together with his agreement to serve a concurrent seven-year term in his other criminal case.

28 These lesser firearm enhancements were neither charged in the information nor found

true by the jury.

Defendant now claims that the court abused its discretion and violated his federal

due process rights in failing to consider these more lenient sentencing alternatives. He

argues that this claim is cognizable in this appeal, despite his counsel’s failure to raise the

point below, because of the “unsettled state of the law” on this point in November 2019.

Alternatively, he argues his counsel rendered ineffective assistance in failing to raise the

issue. Assuming that defendant has not forfeited this claim of sentencing error for

appeal, we conclude that it lacks merit because the court was not authorized to impose

one of the lesser firearm enhancements.

Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018

Reg. Sess.; Stats. 2017, ch. 6, §§ 1,2) (Senate Bill 620), which amended section

12022.53, subdivision (h), to grant courts discretion to “ ‘strike or dismiss’ ” a firearm

enhancement imposed under section 12022.53 “ ‘in the interest of justice pursuant to

[s]ection 1385.’ ” (People v. Tirado (2019) 38 Cal.App.5th 637, 642 (Tirado), review

granted Nov. 13, 2019, S257658.) Former section 12022.53, subdivision (h), prohibited

courts from striking or dismissing firearm enhancements found true under

section 12022.53, “ ‘[n]otwithstanding [s]ection 1385 or any other provision of law.’ ”

(Stats. 2010, ch. 711, § 5; see Tirado, at p. 642 & fn. 6.)

There is currently a split of authority on the question of whether Senate Bill 620

gives trial courts discretion to strike a greater firearm enhancement found true under

section 12022.53, and impose a lesser included, uncharged firearm enhancement under

29 the statute, when, as here, no such lesser firearm enhancement was pled or found true. “It

is undisputed that if all three enhancements are charged and separately found true, a trial

court can strike the greater enhancement under subdivision (d), reducing the firearm

related term to 20 years under subdivision (c), or also strike the subdivision (c)

enhancement, reducing the term to 10 years under subdivision (b).” (See People v. Wang

(2020) 46 Cal.App.5th 1055, 1090-1091.) “But if lesser enhancements are not charged

and found true, [the Court of Appeal is] split as to whether a trial court may strike a

greater enhancement under amended section 12022.53(h) and impose one of the lesser

enhancements instead, and the issue is currently on review in [our] Supreme Court.”

(People v. Delavega (2021) 59 Cal.App.5th 1074, 1084.)

To date, this court has issued two published decisions concluding that Senate Bill

620 did not authorize courts to strike and dismiss a greater firearm enhancement and

impose a lesser firearm enhancement that was neither pled nor found true: People v.

Valles (2020) 49 Cal.App.5th 156, 166-167 (Valles), review granted July 22, 2020,

S262757 and Yanez, supra, 44 Cal.App.5th at pages 459-460. At least three other

appellate courts have reached the same conclusion: Tirado, supra, 38 Cal.App.5th at

page 644; People v. Garcia (2020) 46 Cal.App.5th 786, 788-789, review granted

June 10, 2020, S261772; and People v. Delavega, supra, 59 Cal.App.5th at p. 1084.

But in People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) at pages 221-

223, the court concluded that Senate Bill 620 gives courts discretion to strike a

section 12022.53, subdivision (d) enhancement and impose a lesser enhancement under

section 12022.53, subdivisions (b) or (c), even if the lesser enhancements were not pled

30 or found true. Morrison reasoned that case law had “recognized that the court may

impose a ‘lesser included’ enhancement that was not charged in the information when a

greater enhancement found true by the trier of fact is either legally inapplicable or

unsupported by sufficient evidence.” (Morrison, at p. 222, citing, e.g., People v. Fialho

(2014) 229 Cal.App.4th 1389, 1395-1396.) Thus, Morrison permits a court to impose a

lesser enhancement under section 12022.53, subdivisions (b) or (c), even when a greater

enhancement under section 12022.53, subdivision (d) was found true, is otherwise legally

applicable, and is supported by sufficient evidence. (Morrison, supra, at pp. 222-223.)

Morrison remanded the matter for resentencing because (1) the record did not indicate

whether the court understood it had discretion to impose a lesser firearm enhancement in

lieu of a greater one, and (2) at the time of sentencing, no published decision had

determined that the court had this discretion. (Morrison, at pp. 223-224.)

Defendant relies on Morrison in claiming that his case must be remanded for

resentencing so the court may consider whether to strike his 25-year-to-life firearm

enhancement under section 12022.53, subdivisions (d) and (e), and impose a lesser

enhancement under section 12022.53, subdivision (b) or (c). But in Yanez, this court

followed Tirado, not Morrison. (Yanez, supra, 44 Cal.App.5th at p. 459 [“[N]othing in

the plain language of sections 1385 or 12022.53, subdivision (h) suggests an intent to

allow a trial court discretion to substitute one sentencing enhancement for another.”]; see

Valles, supra, 49 Cal.App.5th at pp. 165-167 [similarly concluding that “the express

language of sections 1385 and 12022.53, subdivision (h)” does not “authoriz[e] the

substitution of a lesser enhancement for a greater enhancement, properly found true at

31 trial, and for which there is no legal impediment to imposition”].) Based on this court’s

decisions in Yanez and Valles, remand for resentencing, so the court may consider

whether to impose a lesser firearm enhancement, is unwarranted.

D. Defendant Is Entitled to 196 Additional Days of Presentence Custody Credits

The parties and we agree that defendant is entitled to a total of 503 days of custody

credits for the time he spent in local custody in this case, rather than the 307 days that he

was awarded, or 196 days of additional custody credits. (§ 2900.5.)

A defendant is entitled to credit against a term of imprisonment for all days the

defendant spent in local custody in the case for which he is sentenced, through the date of

sentencing. (§ 2900.5; People v. Denman (2013) 218 Cal.App.4th 800, 814.)

At sentencing on November 1, 2019, defendant was awarded 307 total days of

presentence custody credits under section 2900.5. The 307 days was ostensibly based on

the probation report, which stated that defendant was entitled to custody credits under

section 2900.5 from June 17, 2018, the date he was released on parole in an earlier case,

through April 19, 2019, the original date he was to be sentenced in this case. (People v.

Ayon (1987) 196 Cal.App.3d 1114, 1117-1118 [defendant not entitled to custody credits

under section 2900.5 for time the defendant was serving a sentence in another case, even

though the defendant was concurrently under arrest for an unsentenced crime].) But the

April 19, 2019 sentencing date was continued, and defendant was ultimately sentenced on

November 1, 2019. Thus, defendants should have been awarded 507 days of presentence

custody credits, from June 17, 2018 through November 1, 2019. (§ 2900.5.) We amend

the judgment accordingly. (People v. Jones (2000) 82 Cal.App.4th 485, 493.)

32 IV. DISPOSITION

The judgment is modified to award defendant a total of 503 days of presentence

custody credits, 196 more than the 307 days he was awarded at sentencing on November

1, 2019. (§ 2900.5) The matter is remanded to the sentencing court with directions to

prepare a supplemental sentencing minute order, and an amended abstract of judgment,

reflecting this modification to the judgment. In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS Acting P.J. We concur:

RAPHAEL J.

MENETREZ J.