THE PEOPLE, Plaintiff and Respondent, v. DANNY GONZALEZ, Defendant and Appellant.
B329962
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
December 17, 2024
Los Angeles County Super. Ct. No. TA153731
Judith Kahn and Olivia Meme, 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 Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
FACTS AND PROCEDURAL BACKGROUND
The People charged Gonzalez with the first degree murder of Andres Cardenas (
1. The trials
The case first went to trial in late 2022. The People‘s theory of the case was that Gonzalez murdered the victims—Garcia and Cardenas—in retaliation for the killing of his cousin,
Gonzalez attended a rosary for his deceased cousin on August 5, 2017. At some point that day, Gonzalez learned Garcia and Cardenas were staying at a nearby motel. A man with the moniker Thief drove Gonzalez to the motel in a stolen car. Thief had a revolver and Gonzalez had two guns, an AR-15 rifle and a nine-millimeter handgun.
Gonzalez saw the victims as he and Thief drove up to the motel. Gonzalez fired a gun twice to let the victims know he was there. The victims started running in different directions. Gonzalez chased after Garcia. Garcia tried to hop over a fence, and Gonzalez shot him a number of times.
Thief was supposed to stay in the car, but instead he got out and chased after Cardenas. Cardenas ran into the motel lobby and started pounding on a locked door, yelling to be let inside. Thief followed Cardenas and shot him.
Thief and Gonzalez got back into their car and drove away. Garcia and Cardenas died from their wounds.
Gonzalez‘s counsel conceded he shot and killed Garcia, but argued he did so in the heat of passion. Counsel asserted Gonzalez had nothing to do with killing Cardenas.
The jury found Gonzalez guilty of unlawful possession of a firearm and not guilty of murdering Cardenas. The jury could not reach a verdict on the Garcia murder count, and the court declared a mistrial.
The People retried the Garcia murder count in March 2023. The court bifurcated the prior strike and aggravating
Gonzalez waived his right to a jury trial on the prior strike allegation. He admitted the allegation, and the court found it to be true.
2. Sentencing
At the sentencing hearing, Gonzalez asked the court to strike the prior strike, arguing he was a minor when he committed the crime and it was remote in time. Gonzalez asserted the court could impose no more than the midterm on the felon in possession count and the firearm enhancement given the jury did not make any findings on the aggravating circumstances allegations.
The court declined to strike the prior strike, concluding Gonzalez still falls within the spirit of the Three Strikes law. The court noted that Gonzalez was 17 years old when he committed the robbery, the crime was not so remote in time, and Gonzalez had committed other crimes after the adjudication.
The court sentenced Gonzalez to an aggregate term of 10 years plus 50 years to life. The sentence consisted of 25 years to life for the Garcia murder, doubled for the prior strike, plus the high term of 10 years for the firearm enhancement. The court imposed the midterm of two years on the felon in possession count, which it ran concurrent with the life term.
Gonzalez timely appealed.
1. The trial court properly admitted the Perkins evidence
Gonzalez argues the trial court erred by denying his motion to exclude statements he made to undercover agents as part of a Perkins operation. He contends his conversation with the agents was an interrogation subject to Miranda‘s requirement that officers not engage in custodial interrogation after a suspect has invoked his right to counsel. He argues, because he invoked his right to counsel before the Perkins operation began, the court should have excluded all his statements to the agents.4
a. The Perkins operation
After arresting Gonzalez, the police placed him in a cell with two undercover government agents as part of a Perkins operation. The agents introduced themselves with their monikers and gang affiliations. Gonzalez responded with the same. One of the agents said he knew Gonzalez‘s brother-in-law. According to the agent, the brother-in-law did termite work at the agent‘s grandmother‘s house and treated her well.
The agents presented themselves as being older and more experienced than Gonzalez. One of the agents said he had served
The agents said they were hoping to receive favorable plea deals, and Gonzalez asked them what sort of a deal he could expect. The agents said it depends on the specifics of his case. Gonzalez started to talk in a whisper, telling the agents the police found his cell phone in a stolen vehicle. An agent suggested there was no need to whisper because the police must give some sort of a signal when they are listening to a conversation.
