People v. Sanchez CA2/5 ( 2022 )

Filed 12/27/22 P. v. Sanchez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B316392
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA153941)
v.
MIGUEL SANCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Raul Anthony Sahagun, Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
The jury found defendant Miguel Sanchez guilty on
multiple counts of committing lewd acts on a child and one count
of sexual penetration of a minor under the age of ten. On appeal,
he contends that the trial court abused its discretion by excluding
statements from the victims’ mother about one victim’s character
for truth and veracity. He also contends he received ineffective
assistance of counsel because his trial attorney failed to challenge
the introduction of a recorded conversation during which he made
incriminating admissions. We affirm.
II. FACTUAL BACKGROUND
A. Prosecution’s Evidence
1. Relationship of the Parties
The victims, Catherine and her younger half-sister,
Briana,1 have the same mother (mother). Between 2005 and
2015, Susana, a close family friend, provided childcare for
mother’s children, including Catherine and Briana, after school,
Monday through Friday. Susana lived with defendant across the
street from the girls’ grandmother, with whom the girls often
lived or stayed.
1 Catherine was born in 1999 and Briana was born in 2004.
2
2. Abuse of Catherine
On one occasion between December 14, 2005, and
December 13, 2006, when Catherine was six years old, Susana
told her to go into the bedroom Susana shared with defendant
and explain to him the after-school reading assignment she had
completed that day. Catherine sat on a ladder next to the bed on
which defendant was laying and explained what she had read.
Defendant massaged Catherine’s genital area, which made her
feel uncomfortable. During that same time period, a few times
each month, defendant rubbed her genital area both over her
clothes and inside her underwear. He also digitally penetrated
her vagina.
Between December 14, 2006, and December 2010, from the
time Catherine was six until she was ten years old, defendant
regularly abused her in a similar manner. Defendant’s
inappropriate conduct with Catherine ended when she turned 11
and started middle school. At that point, Susana stopped
providing care for Catherine because she could walk home from
school with her brother and cousin.
From the time she was six until she turned 11, Catherine
did not tell anyone about defendant’s conduct. At the time, she
“didn’t know what was happening to [her] shouldn’t be
happening.” She did not understand that his conduct was
abnormal.
3. Abuse of Briana
From May 13, 2008, to May 12, 2015, when Briana was
between four and ten years old, she would be at Susana’s home
3
regularly for childcare. Sometimes she would be there without
Catherine.
According to Briana, on one occasion, when she was about
four years old, defendant began to kiss her genital area. He then
pulled down her pants and orally copulated her. Defendant told
Briana, who was toilet trained, “that he was making sure . . . that
[she] was cleaning [her]self right.” Defendant orally copulated
her around three times a week.
Briana testified that during the time period that she was at
Susana’s home for childcare, defendant would use his hands to
rub her vagina and digitally penetrate her. He also kissed and
licked her anus. On one occasion, defendant picked up Briana
from school and orally copulated her and digitally penetrated her
vagina.
Defendant’s inappropriate touching “happened less as [she]
got older” and, after she turned 11 and no longer went to
childcare at Susana’s home, it “fully stopped.” Briana did not tell
anyone about defendant’s conduct during the years it was
occurring because she was “little . . . [and] didn’t really realize
what was happening[;] . . . it kind of became normal to [her].”
4. The Victims’ Disclosure of Abuse
When Catherine was either 15 or 16 years old, she told
Briana that defendant “had touched [her] inappropriately [and]
that he would [give] her massages whenever” Susana sent her to
defendant’s bedroom to explain her reading assignment. In
response, Briana told Catherine about “a couple of instances
[with defendant] that she . . . remembered, but nothing in detail.”
4
In 2017, Catherine heard mother tell a friend that she was
considering sending Catherine’s two-year-old sister to Susana for
childcare. Because Catherine did not want her sister in Susana’s
home, she decided to tell mother what happened to her there.
Briana joined Catherine in the conversation with mother about
defendant’s conduct with them when they were young.
Sometime in 2017, an officer from the South Gate Police
Department spoke to Briana and Catherine. They did not hear
anything from the police again until 2020.
5. The Investigation
On January 21, 2020, Detective Aaron Krisman took over
the investigation of defendant’s molestation of Catherine and
Briana. He called mother and made an appointment for them to
meet with him at the South Gate Police Department. The
detective subsequently met with Briana and mother, each of
whom provided more detailed statements about the incidents
with defendant. On March 10, 2020, Detective Krisman met with
Catherine and conducted a more detailed follow-up interview
with her.
