People v. Saucedo CA2/2 ( 2021 )

Filed 8/3/21 P. v. Saucedo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304815
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144996)
v.
ESTEVAN SAUCEDO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Raul A. Sahagun, Judge. Affirmed.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Lance E. Winters, Chief Assistant Attorney General,
Susan Sullivan Pitney, Assistant Attorney General, Michael R.
Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________
Estevan Saucedo (Saucedo) was convicted of the murder of
Oliver White (White) (Pen. Code, § 187; count 1)1 and the
attempted murder of Ronald Jackson (Jackson) (§§ 664, 187;
count 2). The jury found true a firearm allegation under section
12022.53, subdivision (d). On count 1, appellant was sentenced to
25 years to life in prison and a consecutive sentence of 25 years to
life as an enhancement for the firearm allegation. On count 2,
appellant was sentenced to a consecutive indeterminate life
sentence with a minimum term of seven years. The trial court
struck the firearm enhancement with respect to count 2. As to
both counts, it struck the jury’s true findings on gang allegations
pursuant to section 186.22, subdivision (b)(1)(C).
Saucedo appeals from the judgment and argues: (1) the
trial court violated his federal rights under the Fifth Amendment
and the Due Process Clause in the Fourteenth Amendment as
well as his state rights under section 4001.1 when it permitted
the prosecution to introduce evidence of a confession2 he made to
an undercover operative while incarcerated for an unrelated
offense; and (2) he received ineffective assistance of counsel
because defense counsel did not object to the admission of the
confession. He also raises an ineffective assistance of counsel
argument in a petition for writ of habeas corpus, B312073, which
we consider concurrently.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Saucedo made a series of inculpatory statements and
confessed to shooting White. For ease of reference, we refer to his
statements collectively as his confession.
2
We conclude that any objection to Saucedo’s confession was
waived and, in any event, the confession was not excludable and
he suffered no prejudice due to the lack of objections.
Accordingly, the judgment must be affirmed and the petition for
writ of habeas corpus must be denied.
FACTS
On February 1, 2016, White and Jackson were engaged in
conversation in the driveway to White’s house on 78th Street
near Parmelee Avenue. A man wearing a ski mask or some other
type of face covering started shooting at them, and a bullet hit
White in the head. He died.
About a month later, a woman in custody on an unrelated
matter spoke to a detective.3 She revealed that on the night of
the shooting, she saw her boyfriend give Saucedo a gun. The two
men rode away on bikes, and then her boyfriend came back.
Minutes later, she heard multiple gunshots and Saucedo
returned. He looked sweaty and nervous and gave her boyfriend
something. Right after that, Saucedo left. She later spoke to the
homicide investigator assigned to White’s murder, a sergeant in
the Los Angeles County Sheriff’s Department named Marcelo
Quintero.
On October 8, 2016, Saucedo was arrested on an unrelated
offense and advised of his rights under Miranda v. Arizona (1966)
384 U.S. 436 (Miranda).4 He acknowledged his rights.
3 Saucedo states that the woman was a paid informant. This
is not relevant to our analysis.
4 Saucedo represents that he was arrested for violating
section 10851, unlawful driving or taking of a vehicle without the
owner’s consent.
3
Subsequently, he was asked if he wanted to make a statement
about the incident. He refused to talk about it. However, he did
answer booking questions. The trial court later determined there
had been no waiver of Miranda and excluded Saucedo’s answers
to the booking questions because they could have incriminated
him regarding the gang allegations.
On November 15, 2016, Sergeant Quintero put Saucedo in
a cell with an undercover operative and used various methods to
stimulate conversation between them about the murder. During
the first half of the operation, Saucedo did not admit anything.
Sergeant Quintero took Saucedo out of his cell and interviewed
him with a partner, Sergeant Richard Ruiz of the Los Angeles
County Sheriff’s Department. As a ruse, and to stimulate
conversation with the undercover operative, Sergeant Quintero
told Saucedo they had obtained his fingerprints from the
evidence. As further stimulation, Sergeant Ruiz told Saucedo
they were taking a DNA sample from him. Afterwards, they put
Saucedo on a bench in a hallway next to the undercover operative
and Saucedo confessed to shooting White.
Prior to trial, the prosecution filed a motion under Evidence
Code section 402 to admit a recording of the jailhouse
conversation and confession. The defense did not object. The
trial court granted the motion.
At trial, the jury heard a recording of parts of the interview
between Saucedo, Sergeant Quintero and Sergeant Ruiz, and
recordings of parts of the conversations between Saucedo and the
undercover operative.
