THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE ALLEN, Defendant and Appellant.
B328333
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
July 22, 2024
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. NA104090). APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Levey Meyer, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL BACKGROUND
Defendant, Khalif Ferguson, and Jasper Ferguson were members of the Harbor City Crips. Khalif and Jasper are cousins. On March 5, 2014, at approximately 9:40 p.m., there was a shooting outside the Sahara Lounge in Harbor City (Lounge). The Harbor City Crips claimed territory that included the Lounge. Defendant lived nearby.
After the shooting, Shailo Leafa was unresponsive, Che Potasi was bleeding profusely, and their friend, Miles Mageo, survived the shooting unscathed. Leafa died of a gunshot wound to his torso.
A few minutes after the shooting, Potasi told a law enforcement officer three “male blacks, out of nowhere, just shot me . . . .”1 Video surveillance from a nearby restaurant showed
Potasi testified at trial that he did not remember much. When interviewed in August of 2016, he told a detective that he and Leafa were involved in a gang confrontation at a gas station near the Lounge prior to the shooting. During that confrontation, Potasi identified himself as a member of a blood gang from Piru and the other persons identified themselves as members of the Harbor City Crips.
In 2016, police received a tip via an anonymous hotline stating that Jasper Ferguson was involved in the shooting at the Lounge. A detective determined that Jasper’s former girlfriend provided that tip, and when the detective spoke to her, he learned about defendant’s participation in the shooting. She told the detective that Jasper told her there was an incident at a gas station that led to a shooting at the Lounge. According to Jasper’s ex-girlfriend, Jasper referred to himself, Khalif, and defendant as involved in the shooting. Although Jasper specifically said that defendant was present, Jasper did not indicate whether or not defendant was a shooter.
Police arrested defendant for murder and took him into custody. On May 1, 2016, a detective placed a police agent (agent) in defendant’s cell. An audio recording of defendant’s statements was played for the jury. Defendant told the agent that he was from Harbor City Crips. Defendant asked the agent, “What they got you for?” and the agent responded home invasion with gang allegations and false imprisonment. Defendant indicated he was in custody for first degree murder. After talking about someone’s first “mission,” defendant said, “I’ve been doing
Defendant told the agent about the events underlying his crimes. “A homey pulled up at the gas station. . . . I told him where he was from. And they was like, what—we don’t give a fuck . . . . What’s up?” “Jumped in his car and left. They went running back to that lounge.” The agent asked, “You guys were all strapped on?” Defendant responded, “Hell yeah. . . . This shit was fun.” Defendant said that his “shit jammed” because “[t]he firing pin [w]as fucked up.” The agent asked, “And those fools didn’t even try to shoot, huh?” Defendant responded that they had “stashed their pistols” near a trashcan. Later in the interview, defendant said that he was not an “OG”; he was still young. But he had been in the “hood” for “a very long time.”
PROCEDURAL BACKGROUND
On April 28, 2016, three days before the conversation in defendant’s cell with the agent posing as a fellow inmate, a detective and an officer interviewed defendant. They told defendant that they had spoken to Khalif and Jasper Ferguson. The detective read defendant his rights under Miranda but did not obtain a waiver of those rights. Defendant said he would “like to remain silent.” After defendant said he wanted to remain silent, the detective and officer continued questioning him. Defendant repeated, “I’d like to be quiet” and the detective and officer continued questioning him. Defendant initially denied being at the Lounge during the shooting but later said that he was the lookout.
In a first amended information filed September 25, 2017, the People charged defendant, Khalif and Jasper Ferguson with murder (Leafa) and two counts of attempted murder (Potasi and
Prior to trial, defendant filed a motion to suppress his confession, challenging the admission of his statements made April 28, 2016 as well as those made May 1, 2016. Defendant argued the latter statements, which he made to the agent, were the fruit of the poisonous tree. The People did not oppose defendant’s challenge to his statements made on April 28, 2016. The court denied defendant’s motion to suppress his May 1, 2016 statements to the agent. At a hearing, the court stated, “I think the police did this on purpose. They did not get any statements during Miranda interviews, and so they set up another form of trying to get a statement that the courts and the Supreme Court has deemed lawful under Perkins.”
In a written order, the court rejected defendant’s argument that the statements to the agent was the fruit of the poisonous tree. At the hearing, the court further indicated that defendant’s May 1, 2016 statements were “attenuated” and defendant spoke freely and voluntarily to the agent.
Defendant was tried alone. The jury convicted defendant of the first degree murder of Leafa and premeditated attempted murders of Potasi and Mageo. With respect to each offense, the jury found true that defendant personally and intentionally discharged a firearm within the meaning of
DISCUSSION
The People refer to the agent in this case as a Perkins agent based on Illinois v. Perkins (1990) 496 U.S. 292 (Perkins), which considered whether Miranda applies when, as here, a law enforcement agent pretends to be an inmate. We begin with a brief description of Miranda and Perkins, which are central to defendant’s argument that Perkins does not apply if a defendant previously invoked his right to remain silent under Miranda. We also describe Orozco, supra, 32 Cal.App.5th 802, which considered and rejected the same argument defendant makes here, i.e., that Perkins does not apply because in the April 28, 2016 interview, defendant invoked his Miranda right.