The agents asked Gonzalez about his case, but Gonzalez was hesitant to provide details. One of the agents said Gonzalez was making him nervous, implying Gonzalez might be an informant. Gonzalez replied that he did not feel comfortable talking. The agent reiterated that, under the law, the police must give some sort of a sign that they‘re listening to a conversation.
After this reassurance, Gonzalez admitted killing Garcia in revenge for his cousin‘s death. Gonzalez said he had been searching for Garcia for three weeks. His “homie Thief” “got word” that Garcia was at the motel. Gonzalez had a stolen car ready to use and told Thief, “[L]et‘s go.”
Thief drove the car, Gonzalez was in the backseat, and another man was keeping watch along the street. Thief had a revolver and Gonzalez had two guns, an AR-15 rifle and
When they arrived at the motel, Gonzalez got out of the car and chased after Garcia. Thief was supposed to stay in the car, but he instead chased Cardenas into the lobby. Gonzalez shot 30 bullets at Garcia using an AR-15 rifle. Gonzalez “left that fool hanging on the fence with no face.” He did it “for [his] family.” Gonzalez felt good afterwards, but not too good because his cousin was still dead.
b. Proceedings below
Before the first trial, defense counsel told the court that Gonzalez had invoked his right to counsel while the police were interrogating him. The police did not immediately end the interrogation. Instead, they asked Gonzalez whether they would find weapons in his home. Gonzalez replied, ” ‘Probably.’ ” The police then ended the interrogation and placed Gonzalez in the cell with the Perkins agents.
Gonzalez moved to exclude all of the statements he made after invoking his right to counsel, including his statements during the Perkins operation. According to Gonzalez, his statements to the agents should be excluded as the tainted fruit of the Miranda violation. Gonzalez distinguished Perkins on the ground that the defendant in that case made the incriminating statements before invoking his rights under Miranda. Gonzalez, in contrast, made the statements after invoking his right to counsel.
Gonzalez argued his statements to the agents also should be excluded because they were coerced. He pointed to the agents’ lies that the police could not listen to their conversation without
The prosecutor agreed that Gonzalez‘s statements to police after invoking his right to counsel should be excluded under Miranda. However, the prosecutor argued Miranda did not apply to Gonzalez‘s conversation with the Perkins agents.
The court agreed with the prosecutor and denied Gonzalez‘s motion to exclude his statements during the Perkins operation. The court rejected Gonzalez‘s fruit of the poisonous tree argument, citing People v. Orozco (2019) 32 Cal.App.5th 802 (Orozco). The court found Gonzalez made the statements of his own free will, rather than through intimidation or coercion.
Gonzalez raised the same objections before the second trial. He again urged the court to exclude the Perkins evidence in its entirety as a violation of Miranda and the product of coercion.
In support of his coercion argument, Gonzalez pointed out that the agents lied about the conversation being recorded, commented on Gonzalez‘s youth, told him ” ‘homies are gonna want to know what‘s up,’ ” and claimed to have beat prior murder cases. The court overruled the objections, concluding the conversation with the agents was not coercive in any way.
At both trials, the prosecutor played excerpts of a recording of Gonzalez‘s conversation with the agents.
c. Application
In Perkins, the United States Supreme Court held a conversation between an incarcerated suspect (who had not been given Miranda warnings) and an undercover agent posing as a fellow inmate was not custodial interrogation, and therefore did not require warnings under Miranda. (Perkins, supra, 496
Gonzalez argues Perkins does not apply because he made the incriminating statements after he had invoked his right to counsel. However, as Gonzalez seems to acknowledge, California courts have repeatedly and uniformly rejected this argument. (See People v. Guilmette (1991) 1 Cal.App.4th 1534, 1540–1541 (Guilmette); People v. Plyler (1993) 18 Cal.App.4th 535, 544–545; Orozco, supra, 32 Cal.App.5th at pp. 813–815; People v. Felix (2024) 100 Cal.App.5th 439, 450–451 (Felix).)
