People v. Lara CA4/2

• Court: California Court of Appeal
• Decided: June 28, 2022
• Docket: E074161A
• Status: Unpublished

Opinion

Filed 6/28/22 P. v. Lara CA4/2 Opinion after vacating opinion filed 5/17/21 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 as modified with directions.

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

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys

General, Daniel Hilton, Steve Oetting and Paige B. Hazard, 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 wait 2 (§ 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 a gang

allegation on the murder charge, 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 as part of his guilty plea in another criminal case. (Riverside Super. Ct.,

No. RIF1704088.) Before sentencing, defendant moved to withdraw his admission, and

the court denied the motion.

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

terms of 25 years to life for the murder and the firearm enhancement.3 The court

expressly declined to exercise its discretion to strike the section 12022.53, subdivisions

(d) and (e) firearm enhancement. (§ 12022.53, subd. (h).) Defendant did not ask the

court to consider imposing a lesser term on a lesser firearm enhancement. (§ 12022.53,

subds. (b) [personal use; 10 years] or (c) [personal discharge; 20 years].) Defendant was

sentenced to seven years in prison in his other case. (Riverside Super. Ct.,

No. RIF1704088.)

On May 17, 2021, we issued a decision in this appeal. (People v. Lara

(May 17, 2021, E074161) [nonpub. opn.].) Among other things, we rejected defendant’s

claim that the matter had to be remanded for resentencing so the court could consider

whether to impose a lesser firearm enhancement on the murder charge. (§ 12022.53,

subds. (b), (c).) We concluded that trial courts had no authority to impose lesser firearm

enhancements that were neither charged nor found true, though we recognized there was

a split of authority on the question.

3 Because he was only 16 years old when he committed the murder, defendant was not sentenced to life without the possibility of parole (LWOP) for the murder based on the special circumstance finding, which otherwise would have mandated an LWOP sentence for the murder. (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].) At sentencing, the court also noted there was “no consequence” to the gang enhancement on the murder conviction pursuant to People v. Lopez (2005) 34 Cal.4th 1002, 1006-1009 (A gang-related first degree murder, punishable by 25 years to life, is not subject to a 10-year enhancement under § 186.22, subd. (b)(1)(C); rather, under § 186.22, subd. (b)(5), the 25 year-to-life term is subject to a minimum 15-year parole eligibility date (MPED), but under § 190, subd. (e), a defendant has an MPED of 25 years on a 25-year-to-life sentence for first degree murder.).

3 Our Supreme Court granted review and later transferred the matter back to this

court with directions to vacate our decision and reconsider the matter in light of People v.

Tirado (2022) 12 Cal.5th 688 (Tirado). In Tirado, our Supreme Court concluded that

trial courts have discretion to strike section 12022.53 firearm enhancements in the

interest of justice (§ 12022.53, subd. (h)) and to impose no punishment or punishment on

a lesser section 12022.53 enhancement, if the elements of the lesser enhancement were

alleged and found true (Id. at subd. (j); Tirado, at pp. 696-700 & fn. 13).

We vacated our May 17, 2021 decision on April 22, 2022, in accordance with the

transfer order. Defendant then filed a supplemental opening brief, raising two additional

claims in this appeal: (1) the matter must be remanded for resentencing so the court may

exercise its discretion to strike his firearm enhancement (§ 12022.53, subds. (d), (e)), and

impose either no punishment on any firearm enhancement or impose punishment on a

lesser firearm enhancement under section 12022.53, subdivisions (b) [10 years] or (c) [20

years]); and (2) his waiver of his right to a jury trial on the gang allegation, and admission

of the gang allegation in connection with his guilty plea in the other case, are no longer

valid in light of Assembly Bill No. 333 (Stats. 2021 ch. 699, § 1, eff. Jan. 1, 2022)

(Assembly Bill 333), which changed the elements necessary to prove a gang allegation.

In their supplemental respondent’s brief, the People argue: (1) defendant forfeited

his right to ask the court to exercise its discretion to impose a lesser firearm enhancement

because, at his November 1, 2019 sentencing, his counsel did not ask the court to impose

a lesser firearm enhancement but only asked the court to the strike the existing

enhancement; and (2) defendant has not established grounds to overturn his jury trial

4 waiver to, and his admission of, the gang enhancement because he has not shown that the

retroactive changes to the elements necessary to prove a gang enhancement, wrought by

Assembly Bill 333, would have affected his waiver, admission, and plea.

We remand the matter for resentencing in light of Tirado. We agree with the

People, however, that defendant has not established grounds to overturn his jury trial

waiver to, and admission of, the gang enhancement allegation on the murder conviction.