4
DISCUSSION
I. The Appeal.
Saucedo contends: (1) His confession was obtained through
coercive police conduct in violation of the Fifth Amendment based
on Miranda and Edwards v. Arizona (1981) 451 U.S. 477, 484–
485 (Edwards).) (2) The introduction of his confession violated
his right to due process under the Fourteenth Amendment.
(3) His confession was inadmissible because the police tactics
were deliberately designed to elicit incriminating remarks in
violation of section 4001.1, subdivision (b). These issues are not
cognizable on appeal because Saucedo failed to object to the
evidence below.5 (Evid. Code, § 353; People v. Williams (2008) 43
Cal.4th 584, 620 [“‘“[Q]uestions relating to the admissibility of
evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground
sought to be urged on appeal”’”].)6
5 In his petition for writ of habeas corpus, Saucedo argues
that objecting would have been futile and therefore he did not
waive his objections. This argument is not made in the appeal, so
it need not be considered. Ultimately, the point is moot. The
trial court did not err because, as we discuss, the confession was
not excludable.
6 Evidence Code section 353 provides: “A verdict or finding
shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous admission of
evidence unless: [¶] (a) There appears of record an objection or a
motion to exclude or to strike the evidence that was timely made
and so stated as to make clear the specific ground of the objection
or motion[.]”
5
In the alternative, Saucedo argues that he received
ineffective assistance of counsel. As we discuss below, he failed
to show that the evidence was excludable such that defense
counsel caused prejudice by not objecting.
A. Ineffective Assistance of Counsel Law.
“When challenging a conviction on grounds of ineffective
assistance, the defendant must demonstrate counsel’s
inadequacy. To satisfy this burden, the defendant must first
show counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different. When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance. It is particularly difficult
to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective
assistance of counsel only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Hung Thanh
Mai (2013) 57 Cal.4th 986, 1009; see also Strickland v.
Washington (1984) 466 U.S. 668, 694 (Strickland) [as to
prejudice: “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”]; Kimmelman
6
v. Morrison (1986) 477 U.S. 365, 375 (Kimmelman) [“Where
defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principle allegation of ineffectiveness, the
defendant must . . . prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence
in order to demonstrate actual prejudice”]; People v. Ledesma
(1987) 43 Cal.3d 171, 217–218 (Ledesma), following Strickland.)7
B. The Confession was not Excludable.
1. The Fifth Amendment.
A defendant’s statements made while he was the subject of
custodial interrogation are inadmissible against him unless he
was advised of his Miranda rights8 and declined to invoke his
right to remain silent and be represented by counsel. (People v.
Orozco (2019) 32 Cal.App.5th 802, 811 (Orozco).) This rule
protects the privilege against self-incrimination guaranteed by
7 Saucedo asks us to treat any error by counsel as trial court
error and reverse unless the error was harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S.
18 (Chapman). But Strickland, Kimmelman and Ledesma
require us to examine whether it is reasonably probable there
would have been a different result if counsel had not erred. We
are bound by these decisions. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
8 Miranda requires that a suspect in the custody of law
enforcement be advised that the defendant has the right to
remain silent, anything he or she says may be used as evidence
against him or her, he or she has the right to the presence of an
attorney, and the defendant will be provided with an attorney if
he or she cannot afford one. (Miranda, supra, 384 U.S. at
pp. 444–445, 473–474, 476.)
7
the Fifth Amendment. (Ibid.) As a corollary, the Supreme Court
held that a defendant who invokes the right to counsel may not
be subjected to further interrogation by the police on any crime
unless counsel is present or the suspect himself initiates further
communication with the police. (Edwards, supra, 451 U.S. at
pp. 484–485; McNeil v. Wisconsin (1991) 501 U.S. 171, 177 [“The
Edwards rule . . . is not offense specific: Once a suspect invokes
the Miranda right to counsel for interrogation regarding one
offense, he may not be reapproached regarding any offense until
counsel is present”].)
Nine years after Edwards, the Supreme court held:
“Miranda warnings are not required when the suspect is
unaware that he [or she] is speaking to a law enforcement officer
and gives a voluntary statement.” (Illinois v. Perkins (1990) 496
U.S. 292, 294 (Perkins).)
In Orozco, we asked the following question: “When a
suspect invokes his Miranda right to counsel and law
enforcement subsequently orchestrates a conversation between
the suspect and someone the suspect does not know is an agent of
law enforcement, which decision controls—Edwards or Perkins?”
(Orozco, supra, 32 Cal.App.5th at p. 812.) We held that Perkins
controls. (Orozco, supra, at p. 812.) “Implicit in the definition of
‘interrogation’ is that (1) the suspect is talking to the police or an
agent of the police, and (2) the suspect is aware that he is talking
to the police or one of their agents.” (Orozco, supra, at p. 813.)