In Guilmette, supra, 1 Cal.App.4th 1534, for example, the defendant had invoked his right to remain silent and his right to an attorney before police recorded a phone call he made to his rape victim, who was acting as a police agent and asking questions suggested by the police. (Id. at p. 1538.) The court held the recording was admissible under Perkins, regardless of the defendant‘s earlier invocation of his Miranda rights. The court explained, “It is true, as appellant contends, that in Perkins
Division Two of this appellate district agreed in Orozco, supra, 32 Cal.App.5th 802. In that case, the defendant‘s baby had died of blunt trauma while under his care. The police read the defendant his Miranda rights and eventually jailed him after he continuously asked for an attorney. (Orozco, at pp. 806–808.) The police put the baby‘s mother in an interview room with the defendant and recorded their conversation. An officer interrupted to report autopsy results indicating the baby had died from a beating and asked the parents if they had anything to say in response. (Id. at pp. 808–809.) The defendant was silent. Sometime after the officer left, the defendant broke down and confessed to the mother that he struck the baby once and it killed her. (Id. at p. 809.)
The defendant moved to suppress his confession as a violation of Miranda, but the trial court allowed the confession into evidence, citing Perkins. (Orozco, supra, 32 Cal.App.5th at p. 810.) On appeal, the defendant argued his confession should have been suppressed because he invoked his Miranda right to counsel, and the police violated Miranda when they sent the baby‘s mother (who was an agent of the police) to speak to him.
Division Eight of this appellate district recently reached the same conclusion in Felix, supra, 100 Cal.App.5th 439. In Felix, the police arrested the defendant in connection with two murders. (Id. at p. 443.) After the defendant invoked his right to counsel, the police concluded their interrogation and placed the defendant in a holding cell with an undercover officer. The defendant told the undercover officer about his arrest, but he did not talk about the murders. At some point, uniformed detectives took the defendant out of his cell and told him they had received evidence pointing to his involvement in a murder. The police returned the defendant to his cell, and he made incriminating statements to the undercover officer about the murders. (Id. at pp. 443–444.)
The defendant moved to exclude his statements to the undercover officer, which the trial court denied. (See Felix, supra, 100 Cal.App.5th at p. 450.) On appeal, the defendant argued his statements should have been excluded under Miranda because he made them after invoking his right to counsel. The court disagreed, concluding the statements were admissible under Perkins. (Felix, at p. 450.) The court explained that, during his conversation with the undercover officer, the
As in Guilmette, Orozco, and Felix, the record here shows Gonzalez made the incriminating statements without realizing he was talking to agents of the police. Instead, he believed he was having a private conversation with fellow inmates. In fact, Gonzalez opened up to the agents only after they repeatedly assured him the police could not listen to their conversation.
The record also shows Gonzalez made the statements of his own free will, rather than as a product of coercion. The discussion turned to Gonzalez‘s case only after he asked the agents what sort of a plea deal he could expect. Although the agents questioned Gonzalez about the specifics of the crimes, they did so in the context of helping him evaluate his case. The conversation remained casual throughout, and Gonzalez voluntarily revealed many details about the killings. If anything, he seemed to be proud of his actions and was boasting to the agents. From Gonzalez‘s perspective, this was a casual conversation with fellow inmates, rather than an interrogation. Miranda and its progeny do not apply under these circumstances. (See Perkins, supra, 496 U.S. at p. 298 [”Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates.“].)
Gonzalez urges us not to follow the numerous cases holding Miranda does not apply when a defendant makes incriminating statements during a Perkins operation. In support, he cites Justice Liu‘s statement dissenting from an order denying review in People v. Valencia, S258038. (See People v. Valencia (Aug. 5,
Gonzalez alternatively argues Orozco and Felix are distinguishable because, in those cases, the police did not violate the defendants’ Miranda rights before starting the Perkins operations. Here, according to Gonzalez, the police continued to question him after he invoked his right to counsel, but before they placed him in the cell with the agents.