We reaffirm the holdings of our May 21, 2021 decision, to the extent these holdings are

unaffected by the grant of review and transfer order.

That is, we reject defendant’s claims that the trial court prejudicially erred in

admitting statements into evidence against him—statements 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. Defendant claims the admission of his statements to the informants both

(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

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

5 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.

We also reject defendant’s claims that the trial court prejudicially erred in denying

his motion to withdraw his admission of the gang enhancement allegation. The parties

and we agree, however, that defendant is entitled to 196 additional days of presentence

custody credits. (§ 2900.5.) Thus, we modify the November 1, 2019 judgment to award

defendant 196 additional days of presentence custody credits, and we remand the matter

for resentencing so the court may consider whether to exercise its discretion to impose a

lesser term on a lesser firearm enhancement under Tirado, supra, 12 Cal.5th 688. 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

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.

6 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

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

called the police or 911.

7 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.

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

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

8 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.

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.

9 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

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

10 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

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.

11 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

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

defendant’s perspective.6

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.].)

12 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-

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

13 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

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-

14 295.) 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

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

15 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

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

16 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

‘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

17 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

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

18 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

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

19 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

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

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.)

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 [footnote continued on next page]

20 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.)

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

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.)

21 (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.

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

22 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.

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

23 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

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

24 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

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.

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

25 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. 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.)

26 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.)

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

27 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.

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 admitted a great bodily injury enhancement (§ 12022.7) in that

other case in exchange for a seven-year sentence to run concurrently 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

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

C. Defendant Has Not Established Grounds to Vacate His Admission to the Gang

Enhancement Allegation

Defendant claims his waiver of his right to a jury trial, against self-incrimination,

and to confront witnesses on the gang enhancement allegation, and his later admission of

the allegation in connection with his guilty plea in his other criminal case, are “no longer

valid”—that is, they can no longer be considered knowingly and voluntarily made, in

light of the retroactive changes that Assembly Bill 333 made to section 186.22 and the

facts or elements necessary to prove a gang enhancement allegation. (Stats. 2021, ch.

699, § 3, eff. Jan. 1, 2022.) Thus, he argues, the judgment must be reversed and the

matter remanded to the superior court to allow him the opportunity to withdraw his

admission to the gang enhancement along with his guilty plea in his other criminal case.

The People disagree. They point out that a defendant is deemed to be aware that

the Legislature may change the law underlying an offense that is the subject of the

defendant’s plea bargain. Thus, in order to withdraw his admission or plea, defendant

has to show more than that the law underlying his admission or plea changed; he has to

show that the changes would have affected his decision to make the admission or enter

into the plea, and defendant has not made this showing. We agree with the People.

29 1. Assembly Bill 333, Retroactivity

Assembly Bill 333 amended section 186.22 and added section 1109 to the Penal

Code, effective January 1, 2022. (Stats. 2021, ch. 699, §§ 3-5.) The parties agree, and so

do we, that Assembly Bill 333’s ameliorative changes to section 186.22 apply

retroactively to judgments not final on appeal on the bill’s January 1, 2022 effective date.

(People v. Lopez (2021) 73 Cal.App.5th 327, 343-344 [Substantive changes in Assembly

Bill 333 apply retroactively because they “increase[] the threshold for conviction of the

section 186.22 offense and the imposition of the enhancement . . . .”]; People v. E.H.

(2022) 75 Cal.App.5th 467, 478 [same].) Because the November 1, 2019 judgment is not

final (People v. Vieira (2005) 35 Cal.4th 264, 306), the bill’s amendments to section

186.22 retroactively apply to the judgment.

2. Assembly Bill 333’s Amendments to Section 186.22

Section 186.22 provides for enhanced punishment (gang enhancements) when an

enumerated felony, including murder, was committed “for the benefit of , at the direction

of, or in association with” a “criminal street gang. . . .” (§ 186.22, subd. (b).) Thus, the

gang enhancement statute (§ 186.22, subd. (b)) cannot be violated unless the crime

involved a “criminal street gang.”

Assembly Bill 333 amended section 186.22 to change the definition of “criminal

street gang.” (Stats. 2021, ch. 699, § 3.) Section 186.22 formerly defined “criminal

street gang” as “any ongoing organization, association, or group of three or more persons

. . . whose members individually or collectively engage in, or have engaged in, a pattern

of criminal gang activity.” (Former § 186.22, subd. (f), italics added; Stats. 2017,

30 ch. 561, § 178.) The bill narrowed this definition to, “an ongoing, organized association

or group of three or more persons . . . whose members collectively engage in, or have

engaged in, a pattern of criminal gang activity.” (Assem. Bill 333, § 3, revised § 186.22,

subd. (f), italics added.)

