People v. Padillagomez CA4/3
G063078
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 P. v. Padillagomez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063078
v. (Super. Ct. No. 22CF0210)
BRAYAN PADILLAGOMEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Gassia Apkarian, Judge. Affirmed.
The Law Offices of Jeffrey R. Lawrence and Jeffrey R. Lawrence
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Brayan Padillagomez was convicted of committing
multiple sex offenses against teenage girls he met through social media. On
appeal, he contends: (1) the trial court prejudicially admitted evidence of
uncharged sexual misconduct reflected on his Instagram account; (2) the
admission of his police confession violated due process; and (3) the trial court
erred by denying his Marsden motions for substitution of counsel. (See People
v. Marsden (1970) 2 Cal.3d 118 (Marsden).) Finding no basis to disturb the
judgment, we affirm.
STATEMENT OF FACTS
L.M. met Padillagomez online via Instagram in the fall of 2021.
At that time, L.M. was 13 years old and distraught with her home life. She
agreed to meet Padillagomez in person because she wanted someone to talk
to, and he was offering her drugs.
Their first encounter occurred in Padillagomez’s car, not far from
L.M.’s Santa Ana home. As promised, Padillagomez gave L.M. some
marijuana, which she smoked; it made her feel “weird.” When the
conversation turned to age, L.M. told Padillagomez she was 13 years old, and
Padillagomez said he was 19, but he was actually 23 at the time. As they
continued talking, Padillagomez reached under L.M.’s shirt and touched her
breast. Then he asked L.M. to remove her pants and sit on his lap, so they
could have intercourse. L.M. told Padillagomez she did not want to have sex.
After pushing his hand away, she got out of the car and walked home.
A few weeks later, L.M. agreed to meet Padillagomez again. He
picked her up outside her home around 2:00 a.m. and plied her with
marijuana and alcohol as they drove around in his car. They ended up at his
apartment building, and by that time, L.M. was so intoxicated she could
hardly make it up the stairs to Padillagomez’s apartment. Once they got
2
inside, L.M. proceeded to fall asleep in Padillagomez’s bedroom. When she
awoke, her clothes were off, and she felt pain in her vagina, thighs, and
waist. Although she was menstruating, the bleeding was heavier than usual.
L.M. was not sure what to do at that point. She ended up drinking and
smoking with Padillagomez some more before eventually having him drive
her home.
L.M. did not see Padillagomez again after that. Although he
barraged her with Instagram messages and tried to get in touch with her
through her online friends, L.M. was afraid of Padillagomez and avoided him
altogether.
At the time, one of L.M.’s online friends was S., who lived out of
state. S. sent L.M. screenshots of Instagram conversations she had with
Padillagomez regarding his desire to see L.M. again. In addition, S.
forwarded L.M. a photo S. had received from Padillagomez in which L.M. was
naked from the waist down.
During her Instagram exchanges with Padillagomez, S. told him
she was 14 years old, which was true, and he said he was 17. Despite S.’s age,
Padillagomez asked her to send him nude photos of herself and told her he
wanted to have sex with her. When S. balked at the idea, Padillagomez
bragged about having sex with L.M. five times and promised S. he could
teach her some things about sex if she let him “fuck” her. Padillagomez also
offered S. drugs and said he would show her a video of him having sex with
L.M. if S. would be willing to get together with him. But she never did.
In January 2022, after several weeks of Padillagomez’s online
harassment, L.M. told her therapist about her encounters with Padillagomez.
That led to the police contacting L.M. and Padillagomez’s arrest. When
interviewed by investigators, Padillagomez initially denied knowing L.M., but
3
he eventually confessed to having sexual intercourse with her multiple times.
He also admitted knowing L.M. was a minor, although he claimed she had
told him she was about to turn 18 when they first met online and in person.
During their subsequent investigation, the police learned
Padillagomez may have contacted other minors around the time he
victimized L.M., including C.S. At trial, C.S. testified that after receiving an
Instagram message from Padillagomez when she was 12 years old, she and
her 13-year-old friend, E.P., met Padillagomez at a park in Anaheim. At the
park, Padillagomez kissed C.S., which made her uncomfortable, but she and
E.P. eventually agreed to go to Padillagomez’s apartment with him.