A. Miranda, supra, 384 U.S. 436
The Fifth Amendment provides, “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” (
B. Perkins, supra, 496 U.S. 292
Perkins held that Miranda’s warnings were unnecessary when a suspect was unaware that he or she was talking to a law enforcement officer. In Perkins, a law enforcement agent posed as an inmate. The agent clothed in jail garb asked the defendant if “he had ever ‘done’ anybody” and the defendant described a murder that the agent was investigating. (Supra, 496 U.S. at p. 295Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response.” (Perkins, at pp. 295–296.) The high court held that “Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.” (Perkins, at p. 294.)
The high court explained, “Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda.” (Perkins, supra, 496 U.S. at p. 296.) “The essential
Justice Brennan concurred in the high court’s judgment. He agreed that there was no coercion when a suspect does not know the questioner was a police agent. (Perkins, supra, 496 U.S. at p. 300.) According to Justice Brennan, “[S]uch questioning does not amount to ‘interrogation’ in an ‘inherently coercive’ environment so as to require application of Miranda. (Perkins, at p. 300.) In a footnote, Justice Brennan stated, “As the case comes to us, it involves only the question whether Miranda applies to the questioning of an incarcerated suspect by an undercover agent. Nothing in the Court’s opinion suggests that, had respondent previously invoked his Fifth Amendment right to counsel or right to silence, his statements would be admissible. If respondent had invoked either right, the inquiry
Justice Marshall dissented, concluding that the conditions requiring a Miranda warning were present and the defendant’s confession was therefore inadmissible. (Perkins, supra, 496 U.S. at pp. 303–304Miranda applied “whenever ‘an undercover law enforcement officer posing as a fellow inmate . . . asks questions that may elicit an incriminating response’ from an incarcerated suspect.” (Perkins, at p. 304.) Justice Marshall wrote that the defendant “was subjected to express questioning likely to evoke an incriminating response.” (Id. at p. 305.) Justice Marshall expressed concern that “[t]he exception carved out of the Miranda doctrine today may well result in a proliferation of departmental policies to encourage police officers to conduct interrogations of confined suspects through undercover agents, thereby circumventing the need to administer Miranda warnings.” (Perkins, at p. 309.)
C. Orozco, supra, 32 Cal.App.5th 802
Orozco considered whether a suspect’s invocation of his or her Miranda rights “preclude[s] the admission of a confession a suspect subsequently makes to a person he is unaware is functioning as an agent of law enforcement.” (Supra, 32 Cal.App.5th at p. 806.) The court also considered whether the continued questioning of a suspect after the suspect invoked his or her Miranda rights violates due process. (Ibid.)
Orozco’s facts are tragic. Six-month-old Mia died of blunt force trauma while in the defendant’s custody. (Supra, 32 Cal.App.5th at pp. 806–807.) In his first interview with law enforcement, the defendant denied inflicting any bruises and
The trial court denied the defendant’s motion to suppress the defendant’s confession. (Orozco, supra, 32 Cal.App.5th at p. 810.) The trial court ruled that although Mia’s mother was an agent of the police, the defendant was unaware of her role as a police agent and believed he was talking to his girlfriend. (Ibid.) A jury convicted defendant of second degree murder and assault causing death of a child. (Ibid.)
As in this case, the defendant argued that the trial court erred in failing to suppress his confession under Miranda and in violation of due process. (Orozco, supra, 32 Cal.App.5th at p. 811.) Orozco rejected these arguments and relied heavily on the definition of interrogation in Miranda. As our colleagues in Division Two explained, “For purposes of Miranda, ‘interrogation’ means ‘express questioning’ or ‘words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response.’ [Citation.] Because interrogation ‘reflect[s] a measure of compulsion above and beyond that inherent in custody itself’ [citation], not all statements a defendant makes while in custody are ‘the product of interrogation’ [citation]. Whether the police action is ‘reasonably likely to elicit an incriminating response’ is judged by
Following Perkins, Orozco held a defendant is not subject to a police dominated atmosphere of compulsion when a defendant speaks freely to someone he thinks is a “lover, a family member, a friend or even a fellow criminal . . . .” (Orozco, supra, 32 Cal.App.5th at p. 814.) “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, at p. 817.)
Orozco rejected the defendant’s argument that Edwards v. Arizona (1981) 451 U.S. 477 required the suppression of the defendant’s statements. Edwards holds that a suspect “having expressed his desire to deal with the police only through counsel[ ] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, at pp. 484–485.) Orozco explained that Edwards applied only where there was interrogation. (Orozco, supra, 32 Cal.App.5th at p. 813Orozco, there was no interrogation because the defendant did not know he was speaking to an agent of the police when he was speaking with his girlfriend. (Id. at p. 814.)