Thus, we concluded “there is no ‘interrogation’ [or further
interrogation] when a suspect speaks with someone he does not
know is an agent of the police. [Citations.]” (Id. at p. 814.)9
9 As Saucedo acknowledges, other California Court of
Appeal decisions have also held that Miranda and Edwards are
8
Our first inquiry is whether Saucedo invoked his right to
counsel because the Edwards rule, “by its own terms, applies only
where ‘the accused in custody . . . has clearly asserted” that right.
(People v. Gonzalez (2005) 34 Cal.4th 1111, 1122–1123.) To
assert that right, an accused must make an unequivocal and
unambiguous request. (People v. Nguyen (2005) 132 Cal.App.4th
350, 357.) While the appellate record indicates that Saucedo
chose to remain silent, neither the prosecutor nor the defense
attorney elicited testimony from law enforcement indicating
whether Saucedo requested or even mentioned counsel. In the
reply brief, Saucedo argues that the record gives rise to a
presumption that he invoked the right to counsel because the
prosecution did not prove otherwise.
Saucedo primarily relies on People v. Whitson (1998) 17
Cal.4th 229 (Whitson). In that case, the defendant made
incriminating statements during three interviews with the police.
(Id. at p. 235.) The trial court found that the defendant had
waived his Miranda rights. (Id. at 248.) In reviewing that
finding, Whitson explained that the prosecution was required to
prove the “voluntariness of defendant’s waiver [of Miranda
rights] and confession . . . by a preponderance of the evidence.”
(Whitson, supra, 17 Cal.4th at p. 248.) The court concluded the
record supported the finding that the defendant waived his
not implicated when suspects who have invoked their Miranda
right to counsel subsequently speak to someone they do not know
is an agent of the police. (See People v. Plyler (1993) 18
Cal.App.4th 535, 544–545; People v. Guilmette (1991) 1
Cal.App.4th 1534, 1539–1543.)
9
Miranda rights.10 Significantly, the court did not hold that the
prosecution had to prove that the defendant failed to invoke his
right to counsel. Nor did it hold that there is a rebuttable
presumption that counsel is requested by every defendant who is
arrested. North Carolina v. Butler (1979) 441 U.S. 369, 373
serves Saucedo no better. It held that a waiver of Miranda rights
can be implied as well as express. (Id. at pp. 373–376.) In its
analysis, it commented that the “courts must presume that a
defendant did not waive his [Miranda] rights” and the
prosecution’s burden of overcoming the presumption “is great[.]”
(Id. at p. 373.) Once again, the focus was on waiver, not on the
invocation of the right to counsel.
Because the record does not establish that Saucedo invoked
the right to counsel, Edwards does not apply. Alternatively,
Edwards does not apply because there is no evidence that
Saucedo was aware that the undercover operative was an agent
of law enforcement, i.e., Saucedo’s confession was not made
during a custodial interrogation.
10 People v. Bradford (1997) 14 Cal.4th 1005 (Bradford), also
relied upon by Saucedo, is factually distinguishable. The court
explained that if a defendant requests counsel during an
interrogation, and then makes a voluntary statement, that
statement can be used at trial. “Moreover, if the defendant’s
statement is not only voluntary, but constitutes a knowing and
intelligent waiver of his right to see counsel, the interrogation
may resume. [Citation.] . . . The state must demonstrate the
validity of the defendant’s waiver by a preponderance of the
evidence. [Citation.]” (Id. at p. 1034.) Bradford applies to a
subsequent waiver of Miranda rights, not to the initial invocation
of the right to counsel.
10
2. Due Process.
The due process clause of the Fourteenth Amendment
precludes the admission of involuntary statements procured by
coercive police activity. (People v. McCurdy (2014) 59 Cal.4th
1063, 1086; Colorado v. Connelly (1986) 479 U.S. 157, 167.)
Coercion “is determined from the perspective of the suspect” and
is “not present when an incarcerated person speaks freely to
someone whom he believes to be a fellow inmate.” (Perkins,
supra, 496 U.S. at p. 296.) As we explained in Orozco, an officer’s
“behind-the-scene manipulation is, at most, a form of deception,”
and does not, by itself, make a confession involuntary. (Orozco,
supra, 32 Cal.App.5th at p. 819.) This case does not trigger any
due process concerns because Saucedo believed he was speaking
to a fellow inmate.
3. Section 4001.1, Subdivision (b).
“No law enforcement agency and no in-custody informant
acting as an agent for the agency, may take some action, beyond
merely listening to statements of a defendant, that is deliberately
designed to elicit incriminating remarks.” (§ 4001.1., subd. (b).)