Following his interviews with mother and the victims,
Detective Krisman arranged for an investigation to be conducted
during which Catherine, who was then 19 years old, would
confront defendant about his conduct with her and Briana. He
enlisted the assistance of three other officers and planned to have
Catherine wear a device to record her conversation with
defendant. Using his cell phone, the detective could then listen to
the confrontation between defendant and Catherine.
5
On August 4, 2020, Catherine met with Detective Krisman
“about possibly . . . confronting . . . defendant about what
happened to [her].” There were other officers present at the
meeting and she understood that their role would be to observe
her confrontation with defendant from a distance. Detective
Krisman gave Catherine a device to record her conversation with
defendant. He explained how the device worked, but did not give
her any further instructions, other than to warn her not to be
alone with defendant.
That day, Catherine rode with the detective to the parking
lot of the supermarket next to Susana’s house. From there, she
walked to the house “to ask for [defendant], saying that [she] had
car trouble[] and . . . need[ed] help.” She spoke with Susana who
explained defendant “was probably sleeping” and recommended a
mechanic down the street.
Catherine then went back to Detective Krisman’s car in the
supermarket parking lot. While waiting in his car, she received a
call and text from her brother saying that Susana and defendant
had been to her grandmother’s house looking for her. She exited
the car and encountered defendant near the side of the
supermarket where they engaged in a recorded conversation
while moving toward the front of the supermarket. Following her
conversation with defendant, Catherine returned to Detective
Krisman’s car, gave him the recording device, and rode home
with him.
6. Recorded Conversation with Catherine
During the recorded encounter between Catherine and
defendant, the parties engaged in the following conversation: At
6
the beginning of the encounter, Susana was present, but as
defendant and Catherine began to walk, she stayed behind.
Following a brief exchange about Catherine’s pretextual car
trouble, Catherine told defendant that she wanted to speak with
him “about what happened when [she] was younger.” She then
asked, “You know what I’m talking about?” Defendant
responded, “Yeah, I know.” As Catherine began to specify,
saying, “You put your hand down my pants—” defendant
interrupted, “I know. I’m sorry. I know.” Catherine finished, “—
in my pants, in my underwear” and defendant again apologized,
“So sorry, Cathy.”
At that point, defendant wanted to move to a different
location, and Catherine agreed, but indicated that they were “just
gonna go walking in front of people.” Catherine told defendant
she did not “feel bad” for him, to which he again responded
apologetically, “Okay. Sorry, Cathy. Okay?” Catherine told him
that his conduct was not something that he “could just brush off”
or that could “just be forgotten like that. It’s something super
serious, and it’s something that’s impacted my life since it
happened.” Defendant replied, “Oh, I’m sorry. Sorry, Cathy.”
When Catherine disclosed that she also knew what
defendant did to Briana, defendant initially denied doing
anything to her. Catherine reiterated, “You did it to my sister,”
but defendant disagreed, explaining, “No, I [¶] . . . [¶] play with
her only.”
Catherine returned the topic to defendant’s abuse of her,
telling him, “You put your hand in my pants, in my underwear
multiple times. You touched my vagina.” Defendant
acknowledged, “I feel—I know. I feel . . . .” When she demanded
that he “look [her] in the face,” defendant, apparently referring to
7
the abuse, said, “[I]t’s over Cathy,” causing her to renew her
demand that he look her in the face and remind him that it was
“not over . . .” because she thought about “it constantly.”
Catherine then changed the subject back to defendant’s
abuse of Briana, detailing that he took her out of school several
times. She stated, “you put your mouth on her. Correct?”
Defendant responded, “I—no. I’m playing—I’m playing.” His
response prompted Catherine to ask whether he thought his
abuse of Briana was “playing,” and he replied, “I know. I know—
you know, right now, why you (Inaudible) long time now.”
Catherine emphasized that she “need[ed] answers” and cautioned
that if defendant did not “give [her] answers, [she would go] to
the police with this.” Defendant said, “No,” and Catherine
repeated that she needed answers. At that point, defendant said,
“Okay. I said sorry if I did, okay? Sorry, Cathy.” Catherine told
defendant, “You did it.” Defendant responded, “No, Cathy.”
Asked why he was apologizing if he did not do anything
wrong, defendant offered another apology: [I]f I— I—if I did it,
then I do—I’m sorry I did—I’m sorry. I didn’t do nothing more to
nobody, Cathy.”
Catherine next pressed defendant on whether he thought
“what [he] did [was] okay,’” and he conceded, “No, it’s not okay.”
