People v. Godbolt CA2/2 ( 2021 )

Filed 4/2/21 P. v. Godbolt CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302235
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116437)
v.
ORDER MODIFYING OPINION
JAYLIN GODBOLT et al., AND DENYING PETITION FOR
REHEARING
Defendants and Appellants. [CHANGE IN JUDGMENT]
THE COURT:
The opinion filed herein on March 12, 2021, is modified as
follows:
The DISPOSITION at pages 58–59 is deleted in its
entirety. The following DISPOSITION is inserted in its place:
DISPOSITION
Appellants’ convictions for the attempted murder of Manuel
Jose Jimenez are reversed. Appellants’ cases are remanded with
directions to enter new sentences that reflect the reversal of the
convictions for the attempted murder of Manuel Jose Jimenez
and the striking of the associated enhancements. With respect to
each appellant, the sentence is to be reduced by a term of 40
years to life imprisonment, comprised of 15 years for the offense
and 25 years for the enhancement under Penal Code section
12022.53, subdivision (d), resulting in the following new
sentences: Godbolt for a term of 230 years to life; Ray for a term
of 230 years to life; and Wise for a term of 170 years to life.
The judgment as to Godbolt is to be corrected to provide for
a court security fee of $930 under Penal Code section 1465.8 and
a criminal conviction assessment of $1,240 under Government
Code section 70373.
The superior court is directed to correct the abstracts of
judgment as follows:
(1) In Godbolt’s abstract, the number of determinate years
is to be reduced from 252 to 250 (abstract, p. 1, para. 6) and the
sentence is to be reduced by 40 years to reflect the reversal of the
conviction for the attempted murder of Manuel Jose Jimenez;
also in Godbolt’s abstract, in all but the 25 robbery counts, the
convictions must be shown to be based on convictions by a jury
instead of being based on pleas.
(2) In Ray’s abstract, in all but the 28 robbery counts, the
convictions must be shown to be based on convictions by a jury
instead of being based on pleas; and the sentence is to be reduced
by 40 years to reflect the reversal of the conviction for the
attempted murder of Manuel Jose Jimenez.
2
(3) In Wise’s abstract, the sentence is to be reduced by 40
years to reflect the reversal of the conviction for the attempted
murder of Manuel Jose Jimenez.
The superior court shall issue new abstracts of judgment
that correct the errors noted and that reflect the new sentences
imposed on appellants. The court shall forward the new
abstracts of judgment to the Department of Corrections and
Rehabilitation.
In all other respects, the judgments are affirmed.
This modification changes the judgment.
The petition for rehearing filed March 18, 2021, is denied.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
3
Filed 3/12/21 P. v. Godbolt CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE 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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302235
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116437)
v.
JAYLIN GODBOLT et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Steven D. Blades, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant Jaylin Godbolt.
Patricia Ihara, under appointment by the Court of Appeal,
for Defendant and Appellant Sean Ray.
David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant Branden M. Wise.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill, and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________________
Jaylin Godbolt (Godbolt), Sean Ray (Ray), and Branden
Wise (Wise), collectively referred to as appellants, were jointly
tried before a jury which found them guilty of first degree
murder, four attempted murders, and of shooting at an inhabited
building. Godbolt and Ray appeal from judgments imposing on
each of them terms of imprisonment of 270 years to life and Wise
appeals from a judgment and sentence of 210 years to life
imprisonment.
We reject appellants’ contention that their jailhouse
statements admitting these charges should have been excluded.
We conclude that one of the attempted murder convictions must
be reversed because it is not supported by any evidence. We find
that errors in the abstracts of judgment must be corrected. We
remand the cases with directions to enter new sentences that
exclude the convictions for one of the attempted murders, to
correct the errors in the abstracts of judgment that are noted in
our opinion, and to issue new abstracts of judgment reflecting
these changes. Otherwise, we affirm the judgments.
Prior to the trial which resulted in this appeal, Godbolt
pleaded no contest to 25 counts of robbery and he admitted gang
2
(Pen. Code, § 186.22(b)(1)(C)),1 firearm (§§ 12022.53(b)(e)(1),
12022(a)(1)), and “on-bail”2 enhancements. The pleas were in
exchange for the agreed upon disposition of a sentence of 20 years
and included a waiver of appellate rights as to these robbery
charges.
Also prior to trial, Ray pleaded nolo contendere to 28 counts
of robbery and 2 counts of possessing a firearm in a vehicle. He
admitted the gang, firearm, and “on-bail” enhancements. As with
Godbolt, the agreed upon disposition was a determinate sentence
of 20 years and a waiver of appellate rights as to these charges.
THE VERDICTS AND THE SENTENCES
All three appellants were found guilty of the first degree
murder of Florencio Ramirez. Gang enhancements and multiple
firearm enhancements were found to be true of these crimes.
Appellants were also found guilty of the attempted murders of
Nancy Orozco, Stephanie Gastelo, Maria Alvarez, and Manuel
Jose Jimenez. Each of these attempted murders were found to be
willful, deliberate, and premeditated. Gang enhancements and
multiple firearm enhancements were found to be true as to each
of these four crimes. Godbolt and Ray were found guilty of
shooting at an inhabited building and once again gang
enhancements and several firearm enhancements were found to
be true. Godbolt admitted “on-bail” enhancements as to all of
these crimes.
__________________________________________________________
1Statutory references are to the Penal Code unless
otherwise noted.
2This enhancement is based on the fact that at the time of
the commission of the offense, the defendant had been released
from custody on his own recognizance or on bail. (§ 12022.1.)
3
Godbolt was sentenced to a total term of 270 years to life.
This was composed of 25 years to life for the first degree murder,
five times 15 years to life for the attempted murders and shooting
at an inhabited building, and six times 25 years to life for the
enhancement under section 12022.53(d),3 for a total of 250 years
to life.4 Twenty years for the robberies was added under the
terms of the plea agreement.
Ray was sentenced to a total term of 270 years to life. The
composition of this sentence was the same as Godbolt’s.5
Wise was sentenced to a term of 210 years to life. His
sentence was composed of 25 years to life for first degree murder,
four times 15 years to life for the attempted murders and 125
years to life for the five firearm enhancements.
We address the specific fines and fees imposed in
discussing the contentions advanced regarding these fines.
The appeals are from the judgments.
THE FACTS
We summarize the facts of the counts that went to trial.
__________________________________________________________
3 Thisenhancement is for personally and intentionally
discharging firearm proximately causing great bodily injury.
(§ 12022.53(d).)
4 Godbolt’s abstract of judgment erroneously states that
252 years were imposed on the counts that went to trial. The
abstract of judgment is also in error in recording that all of
Godbolt’s convictions were based on pleas. These errors will have
to be corrected.
5 The abstract of Ray’s judgment also needs to be corrected
in that it shows the convictions to be based on pleas.
4
1. The Shootings
The fusillade of gunfire that killed Florencio Ramirez and
nearly produced four more murders took place against the
backdrop of long-standing hostile tensions between the 76 East
Coast Crips6 gang and the Florencia 13, a Hispanic gang, on turf
that was disputed between these two warring factions.
Appellants were members of the East Coast Crips, the 76 East
Coast Crips being a subset neighborhood gang of the East Coast
Crips.
The shootings took place on August 19, 2017, shortly after
midnight on 77th Street near Parmelee Avenue. A group of five
on four bikes was proceeding south on Parmelee and turned on
77th Street. They had been at the home of Nancy Orozco
(Orozco) and Florencio Ramirez (Ramirez) and were on their way
to another friend’s house. Orozco and Ramirez were on one bike.
They were in the lead, followed by Manuel Jose Jimenez
(Jimenez), Maria Alvarez (Alvarez), and Stephanie Gastelo
(Gastelo). After a short exchange with a person in a white
Cherokee, Gastelo saw a black Honda7 with its bottom lights lit
on 77th Street. As Gastelo looked back, she saw the person in the
left back come out of the Honda halfway and start shooting. The
shots were aimed at Gastelo. She jumped off her bike after the
first five shots and got between two cars; she felt she had been
hit. The Honda moved up and got closer to Gastelo and two more
shots were fired. Gastelo was hit in her buttocks and two more
shots skinned her left elbow and left rib cage.
__________________________________________________________
6 This refers to East Los Angeles.
7 The Honda was a stolen vehicle.
5
Alvarez saw three people in the Honda shooting. They
were the driver, the rear passenger and the front passenger who
was firing out the window and over the hood of the car. They
were shooting in Gastelo’s and Alvarez’s direction.8 Alvarez saw
Jimenez run off on foot. Once the shooters stopped firing at
Gastelo, they started shooting at Ramirez and Orozco who were
trying to get behind a car. The Honda started to back up and
Alvarez remembered thinking, “Oh, my God, we’re dead. We’re
dead.”
Orozco heard four or five shots and then Gastelo was
yelling that they were shooting. Orozco was shot in her left
buttock and she and Ramirez fell off the bike. Ramirez said he
had been shot and he appeared to be in pain. Ramirez died as a
result of a single gunshot that entered his back. He had “F13”
tattooed on his body and was a member of the Florencia 13 gang.
2. A prior altercation
On August 8, 2017, two deputy sheriffs responded to a call
reporting an illegal shooting on Parmelee Avenue. The deputies
found two .9-millimeter casings, two .40-millimeter casings, and a
live .40-caliber round on the scene.
An Instagram posting by Ray on August 9, 2017, states
that his car got shot up by the Florencia gang. Ray was arrested
on August 13, 2017, for a traffic violation and was found to be in
possession of a .9-millimeter Taurus pistol. The casings found on
August 8, 2017, were found to have been fired by this pistol.
Other casings found on August 8, 2017, were found to have been
fired by a gun in the possession of a Florencia 13 gang member.
__________________________________________________________
8 “It all happened so fast. It felt like the 4th of July that
night.” (Alvarez testifying.)
6
3. Ray is arrested in possession of a weapon used in
the shootings
Among other objects, four .9-millimeter casings were found
on the scene of the shootings by a forensic identification
specialist.
Ray was arrested on August 19, 2017, when he was spotted
standing by the stolen Honda. A .9-millimeter gun was found in
the car. The four .9-millimeter casings recovered from the scene
of the shooting were fired from this gun.