At the apartment, Padillagomez shared alcohol with the girls and
offered them marijuana. He also told them he would give them money if they
gave him oral sex. Although the girls turned down the offer, Padillagomez
kissed E.P. on the mouth while touching her leg, and he talked C.S. into
joining him in his bedroom, where she soon passed out. When C.S. awoke, her
pants were untied, and Padillagomez was touching her genitals. After
gathering herself, C.S. asked Padillagomez to drive her and E.P. to a mall in
Santa Ana, which he did. Suspecting C.S. was upset with him, Padillagomez
messaged her later, asking if he could make it up to her. She replied she was
not interested because he had “deadass raped” her.
E.P. did see Padillagomez again, though. She messaged
Padillagomez later that same week to let him know that she and her friend,
J., were willing to have sex with him for money. But that never happened.
Padillagomez did pick up E.P. and J. at a park, drink and smoke with them,
and take them back to his apartment in anticipation of having sex. However,
the girls changed their minds and decided they did not want to have sex with
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Padillagomez after all. Padillagomez was upset about that, but he drove E.P.
and J. back to the park, as they requested.
Based on this evidence, Padillagomez was charged with
committing multiple crimes against L.M., S., C.S., and E.P. At his trial, the
prosecution also presented evidence of Instagram messages between
Padillagomez and other minor teenage girls. The messages, which were found
on Padillagomez’s phone after his arrest, indicate he offered the girls drugs
and money for sex, and he actually had sex with one of them. However,
Padillagomez was not charged for that misconduct. Rather, it was offered to
prove Padillagomez had a propensity to commit sex crimes and as
circumstantial evidence of his intent to commit the charged offenses.
During the defense case, Padillagomez took the stand and denied
touching L.M. during their first encounter in his car. He did admit having sex
with L.M. during their second encounter, at his apartment. But he claimed
the sex was consensual and he thought she was 18 years old at the time.
Padillagomez also admitted drinking and smoking marijuana
with C.S. and E.P. at his apartment. However, he testified he did not touch
them in a sexual manner or offer them money for sex.1 Padillagomez also
denied doing anything wrong when he met up with E.P. and J. later that
week.
When asked about the Instagram messages to the uncharged
victims that were found on his phone, Padillagomez claimed he was “probably
high” and just joking around when he sent them. He claimed he never met or
intended to meet any of those girls in person.
1
In an attempt to discredit C.S., the defense presented evidence
that C.S. had once falsely accused a boy in her junior high school gym class of
touching her private parts.
5
In the end, the jury was unable to reach a verdict on the charges
that Padillagomez sent S. pornography and contacted her with the intent to
commit a sex offense. The jury also deadlocked on the charge that
Padillagomez committed a lewd act by kissing C.S. in the park. Those
charges were dismissed following the verdict.
However, the jury convicted Padillagomez of committing five
lewd acts against L.M. when she was under the age of 14 and of
administering drugs to L.M. to commit a felony. (Pen. Code, §§ 288, subd. (a),
222.) The jury also found Padillagomez guilty of administering drugs to C.S.
to commit a felony, as well as contacting E.P. with the intent to commit a sex
offense, and committing a lewd act against E.P. when she was under the age
of 14. (Id., §§ 222, 288.3, subd. (a), 288, subd. (a).)
In addition, the jury found true allegations Padillagomez
committed a lewd act against more than one victim and had substantial
sexual contact with L.M. (Pen. Code, §§ 667.61, subds. (b) & (e), 1203.066,
subd. (a)(7), (8).) The trial court sentenced Padillagomez to an aggregate term
of 33 years to life in prison for his crimes.
DISCUSSION
Padillagomez contends the trial court abused its discretion by
admitting the uncharged misconduct evidence reflected on his Instagram
account. He also contends his police confession should have been excluded as
involuntary and the court erroneously denied two Marsden motions he made
during the course of the proceedings. We find no merit to these contentions.
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I.
THE UNCHARGED MISCONDUCT EVIDENCE
A. Factual Background
Before trial, the parties litigated the admissibility of various
Instagram messages the police found on Padillagomez’s phone following his
arrest. The messages are from conversations Padillagomez had with 20
Instagram users who are identified in the record only by their online names,
so their true identities are unknown. It is clear from the content and context
of the messages, however, that Padillagomez believed he was talking to girls.