The bill also changed the requirements for proving the “ ‘pattern of criminal gang

activity’ ” necessary to establish the existence of a criminal street gang. Formerly,

“ ‘pattern of criminal gang activity’ ” meant “the commission of, attempted commission

of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction

of two or more of [predicate] offenses, provided at least one of these offenses occurred

after the effective date of this chapter and the last of those offenses occurred within three

years after a prior offense, and the offenses were committed on separate occasions, or by

two or more [persons].” (Former § 186.22, subd. (e); Stats. 2017, ch. 561, § 178.)

Now, however, a “ ‘pattern of criminal gang activity’ ” requires proof of

additional elements with respect to predicate offenses. (§ 186.22, subds. (e), (g).) The

predicate offenses must have “commonly benefited a criminal street gang” and the

common benefit must be “more than reputational.” (§ 186.22, subds. (e)(1).) Examples

of a common benefit that are “more than reputational” include but are not limited to

“financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or

intimidation or silencing of a potential current or previous witness or informant.”

(§ 186.22, subd. (g), enacted by Stats. 2021, ch. 699, § 3.) In addition, the most recent

predicate offense must have occurred within three years of a charged offense, and the

predicate offenses must have been committed on separate occasions or by two or more

31 gang members, as opposed to persons. (§ 186.22, subd. (e)(1).) The list of qualifying

predicate offenses has also been reduced (ibid.), and the charged offense can no longer be

used as a predicate offense (id. at subd. (e)(2)).

3. Analysis

Defendant claims it is “impossible to know” whether he “would still have admitted

the gang enhancement” in February 2019, had he known that Assembly Bill 333 would

make the retroactive changes that it made to section 186.22. As noted, he also claims his

waiver of his constitutional rights to a jury trial, against self-incrimination, and to

confront witnesses, which he made in connection with his admission, can no longer be

considered knowing and intelligent. (See Boykin v. Alabama (1969) 395 U.S. 238, 243-

244; In re Tahl (1969) 1 Cal.3d 122, 130-133.)

These arguments are unavailing. As the People point out, when a defendant

admits a charge or enhancement in entering into a plea agreement, the defendant is

deemed to know that the Legislature may change the definition of the offense or

enhancement in the future. “[T]he general rule in California is that the plea agreement

will be ‘ “deemed to incorporate and contemplate not only the existing law but the

reserve power of the state to amend the law or enact additional laws for the public good

and in pursuance of public policy . . . .” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 66, 70.)

Defendant has not shown that his plea agreement is an exception to this general rule.

That is, he has not shown that the facts and circumstances of his plea agreement give rise

to an implicit promise that the plea agreement would be unaffected by changes in the law,

32 including changes in the elements necessary to establish a gang enhancement. (Id. at

pp. 71-72.)

As the People argue, implicit in defendant’s argument is the assertion that his plea

agreement can only be considered knowing and intelligent if he knew, when he entered

into the plea agreement, about the future changes and retroactive changes that Assembly

Bill 333 would make to section 186.22. This assertion is both incorrect as a general

proposition and is unsupported. (Doe v. Harris, supra, 57 Cal.4th at pp. 66, 71-72.)

Although Assembly Bill 333 changed the elements necessary to prove a gang

enhancement, defendant has not explained how these changes affected his admission of

the gang enhancement or his willingness to enter into the plea agreement.

Thus, as the People argue, defendant’s statement that “it is impossible to know”

whether he would have entered into his plea agreement had he known that Assembly Bill

333 would retroactively change the elements of the gang enhancement does not help

defendant’s claim that the judgment must be reversed and his plea agreement vacated. It

is actually fatal to the claim. It means he has not shown, and cannot show, that Assembly

Bill 333 undermined either his knowing and intelligent Boykin/Tahl waivers or his

willingness to enter into the plea agreement.

Relying on People v. Eagle (2016) 246 Cal.App.4th 275, defendant argues, “in

these kinds of situations,” where a new law was enacted while a case was pending, which

changes the requirements for a charge or enhancement that the defendant previously pled

guilty to or admitted, the defendant must be given the opportunity to withdraw the

admission or plea. Eagle does not stand for this proposition. In Eagle, the defendant

33 pled no contest to transporting methamphetamine in violation of Health & Safety Code

section 11379 along with another charge, admitted an enhancement allegation, and

entered into a plea agreement. (Eagle, at p. 278.) Pursuant to the plea agreement, the

trial court suspended the imposition of sentence and placed the defendant on three years’

formal probation. (Ibid.) The Legislature later changed the definition of “transports” for

purposes of Health and Safety Code section 11379, and the voters enacted Proposition

47. (Id. at p. 278.) The defendant then moved to vacate his felony conviction for

transporting methamphetamine and to replace it with a misdemeanor conviction for

possession of methamphetamine. (Ibid.)