4. The investigation
Detective Dean Camarillo (Camarillo) of the Los Angeles
County Sheriff’s Department was assigned to investigate
Ramirez’s murder. Camarillo arrived at the scene of the
shootings in the early morning hours of August 19, 2017, and
oversaw the collection of evidence.
Camarillo had considerable experience with gangs and
particularly with the Florencia 13 gang. He was also familiar
with the 76 East Coast Crips. Over time, he became aware of the
August 8, 2017 shooting involving Ray and a Florencia 13 gang
member. He learned that Ray and Wise lived near each other,
close to the site of the shootings, and that there was a connection
between the two men. He also learned that Wise was in county
jail. He decided to proceed with what he called a “Perkins
operation” with Wise.9
__________________________________________________________
9 We discuss Illinois v. Perkins (1990) 496 U.S. 292(Perkins) below. Camarillo and the parties to this appeal
understand a “Perkins operation” to involve placing an informant
in a jail cell with the target defendant.
7
Camarillo listened to a telephone call made by Godbolt
from the jail to a female on July 27, 2018. In the call, Godbolt
stated that the “CRIP”—meaning the informant—got him.
5. Wise’s jailhouse statement10
Wise’s questioning was conducted on January 8, 2018, at
the downtown county jail facility in Los Angeles. 11
Camarillo testified that he gave the confidential informant,
who was placed in the cell with Wise, “very little” information.
This was because he did not want the informant to “feed” Wise
any information. “I want it to come from the target and/or myself
during the interview.”
Camarillo explained how the topic of the August 19, 2017
shooting was raised with Wise: After a short while when Wise in
the cell with the informant, Camarillo pulled “Wise from the jail
cell, interview[ed] him about my current investigation, and then
place[d] him back in. [¶] So under this type of setting, it’s not so
much what they tell me. I’m more interested in what they go
back in the cell and tell the undercover operative.” Camarillo
__________________________________________________________
10 As we explain in section VII of the DISCUSSION, all the
surrounding circumstances, including the details of the
interrogation (People v. Thompson (1990) 50 Cal.3d 134, 166),
must be taken into account in deciding whether the statements
were voluntary. We stay as close as possible to the actual
sequence and the words and expressions employed in the three
encounters with the informants, even if this results in text that is
clumsy and inartful. It is also important to note the free flow of
the discussion, even though some of it is not directly relevant,
because it shows the absence of pressure and compulsion.
11
The original information charging appellants was filed
on November 7, 2018.
8
referred to this as a “stimulation” to get the target to discuss the
topic that the investigating officers want discussed.
Wise was placed in a cell with the confidential informant by
the fictitious name of Stanley. 12
The session commenced with one of the officers asking
whether anybody wanted something to eat. When the informant
declined, the officers asked whether anyone wanted juice. The
informant said that would “work” and then told Wise that he
looked young. The officer said that Wise could be taken to the
medical clinic and asked again if Wise wanted something to
drink, Wise said yes and the officer offered orange juice and
asked if Wise was diabetic. It appears that at this point the
officer left.
The conversation between Wise and the informant started
with the informant asking where Wise was from. Wise replied
that he was from 76 East Coast. A general conversation ensued
during which the informant projected the image of a man who
knew and understood the criminal justice system.
Camarillo entered and said that he worked with sheriff’s
homicide and that they were investigating a homicide that
happened last August and that Wise’s name had come up. He
asked Wise and the informant to “hang tight” until his partner
got there. Wise said he didn’t know what Camarillo was talking
about. Camarillo said that was alright “big guy” and closed by
saying, “Thank you, sir, I appreciate it.” Camarillo left.
The informant told Wise to use his brain and figure out
that somebody was “telling.” The informant cautioned Wise not
to “go in there blind” and consider whether whoever he was with
__________________________________________________________
12 This informant was paid $1,500 for his work.
9
was now in jail. The informant described how somebody was
telling and that he, the informant, was “trying to help you out.”
Wise said he didn’t know what Camarillo was talking about.
Wise described an attempt to rob him.
The informant went on for a while about going to court.
Wise said he didn’t know what the police were talking about but
the informant told him that they “know something” and that they
had evidence. The informant now identified himself as an “OG,”
which means old gangster.
The informant pointed out that at the end of the day “they
got you on a homicide.” Wise should “use [his] mind” and
consider such things as self-defense. Should Wise play the
victim?
It was apparently at this point that Wise was taken out for
the interview with Camarillo.
Upon his return to the cell, Wise said that the police were
talking about a shooting. Wise said they had showed him
pictures of a car. The informant told Wise that he had to “clear
me up so I can help you” and that somebody was “telling on you.”
Wise said that one of the cars was stolen and the other was
“his,” referring to Ray. The informant again said that somebody
was snitching and described how the snitch would talk. The two
men now talked about the man (Ray) with the car.
Wise identified Ray as the person with the car. He said a
female (“bitch”) was in the front seat, she was Ray’s girl, and she
was in jail.
The informant asked if there were two of them in the
backseat and asked what happened to Wise’s “burner.” Wise said
it jammed. Wise said the other person was Godbolt (“Jaylin”).
The female’s name was Sierra. The informant went into a tirade
10
about snitching. Some conversation took place that is hard to
follow but which led Wise to say: “I was in the backseat.”
The informant speculated about Godbolt’s motivations in
becoming a snitch. The conversation turned to cars and then to a
discussion of bail about which the two men appeared to disagree.
The balance of the recorded conversation contains nothing
of note.
At some point during the recorded conversation, Camarillo
removed Wise from the cell and subjected him to an interview
that lasted 30 to 40 minutes. Camarillo told Wise he had
witnesses who identified Wise as seated in the rear passenger
seat during the shooting on August 19, that they claimed that
Wise was shooting out the window of the car, and who also
identified Wise as being present at the shooting on August 8,
2017. Neither statement was true and Wise denied both charges.
Camarillo testified that he learned a great deal from the
conversation between Wise and the informant. He learned that a
stolen Honda was used in the shooting, that Wise was seated in
the back passenger seat behind the driver, that a number of
weapons were used, that Wise was unable to shoot with his gun
because it wouldn’t work, and that Ray and Godbolt were also
present.
6. Godbolt’s jailhouse statement
Godbolt was questioned on January 12, 2018. Camarillo
used two undercover agents but otherwise used the same tactic of
removing Godbolt at one point from the cell with the
informants,13 questioning him and then returning him to the cell.
__________________________________________________________
13 One of the two informants was the same one that had
been used with Wise.
11
While being questioned by Camarillo, Godbolt was falsely
told that his DNA had been found on the stolen car, which
Godbolt denied.14 Godbolt also denied any knowledge of gangs
and that he had been in the car at the time of the shooting.
Godbolt’s session extends to nearly one hundred pages in
the transcript. It commenced with Godbolt asking whether he
was getting an “add-charge interview,” which was a question the
deputy sheriff who was present could not answer. One of the two
informants, however, said that it was going to be an add-charge
interview. Godbolt then identified himself as an East Coast Crip
and acknowledged that “they” were trying to give him a life
sentence for some robberies. The informant advised Godbolt to
listen to what the police had to say. When asked about his case,
Godbolt said he was there for 22 robberies and a home invasion.
The informant told Godbolt to stay strong.
The two men then talked for a while about a female.
The informant asked Godbolt whether he had been on
probation and Godbolt answered that he was told that he would
get probation. Both of the informants discussed the 22 robbery
charges Godbolt was facing. Godbolt said he was in a single-man
cell and the informant said that was the best way to be. The talk
between the two informants and Godbolt turned to guns. Godbolt
said they were charging him with a gang enhancement. The
informant said they could not charge him with a gang
enhancement.
__________________________________________________________
14 Camarillo went so far as to show Godbolt a fictitious and
false Department of Justice DNA report.
12
Godbolt said he was 19 and hoped to be out by the time he
was 30. When Godbolt said that his state-appointed lawyer had
come to see him three times, the informant said: “Hopefully, they
throw you a sweet little deal.” The two informants discussed that
Godbolt had not been in jail before. The discussion turned to
food.
Camarillo appeared and introduced himself. He said that,
as soon as his partner arrived, he wanted to talk to Godbolt about
a murder that happened last year in Compton. Godbolt said, “All
right.” Camarillo left.
The informants noted that it was “homicide.” One of the
informants said that somebody threw Godbolt’s name under the
bus. The informant said somebody was telling. Godbolt
responded “this shit is crazy.” Godbolt said one of his “homeys”
got caught with a gun and that “this shit got me shaking.”
Godbolt wished they would hurry up and talk to him. The
informant said: “So you can know what the fuck is going on.”
The informant said he was speaking from experience that
someone was telling; Godbolt agreed. The informant advised
Godbolt to listen. The informant repeated this advice.
A long and largely unintelligible conversation between the
two informants followed during which Godbolt appears to have
been in the interview with Camarillo.
Godbolt reappeared and one of the informants asked if he
was all right. Godbolt said yes, he was “straight.” The informant
asked if they were snitching and Godbolt said yes; people were
saying “my name is in it.” Godbolt said he was told his DNA was
found. The informant asked who had been shot and Godbolt said
it was “Florence.” The informant asked “do you got a feeling of
which one is the bitch, which one is the snitch,” and Godbolt said
13
yes. Godbolt said they had his DNA and had interviewed
everybody but he wasn’t telling them anything. The informant
said, “You did right. Just listen.”
Godbolt said they found no gun. The informant asked
whose car it was. Godbolt said it was a stolen car. Godbolt said
his “homey” went down for the stolen car and he knew the police
questioned him first. The informant said that Godbolt’s “crimie”
was a “bitch” (referring to Ray), and Godbolt agreed.
Referring to the August 8 incident involving Ray, Godbolt
reported that they asked him whether he was with Ray but he
said he did not remember.
The informant asked Godbolt whether he was with Ray
“when they did the shit in that other car.” Godbolt said yes.
(This may have been the first reference to the August 19
shootings.) The informant said, “Oh, my God.” Godbolt said they
did not get the gun because he got rid of it.
Godbolt said the murder was five months ago. He
confirmed Ray was there also. Godbolt said: “All three—all four
of us. The girl—the girl was with us in that car.” The informant
asked: “All four of you are up on in here?” Godbolt said yes.
Godbolt said they had been investigating the murder for six
months and had “seen the stolen car . . . they see the stolen car
hit the corner of the same block of this murder, so that’s how they
got the license plates, and they knew it was a stolen car.”