She then asked why he did it, and he explained, “Because you
know . . . , Cathy, I feel like a something bad—that was bad for
me right now. I feel like I did do it to you. Sorry, Cathy. Sorry.
I feel—I feel bad.” When Catherine replied that his response did
not change the way she felt, defendant asked, “I know I was—
what can I do it, now?”
At that point, Catherine confronted defendant about the
offensive comment he made to her “years later”—that she looked
8
prettier when she was younger—and asked if he realized “how
sick that sound[ed]” and “[h]ow disgusting that made [her] feel.”
Defendant once again apologized, “I know. Sorry, Cathy. Sorry,
Cathy.”
When Catherine turned the subject back to his abuse of
Briana, defendant asked, “So what can I do right now, Cathy.”
Catherine answered that she hoped he “realize[d] . . . the effect
that [he had] on people,” but defendant said only, “I don’t know.”
Catherine then informed defendant that Briana was now 16
years old with a child of her own, a circumstance for which
Catherine blamed defendant.
Defendant wanted to move the conversation to a different
location, but Catherine responded that she was there to confront
him about his conduct and that she needed answers. Defendant
reiterated that he did not do a “bad thing” to Briana, causing
Catherine to ask if he was going to “lie to [her] face after what [he
had] done to [her?]” Defendant replied, “Okay. I do it bad.
Sorry.” Catherine repeated that defendant had done “something
to [Briana]” and “something to [her],” admonishing him not to “lie
to [her] face.” Defendant complained that Catherine was not
being fair, but Catherine reminded him that he “did what [he]
did.” Defendant acknowledged, “Yeah, I know. Trust me. I
know.”
Catherine queried whether defendant thought that there
would be no consequences for his actions and that he could avoid
being confronted about them. Defendant responded that he
“already . . . spent years and [he thought] it, and [he was not]
doing nothing bad . . . . [I]f [he did] it, [he did] it, and [he was]
sorry . . . .”
9
Catherine informed defendant that his apologies would not
make her stop thinking about his abuse, advising again that if
she did not get the answers she needed, she would go to the
police. She then demanded to know why defendant thought it
was “okay to do that to little girls” and why a 50-something-year-
old man would “be touching [someone] . . . under 10 years old.”
Defendant affirmed, “Yes Cathy. I know. I know.” When
Catherine reiterated his misconduct, defendant pleaded with her
to “just stop. Stop being like that.” But Catherine persisted,
explaining that she was confronting him about the abuse because
“it play[ed] in [her] mind” and inquiring whether he wanted her
to “[j]ust forget it?” Defendant then asked, “Why [did] you not
tell . . . [me to] just stop, stop[?]” Catherine responded that she
did tell him to stop and that her sister was too young to “even
know what [his abuse] meant,” in reply to which defendant said,
“Yeah, I know.”
Catherine expressed her hope that “the Lord [would have]
mercy on [defendant’s] soul” and told him that “if [the Lord did
not, defendant was] going to a very dark, bad place.” Defendant
confirmed, “I know.”
As defendant and Catherine began walking, and in
response to Catherine’s renewed reference to his conduct with her
and Briana, defendant confided that he did not want Susana “to
find out what [he] did.” Catherine replied that defendant “did
what [he] did,” that he would “have to live with [it],” and that she
did not “owe [him] anything.”
Defendant asked “what [he could] do,” and Catherine told
him he needed to “[l]ook [her] in the eyes right now” and “admit
it.” Defendant again told Catherine, “[I]f [he did] something bad
to [her] . . . [he was] sorry,” prompting Catherine to admonish
10
him to “[s]top saying ‘if,’ because [he] did do something bad to
[her].” Asked again by defendant what he could do, Catherine
directed defendant to, “[s]ay it. Look [her] in the eyes and tell
[her] . . . .” After a further exchange, defendant conceded, “Okay.
I did it. You . . . hear me?” Catherine then pressed defendant to
also “admit what [he] did to [Briana] now,” but he equivocated.
Catherine brought up defendant’s statement about her
being “prettier when [she] was younger,” but defendant claimed
he did not remember making the statement. After a further
exchange on that issue, Catherine demanded that defendant
“look [her] in the face and say that [he] did [it].” Following more
exchanges, Catherine explained that she was “just trying to get
closure so that [she did not need to] go to the [police].” Defendant
again conceded, “I did this, okay.” Catherine replied, “Okay. And
Briana? But defendant claimed he did not remember, saying he
was just “playing . . . .”