He offered many of them drugs or money in exchange for sex or nude photos.
And based on one series of messages, it appears Padillagomez actually met
and had sex with one of the girls, who said she was 15 years old.
The prosecution argued the messages were admissible pursuant
to Evidence Code section 1108 to prove Padillagomez had a propensity to
2
commit sex offenses. It also contended the messages were admissible under
section 1101, subdivision (b), to prove (1) Padillagomez had the requisite
intent to commit the charged offenses; (2) he did not mistakenly believe the
victims of the charged offenses were old enough to consent to sex; and (3) he
used his Instagram account as part of a plan to sexually exploit teenage girls.
Defense counsel objected to the messages on multiple grounds, including they
were unduly prejudicial within the meaning of section 352.
Of the 20 conversations offered by the prosecution, the trial court
admitted eight and excluded 12. In all eight of the admitted conversations,
the recipient of Padillagomez’s messages indicated they were a minor. (The
2
Unless noted otherwise, all further statutory references are to
the Evidence Code.
7
age range for the group was between 12 and 16 years old.) The court ruled
the conversations in which Padillagomez solicited sex from the recipient (four
in total) or had sex with the recipient (only one) were admissible as
propensity evidence; the other three conversations were admissible to show
Padillagomez’s intent and that he liked to shop around on the internet for
underage victims to sexually exploit. The court excluded the remaining 12
conversations under section 352 as cumulative and potentially misleading,
because the age of the recipients was not reflected in those messages.
At trial, transcripts of the conversations were admitted into
evidence and they were briefly described by a police officer who was involved
in the investigation into Padillagomez’s alleged crimes. For example, the
officer testified that in one of the conversations, Padillagomez offered to give
the other person “edibles or weed” if she “let him fuck [her] low-key.” And in
another conversation, Padillagomez asked an Instagram user who said she
was 13 years old if she wanted to earn money by making a sex tape.
B. Applicable Law and Standard of Review
Evidence of a defendant’s uncharged misconduct is generally
inadmissible to prove his conduct on a specific occasion or his propensity for
criminal activity. (§ 1101, subd. (a).) However, such evidence may be
admitted to prove some other material fact in the case, such as intent, plan,
or absence of mistake. (Id., subd. (b).) An exception to the propensity rule also
exists in cases involving sex crimes. In such cases, “evidence of the
defendant’s commission of another sexual offense . . . is not made
inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to
[s]ection 352.” (§ 1108, subd. (a).)
Section 352 empowers trial courts to exclude evidence if its
probative value is substantially outweighed by the probability its admission
8
would cause undue prejudice, confusion, or delay. For purposes of this
section, prejudice “is not synonymous with ‘damaging,’ but refers instead to
evidence that ‘“uniquely tends to evoke an emotional bias against [a]
defendant”’ without regard to its relevance on material issues.” (People v.
Kipp (2001) 26 Cal.4th 1100, 1121.) The trial court has broad discretion in deciding whether evidence rises to this level, and its decision will not be disturbed on appeal unless it was “‘“arbitrary, capricious, or patently absurd.”’” (People v. Bryant, Smith and Wheeler (2014)60 Cal.4th 335, 390
.)
C. Analysis
Padillagomez does not dispute the uncharged misconduct
evidence reflected in the eight Instagram conversations the trial court
admitted was relevant to prove his intent and propensity to commit the
charged offenses, as permitted under sections 1101, subdivision (b) and 1108.
However, he claims the evidence should have been excluded under section
352 because it was cumulative and unduly prejudicial.
But in regard to prejudice, the uncharged evidence reflected in
Padillagomez’s Instagram conversations was not materially different from or
any more prejudicial than the evidence regarding the charged offenses. The
uncharged evidence consisted of online messages in which Padillagomez
solicited sex from underage girls in exchange for money or drugs, and that is
what the evidence pertaining to the charged offenses reflected. If anything,
the uncharged evidence was tamer than the evidence pertaining to the
charged offenses, in that L.M. and C.S. both accused Padillagomez of sexually
assaulting them after they had passed out from the alcohol and drugs he had
given them. This circumstance lessened the prejudicial impact of the
uncharged evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 205; People v. Ewoldt (1994)7 Cal.4th 380, 405
.)