The informant said you never know “which one is telling,”
and Godbolt said he knew who was telling. Godbolt said when
people get caught for murder, they start naming. The informant
said that they knew everybody who was there. Godbolt agreed.
Godbolt said that the gun had been found in Ray’s car.
14
The informant asked what kind of gun Godbolt was
shooting. Godbolt said it was a Glock 17 but he threw it away.
The informant asked how many people had gotten shot. Godbolt
replied that somebody died. He went on to say: “I hit somebody
for sure. I hit somebody for sure that night.” The informant said,
“Damn.” Godbolt said, “I think one person died.” The informant
wanted to know if the police had asked about the gun. Godbolt
said that “all they got of me being in the car. That’s not good
enough evidence. I could have been in the car a day before that.”
Godbolt now related what happened to Ray later on the day
of the shooting, i.e., when he was arrested in possession of the
stolen Honda and was found to be in possession of the gun that
was determined to have been used in the shooting. The
informant suggested that Ray had asked for a deal, and Godbolt
agreed.
The informant said if Godbolt ran into Ray, “you’re going to
fuck him up.” Godbolt said yes, and the informant said he would
“beat the dog shit out of him.”
The informant said that it was likely that Ray had told the
police what everybody was shooting with. Godbolt said that they
had “ARs, revolvers, Glocks.” Godbolt said that “it was more
than one gun shot when we all was in the car because we all had
a burner . . . everybody had a pistol.” Godbolt volunteered the
fact that Wise’s gun jammed.
Godbolt said: “The girl was driving. That girl was driving.
Me and cuz, we were hanging out the window. We all hanging
out the window.”
The balance of the recording contains nothing of note.
15
7. Ray’s jailhouse statement
Ray was questioned on January 17, 2018. In the course of
questioning outside the cell, Ray was told that the police had his
DNA in a stolen car and that a witness had stated that he
committed the shooting on August 8. These were lies. Neither
statement was true. Ray was also shown a fake photo lineup
with his photograph circled. Ray denied involvement in both the
August 8 and August 19 shooting.
The session with the informant opened with the informant
saying that “they can’t just add-charge you, nigger,[15] for some
bull. What you in here for?” After the informant told him he
looked 17 years old, Ray said he was 18. Ray repeated that the
upcoming interview could turn “into a add-charge,” which had
him “hot.” The informant said he was in jail because of a gun.
Ray said he was there for a home invasion and they were
trying to “give me life. I can’t take it.” Ray identified himself as
being from 76 East Coast. The informant said he was from
Chicago.
The informant told Ray that “they fucking you all up, n***.
They fucking you all youngsters these days, my n***.”
__________________________________________________________
15 We exercise restraint in using this offensive term.
However, inclusion of this term is necessary as it does illustrate
and demonstrate the effectiveness of the informant in making
himself appear to be close with the defendants. The informants
use of this expression was intended to create an alliance—an “us-
against-them” dynamic. Nevertheless, we shall insert *** where
that word was used in the singular or plural tense in the balance
of the opinion in order to delete literally what we understand can
be viewed as offensive.
16
Camarillo entered at this point. He introduced himself and
asked Ray if he knew that Camarillo and his partner were
coming. Ray said he didn’t know, and Camarillo explained that
he was from homicide and needed to “chop it up with you about a
couple of things” and that he would explain everything to Ray.
Camarillo evidently then left the cell.
The informant told Ray that somebody was “doing this”
since Ray had been in jail for three months and they were now
coming to talk to him. Ray was in segregation (“K-4”). The
informant said that “one of your n*** ain’t solid.” Ray: “I can’t
handle—I can’t hold it. Fuck, I can’t hold that. I can’t handle
that. N*** be fighting murders for five years. That’s out.” The
informant asked Ray if his “n*** are silent,” and Ray said no. The
informant: “On a homicide?” Ray: “I don’t fucking know.” The
informant told Ray he was young and that he hadn’t “even seen
life yet.” Ray said he was being kept away from his n***.
The informant told Ray that they would “try to hit you
young n*** upside the head, n***, blindside.” Ray: “It got to be
my crimie then.” The informant said that “n*** ain’t solid” and
that the closest one to Ray would be the “first one to tell.” Ray:
“They cannot add charge. I pray to God. Please, God, please.”
The informant: “I’ll tell you don’t even talk to these
motherfuckers.” The informant advised Ray to talk to the police
in order to find out what was going on.
Camarillo entered the cell and told Ray that they were
waiting for an interview room and that the wait should not take
long. Camarillo added: “Your name came up in a murder, so
we’ll see how it goes. Okay?” Ray: “All right.” Camarillo left the
cell.
17
The informant asked how Ray’s name came up in a murder.
Ray wondered how his name came up and went on to say that
there would probably be add-charges. The informant told him to
sit back and think about what the police would be talking about
and that he better be using his brain.
The informant said that the police could have DNA and
that it wasn’t necessarily a person who put his name to a murder.
On the other hand, the informant said, you never know that it
could be someone who was throwing him under the bus to get a
sweet deal. When asked with whom Ray has a beef, Ray said he
“didn’t beef.” The informant said that when the police was acting
like Camarillo, they had something. He asked Ray if anyone he
knew got “laid down.” Ray said no, he didn’t want an add-charge.
Ray was taken out of the cell for the interview with Camarillo.
Back in the cell, Ray told the informant that he was told
they had his DNA and that he would be charged. The police said
they had talked to people in jail and on the outside. But the
police said that they couldn’t tell him “stuff” if he didn’t tell them
“stuff.” The police said Ray was the last person they talked to.
The informant told Ray that the police knew a lot more than they
were telling him.
Ray said the police had a lineup and they “circled my face.”
But the informant said that if the police didn’t have it, they
would not file on him. Ray agreed.
The informant asked if they had shown him pictures. Ray
said they had shown the car driving away. The informant asked
Ray if he was in the car but didn’t wait for an answer. He went
on to say that someone was telling on Ray. The informant said
he was 44 years old and experienced and the police were trying to
railroad Ray.
18
They then discussed that Ray was being kept away from
his “crimie” and this meant that his crimie was telling on Ray.
The informant said that the police were trying to railroad
him and somebody was telling on him.
The informant said that he was going to try and give Ray a
scenario “to get to flip it around.” He asked whether “they” were
Mexicans.
The informant asked if the police had found the car. Ray
said yes, “they got the car.” The informant said, “Go with self-
defense.” Ray said the police had his DNA in the car. Every
name the police had was in jail.
The informant criticized Ray for not wearing gloves. Ray
said they were going to file because of the snitch but Ray did not
say anything to the police. The informant said there were ways
“you can go around it.”
An officer came into the cell to get Ray’s fingerprints.
When Ray asked, the officer said that he was being charged with
“187 P.C. murder.”
The informant said that the man was snitching. That’s
why he was asking whom they were shooting. Ray said they
were walking down the street and “didn’t shoot back” because
they “didn’t have a chance.” The informant told Ray he would
“need to switch the story all the way up.” The informant:
“Listen, that’s why I’m asking you how—how did it go down, my
n***, so I could tell you how to switch it up.” Ray: “We just pulled
up on them and started smacking16 on them and then drove
off . . . they were on bikes. They was coming down the street and
__________________________________________________________
16 This means shooting.
19
they hit the corner, and we was going like this. I busted a U-turn
and, ‘Boom,’ got on them.”
The informant now advised Ray what to do: “This is what
you do. You all go to court with this shit. Well, they filed on you.
You all go to court. You already know it’s the n*** telling on you.
So you think they’re going to look at you different if you—you all
switch on him? You see what I’m saying? N***, the is telling on
you, period. [¶] Hold on. N***, I’ll switch it up. I’ll be like, ‘N***
going down the street. They get off. I’m driving. I tried to
swerve. The next thing you know, this dumb-ass n*** hanging
out the window getting off.’ [¶] You just said you was driving,
right? The n***—the n*** who is snitching, if he was smacking,
obviously he wasn’t driving, right? Nine times out of ten, they
ain’t supposed to be looking at the driver for shooting, my n***. If
you’re driving, but you got to look out where the fuck you’re
going, right? [¶] You didn’t even know the n*** was about to get
off. You hit the corner. Now this guy is tripping. They get off.
You all getting—this n*** get off out there. You ain’t know the
motherfucker is about to get off. (INAUDIBLE.) You all just
need to sit down and get you all shit together because as of right
now it’s looking bad for you all, my n***. You all need to us [sic]
that shit as self-defense or something, but how are you going to
get to this n*** that’s a keep-away?” The informant elaborated
on this advice by adding that Ray should say that he was made to
drive the car.
A colloquy followed about where Ray’s confederate was.
The informant asked Ray whether he got rid of the gun.
Ray said he did not have it in his possession, it was in the car.
Nothing of note transpired during the remainder of this
session.
20
8. Gang evidence
The East Coast Crips is one of the largest African-
American gangs in the country with around a thousand members.
Florencia 13, a predominantly Hispanic gang, has around two
thousand members and is the East Coast Crips worst enemy.
The war between these two gangs is particularly bloody and is
considered the biggest gang war in Los Angeles.
There is no dispute that all three appellants were active 76
East Coast Crips gang members.
Evidence was admitted that showed that Godbolt and Ray
had committed robberies of other victims on July 20, 2017, and
August 9, 2017.
DISCUSSION
Appellants contend that their jailhouse statements should
have been excluded because the statements were not voluntary
and violated their constitutional rights protected by Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda). Respondent contends
that the statements were voluntary and relies on Perkins, supra,496 U.S. 292, to support its position. We begin with Perkins since
it is basic to the three appeals before us.
I. Illinois v. Perkins
Richard Stephenson was murdered in November 1984 in
East St. Louis, Illinois. The murder remained unsolved until
March 1986 when Lloyd Perkins related the details of
Stephenson’s murder to fellow inmate Donald Charlton at the
Graham Correctional Facility. (Perkins, supra, 496 U.S. at
p. 294.) Charlton told police about Perkins and Stephenson’s
murder but Perkins had been released by the time the police
heard Charlton’s account. However, the police were able to trace
Perkins to a jail in Montgomery County in Illinois. The police
21
placed undercover agent John Parisi along with Charlton in the
cell with Perkins with instructions to engage Perkins in
conversation and report anything he might say about the
Stephenson murder. (Id. at pp. 294–295.) In the course of a
discussion between the three men in the jail cell about a possible
breakout from the jail, Parisi asked Perkins if he had ever “done”
anybody. Perkins then described in detail the Stephenson
murder. Parisi did not give Perkins the Miranda warning before
the conversation that led to the account of the murder. (Id. at
p. 295.)