The People and the Eagle court agreed that, because the defendant’s judgment was

not final, the defendant was entitled “to benefit retroactively” from the ameliorative

changes to Health and Safety Code section 11379. (Eagle, supra, 246 Cal.App.4th at

p. 279.) The court rejected the defendant’s claim that his transportation conviction

should be reduced to simple possession, given that simple possession was not a lesser

included offense of transportation. (Ibid.) The court also ruled that, even if simple

possession were a lesser included offense, the court could not simply reduce the

transportation conviction to simple possession because, “[w]hen a statutory amendment

adds an additional element to an offense, the prosecution must be afforded the

opportunity to establish the additional element upon remand.” (Id. at p. 280, citing

People v. Figueroa (1993) 20 Cal.Ap.4th 65, 71-72 & fn. 2 (Figueroa), italics added.)

Such a retrial of the transportation charge, based on the new law, was not barred by

double jeopardy clause or ex post facto principles. (Eagle, at p. 280.)

34 Defendant relies on the above-quoted, italicized language from Eagle in arguing

the judgment must be reversed and his admission of the gang enhancement vacated in

light of the retroactive changes Assembly Bill 333 made to section 186.22 and the

elements necessary to prove a gang enhancement. Eagle is distinguishable, however,

because it arose in the context of Proposition 47, which allows defendants to alter their

plea agreements based on retroactive changes to the elements of various crimes. (People

v. Stamps (2020) 9 Cal.5th 685, 702-703.) In Eagle, the People did not argue that the

defendant was not entitled to the benefits of Proposition 47. Instead, the People argued,

and the court agreed, that (1) simple possession was not a lesser included offense of

transportation, and (2) although the transportation charge had to be vacated, the People

were entitled to retry the transportation charge based on the new law.

As the People here point out, “the trouble with the Eagle decision lies in the

unexamined conclusion (as a result of the People’s concession) that Eagle should be

allowed to withdraw his plea based on the definitional changes” in the transportation

statute, Health and Safety Code section 11379. Proposition 47 does not apply here, and

defendant has not established grounds to set aside his plea. As the People argue, “in

cases such as the present where a subsequent change in the law does not necessarily or

clearly impact plea considerations that would have been made prior to the amendments,

the defendant must show not only that he did not anticipate such changes, but that also he

would not have pleaded guilty [or there is a reasonable probability he would not have

pleaded guilty] had the changes been in effect at the time.” (See People v. Dillard (2017)

8 Cal.App.5th 657, 665.) Defendant has not made these showings here.

35 D. Remand for Resentencing Is Warranted in Light of Tirado

Defendant claims the matter must be remanded for resentencing so the sentencing

court may consider, for the first time, whether to exercise its discretion to impose a lesser

term on a lesser firearm enhancement under section 12022.53, subdivisions (b) (10 years)

or (c) (20 years) in lieu of the 25-year-to-life term the court imposed for the greater

firearm enhancement under section 12022.53, subdivisions (d) and (e). (Tirado, supra,

12 Cal.5th 688.) We agree that the matter must be remanded for resentencing.

We first address the People’s claim that defendant forfeited his right to ask the

court to impose a lesser firearm enhancement. We find no forfeiture.

The People argue defendant forfeited his right to ask the court to impose a 10- or

20-year lesser firearm enhancement because his counsel did not ask the court to impose a

lesser enhancement; counsel only asked the court to strike the existing enhancement.

(People v. Scott (1994) 9 Cal.4th 331, 351-356 [“Although the court is required to impose

sentence in a lawful manner, counsel is charged with understanding, advocating, and

clarifying permissible sentencing choices at the hearing.”].)

At sentencing on November 1, 2019, defense counsel asked the court to exercise

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

subdivisions (d) and (e) firearm enhancement and impose “the minimum time allowed

under the law.” The minimum time allowed under the law would have been 25 years to

life for the murder and no additional term for any firearm enhancement. The court

declined to strike the firearm enhancement. It imposed sentence on the murder

conviction, then said, “The Court will decline to exercise discretion pursuant to

36 12022.53(h) and impose an additional and consecutive term of imprisonment pursuant to

12022.53(d) and (e) of 25 years to life.” Defense counsel did not ask the court to impose

a 10- or 20-year term on a lesser enhancement. (§ 12022.53, subds. (b), (c).)

