People v. Lara CA4/2 ( 2022 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
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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
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“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.
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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.
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