Perkins was charged with murder and before trial moved to
suppress the statement made to Parisi. The trial court granted
the motion and the Appellate Court of Illinois affirmed, holding
that Miranda prohibits all undercover contact with incarcerated
suspects that are reasonably likely to elicit an incriminating
response. The United States Supreme Court granted certiorari
and reversed. (Perkins, supra, 496 U.S. at pp. 295–296.)
The issue, as Perkins defined it, was whether “an
undercover law enforcement officer must give Miranda warnings
to an incarcerated suspect before asking him questions that may
elicit an incriminating response.” (Perkins, supra, 496 U.S. at
pp. 295–296.)
In answering in the negative, the court focused on what
“custodial interrogation” means under Miranda. In short, it
means questioning initiated by law enforcement officers after a
person has been taken into custody. (Perkins, supra, 496 U.S. at
p. 296.) The court explained why questioning by cell mates is not
the same as questioning by a police officer:
“It is the premise of Miranda that the danger of
coercion results from the interaction of custody and
22
official interrogation. We reject the argument that
Miranda warnings are required whenever a suspect
is in custody in a technical sense and converses with
someone who happens to be a government agent.
Questioning by captors, who appear to control the
suspect’s fate, may create mutually reinforcing
pressures that the Court has assumed will weaken
the suspect's will, but where a suspect does not know
that he is conversing with a government agent, these
pressures do not exist. The state court here
mistakenly assumed that because the suspect was in
custody, no undercover questioning could take place.
When the suspect has no reason to think that the
listeners have official power over him, it should not
be assumed that his words are motivated by the
reaction he expects from his listeners.
“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.)
The court concluded that a law enforcement officer posing
as a cellmate need not give Miranda warnings to an incarcerated
suspect before asking questions that may elicit an incriminating
response. (Perkins, supra, 496 U.S. at p. 300.)
Perkins was not a departure from precedent nor was it a
novel decision in any sense of that word, as the Perkins opinion
itself makes clear. The court noted that Hoffa v. United States
(1966) 385 U.S. 293 held that placing an undercover agent near a
suspect in order to gather incriminating information was
23
permissible under the Fifth Amendment. Deception practiced by
that undercover agent did not affect the voluntariness of the
statement. (Perkins, supra, 496 U.S. at p. 298.) Nor was
Massiah v. United States (1964) 377 U.S. 201 implicated since, as
in the appeals at bar, no charges had been filed on the subjects of
the questioning. (Perkins, at p. 299; see also Arizona v. Mauro
(1987) 481 U.S. 520, 521, 527 [conversation with spouse is not
interrogation under Miranda].) In short, Perkins did not write on
a clean slate but rather affirmed the long-standing principle that
deceptive questioning in police investigation by an undercover
agent does not violate the Constitution.
II. THE TRIAL COURT’S RULINGS AND
THE STANDARD OF REVIEW
The trial court denied defense motions to exclude the
jailhouse statements both at the preliminary hearing17 and at a
hearing just prior to trial. In the latter hearing, the trial court
ruled that the statements were not testimonial evidence, a
hearsay exception applied, and the statements were trustworthy
because they corroborated each other. The court went on to state:
“And I think any issue of voluntariness or coercion or anything
like that really goes to the weight of the evidence rather than the
admissibility.”
In reviewing appellant’s contentions, “it is well established
that we accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by
__________________________________________________________
17 Themotion to suppress the statements was brought
under the due process clauses of the state and federal
Constitutions and the Fifth and Sixth Amendments to the United
States Constitution.
24
substantial evidence. We independently determine from the
undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.”
(People v. Cunningham (2001) 25 Cal.4th 926, 992.)
We will not disturb a ruling that is correct in law merely
because the trial court gave the wrong reason. (D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1, 19, citing Davey v.
Southern Pacific Co. (1897) 116 Cal. 325, 329.)
III. A MIRANDA WARNING WAS
NOT REQUIRED
Ray contends that the “Perkins operation was a
sophisticated set-up calculated to undermine Ray’s will and
obtain a confession.” Ray lists a number of “background” facts
and circumstances in support of this claim.18
We do not agree with the thrust of Ray’s “background” facts
that the statement that he made to the informant was the result
__________________________________________________________
18 They are that he had been arraigned in October 2017 on
numerous robbery charges; that he was 18 years old; that the
informant with whom he spoke was a 44-year-old African-
American man posing as a gang member who had been “through
the system”; that the informant’s “main psychological ploy” was
to make Ray feel betrayed by convincing him that his accomplices
had snitched on him; that Ray was laboring under the fear that
he would be “add-charged”; that Ray felt threatened by
Camarillo’s statement that he was from the homicide bureau;
that the pressure increased when Camarillo told him that they
were investigating a homicide; that an officer was sent into the
cell to get Ray’s thumbprint who told him they were charging him
with murder; that the informant aggressively questioned him
about the shooting; and that Ray finally gave in to “relentless
pressure” and confessed to the shootings.
25
of psychological coercion. We set forth in sections VII and VIII
why his statement was voluntary.
In this section, we confirm that the informant was not
required to give Ray, Godbolt, or Wise the Miranda warning.
None of these facts and circumstances, some of which are
strongly argumentative (“relentless pressure”), alter the fact that
the incriminating statements that Ray made were made to an
undercover informant and not to the police. “The danger of
coercion results from the interaction of custody and official
interrogation.” (Perkins, supra, 46 U.S. at p. 297.) None of the
“background facts” detract from the fact that the statements were
made not to the police but to an informant whose identity as a
fellow inmate had been designed to win Ray’s confidence, an
objective which the informant was ultimately successful in
achieving.
Perkins held that statements made to an undercover agent
posing as a fellow inmate are not subject to Miranda. The law on
this is clear, even without Perkins. California courts, including
our Supreme Court, have held that there is no interrogation for
Miranda purposes when there is no official police interrogation.
(E.g., People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 283 [no
Miranda violation where defendant spoke to fellow inmate and
gang member, who wore recording device, while both were being
transported in sheriff’s van]; People v. Tate (2010) 49 Cal.4th 635,
685–686 [no interrogation in case of possible
accomplice/accessory]; People v. Mayfield (1997) 14 Cal.4th 668,
758 [father]; People v. Williams (1988) 44 Cal.3d 1127, 1141–1142
[Miranda “has never been applied to conversations between an
inmate and an undercover agent”; coercive atmosphere of
custodial police interrogation is absent]; People v. Webb (1993) 6
26
Cal.4th 494, 526 [no Miranda violation where defendant’s
girlfriend elicited incriminating statements during telephone
conversations]; People v. Guilmette (1991) 1 Cal.App.4th 1534,
1540 [no Miranda violation where defendant telephoned victim,
who was acting as police agent, and made statements to her];
People v. Jefferson (2008) 158 Cal.App.4th 830, 840–841 [friend].)
The “background” facts do not detract from the principle
that at no time was the informant required to give Ray the
Miranda warning.
IV. THE TRIAL COURT DID NOT FAIL TO RULE ON
THE VOLUNTARINESS OF RAY’S STATEMENT
Ray contends that the trial court abdicated its duty to rule
on the voluntariness of Ray’s statement.
In denying the defense motions to exclude the jailhouse
statements, the trial court stated, “I think any issue of
voluntariness or coercion or anything like that really goes to the
weight of the evidence rather than the admissibility.”
The trial court twice denied defense motions to exclude the
jailhouse statements. It would hardly have done so, had the
court been of the opinion that the statements were involuntary.
Thus, the denials of the motions to exclude the jailhouse
statements subsumes the decision that the statements were
voluntary, especially since the defense contention was that the
statements were not voluntary. We conclude that the trial court’s
denial of the defense motions to exclude the jailhouse statements
necessarily included a finding that the statements were
voluntary. (In re Ins. Installment Fee Cases (2012) 211
Cal.App.4th 1395, 1429 [the meaning of a court order is a
question of law within the ambit of the appellate court].)
27
It is also true, as respondent points out, that at another
juncture, when appellants revisited the issue of the voluntariness
of their statements to support their request for discovery of
information about the informant, the trial court stated that it had
listened to the recordings of the statements and “there doesn’t
sound to me to be any type of intimidation. It sounded, if I could
characterize it, it was conversation.”
A statement is either voluntary or involuntary. That
voluntariness goes to the weight of the evidence is therefore
wrong as an abstract proposition. However, in the context of the
ruling denying the motions to exclude the statements (which
necessarily meant that the statements were voluntary), what the
court must have meant is that the statements were persuasive
because they had been volunteered, i.e., they were to be accorded
weight because they had been volunteered.
In any event, what is before us is the denial of the motion
to exclude the jailhouse statements, not the reason(s) for the
ruling. If one of the reasons for the ruling was in error, we will
disregard that reason. (D’Amico v. Board of Medical Examiners,
supra, 11 Cal.3d at p. 19.)
Without bothering to explain why this ruling was
prejudicial error, Ray complains about the fact that the trial
court excluded 13 pages of the transcript of the recording of his
jailhouse statement.19 Ray contends that the deleted pages show
that the informant spoke to Ray for a long time before Ray
confessed to the shooting, rather than Ray immediately
confessing. The trial court deleted the pages in question because
they contained material that incriminated Ray with other
__________________________________________________________
19 The deleted pages are at clerk’s transcript 986–999.
28
charges. That was reason enough to delete these pages. The
court’s ruling was a sound exercise of its discretion. (See People
v. Cox (2003) 30 Cal.4th 916, 955.)
V. RAY’S STATEMENTS TO THE INFORMANT DID
NOT VIOLATE MIRANDA
At some point while being questioned by Camarillo, Ray
said that if there were any more questions, the police should
contact his attorney. Camarillo discontinued the questioning and
returned Ray to the jail cell.
Ray contends that questioning by the informant after this
was precluded by Miranda because the purpose of Miranda is to
“act as a check against coercive police activity.”