This statute does not apply to incriminating statements
pertaining to uncharged offenses to which the Sixth Amendment
right to counsel has not yet attached. (People v. Gallardo (2017)
18 Cal.App.5th 51, 78 (Gallardo).)
Despite Gallardo, Saucedo urges us to extend section
4001.1 so it applies to uncharged offenses if a defendant is in
custody and has already invoked his Fifth Amendment rights as
to a different offense.
With section 4001.1, subdivision (b), the Legislature
intended to restate existing case law.11 To the degree the
11 Section 4001.1 was enacted in 1989.
11
statutory language conflicted with that case law, the enacting
legislation stated that Kuhlmann v. Wilson (1986) 477 U.S. 436(Kuhlmann), United States v. Henry (1980) 447 U.S. 264 (Henry),
and other Supreme Court decisions decided at the time the
statute was enacted shall be controlling. (Gallardo, supra, 18
Cal.App.5th at p. 78.) “Kuhlmann and Henry both involved
application of the Supreme Court’s ruling in Massiah v. United
States (1964) 377 U.S. 201 [(Massiah)], which ‘held that, once a
defendant’s Sixth Amendment right to counsel has attached, he
[or she] is denied that right when federal agents “deliberately
elicit” incriminating statements from [the defendant] in
the absence of his [or her] lawyer.’ [Citation.]” (Gallardo, supra,
at p. 78.) Our Supreme Court held that the “prohibition set forth
in Massiah and its progeny . . . ‘‘is offense-specific; that is, it
applies only to ‘“offenses to which adversary judicial criminal
proceedings have been initiated”’ [citation][.]” (Gallardo, supra,
at p. 78.)
We acknowledge, as Saucedo points out, that the enacting
legislation generally referred to extant Supreme Court decisions.
But we do not construe this to mean, as Saucedo suggests, that
section 4001.1, subdivision (b) restates the law of Miranda and
Edwards as it existed prior to Perkins. The Legislature
specifically referred to Kuhlmann and Henry, which signals that
it was focused on Sixth Amendment cases not Sixth Amendment
and Fifth Amendment cases. We conclude the statute only
applies as held in Gallardo. But even if the Legislature intended
to also restate the law of Miranda and Edwards, we do not see
how that helps Saucedo. Those cases pertained to custodial
interrogations, and Saucedo has not pointed to any pre-Perkins
case law from the Supreme Court holding that a conversation
12
between a defendant and an undercover operative is a custodial
interrogation.
Based on both Gallardo and the lack of evidence that the
operative was an in-custody informant,12 we conclude that section
4001.1, subdivision (b) did not render the confession excludable.
C. No Prejudice.
The confession was not excludable. Thus, if defense
counsel had objected to the admissibility of the confession, the
objection would have been properly overruled. Saucedo cannot
show that he suffered prejudice.
II. The Petition for Writ of Habeas Corpus.
In his petition for writ of habeas corpus, Saucedo argues
that he received ineffective assistance of counsel because defense
counsel did not object to the confession based on the Fifth
Amendment and Miranda/Edwards. He asks us to go outside the
appellate record and consider the newly present transcript of his
police interview.
A. The Interview.
In the interview that Sergeant Quintero and Sergeant Ruiz
conducted on November 15, 2016, they told Saucedo they were
investigating a shooting on 78th Street and Parmelee Avenue
and read Saucedo his Miranda rights. They asked if Saucedo
understood his rights and he said yes. They questioned Saucedo
about the shooting. After several minutes, they said they had
fingerprints on a shell casing, and if they turned out to be his, he
12 Except as otherwise specified, an in-custody informant is
defined as a person whose testimony is based upon statements
made by the defendant while both the defendant and the
informant are held within a correctional institution. (§ 1127a,
subd. (a).)
13
would be charged with murder. Then they said they were going
to check “him” for DNA. At that point, Saucedo said, “Um, can I
talk to my lawyer about this, you know?” In response, Detective
Quintero answered: “Yeah, yeah. Yeah, yeah. Um, but, you
know, we’re [going to] have a search warrant so. . . .” The officers
continued talking to Saucedo for several more minutes. He
denied shooting the victim, and he denied being in the area with
a gun.
B. Analysis.
Though Saucedo asks us to consider the transcript of his
interview, he does not suggest that it changes the analysis.
Rather, he reiterates the same arguments that he advanced in
his appeal. As we previously determined, Saucedo’s confession
was not excludable under the Fifth Amendment and
Miranda/Edwards, and he was not prejudiced by defense
counsel’s failure to object.
All other issues are moot.
14
DISPOSITION
The judgment is affirmed and the petition for writ of
habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
______________________, P. J.
LUI
______________________, J.
HOFFSTADT
15