9
Padillagomez claims there was simply no need for the uncharged
evidence because, based on the victims’ testimony alone, the jury would have
known he had a proclivity for preying on underage girls on Instagram.
However, as was his right, Padillagomez attacked the victims’ credibility at
trial, and he denied the charges when he took the stand. The uncharged
evidence was relevant to help the jury decide who was telling the truth and
who was not. (People v. Falsetta (1999) 21 Cal.4th 903, 911 [evidence of
uncharged sexual misconduct is admissible to assist the trier of fact in
evaluating the victim’s and the defendant’s credibility].)
Moreover, in the interest of fairness, the trial court excluded the
majority of the uncharged conversations the prosecution was seeking to
introduce. For all these reasons, the trial court did not abuse its discretion or
impair Padillagomez’s right to a fair trial by admitting the challenged
evidence.
D. Related Argument
In addition to challenging the admissibility of the uncharged
misconduct evidence, Padillagomez contends the jury instruction regarding
that evidence was flawed. Again, we disagree.
Pursuant to CALCRIM No. 1191A, the jury was instructed it
could infer Padillagomez had a propensity to commit sex offenses if the
uncharged misconduct evidence proved by a preponderance that he
committed one of the following crimes: (1) lewd conduct with a child under
the age of 14 (Pen. Code, § 288, subd. (a)); (2) contacting a minor to commit a
sex offense (id., § 288.3, subd. (a)); or (3) annoying or molesting a minor while
harboring an unnatural sexual interest in the minor (id., § 647.6).
According to Padillagomez, the instruction was improper because
the prosecution never proved the uncharged conversations he had with other
10
Instagram users involved real girls, and only two of those users indicated
they were under the age of 14 so as to satisfy the age requirement in Penal
Code section 288, subdivision (a). As noted above, however, one of the users
Padillagomez contacted and propositioned indicated she was only 15 years
old, and judging by the content of their messages, Padillagomez actually had
sex with her. From this evidence, the jury could reasonably infer
Padillagomez violated Penal Code sections 288.3 and 647.6, two of the
offenses listed in the instruction. For that reason alone, the instruction was
fitting.
The fact the instruction referenced an additional offense, lewd
conduct under Penal Code section 288, subdivision (a), that was not
supported by the evidence is not cause for reversal. That is because when the
jury is given multiple theories to support an instruction, some of which are
supported by the evidence and some of which are not, we presume it adopted
the factually supported ones. (People v. Aledamat (2019) 8 Cal.5th 1, 8; People v. Guiton (1993)4 Cal.4th 1116, 1125
, 1128–1129.) That being the case, any error in including Penal Code section 288, subdivision (a) in the instruction on the uncharged misconduct evidence was patently harmless. (People v.Aledamat, supra, at p. 8
; People v.Guiton, supra, at pp. 1125
, 1128–1129.)
II.
THE POLICE CONFESSION
We also uphold the trial court’s decision to admit Padillagomez’s
police confession into evidence. Padillagomez asserts his confession was
involuntarily rendered in violation of due process, but we do not see it that
way.
11
A. Factual Background
Padillagomez was interviewed at the Santa Ana police station
following his arrest, on the afternoon of January 27, 2022. A recording of the
interview was admitted into evidence at trial and has been transmitted to
this court to facilitate our understanding and consideration of Padillagomez’s
due process claim.
The interview took place in a small room with Padillagomez
seated opposite two police officers—Gaeta and Granados—who were wearing
jeans and dark polo shirts emblazoned with the Santa Ana Police logo.
Padillagomez was not handcuffed or physically restrained in any manner.
Asked at the start of the interview if he needed to use the restroom or get
some water, Padillagomez said he did not.
After the officers engaged Padillagomez in small talk about his
tattoos and cologne, Officer Gaeta told Padillagomez he wanted to talk to him
because his name came up in an investigation. Officer Gaeta then asked
Padillagomez if he wanted his rights read to him in Spanish or English.
Padillagomez, whose fluency in English is evidenced throughout the
interview, opted for the latter.
Officer Gaeta read Padillagomez his Miranda rights line-by-line.