In People v. Orozco (2019) 32 Cal.App.5th 802, 806–807
(Orozco), baby Mia was left by her mother, Nathaly Martinez
(Martinez), in the charge of Mia’s father and Martinez’s
boyfriend, Edward Orozco. Thereafter, Mia died of blunt force
trauma administered by Orozco. During Orozco’s questioning by
the police at the police station, Orozco attempted to provide a
neutral explanation for Mia’s death. Eventually, Orozco asked
for a lawyer and the police interview was terminated. (Orozco, at
pp. 807–808.)
Several hours later, Martinez and Orozco were placed by
the police in an interview room and left to themselves. (Orozco,
supra, 32 Cal.App.5th at p. 808.) Orozco initially gave Martinez
the same neutral explanation he had given the police but, after a
police officer entered the room to state that Mia had died at the
hand of another, and after Martinez and Orozco had again been
left in the interview room by themselves, Orozco ended up
tearfully confessing to Martinez that he had killed Mia. (Orozco,
at pp. 808–809.)
29
The court in Orozco concluded, after an extended analysis
of Perkins and Edwards v. Arizona (1981) 451 U.S. 477, that
“California courts have uniformly come to the conclusion 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. That was the holding of Guilmette, supra,
1 Cal.App.4th at pp. 1540–1541 and Plyler [(1993) 18 Cal.App.4th
535, 544–545].” (Orozco, supra, 32 Cal.App.5th at p. 815.)
Ray acknowledges Orozco, Guilmette and Plyler but goes on
to contend that the “Perkins operation” in this case violated one
of the main underpinnings of the Miranda warning—“to act as a
check against coercive police activity.” Orozco provides an apt
answer to this contention:
“Lastly, defendant argues that the police engaged in
a ‘persistent, underhanded attempt . . . to obtain a
confession’ by blatantly disregarding his repeated
requests for counsel and then orchestrating a tearful
confrontation with his girlfriend and the mother of
his now-dead infant. The police conduct in this case
was deplorable. [Citations.] But the question we
must decide is whether it is unconstitutional.
Miranda is not a free-floating bulwark against unfair
police tactics. Constitutional rules are anchored to
their rationales [citations], and Miranda’s rule is
moored to its purpose of ‘preventing government
officials from using the coercive nature of
confinement to extract confessions.’ [Citations.]
‘Miranda forbids coercion,’ the Supreme Court has
said, ‘not mere strategic deception by taking
advantage of a suspect’s misplaced trust in one he
30
supposes to be’ someone he can trust. (Perkins,
supra, 496 U.S. at p. 297.) To construe Miranda to
reach the noncoercive police conduct in this case is to
untether Miranda from its purpose and, in so doing,
undermine its legitimacy as one of the many
bulwarks protecting the constitutional rights of
criminal defendants. We decline to sully Miranda in
this fashion.” (Orozco, supra, 32 Cal.App.5th at
pp. 816–817.)
The point is that Miranda is not applicable if the questions
or comments that elicited a response were propounded by an
undercover agent or by a person other than a police officer or
police investigator. As Orozco put it, Miranda is not a “free
floating bulwark against unfair police tactics,” yet Ray would
have Miranda serve “as a check against coercive police activity.”
Miranda precludes coercive custodial interrogation, not all
“coercive police activity.”
VI. PERKINS DOES NOT ADDRESS, BUT ALSO
DOES NOT PRECLUDE, INQUIRY INTO THE
VOLUNTARINESS OF THE STATEMENT
Ray contends that a “close reading” of Perkins requires
inquiries whether there were “compelling influences,” whether
the statement was given freely and voluntarily, whether police
activity rose to the level of coercion, and whether the statement
was freely given. We understand this argument to be that the
court must continue to inquire into the voluntariness of
incriminating statements made to undercover agents. That
Perkins so holds is neither correct nor useful.
31
The rule that Perkins laid down is that an undercover
agent of the police is not required to give the target suspect the
Miranda warning.
The only effect of Perkins on the law governing the
admission of confessions and admissions is that an undercover
agent is not required to give the Miranda warning before
engaging the target in a conversation that is designed to elicit a
damaging statement.
Perkins does not affect a change in the jurisprudence of the
voluntariness of confessions and admissions. If the undercover
agent extracts a statement from the target by force or fear, the
target is free to pursue his claim that the statement was not
voluntary and, depending on the acts, may well prevail.
That is what happened in this case with the exception that
the appellants did not prevail. The record in this case
demonstrates that appellants contended vigorously in the trial
court that their statements were not voluntary. Thus, counsel for
Wise argued that Wise’s statement was not voluntary, that it was
the product of a coercive environment on the 18-year-old Wise,
and that the undercover agent exerted undue and coercive
pressure on Wise. Counsel also argued that Ray’s and Godbolt’s
statements were the product of a coercive environment. Godbolt
joined in Wise’s argument. Counsel for Ray argued that
“everything that the undercover [agent] said to Mr. Ray during
his lengthy conversation amounted to coercion and compulsion.”
Counsel argued that “any type of coercion or compulsion renders
a Perkins operation invalid.” Counsel requested that the court
exclude Ray’s statement as the product of “involuntary police-
dominated atmosphere.” The written defense motion on this
subject in which appellants joined claims that the undercover
32
agent “immediately begins his plan to coerce, compel, harass,
intimidate and frighten” Ray and carries this theme forward
through the entire motion.
The motions having been denied, the issue on appeal is
whether appellants’ statements were voluntary. We address this
issue in the next section.
Ray claims that some courts have construed Perkins “as
though it created a bright-line rule that any statement to an
undercover government agent cannot be the product of coercive
custody.” We are not persuaded that this observation is correct
about courts generally but, in any event, this court is not such a
court. We think the only effect of Perkins on this case was that
the undercover agent was not required to commence his
discussions with appellants with Miranda warnings.
For the same reason, we reject Ray’s claim that there is
such a thing as an “undercover agent” exception to the Miranda
rule that “enables the police to defraud a suspect into giving up
his constitutional rights through calculated delays, tricks,
disguises, and ‘stimulation’ tactics.” There is no such exception.
Appellants remained free to contend, as they did in the trail court
and as they continue to do in this court, that their statements
were not voluntary.
VII. APPELLANTS’ JAILHOUSE STATEMENTS
WERE VOLUNTARY
1. General principles
“Any involuntary statement obtained by a law enforcement
officer from a criminal suspect by coercion is inadmissible
pursuant to the Fourteenth Amendment to the federal
Constitution and article I, section 7 of the California
Constitution.” (People v. Dykes (2009) 46 Cal.4th 731, 752.) A
33
confession or statement is involuntary if it is not the product of a
“rational intellect and a free will.” (Mincey v. Arizona (1978) 437
U.S. 385, 398.) The test for determining whether a confession is
voluntary is whether the questioned suspect’s will was
“overborne at the time he confessed.” (Lynumn v. Illinois (1963)
372 U.S. 528, 534.)
“ ‘The question posed by the due process clause in cases of
claimed psychological coercion is whether the influences brought
to bear upon the accused were such as to overbear petitioner’s
will to resist and bring about confessions not freely self-
determined.’ [Citations.] In determining whether or not an
accused’s will was overborne, ‘an examination must be made of
all the surrounding circumstances—both the characteristics of
the accused and the details of the interrogation.’ ” (People v.
Thompson, supra, 50 Cal.3d at p. 166.) “A finding of coercive
police activity is a prerequisite to a finding that a confession was
involuntary under the federal and state Constitutions.” (People
v. Maury (2003) 30 Cal4th 342, 404.)
In obtaining a statement, the use of deceptive tactics is not
foreclosed. (Orozco, supra, 32 Cal.App.5th at pp. 319–320 [police
trickery in placing defendant in room with someone he trusted to
see if he would talk did not make a confession involuntary];
People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [police
trickery during an interrogation does not by itself make a
confession involuntary or violate due process; subterfuge is not
necessarily coercive in nature].)
2. Common denominators
Before examining each of the three statements made by
appellants, we identify three common denominators found in
these encounters.
34
One. The informants in each of the three encounters were
able to persuade each of the appellants that the informants were,
even if not currently active, but at least former members of
criminal street gangs. This was materially furthered by the
circumstance that at least one of the informants (there were two
in Godbolt’s case) was the same in at least two, if not possibly all
three, encounters. The assumption of the personae of a criminal
street gang member allowed the informants to voice strong
support, as they did, for the appellants in all three encounters.
In none of the three encounters did any one of the appellants
voice skepticism about the projected personae of the informants.
That is, in all three encounters the appellants were persuaded
that they were dealing with former, if not current, criminal gang
members with substantial experience in the criminal justice
system who were sympathetic to the appellants.
Two. All three appellants contend on appeal that their
statements were coerced through the application of psychological
pressure. “[C]oercion can be psychological as well as physical.”
(People v. Ditson (1962) 57 Cal.2d 415, 433.) Psychological
coercion often takes the form of implied threats (1 Witkin, Cal.
Evidence (5th ed. 2020) Hearsay, § 69, p. 878), as it allegedly did
in this case. As an example, Godbolt argues that he was afraid of
being “add-charged” with the consequences of the shootings.
The actual record of the encounters between appellants and
the informants, in which appellants accepted the informants as
sympathetic former or current criminal gang members, seriously
undermines appellants’ claim that the informants threatened
them in any way. The informants uniformly and successfully
portrayed themselves as former gangsters who were sympathetic
to appellants and who wanted to help the appellants. We return
35
to this point in our discussion of each of the three encounters
with the informants.
Three. In each of the three encounters the incriminating
statements were made by the appellants well toward the end of
the encounter. And the incriminating statements came in short
bursts, often disconnected, and in conversation with the
informants. This shows that it took some time for the informants
in each instance to gain the confidence and trust of each of the
appellants but, and this is the important point, in the end the
informants did gain the appellants’ trust and confidence. The
reason the appellants made the incriminating statements that
they ultimately made was that they believed that the informants
could be of some help to them. In other words, the reasons for the
statements were not the alleged threats but the informants’
success in presenting themselves as helpful and knowledgeable
criminal gang members.
3. Wise’s jailhouse statement was voluntary
Wise contends that he “opened up to the [informant] only
after the detectives performed on him a self-described
‘stimulation’ session designed to terrify him as being identified as
a suspect in a murder investigation.”
There is nothing in the record that supports the foregoing.