At the time of sentencing on November 1, 2019, there was a split of authority as to

whether trial courts had discretion to impose sentences on lesser firearm enhancements

that were neither charged nor specifically proved. In April 2019, the court in People v.

Morrison (2019) 34 Cal.App.5th 217 (Morrison) held that trial courts have this

discretion, but in August 2019 another court disagreed with Morrison and held that trial

courts did not have that discretion. (People v. Tirado (2019) 38 Cal.App.5th 637, 644,

judg. vacated and cause remanded (2022) 12 Cal.5th 688.)

In addition to counsel’s failure to ask the court to impose a lesser term on a lesser

firearm enhancement, the People argue “the most” defendant can show is that “the law

was unsettled” at the time of sentencing as to whether the court was authorized to impose

a lesser term. The People argue, “it is reasonable to assume that defense counsel was

well aware of the issue, yet he still declined to invoke the court’s discretion” to impose a

lesser firearm enhancement. We disagree that defense counsel forfeited the issue.

Although defense counsel could have asked the court to impose a lesser firearm

enhancement under Morrison, one other court had expressly disagreed with Morrison.

(People v. Tirado, supra, 38 Cal.App.5th at p. 644.) Thus, defense counsel may have

reasonably believed that Morrison would not be followed. (See People v. Gallardo

(2017) 4 Cal.5th 120, 128 [questioning whether defense counsel forfeited argument

supported by United States Supreme Court precedent that did not “squarely overrule

37 existing California law”].) Indeed, by January 2021, more than one year after

defendant’s November 1, 2019 sentencing, several additional courts, including this one,

had issued published decisions disagreeing with Morrison. (See People v. Delavega

(2021) 59 Cal.App.5th 1074, 1084 [citing cases], judg. vacated (2022)

___Cal.5th___[2022 Cal.Lexis 2306].)

Further, even if the counsel forfeited the issue for defendant, that does not absolve

this court of its discretion to consider it. (People v. Williams (1998) 17 Cal.4th 148, 161,

fn. 6.) We exercise our discretion to consider the issue because it potentially affects

defendant’s substantial rights (§ 1259), namely, his now firmly established right, under

California Supreme Court precedent, to ask the court exercise its discretion to impose a

lesser term on a lesser firearm enhancement. (Tirado, supra, 12 Cal.5th at p. 700.)

The record shows that remand for resentencing will not necessarily be futile.

(People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [“[I]f the ‘ “record shows that the

court would not have exercised its discretion even if it believed it could do so, then

remand would be an idle act and is not required.” ’ ”].) To be sure, before it imposed

sentence, the court recounted defendant’s lengthy criminal history, the “large number” of

factors in aggravation relating to both the murder and defendant, and the absence of any

factors in mitigation relating to either the murder or defendant. Among other things, the

court observed that defendant had been sentenced to state prison with a gang

enhancement before he committed the murder and that he committed the murder only

four months after he graduated from a youthful offender program. The court also noted

that “many programs and activities designed” for defendant’s rehabilitation had been

38 “ineffective in curbing his criminality.” The court imposed maximum $10,000 restitution

and parole revocation fines. (§§ 1202.4, 1202.45.)

The People agree, however, that to the extent this court determines that defendant

adequately preserved his claim, and we have determined that the claim was not forfeited,

the matter must be remanded to allow the court to exercise its discretion to impose a

lesser term on lesser firearm enhancements. As the People point out, “[g]iven the many

factors in aggravation, and the lack of any factors in mitigation, the court may well

decide to reimpose the original [25-year-to-life] term.” Nevertheless, as the People and

we also agree, “that is a decision for the trial court to make in the first instance on these

facts.”

E. 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.

39 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.)

IV. DISPOSITION

The November 1, 2019 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 for resentencing,

so the court may exercise its discretion whether to strike the 25-year-to-life term on

defendant’s firearm enhancement (§ 12022.53, subds. (d), (e), (h)) and impose a lesser

term on a lesser firearm enhancement (§ 12022.53, subds. (b), (c), (j)) under Tirado,

supra, 12 Cal.5th 688. We remand for full resentencing so as not to preclude the court

from exercising its sentencing discretion in light of changed circumstances. (People v.

Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on

remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial

court can exercise its sentencing discretion in light of the changed circumstances.’ ”];

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows

a court to revisit all prior sentencing decisions when resentencing a defendant.”].)

Following resentencing, the court is further directed to prepare a supplemental sentencing

40 minute order, and an amended abstract of judgment, reflecting this court’s and the trial

court’s modifications, if any, to the November 1, 2019 judgment. In all other respects,

the November 1, 2019 judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS Acting P.J. We concur:

RAPHAEL J.

MENETREZ J.