(See Miranda v. Arizona (1966) 384 U.S. 436, 479 (Miranda) [prior to
custodial interrogation, the police must inform suspects they have the right
to remain silent, anything they say can be used against them, they have the
right to an attorney, and if they cannot afford an attorney, one will be
appointed to them free of charge].) After each line, Officer Gaeta asked
Padillagomez if he understood the particular right alluded to, and each time
he said yes.
12
Officer Gaeta then asked Padillagomez about his work and what
he liked to do for fun. On the latter topic, Padillagomez answered “nothing
really. Just smoke weed and stay home, basically.” He said smoking
marijuana helped relieve his depression and anxiety. He also said he and his
family arrived here from Mexico, his parents were divorced, and he was
currently living with his mother in Anaheim.
After assuring Padillagomez he was not going to get in trouble for
smoking marijuana, Officer Gaeta told him, “The most important thing here
is to be upfront. [¶] . . . [¶] . . . I get it. . . . [M]istakes happen. We all make
mistakes. . . . [W]e’re just trying to talk it out and figure out why these
mistakes happen.”
Padillagomez said he had never been in trouble and he did not
want to go to jail because he did not have “papers” and could get deported.
Officer Gaeta replied, “[T]hat’s nothing we deal with. Nothing like that. Like
I said, your name came up in an investigation and we just want to clear a few
things up. . . . I know you will be able to clear it up for us. And the reason I
tell you this is, is just be upfront, be honest with us. . . . I don’t think me and
my partner have treated you like, like a dick. Right, no?” Padillagomez
answered, “No, you guys have been pretty chill.”
Officer Gaeta then asked Padillagomez if he knew or had ever
dated L.M., and he said no. In fact, Padillagomez said he had never dated
anyone while living in California. He also claimed he was not active on social
media. While admitting he had an Instagram account in the past, he said he
had deleted it. When Officer Gaeta asked if he could check his phone to
confirm that, Padillagomez said no. Officer Granados also asked
Padillagomez for permission to search his phone, but he declined her request
as well.
13
Officer Gaeta told Padillagomez, “[W]e understand you don’t
[want to] give us consent to go through your phone. Completely understand.
But then, we’re gonna get a search warrant and go through your phone
anyways. Okay. And at that point, we’re gonna find your Instagram
[account]. Right. And then we’re gonna have, find the conversations that you
had with [L.M.]. And then we’re gonna come back and ask you . . . why’d you
lie to our face? . . . [Y]ou just told us you didn’t know [L.M.] when clearly you
do. Right? So, that’s why I’m telling you it’s better to be honest, upfront.
Some of the questions that I’m asking you, I already know the answers to.
Okay. So, do you want to start all over? Or do you want to continue?”
Padillagomez said, “Yeah, I just, really don’t know what I’m
doing. I don’t want to get in trouble. I don’t want to go to jail. . . . I do know
why you guys are here [¶] . . . [¶] and I know everything. [¶] . . . [¶] But am I
gonna get in trouble for it? ‘Cause I know you guys like to twist words and I
feel like if I tell you guys straight-up, you guys are gonna twist that towards
me and get me in trouble.”
Officer Gaeta replied: “I understand what you’re saying. Is what
you did wrong? Yes. Is it the crime of the century where you killed somebody
and you robbed somebody? Does it make you a bad person? No. We both know
what you did. Okay. We have . . . the proof [of] what you did. Okay. The
reason that we’re here talking to you is because you don’t have a record. . . .
[Y]ou’re not a bad person. So, I’m giving you the opportunity to explain
yourself. It’s not about what you did but why you did it. Okay. ‘Cause there’s
different types of people that do this and I know you know what we’re talking
about.” Officer Gaeta then proceeded to draw a distinction between people
who are bad, and people who make mistakes. When Padillagomez said he just
made a mistake, Officer Gaeta told him “we need to hear it from you.”
14
At that point, Padilla admitted getting together and smoking
marijuana with L.M. He said L.M. told him she was about to turn 18 and led
him to believe she cared for him. And although Padillagomez later discovered
L.M. was only 13 at the time, he claimed she looked older than that in
person. Officer Gaeta told Padillagomez “she does look older. I’ve seen her.”