To begin with, in his interview with Camarillo, Wise denied that
he had been involved in the shooting. Even if he was “terrified,”
and there is nothing in the record that shows that he was, he
certainly kept his wits about him. This means that the threat, if
it was a threat, did not have an effect on Wise.
However, that Wise was a suspect in a murder
investigation was not a threat, it was a reality. Cases that have
invalidated confession because of the psychological pressure of
36
threats involve situations where the threatened harm is
hypothetical. (E.g., People v. Flores (1983) 144 Cal.App.3d 459,
470, 471 [threat of death penalty followed by implied promise of
more lenient treatment if defendant confessed]; People v. Denney
(1984) 152 CalApp.3d 530, 544 [threat of gas chamber if
defendant did not confess]; In re J. Clyde K. (1987) 192
Cal.App.3d 710, 720 [threat of jail].) There was nothing
hypothetical about potential charges against Wise arising from
the shootings. To say that Wise was facing charges arising from
the shootings was to state a fact, not the blandishment of some
future hypothetical harm.
It is also true that the due process clause required that
Wise be advised of the charges against him.20
Wise contends that the informant took advantage of his
relative youth by referring to himself as an “OG.” Wise contends
that this amounted to the “kind of influence a father can have
over a son.”
The context in which the informant stated he was an “OG”
does not support Wise’s contention.21 The informant was trying
to convince Wise that he, the informant, was experienced enough
__________________________________________________________
20 “Due process of law requires that an accused be advised
of the charges against him in order that he may have a
reasonable opportunity to prepare and present his defense and
not be taken by surprise by evidence offered at his trial.” (In re
Hess (1955) 45 Cal.2d 171, 175.)
21 “[The informant]: Listen, my n***. They [referring to the
police] know you was there because one of the bitch-asses,
(INAUDIBLE) my n***, I’m keeping it real. N***, I’m OG, homie.
One of your n*** is a bitch. That’s why—one of them n*** is a bitch.
Now it’s up to you to figure out which one is the hardest one.”
37
to know when someone was acting as a snitch. The informant
was not exerting any sort of pressure on Wise by referring to
himself as an OG, he was touting the value of his advice that
someone was snitching. In fact, the informant left it up to Wise
to figure out who the informant was. This was not a father figure
but rather an experienced gang member giving advice to a
younger man. There was not a smidgeon of coercion in the
informant’s reference to himself as an “OG.”
During the entire course of the exchange between Wise and
the informant, the latter presented himself as a person who
wanted to help Wise. There are at least two explicit statements
by the informant that he wanted to help Wise. Throughout the
entire exchange, the informant presented himself as someone
who knew the criminal justice system and who was putting that
knowledge to use in helping Wise.
There is not a single statement by the informant that could
be characterized as designed to overcome Wise’s “rational
intellect and free will” (Mincey v. Arizona, supra, 437 U.S. at
p. 398)—on the contrary, the informant urged Wise to “use his
mind” to figure out how he could defend himself.
There is also nothing of record that would suggest that the
police, including detective Camarillo, engaged in conduct that
was coercive. On the contrary, the interview started with offers
of food and drink by the police, and whenever Camarillo
appeared, he was low key and even polite. What the entire
course of the exchange between the informant and Wise reveals is
that the informant had established himself as a trustworthy
criminal veteran of the criminal justice system (trustworthy at
least as far as a gang member like Wise was concerned) and that
38
he could be trusted with information about the problem that Wise
was facing.
Wise’s eventual acknowledgment of his participation in the
shooting was a voluntary response to the informant’s skillful
portrayal of an old gang member who wanted to assist Wise in
the situation in which Wise found himself.
4. Godbolt’s statement was voluntary
Godbolt states he was aware of the fact that the police were
considering an “add-charge.” However, this appears to have
made no impression on him for when one of two informants
stated that Godbolt could be facing new charges, Godbolt
responded by saying, “I ain’t going to say shit.” The additional
charges arising out of the shooting were a reality22 and not a
threat of a hypothetical fact. In any event, Godbolt was not
moved by it.
Godbolt ascribes evil motives to the informants. He
contends that the informants urged him to sit through the police
interview in order to expose him fully to the “stimulation” of that
interview; that the informants kept suggesting that someone was
snitching; that the informants’ questioning led Godbolt to
conclude that Ray was snitching; and that his DNA had been
found in the vehicle.
Even if these accusations are treated as accurate and true,
they do not amount to coercive conduct. None of these
statements by the informants were made with the stated
expectation that Godbolt would confess to any crimes. At most,
these statements amount to bad advice. Be that as it may, we do
__________________________________________________________
22 Wise had placed Godbolt on the scene of the shooting.
39
not agree that the informants’ statements were threatening, a
subject to which we return below.
Godbolt contends that the “police used the tactics of false
evidence and a manipulative, well-compensated informant to lead
Godbolt down the path to a confession.” Leading someone down
the path to a confession is not the same as coercing a confession
by impermissible threats. “[I]ntellectual persuasion is not the
equivalent of coercion.” (People v. Ditson, supra, 57 Cal.2d at
p. 433.) If Godbolt contends that he was persuaded by false
evidence and the informant, he may well be upset about that but
persuasion does not amount to coercion.
Godbolt’s characterization of the informants’ statement as
coercive is mistaken. As a review of the actual conversation
between the informants and Godbolt shows, up to the time that
Godbolt returned from the interview with Camarillo, the
conversation was quite lengthy and meandered over various
topics, some of which were neutral, such as Godbolt’s current
lawyer and the possibly “sweet deal” that Godbolt might expect to
get. The informants certainly did not come across in that
conversation as directive or hectoring. It was only upon Godbolt’s
return from the interview with Camarillo, that the talk turned to
the shooting and then only in bits and pieces and in the course of
the conversation with the informants. Until the very end, the
informants held out as sympathetic listeners who thought that
someone, very possibly Ray, was acting as an informant to
Godbolt’s detriment.
Godbolt’s eventual incriminating statements made to the
informants were voluntary responses to the conversation
maintained by the informants.
40
5. Ray’s statement was voluntary
Ray contends that his fear of being “add-charged” was used
as a coercive tactic both by the police and the informant.
Wise had identified Ray as the person in the car from
which the shots had been fired. There was therefore no doubt
that Ray would be charged as a participant in the shooting. That
there would be “add-charges” was therefore a fact and not a
hypothetical threat that the police had no right to make. The due
process clause required that Ray be advised of the charges
against him. (In re Hess, supra, 45 Cal.2d at p. 175.)
It is perfectly understandable that Ray would be very
concerned about being charged as a participant and/or actor in
the shootings. As a participant in one homicide and four
attempted murders, he had every reason to worry. The question
is whether that concern translates into invalidating his
confession made toward the end of this encounter with the
informant.
The answer of course is no. A criminal actor’s reasonable
apprehension about the consequences of his misdeeds does not
invalidate his confession.
Ray contends that the informant “pressured [Ray] to tell
what happened and finally wore Ray down with his leading
questions that fed Ray facts to affirm or correct.” Ray’s
imaginative rendition of the informant’s role omits to mention
that the informant was trying to put together a story for Ray that
would exonerate Ray.
Thus, the informant: “Listen, that’s why I’m asking you
how—how did it go down, my n***, so I could tell you how to
switch it up.” Now came Ray’s fateful confession: “We just pulled
up on them and started smacking on them and then drove off.”
41
What the informant meant by “switch[ing] it up” was made
immediately clear when the informant advised Ray, at some
length to claim that he was only the driver of the car and that he
had no idea that the others intended to shoot the people on the
bicycles. In other words, the informant validated that his chosen
role was to assist Ray.
Ray also claims that his confession was the result of the
informant’s “skilled cross-examination-type questioning.” We do
not agree that Ray confessed because the informant was a skilled
questioner. Ray confessed because he trusted the informant to
give him advice about how to deal with the charges Ray was
facing. Be that as it may, effective cross-examination is not the
same as impermissible psychological coercion sufficient to
invalidate a confession.
Citing two out of state cases decided by intermediate
appellate courts, Ray contends that Camarillo’s reliance on false
documents should invalidate Ray’s ultimate confession made to
the informant.
Resort by the police to deception is not a subject favored by
reviewing courts. In one of two venerable cases on this subject
that seem to have stood the test of time, the California Court of
Appeal has deplored such tactics as morally unjustified and not
commendable (People v. Connelly (1925) 195 Cal. 584, 597; see
also People v. Castello (1924) 194 Cal. 595, 602) but nevertheless
permissible as not invalidating an ensuing confession. We agree
with Connelly and with Witkin who writes that cases in other
jurisdictions holding fraudulently obtained confessions in
admissible “usually involve something more than fraud.”
(1 Witkin, Cal. Evidence (5th ed. 2020) Hearsay, § 71, p. 879,
42
citing inter alia Leyra v. Denno (1954) 347 U.S. 556 and Massiah
v. United States, supra, 377 U.S. 201.)
Ray confessed to the informant because he believed that
the informant could help him if the informant knew the facts.
Resort to deception by Camarillo, while not commendable in the
abstract, did not invalidate the eventual confession since it is not
likely to have led to an untrue statement (In re Walker (1974) 10
Cal.3d 764, 777) nor was it the proximate cause of the confession.
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1240
[misrepresentation not proximate cause of the confession].) Ray
would not have confessed if he did not trust the informant.
Camarillo’s resort to false documents was not the proximate
cause of the eventual confession made in conversation with the
informant.
While Ray exhibited substantial apprehension about the
charges he was facing which, as we have noted, was perfectly
reasonable, the topics that dominated the conversation was who
was snitching and how Ray should react to charges that he was
involved in the shootings. On the latter subject, the informant
clearly placed himself in Ray’s camp, noting that the police were
trying to railroad Ray. That the informant was there to help Ray
was made clear when he told Ray before the latter’s confession
that he would advise Ray to “flip it around,” an offer on which the
informant certainly followed up, as we have noted.
As with Wise and Godbolt, Ray’s eventual confession was
the result of the informant’s successful portrayal of a criminal
gang member who was there to help Ray. It was a voluntary
statement.
43
VIII. THE “STIMULATION” TACTIC
WAS NOT A VIOLATION OF DUE PROCESS
Appellants contend that the due process clause was
violated by the “coercive police activity” that produced the
incriminating statements. Each of the appellants claims that the
“stimulation” tactic of interrupting the encounter with the
informant by a police interview was impermissible and improper.