Contrary to Gonzalez‘s contentions, the police in Orozco also continued to question the defendant after he invoked his right to counsel. (See Orozco, supra, 32 Cal.App.5th at pp. 807–808.) In fact, the defendant requested an attorney at least five times before the police ended the interrogation and placed him in a room with the baby‘s mother. (Ibid.) The police later returned to the room, revealed the autopsy results, and asked the defendant if he had anything else to say. (Id. at p. 816.) The defendant argued this last question transformed the conversation with the mother into an interrogation. The court disagreed, explaining, “Had defendant answered the officer‘s question with
The same is true here. As in Orozco, Gonzalez made the incriminating statements after the officers had stopped questioning him and placed him in a separate space with the agents. When Gonzalez made the statements, he was under the mistaken belief that he was having a private conversation with fellow inmates. The interrogation had ended by that point, regardless of whether the police had previously violated his rights under Miranda.
We also reject Gonzalez‘s argument that the court should have excluded his statements because he did not voluntarily waive his Miranda rights before making them. Gonzalez argues his statements were the product of deception and made without knowing the consequences. He asserts it is clear he did not want to confess and made the incriminating statements only after the agents lied to him.
In making this argument, Gonzalez wrongly assumes his incriminating statements could be used against him only if he waived his Miranda rights. However, as we discussed above, Miranda does not apply because the conversation with the agents was not an interrogation. Accordingly, Gonzalez‘s decision to speak to the agents did not require a waiver of his Miranda rights. (See Orozco, supra, 32 Cal.App.5th at pp. 813–814.)
Effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81) amended
Gonzalez argues his case must be remanded for resentencing because, although the trial court considered striking his prior strike under
The court in Burke explained that
The court reached the same conclusion in Olay, supra, 98 Cal.App.5th 60. In that case, the defendant argued Burke was wrongly decided because the court failed to consider the fact that the amended statute refers to “criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.” (
The Olay court was skeptical that the Legislature would have “expressed an intent to reject the well-established legal meaning of ‘enhancement’ in such a roundabout manner by obliquely referencing ‘juvenile adjudications’ as one of the relevant mitigating circumstances.” (Olay, supra, 98 Cal.App.5th at p. 67.) Nevertheless, it agreed this aspect of the statute is ambiguous. Accordingly, the court examined the legislative history of Senate Bill 81 to determine the Legislature‘s intent. (Olay, at p. 68.) The court found a June 2021 bill analysis by the Assembly Committee on Public Safety contains the only reference to the intended meaning of “enhancement.” (See Olay, at pp. 68–69.) The analysis distinguishes enhancements from alternative sentencing schemes—such as the Three Strikes law—and then states the “presumption created by this bill applies to enhancements, but does not encompass alternative penalty schemes.” (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021–2022 Reg. Sess.) as amended Apr. 27, 2021, pp. 5–6.) The court explained this analysis demonstrates the Legislature did not intend
Gonzalez suggests Olay and Burke are distinguishable because the prior strikes in those cases were adult convictions, while his strike is a juvenile adjudication. We do not find this distinction to be meaningful. The analysis in Olay and Burke does not depend on the fact that those cases concerned prior adult convictions. Instead, the courts reasoned that the term
3. Remand is not required under section 1170
Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) amended
Also effective January 1, 2022, Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Assembly Bill 124) amended
The trial court sentenced Gonzalez on April 17, 2023. At the hearing, defense counsel argued that, because the jury had not found the alleged aggravating circumstances to be true, the “new law” precluded the court from imposing upper terms on the felon in possession count and the firearm enhancement. The court selected the midterm on the felon in possession count; however, it selected the upper term on the firearm enhancement. The court did not explain its reasons for either selection.
Gonzalez urges us to remand the case for resentencing on the firearm enhancement so the trial court may exercise its discretion under
It is “a fundamental tenet of appellate review that we presume on a silent record the court properly exercised its discretion.” (People v. Frazier (2020) 55 Cal.App.5th 858, 868.) “[I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527People v. Lee (2017) 16 Cal.App.5th 861, 866–867 (Lee).)
There is no indication in the record that the trial court was unaware of the amendments to
Gonzalez‘s reliance on People v. Salazar (2023) 15 Cal.5th 416 is misplaced. In that case, the defendant‘s appeal was pending when the relevant amendments to
Here, the law governing Gonzalez‘s sentence did not substantively change while his case was on appeal. Instead, the trial court sentenced Gonzalez more than a year after the relevant amendments to
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
ADAMS, J.