Then Officer Granados returned to the topic of deportation, telling
Padillagomez “I know . . . you don’t want to get in trouble. Like you don’t
want to get deported. You know, you don’t have papers. We’re not la migra,”
an apparent reference to immigration authorities.
Padillagomez responded, “I know but [¶] . . . [¶] . . . I’m pretty
sure that, after this, you guys are gonna try to take me to jail. Even if I go to
jail for even one day, two days; I’m gonna lose it all. I lose my parents. I lose
my job. I pretty much lose everything I came here to work for.” When Officer
Gaeta asked Padillagomez why he thought he would be going to jail, he said,
“Cause I pretty much had sex with a minor.”
Padillagomez initially said he only had sex with L.M. one time, in
his truck. But when Officer Gaeta told him they had a video of him having
sex with L.M. in his apartment, Padillagomez admitted having sex with L.M.
there, too. He said it happened “in the moment” because he was lonely and he
now regretted it. He also said he did not want people to think of him as a bad
guy or a rapist.
Officer Gaeta told Padillagomez he understood, and he did not
think Padillagomez was a bad guy for giving in to his emotions. He also told
Padillagomez, “[T]hat’s why we’re giving you the opportunity to talk.
‘Cause . . . we have those videos [but]we don’t [have] your side of the
story; . . . it just seems one-sided and I don’t think that’s fair for you. Right?
15
So that’s why I need to get into detail . . . ‘cause I’m gonna document
everything you tell me. And this is your time to tell the truth.”
After that, Padillagomez admitted to having sexual intercourse
with L.M. “like four times.” He further admitted recording their sexual
activity and sending a copy of the recording to L.M.’s friend, S. And he
admitted asking S. to send him nude photos of herself. Although
Padillagomez conceded he “fucked up” and did some things that “look[] really
horrible,” he insisted he was “not a bad guy” and did not force anyone into
having sex with him.
Officer Gaeta told Padillagomez he did not think he was a bad
guy and commended him for being honest and owning up to his mistakes.
Padillagomez took that to mean he was not going to get in much trouble for
doing what he did. In fact, he told the officers that, because he had told the
truth and they had been “really chill” with him, he did not think he would
have to go to jail. When informed otherwise, Padillagomez complained the
officers had twisted his words. But when Officer Gaeta reminded him that he
never promised him anything, Padillagomez agreed. He said he was not mad
at the officers, but he was mad at himself for having “fucked up.”
Before trial, Padillagomez moved to suppress his statements on
the grounds they were involuntarily rendered in violation of his due process
rights. After a brief hearing on the matter, the trial court denied the motion.
B. Applicable Law and Standard of Review
“‘“The Fourteenth Amendment of the federal Constitution and
article I, section 7 of the California Constitution make ‘inadmissible any
involuntary statement obtained by a law enforcement officer from a criminal
suspect by coercion.’” [Citation.] The prosecution must prove by a
preponderance of the evidence that a defendant freely and voluntarily gave
16
police statements before the statements can be admitted.’” (People v. Suarez
(2020) 10 Cal.5th 116, 157.)
“A statement is involuntary if it is not the product of ‘“a rational
intellect and free will.”’ [Citation.] The test for determining whether a
confession is voluntary is whether the defendant’s ‘will was overborne at the
time he confessed.’ [Citation.] ‘“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 [the defendant’s] will to
resist and bring about confessions not freely self-determined.’ [Citation.]”
[Citation.] 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. Maury (2003) 30 Cal.4th 342, 404.)
When, as here, the interview in question was recorded and the
facts surrounding it are undisputed, we independently review the record to
determine whether the defendant’s confession was voluntarily rendered.
(People v. Suarez, supra, 10 Cal.5th at p. 158.)
C. Analysis
Padillagomez contends his confession was involuntary because he
did not knowingly waive his Miranda rights and the officers made him
improper promises of leniency that undermined his free will. We are not
persuaded.
Under Miranda, the police are not only required to advise
suspects of their rights prior to questioning; they must also obtain a knowing
and intelligent waiver of those rights from the suspect. (Miranda, supra, 384
U.S. at p. 479.) Here, the record shows Officer Gaeta read Padillagomez his
Miranda rights one at a time, and after each right, asked Padillagomez if he
17
understood it. Padillagomez answered “yes” each time, but Officer Gaeta did
not ask him if he wanted to waive his Miranda rights, nor did Padillagomez
expressly agree to do so.