The procedure dubbed by Camarillo as a “stimulation”
wherein he interrupted the encounters with the informant by
police interrogation may or may not have been novel. In any
event, we find no prior recorded instance of this tactic in the
cases. The question is whether this “stimulation” tactic violated
due process.
“For all its consequence, ‘due process’ has never
been, and perhaps can never be, precisely defined.
‘[Unlike] some legal rules,’ this Court has said, due
process ‘is not a technical conception with a fixed
content unrelated to time, place and circumstances.’
Cafeteria Workers v. McElroy, 367 U.S. 886, 895.
Rather, the phrase expresses the requirement of
‘fundamental fairness,’ a requirement whose meaning
can be as opaque as its importance is lofty. Applying
the Due Process Clause is therefore an uncertain
enterprise which must discover what ‘fundamental
fairness’ consists of in a particular situation by first
considering any relevant precedents and then by
assessing the several interests that are at stake.”
(Lassiter v. Department of Social Services of Durham
County, N.C. (1981) 452 U.S. 18, 24–25.)
44
Given that this particular tactic has not been the subject of
an appellate opinion, we examine the interests involved.
The governmental interest, shared by the population at
large, in the investigation of the criminal acts that occurred here
is both clear and substantial. The identification and
apprehension of the person or persons who unleashed an
indiscriminate fusillade of gunfire on a public street is an
important objective, if only to prevent the recurrence of such a
dangerous event. Thus, the governmental interest in the
investigation of such an event is entitled to be accorded
substantial weight.
The suspects’ interest is that their rights, both
constitutional and statutory, remain protected and are not
infringed. We have discussed above the fact that the statements
made by the appellants to the informants were voluntary. It is
also true that in each of the police interviews with the appellants
they were accorded their rights under Miranda and chose not to
make statements to the police. Thus, the balance between the
governmental interest in the investigation and the maintenance
of appellants’ rights favors the former since there was no
violation of appellants’ rights.
While appellants’ claim that the “stimulation” tactic was
coercive, there is nothing fundamentally unfair or coercive about
the police interrupting a jailhouse conversation with an
informant with a police interview. Within reasonable parameters
that were not violated here, the police are surely entitled to
conduct suspect interviews at times selected by the police. That
the interruption worked out as the police thought it might does
not render the interruption unfair or unconstitutional.
45
We are presented with an important governmental interest
in the investigation of the instant crimes and with the fact that
the appellants’ rights were not violated. Under these
circumstances, we see no violation of due process.
We conclude that the “stimulation” tactic employed by
Camarillo did not violate the state or federal Constitutions.
IX. THE INFORMANT DID NOT VIOLATE THE DUE
PROCESS CLAUSE WHEN HE PORTRAYED
RAY AS A SNITCH
Ray contends that the informant violated the due process
clause when he portrayed Ray as a snitch to Godbolt and when he
uttered threats against Ray.
This argument seems predicated on the unwarranted
assumption that the informant was there to teach Sunday school.
Not so. As we have pointed out, deceptive tactics are not
foreclosed. (Orozco, supra, 32 Cal.App.5th at pp. 319–320; People
v. Chutan, supra, 72 Cal.App.4th at p. 1280.) The informant’s
portrayal of Ray as a snitch was a deception. If Ray’s argument
is that the process that he was due was nothing but the truth
from the informant, the police may as well say farewell to
informants and confidential agents. It is unfortunately the very
nature of undercover investigation that it is deceptive. There is
no law or constitutional provision that required the informant to
be truthful and transparent.
That the informant egged Godbolt on to assault Ray is an
exaggeration. Once the informant was launched on describing
Ray as a snitch, the informant necessarily had to maintain his
bona fides as a gang member by voicing outrage that was
appropriate in the case of snitches generally and Ray in
particular. In fact, as Ray acknowledges, the informant
46
eventually watered down the hard words about Ray by advising
Godbolt to leave “these n*** alone” and “f-with them no more.”
X. APPELLANTS’ STATEMENTS
WERE NOT TESTIMONIAL
Appellants contends that their statements were testimonial
and should therefore have been excluded.
Crawford v. Washington (2004) 541 U.S. 36, after tracing
the history of the Sixth Amendment’s confrontation clause [in all
criminal prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him] (541 U.S. at pp. 43–
50), held that the clause applies to witnesses who testify against
the accused, i.e. to “ ‘testimonial’ statements.” (541 U.S. at p. 51.)
Finding that the confrontation clause applies not only to in-court
testimony but also to out-of-court statements (541 U.S. at pp. 49–
50), the court described various types of “testimonial”
statements: “ ‘ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially’ [citations] . . .
‘[s]tatements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.’ ” (541 U.S. at pp. 51–
52.) The court concluded that “statements taken by police officers
in the course of interrogations are also testimonial under even a
narrow standard.” (541 U.S. at p. 52.)
Given this background, the United States Supreme Court
has held that statements made unwittingly to a government
informant are not testimonial. (Davis v. Washington (2006) 547
U.S. 813, 825, citing Bourjaily v. United States (1987) 483 U.S.
47171, 181–184.) This makes sense since, in the usual setting of
such communications, there is no expectation whatever by the
declarant that the statement would be used at trial.
California has followed the federal lead. In People v. Arauz
(2012) 210 Cal.App.4th 1394, 1399, the defendant was placed in a
cell next to a paid confidential informant, as in this case. The
conversation between the defendant and the informant was
surreptitiously recorded. The defendant’s incriminating
statement was admitted into evidence. The court held the
defendant’s statement to be nontestimonial. (Id. at pp. 1401–
1402.) The court explained:
“Federal courts have repeatedly held that statements
unwittingly made to an informant are not
‘testimonial’ for confrontation clause purposes. (U.S.
v. Tolliver (7th Cir.2006) 454 F.3d 660, 665; U.S. v.
Underwood (11th Cir.2006) 446 F.3d 1340, 1347–
1348; U.S. v. Hendricks (3d Cir.2005) 395 F.3d 173,
182–184; U.S. v. Saget (2d Cir.2004) 377 F.3d 223,
229–230; U.S. v. Smalls (10th Cir.2010) 605 F.3d 765,
778 [prisoner’s recorded statement to a fellow
prisoner who was actually a government informant is
‘unquestionably nontestimonial’].) We agree with the
rule and rationale of these cases. We hold that
statements unwittingly made to an informant are not
‘testimonial’ within the meaning of the confrontation
clause. The last thing [defendant] expected was for
his statement to be repeated in court.” (People v.
Arauz, supra, 210 Cal.App.4th at p. 1402.)
48
Nontestimonial evidence is subject only to the traditional
limitations upon hearsay evidence and does not implicate the
Sixth Amendment right of confrontation. (People v. Arauz, supra,
210 Cal.App.4th at pp. 1401–1402.) Reviewing courts have
followed Arauz. (People v. Gallardo (2017) 18 Cal.App.5th 51,
67–68; see People v. Almeda (2018) 19 Cal.App.5th 346, 362–363.)
Ray contends that Arauz and Gallardo were wrongly
decided because these decisions give insufficient weight to facts
showing that the primary purpose of the conversations with the
informants was to create an out-of-court substitute for trial
testimony. While it is true that the United States Supreme
Court has held that one must look to statements and actions of
both the declarant and the interrogator (Michigan v. Bryant
(2011) 562 U.S. 344, 367–368), we do not think that this case
provides the necessary factual predicate for Ray’s contention.
In this case, it is clear that Camarillo was acting as an
investigator of the homicide. As Camarillo testified, before he
interrogated Wise, he had “no idea if Branden Wise was involved
in my current murder investigation. I had no information
indicating that he was involved in that investigation. . . . So I
used the Perkins operation to see if I was on the right track or
possibly lead me in the right direction.” Thus, as the “Perkins
operation” got under way, the case was not at the stage where the
police had any reason to think that they were even near to
obtaining incriminating statements for trial purposes. While
Ray’s argument makes an interesting point in the abstract, there
are no facts in this case that support it. The diffuse, wide-
ranging and free-flowing conversations between the informants
and the appellants were not the equivalents of police
interrogation. Certainly, it could be said of this case, as it was
49
said in Arauz, that the last thing appellants expected was for
their statements to be repeated in court.
We conclude that appellants’ statements were not
testimonial.
XI. APPELLANTS’ STATEMENTS WERE
DECLARATIONS AGAINST PENAL INTEREST
Appellants contend that their statements were not against
their penal interest.
Statements that are otherwise hearsay that can subject the
declarant to criminal liability are admissible as declarations
against interest. (Evid. Code, § 1230; People v. Samuels (2005) 36
Cal.4th 96, 120.) The trial court’s ruling admitting such a
statement is reviewed for abuse of discretion. (People v. Lawley
(2002) 27 Cal.4th 102, 153.)
Appellants claim that their declarations were not against
their penal interests because their statements were made to
impress the informant who identified himself as a person with
connections and influence in the Black gang structure in and
outside of jail.23
The flaw in this argument is that appellants’ convictions for
murder and attempted murder rest largely on their confessions
and admissions. It is difficult to see how the jury could have
convicted them without those statements. Thus, Wise admitted
that he tried to shoot but the gun jammed, Godbolt said he hit
somebody for sure, and Ray stated that they were shooting.
__________________________________________________________
23 Interestingly, Ray writes that the informant “made it
clear to these teenagers that he was in a position to advise and
help them.” That is certainly true but it runs counter to
appellants’ earlier argument that the informant was there to
threaten them.
50
These confessions were central to their convictions and thus were
certainly against their penal interest. The jury obviously did not
interpret appellants’ statements to the informant as nothing but
idle boasting.
Appellants contend that some of their statements were not
against their penal interests in that they implicated others and
not the declarant. Appellants seek to invoke the rule that a
hearsay statement that is in part inculpatory and in part
exculpatory is not admissible under this hearsay exception.
(People v. Duarte (2000) 24 Cal.4th 603, 612.)
Ray contends that these statements were not inculpatory:
Wise’s statement that Ray was driving the stolen car; that Sierra
was seated in the front seat; and that Ray and Godbolt were the
shooters did not implicate Wise; Godbolt’s statement that Ray
was the “main one”; that Ray was arrested for the stolen Honda;
and the guns used by Ray and Wise were in the stolen Honda
when Ray was arrested did not implicate Godbolt.