Catherine and defendant had a further colloquy about
Briana, including his purported lack of memory, and Catherine
then informed him that his abuse of her “still fuck[ed] her up to
this day” and that he also “fucked Briana up so bad. She was so
little . . . .” Catherine warned defendant not to talk to or go near
Briana.
Catherine advised defendant one last time that he needed
to admit the abuse, that she needed closure, and that he was sick
and in need of help. Defendant acknowledged, “I know—I know.”
When he promised to seek help, Catherine told him that she did
not care what he did and ended the conversation.
11
B. Defense Evidence
1. Defendant’s Testimony
Between 2005 and 2015, defendant lived in a home with
Susana where she would provide childcare. Due to work,
defendant was not always home when Catherine and Briana
were there. When he was home, he would sometimes watch the
children in Susana’s care as they played in the front yard.
Defendant denied ever touching Catherine inappropriately.
He also denied ever touching Briana inappropriately. According
to defendant, none of the accusations made by Catherine or
Briana were true.
When Catherine confronted defendant at the supermarket,
her demeanor was “very aggressive.” She spoke to him like she
had never spoken to him before, “like she had never seen [him]
. . . .” She “was moving her hands a lot” and “saying things that
[he] didn’t understand.”
Catherine initially talked to him about her car, and he “had
[his] tools to go and help her.” But “then she started . . . to make
some other conversation” and he “felt bad . . . because of [his]
neighbors . . . .” He knew “quite a few people” who lived on the
street near the supermarket. His friends and neighbors shopped
at the market.
During the conversation, defendant “felt sad” and “didn’t
understand the things that [Catherine] was telling [him].” It was
the first time she had ever accused him of inappropriate
behavior.
Defendant explained that he initially apologized to
Catherine because, on the occasions when he would help Susana
12
with the children in her care, he spent more time playing with
the boys than the girls. He also apologized because he “didn’t
have words to respond with” and because she was making a scene
and he “just wanted her to leave.” But none of her accusations
during the conversation were true.
Defendant also claimed that he apologized to Catherine
because he was confused due to a brain injury he had previously
sustained at work. He could not understand why she was
accusing him. He loved Catherine and Briana because they did
not have a father.
Defendant denied ever telling Catherine that she looked
prettier when she was younger. He also explained that he told
Catherine he was playing in response to her accusations because
sometimes he would play with the children on the grass and
“push them.” When asked if he ever did anything to Catherine or
Briana that might cause them to accuse him of sexual abuse,
defendant explained that he “didn’t take them out to play.”
2. Susana’s Testimony
Between 2005 and 2015, Susana cared for Catherine and
Briana in her home. Defendant was not always home when
Susana was taking care of the girls. He sometimes spent a few
months in Mexico.
When he was home, defendant would occasionally help the
children with reading in the living room or take them outside to
play. On “rare occasions,” defendant would help the children
with their reading in the bedroom, but Susana would be
“watching.” Susana never observed defendant touching any of
the children inappropriately, including either Catherine or
13
Briana. And, she never saw either girl acting uncomfortably or
observed their behavior change after defendant helped them with
their homework.
III. PROCEDURAL BACKGROUND
In an information, the Los Angeles County District
Attorney charged defendant with six counts of committing a lewd
act on Catherine in violation of Penal Code section 288,
subdivision (a);2 four counts of oral copulation or sexual
penetration of Catherine in violation of section 288.7, subdivision
(b); eight counts of committing a lewd act on Briana in violation
of section 288, subdivision (a); and five counts of oral copulation
or sexual penetration of Briana in violation of section 288.7,
subdivision (b).
The jury found defendant guilty of committing: three lewd
acts on Catherine; one sexual penetration of Catherine; and one
lewd act on Briana. He was acquitted of all other charges. The
trial court sentenced defendant to 45 years to life in prison.
IV. DISCUSSION
A. Exclusion of Mother’s Opinion Testimony
Defendant contends that the trial court abused its
discretion and violated his constitutional right to a defense when
it excluded certain statements mother made to the police about
Briana’s veracity. According to defendant, those statements were
2 All further statutory references are to the Penal Code
unless otherwise indicated.
14
admissible under Evidence Code sections 780 and 1103 as lay
opinion about about a victim’s character for dishonesty made by a
person qualified to offer such an opinion.
1. Background
The trial court and counsel had the following exchange
outside the presence of the jury. Defendant’s counsel asserted
that mother “made several statements to officers including [that]
she believes Catherine more than Briana.” Apparently quoting
from a police report, counsel read the following statements by
mother: “‘It’s really hard for me to believe Briana. I believe
Catherine more than Briana. Briana will lie to your face.’”