However, waivers come in many forms. Although the better
practice is for police to obtain an express waiver from the suspect, “in at least
some cases waiver can be clearly inferred from the actions and words of the
person interrogated.” (North Carolina v. Butler (1979) 441 U.S. 369, 373.) Indeed, “‘[o]nce the defendant has been informed of his [Miranda] rights, and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.’” (People v. Whitson (1998)17 Cal.4th 229, 248
, quoting People v. Johnson (1969)70 Cal.2d 541, 558
, disapproved on other grounds in People v. DeVaughn (1977)18 Cal.3d 889, 899, fn. 8
; see also Berghuis v. Thompkins (2010)560 U.S. 370, 384
[“Where the prosecution
shows that a Miranda warning was given and that it was understood by the
accused, an accused’s uncoerced statement establishes an implied waiver of
the right to remain silent”].)
Although Padillagomez was reluctant to admit what he did to
L.M., he never objected to being interviewed or requested an attorney. Nor
did he express any confusion about his rights when Officer Gaeta explained
them to him. And throughout the interview, his answers were on point and
articulate as a whole. It is thus reasonable to conclude that, by
acknowledging he understood his Miranda rights and then proceeding to
answer the officers’ questions, Padillagomez knowingly and voluntarily
waived his rights. (People v. Cruz (2008) 44 Cal.4th 636, 668–669; People v.Whitson, supra,
17 Cal.4th at pp. 247–250; People v. Medina (1995) 11
18
Cal.4th 694, 752; People v. Sully (1991)53 Cal.3d 1195, 1233
; People v. Davis (1981)29 Cal.3d 814
, 823–826.)
Padillagomez correctly notes that, once the interview was
underway, he told the officers at one point, “I just, really don’t know what I’m
doing. I don’t want to get in trouble. I don’t want to go to jail.” Padillagomez
argues this was “essentially” a request to invoke his Miranda rights and stop
talking. But Padillagomez made those comments in response to Officer
Gaeta’s assertion that the police were going to find incriminating information
on his phone, which suggests he was merely expressing exasperation with his
predicament. His comments did not constitute an unambiguous invocation of
his right to remain silent that required the officers to terminate questioning.
(See Berghuis v. Thompkins, supra, 560 U.S. at p. 381[after a suspect has been advised of his Miranda rights, his interrogators need not cease questioning until the suspect has unambiguously invoked his right to remain silent]; People v. Stitely (2005)35 Cal.4th 514, 535
[same].)
Nevertheless, Padillagomez argues his confession was
involuntary for other reasons, including the fact he was only 23 years old and
expressed a fear of being deported. Padillagomez claims he “was an easy
mark for [the officers], and they had no problem taking advantage of his low
education level, his inexperience with the criminal justice system, and his
naivety and immaturity in general.”
However, there is no evidence the officers knew of Padillagomez’s
education level, and Padillagomez did not appear to have any difficulty
understanding or answering the officers’ questions, which were posed in a
calm and professional manner.
In addition to being courteous to Padillagomez during the
interview, the officers also respected his right to privacy when he refused to
19
give them consent to search his phone. This aspect of the interview is telling
because, although the officers made repeated requests to search the phone,
Padillagomez did not give in and let them do so. This shows he was not afraid
to stand up to the officers and assert his rights during the interview, which
lasted less than 45 minutes.
Padillagomez also contends the officers improperly induced his
confession by falsely promising him he would not be deported if he told them
the truth about what he had done with L.M. The record does not support that
characterization. In response to Padillagomez’s concerns about being
deported, the officers told him they were not concerned about his immigration
status because that was not their job. They never promised Padillagomez he
would not go to jail or face adverse immigration consequences by speaking
the truth. This is something that Padillagomez himself admitted—albeit
begrudgingly—at the end of the interview.