Godbolt contends that Wise’s statement that Godbolt was
the shooter and had a .9-millimeter gun were not against Wise’s
penal interest.
Wise claims that Godbolt’s statement that there were four
people in the car and that Wise did not shoot because the gun did
not work was not against Godbolt’s penal interest.
We do not agree with the claim that appellants’ statements
were exculpatory. Each of the statements claimed to be
exculpatory were inculpatory in that they showed that the person
making the statement was present on the scene of the shooting.
That is certainly inculpatory. That is also true of the statement
that the Honda was a stolen car since it showed knowledge about
the car that was used in the shootings.
51
Ultimately, each of the appellants acknowledged in some
way their participation in the shootings and none of them tried to
shift responsibility to another. While Godbolt referred to Ray as
the “main one,” he acknowledged, among other things, that he
shot at least one person. That Ray was looked upon as the
principal in the shooting shows that Godbolt had first-hand
knowledge of the shooting.
The trial court’s ruling admitting the statements as
declarations against penal interest was correct; there was no
abuse of discretion.
XII. THE COURT WAS NOT REQUIRED
TO GIVE THE ACCOMPLICE INSTRUCTION
Appellants contend that the accomplice instruction
(CALCRIM No. 334) should have been given. The instruction
that the appellants claim should have been given is that “[a]ny
statement of an accomplice that tends to incriminate the
defendant should be viewed with caution.”
It is settled that the accomplice instruction need not be
given if the defendant’s statements are found to be against the
defendant’s penal interest. (People v. Brown (2003) 31 Cal.4th
518, 555–556.) This is so because the usual problem with
accomplice testimony, that it is not reliable, “is not present in an
out-of-court statement that is itself sufficiently reliable to be
allowed in evidence.” (People v. Brown, supra, 31 Cal.4th at
p. 555.) To the same effect are People v. Gallardo, supra, 18
Cal.App.5th at page 81, and People v. Jefferey (1995) 37
Cal.App.4th 209, 218.
Appellants contend that the foregoing principle does not
apply because their statements made to the informants “were not
trustworthy or made under sufficiently reliable circumstances.”
52
They contend that their memories were no longer fresh, they had
admitted to smoking marijuana at the time of the shooting and
had been in jail for months and wanted to go home.
The statements made by the appellants to the informants
were remarkably consistent when it came to relating the
circumstances of the shooting. This is certainly an indication of
the reliability of the statements and negates the suggestion that
their memories were no longer fresh. And we agree with
respondent that there is evidence that corroborates the
statements in the form of the handgun recovered from Ray that
was used in the shooting. There is also the overarching fact that
the statements were, as we have noted, declarations against
penal interests. This lends the statements credibility.
The court made the right decision in refusing to give the
accomplice instruction.
XIII. APPELLANTS’ CONVICTION OF THE
ATTEMTED MURDER OF JIMENEZ MUST BE
REVERSED
Appellants contend that their conviction for the attempted
murder of Manuel Jimenez should be reversed because it is not
supported by substantial evidence.
It is not disputed that the five people who were the victims
of the shooting were riding on four bicycles. Two of them, Orozco
and Ramirez, were on one bike that was in the lead. According to
Gastelo, they were followed by Jimenez, then Alvarez, and finally
Gastelo. However, according to Alvarez, Jimenez was behind
Gastelo.
Gastelo, Alvarez, and Orozco were able to describe the
course of the shooting in which they were clearly targets of the
53
shooters. Gastelo and Orozco described the injuries they
sustained.
Other than the fact that Jimenez was part of the group of
five and riding a bicycle, the only thing we know about Jimenez is
that he ran off on foot after the shooting started. We are not even
sure whether he was ahead or behind Gastelo.
Jimenez was never located by the police and therefore he
was never interviewed. We simply don’t know how the shooting
affected him.
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Ervine (2009) 47
Cal.4th 745, 785.) Ray contends that there was no evidence that
Jimenez was intentionally fired upon. That is, there is nothing to
show that the shooters had the specific intent to kill Jimenez.
While we have no problem with that issue when it comes to
Gastelo, Alvarez, and Orozco, there is literally no evidence that
Jimenez was a target of the shooters. That Jimenez ran off on
foot does not mean that he was a specific target of any of the
shooters. Given that a lot of bullets were flying, any sensible
person would have run off if he could, even if no one was shooting
at him.
Respondent contends that the testimony of Alvarez and
Orozco that the shooters were firing on the group of riders,
including Jimenez, was sufficient to show “that appellants fired
at Jimenez.” While there may be other crimes that were
committed simply by firing at the group as a whole, attempted
murder is a specific intent offense. There is literally no evidence
showing that Jimenez was at any time a target of the shooters.
“When a specific intent is an element of the offense it presents a
54
question of fact which must be proved like any other fact in the
case.” (People v. Maciel (1925) 71 Cal.App. 213, 218.) Absent any
evidence on the fact of appellants’ specific intent to murder
Jimenez,24 we must reverse the convictions for the attempted
murder of Jimenez.
XIV. WE DECLINE TO REMAND TO DETERMINE
THE ABILITY TO PAY FINES AND FEES
The trial court imposed fines and fees on appellants which
we enumerate below. All three appellants requested that the
court find that they did not have the ability to pay these fines and
fees. In ruling on this request, the court stated: “I’m not going to
find an inability to pay.”
Even though the ruling is somewhat ambiguous, the trial
court’s ruling can be interpreted as a finding that appellants have
the ability to pay these fines and fees. The ruling can also be
interpreted to mean that the court declined to rule on appellants’
request. However, the better view is that the court ruled that
appellants have the ability to pay. We explain below why we
decline to remand the cases for a hearing on the ability to pay.
__________________________________________________________
24 Specific intent is usually proved by circumstantial
evidence. (People v. Pre (2004) 117 Cal.App.4th 413, 420.) The
circumstance that Gastelo and Orozco were shot several times is
evidence of specific intent. Alvarez testified that the people in
the car were shooting at her.
55
1. The fines and fees imposed; the error in Godbolt’s
court security fee and criminal conviction assessment
Godbolt
The court imposed a $300 restitution fine under Penal Code
section 1202.4, a $1,360 court security fee under Penal Code
section 1465.8, and a $1,020 criminal conviction assessment
under Government Code section 70373.
Respondent concedes that Godbolt was convicted of 31, and
not 34, felonies and that the assessments under Government
Code section 70373 and Penal Code section 1465.8 should
respectively be reduced to $930 and $1,240.
Ray
The court imposed a $300 restitution fine (Pen. Code,
§ 1202.4), a court security fee of $1,440 (Pen. Code, § 1465.8), a
criminal conviction assessment of $1,080 (Gov. Code, § 70373),
and a theft crime fee of $41 (Pen. Code, § 1202.5).
Wise
The court imposed a court security fee of $1,360, a criminal
conviction assessment of $1,020, and a theft crime fee of $41.
The court deferred ruling on restitution.
2. We decline to remand the cases for a determination of
ability to pay
We note that our Supreme Court has granted review in
People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, to consider whether a trial court
must consider a defendant’s ability to pay and, if so, which party
bears the burden of proof regarding defendant’s inability to pay.
Appellants contend that the order on fees and fines should
be reversed because they were imposed without a determination
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of appellants’ ability to pay. Appellants rely on People v. Dueñas
(2019) 30 Cal.App.5th 1157.
We think the trial court’s ruling was that appellants had
the ability to pay. This was an entirely reasonable ruling in that
the restitution fines imposed were minimal, as were the balance
of the fees and fines imposed.
It is true that there was no hearing on the ability to pay.
There was solely the court’s ambiguous ruling that we have
interpreted as a finding that appellants have the ability to pay.
However, it does not follow that remanding the cases for a
hearing on the ability to pay would serve any useful purpose at
this point. The issues whether a trial court must consider a
defendant’s ability to pay and, if so, which party bears the burden
of proof regarding defendant’s inability to pay are before our
Supreme Court. Until these issues have been authoritatively laid
to rest, a hearing on these issues would serve no purpose.
Accordingly, we leave it to future postjudgment proceedings
whether appellants should have a hearing on their ability to pay.
In light of the minimal nature of the fees and fines imposed,
appellants are not going to be prejudiced by waiting for our
Supreme Court to decide People v. Kopp, supra, 38 Cal.App.5th
47, rev.gr.
XV. WE AFFIRM THE ORDER DENYNG
THE REQUEST FOR INFORMATION ABOUT
THE INFORMANT
Wise filed a motion in which he requested disclosure of
information about the informant. Ray and Godbolt joined in the
motion. The request was for tattoos, the informant’s criminal
record, if any, the contract between the police and the informant
and the informant’s history as an informant.
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After holding two in camera hearings with detective
Camarillo, the trial court denied the entire request. The court
found that disclosure of the requested information would
endanger the life of the informant. Appellants have requested
that we independently review the court’s order.
We have done so. We find the trial court’s order is based on
substantial evidence and was a sound exercise of its discretion.
We affirm the order.
DISPOSITION
Appellants’ convictions for the attempted murder of Manuel
Jose Jimenez are reversed. Appellants’ cases are remanded with
directions to enter new sentences that reflect the reversal of the
convictions for the attempted murder of Manuel Jose Jimenez. In
the instance of each appellant, the sentence is to be reduced by a
term of 15 years to life imprisonment.
The judgment as to Godbolt is to be corrected to provide for
a court security fee of $930 under Penal Code section 1465.8 and
a criminal conviction assessment of $1,240 under Government
Code section 70373.
The superior court is directed to correct the following errors
in the abstracts of judgment: (1) In Godbolt’s abstract, the
number of determinate years is to be reduced from 252 to 250
(abstract, p. 1, para. 6) and is to be further reduced by 15 years to
reflect the reversal of the judgment for the attempted murder of
Manuel Jose Jimenez; (2) in Godbolt’s abstract, in all but the 25
robbery counts, the convictions must be shown to be based on
convictions by a jury instead of being based on pleas; (3) in Ray’s
abstract, in all but the 28 robbery counts, the convictions must be
shown to be based on convictions by a jury instead of being based
on pleas.
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The superior court shall issue new abstracts of judgment
that correct the errors noted and that reflect the new sentences
imposed on appellants. The court shall forward the new
abstracts of judgment to the Department of Corrections and
Rehabilitation.
In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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