According to counsel, there were three or four times in one
interview where mother “said her opinion as to Briana’s
character for truthfulness and veracity.”
The prosecutor objected to “mother’s opinion in 2017 asking
if in 2017 she held the opinion that she had a harder time
believing Briana. I don’t think it’s relevant.”
Defense counsel responded, “what [mother] felt and said in
2017 is absolutely relevant because based on the statements that
were made in 2017, these charges were initiated, investigation
was done and—and the victims are testifying to conduct that
predated 2017. [¶] And it is the defense position that opinion
and reputation evidence is admissible under the evidence code to
prove a character trait for honesty.” Defense counsel then cited
Evidence Code section 1101, subdivisions (a) and (c) in support.
The trial court responded, “Well, in essence, it seems to me
that that testimony is being—the relevance of the testimony is
that she’s gonna say I think my daughter is a liar and she’s hard
15
to believe and I don’t believe that she’s telling the truth. That
testimony, I think, is inadmissible . . . . [¶] . . . [¶] So the . . .
motion to exclude that statement, her opinion that Briana is a
liar, that Briana’s testimony is false, that Briana cannot be
believed, should not be believed, she has a tough time believing
it, is granted and it’s excluded.”
2. Legal Principles
“Lay opinion about the veracity of particular statements by
another is inadmissible on that issue. . . . [T]he reasons are
several. With limited exceptions, the fact finder, not the
witnesses, must draw the ultimate inferences from the evidence.
Qualified experts may express opinions on issues beyond common
understanding (Evid. Code, §§ 702, 801, 805), but lay views on
veracity do not meet the standards for admission of expert
testimony. A lay witness is occasionally permitted to express an
ultimate opinion based on his perception, but only where ‘helpful
to a clear understanding of his testimony’ (id., § 800, subd. (b)),
i.e., where the concrete observations on which the opinion is
based cannot otherwise be conveyed. [Citations.] Finally, a lay
opinion about the veracity of particular statements does not
constitute properly founded character or reputation evidence
(Evid. Code, 780, subd. (e)), nor does it bear on any of the other
matters listed by statute as most commonly affecting credibility
(id., § 780, subds. (a)-(k)).” (People v. Melton (1988) 44 Cal.3d
713, 744.)
An individual who has known a witness for a reasonable
period of time, however, may “‘qualify to testify as to the witness’
character for honesty or veracity.’” (People v. Bell (2019) 7
16
Cal.5th 70, 107.) “Evidence of a witness’s character for
truthfulness, or its opposite, is relevant to credibility and
admissible for this purpose. (Evid. Code, § 780, subd. (e).) This
evidence may be shown by ‘(a) evidence of specific instances of
conduct, (b) opinion evidence, or (c) reputation evidence.’
[Citation.]” (Id. at p. 106.)
A trial court’s decision on whether to admit lay opinion
testimony is reviewed for abuse of discretion. (People v. DeHoyos
(2013) 57 Cal.4th 79, 132.)
3. Analysis
We will assume, without deciding, that mother’s comments
constituted her opinion about Briana’s character for truth and
veracity and were therefore admissible to impeach Briana’s
credibility. Nevertheless, we conclude that defendant was not
prejudiced by the exclusion of those comments.3
Of the 13 counts involving Briana,4 the jury found
defendant guilty on only a single count of committing a lewd act
3 Because the trial court’s exclusion of mother’s comments
implicates error under state law, defendant must show that a
different result was reasonably probable under the prejudice
standard articulated in People v. Watson (1956) 46 Cal.2d 818(Watson). (People v. Gonzalez (2018) 5 Cal.5th 186, 201.)
4 Defendant asserts that the exclusion of mother’s comments
about Briana’s veracity prejudiced him as to the counts involving
Catherine, as well as on the one count involving Briana. But
mother’s comments included her opinion that she believed
Catherine more than she believed Briana. Thus, even if the
comments were admitted, they would not have had a tendency in
17
on a child. The evidence in support of that finding was strong.
(People v. Moye (2008) 47 Cal.4th 537, 556 [in evaluating
prejudice under Watson, “‘an appellate court may consider,
among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that
there is no reasonable probability the error of which the
defendant complains affected the result’”].) In the recorded
confrontation with Catherine, defendant not only admitted to
abusing Catherine, he also made statements that could be
reasonably construed as admissions about and apologies for his
abuse of Briana. In addition, defendant continually apologized to
Catherine, or acknowledged, “I know,” in response to her
accusations of abuse, including her repeated accusations that he
abused Briana. And, although defendant denied abusing either
victim during direct examination, on cross-examination, he was
unable to provide any plausible explanation for his repeated
admissions and apologies to Catherine during the confrontation.
Given the totality of the evidence against defendant, it was
not reasonably probable that introduction of mother’s opinion
about Briana’s veracity would have persuaded the jury to return
a more favorable verdict on the one count of committing a lewd
act on Briana. Accordingly, any error in excluding the evidence
was harmless. (Watson, supra, 46 Cal.2d at p. 836.)
reason to impugn Catherine’s credibility concerning the counts
involving her.
18
B. Ineffective Assistance
Defendant contends that he received ineffective assistance
of counsel because his trial attorney failed to make a due process
challenge to the admission of the recorded confrontation between
him and Catherine outside the supermarket. According to
defendant, such a challenge would have been successful because
Catherine was acting as an agent of the state when she coerced
his admissions using “implied threats and promises of leniency.”
1. Legal Principles
To establish ineffective assistance of counsel on appeal, a
defendant must show that defense counsel’s performance was
deficient and prejudicial—i.e., that there was a reasonable
probability that there would have been a different outcome
absent counsel’s deficient performance. (People v. Mai (2013) 57
Cal.4th 986, 1009.) A reviewing court may resolve an ineffective
assistance claim by deciding only the question of prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland)
[“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed”].)
2. Analysis
Under the due process clause, a statement that is obtained
as a result of coercive police activity is inadmissible. (People v.
Massie (1998) 19 Cal.4th 550, 576.) Defendant’s ineffective
assistance claim therefore is premised on his assertion that a
19
challenge to the admission of the recording on due process
grounds would have been successful because Catherine was
acting as a state agent.
In In re Neely (1993) 6 Cal.4th 901 (Neely)—a case decided
under the Sixth Amendment right to counsel as construed in
Massiah v. United States (1964) 377 U.S. 201 (Massiah) and its
progeny—our Supreme Court explained that in order to prevail
on a Massiah claim based on a violation involving an informant,
“the evidence must establish that the informant . . . was acting as
a government agent, i.e., under the direction of the government
pursuant to a preexisting arrangement, with the expectation of
some resulting benefit or advantage . . . .” (Neely, supra, 6
Cal.4th at p. 915.) The court observed that an informant would
not qualify as a government agent if “law enforcement officials
merely accept information elicited by the informant-inmate on
his or her own initiative, with no official promises,
encouragement, or guidance. [Citation.] In order for there to be
a preexisting arrangement, however, it need not be explicit or
formal, but may be ‘inferred from evidence that the parties
behaved as though there were an agreement between them,
following a particular course of conduct’ over a period of time.
[Citation.] Circumstances probative of an agency relationship
include the government’s having directed the informant to focus
upon a specific person, such as a cellmate, or having instructed
the informant as to the specific type of information sought by the
government. [Citation.]” (Ibid.)
Here, there are no facts that support an inference that
Catherine acted as a government agent when she wore a
recording device and confronted defendant. Detective Krisman
did not exercise control over Catherine’s questioning of defendant
20
during the confrontation and there is no evidence that he
instructed her on what questions to ask defendant or what type
of information to elicit. (See People v. Martin (2002) 98
Cal.App.4th 408, 419–420.) Nor was there any evidence that
Catherine had a preexisting relationship or agreement with the
police (compare People v. Sanchez (1983) 148 Cal.App.3d 62, 69)
or that there was any “express or implied quid pro quo
underlying the relationship” (United States v. Taylor (10th Cir.
1086) 800 F.2d 1012, 1016). At most, the only benefit that
Catherine sought in speaking with defendant was to demonstrate
that he had sexually abused her. This, however, is not the type of
“benefit or advantage” that renders a private citizen a
government agent. (See Coolidge v. New Hampshire (1971) 403
U.S. 443, 487 [“[I]t is no part of the policy underlying the Fourth
and Fourteenth Amendment to discourage citizens from aiding to
the utmost of their ability in the apprehension of criminals”].)
We therefore conclude that defendant failed to carry his
burden of showing prejudice. Because defendant could not show
that Catherine was acting as a government agent, there was no
Fourteenth Amendment basis upon which to support an
argument that an agent of the state coerced defendant’s
confession. Accordingly, a motion to exclude his recorded
statements would have been unsuccessful.
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V. DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
22