In arguing his confession was involuntary, Padillagomez also
points out the officers accused him of lying about not having an Instagram
account on his phone and minimized his culpability by telling him he was not
a bad person for making mistakes. However, police interrogation will
necessarily “‘involve some pressure because its purpose is to elicit a
confession.’” (United States v. Santos-Garcia (8th Cir. 2002) 313 F.3d 1073,
1079.) “‘[T]here is nothing inherently wrong with efforts to create a favorable climate for confession,’” which is what the officers did in this case. (Ibid.; see also People v. Jones (1998)17 Cal.4th 279, 297
[whereas “‘adversarial
balance, or rough equality, may be the norm that dictates trial procedures, it
has never been the norm that dictates the rules of investigation and the
gathering of proof’”].)
20
In fact, it has long been held the police may utilize a variety of
“deceptive stratagems to trick [a suspect] into confessing.” (People v. Chutan
(1999) 72 Cal.App.4th 1276, 1280.) So, even though Padillagomez may now subjectively believe the officers tricked him into confessing, that does not prove his statements were involuntarily rendered. It is important to remember that, irrespective of a suspect’s understanding of the situation, a confession will not be deemed involuntary unless it is the product of coercive police activity. (Colorado v. Connelly (1986)479 U.S. 157
, 164–165.) Nothing
the officers did in this case can fairly be characterized as coercive.
Considering all the circumstances attendant to Padillagomez’s
interrogation, we find no violation of his due process rights. The trial court
did not err by admitting his confession into evidence.
III.
THE MARSDEN MOTIONS
Lastly, Padillagomez asserts the trial court abused its discretion
in denying his repeated requests for a new attorney pursuant to People v.
Marsden, supra,2 Cal.3d 118
. The argument is not well taken.
A. Factual Background
1. First Marsden Motion
Padillagomez’s initial Marsden motion was heard on July 26,
2023, about three weeks before his trial started. During the hearing, he told
the trial court he wanted new counsel because he and his court appointed
attorney were not getting along and he was not receiving effective assistance
of counsel. More specifically, Padillagomez accused his attorney of using
profanity toward him, lying to him, not listening to him, not communicating
enough with him, not working hard enough for him, pressuring him to plead
guilty, and not getting his case to trial sooner.
21
When asked to respond to these allegations, defense counsel
conceded he and Padillagomez had butted heads over trial strategy, and he
did call Padillagomez a “mother fucker” when they met the previous day.
Counsel said he lost his cool because, after having strategized with
Padillagomez for several months about his expected testimony, Padillagomez
wanted to change his story and go in another direction, which counsel felt
would hurt his case. While admitting it was unprofessional for him to get
angry and swear at Padillagomez, counsel said his anger came from a place of
concern for his client’s best interests at trial.
During the hearing, defense counsel also addressed the plea
negotiations. Because Padillagomez was facing a potential life sentence,
defense counsel recommended that he accept the prosecution’s plea offer of 20
years in prison, which counsel described as Padillagomez’s “best worst
option.” However, Padillagomez was not interested in the offer because he
believed he was not guilty.
As for his other communications with Padillagomez, defense
counsel explained he had talked to Padillagomez on multiple occasions about
the motions he intended to file and what his trial strategy was going to be.
Although counsel had initially hoped he would be able to suppress the
Instagram messages the police found on Padillagomez’s phone, he realized
that would not be possible after the prosecution produced the judicially
authorized search warrant pursuant to which the messages had been seized.
During the hearing, counsel also explained why the case had
taken longer than expected to get to trial. He said he had to finish up another
trial he was working on, and there had been a period of Covid-related delays
during which Padillagomez was not permitted to appear in court.
22
Nevertheless, given that he had been working on Padillagomez’s case for
several months, counsel believed he had developed a successful trial strategy.
In the end, the trial court was satisfied defense counsel was
representing Padillagomez effectively and he could continue to do so going
forward. The court therefore denied Padillagomez’s request for a new
attorney. In so doing, the court reminded Padillagomez that, although he had
the right to reject the prosecution’s plea offer and take the case to trial, his
attorney was responsible for formulating his trial strategy. The court also
urged Padillagomez and counsel to speak kindly to each other and refrain
from using profanity.
2. Second Marsden Hearing
On August 17, 2023, after two full days of trial testimony,
Padillagomez again requested a new attorney. This time, he said he was
unhappy with how his attorney was cross-examining the prosecution’s
witnesses. In addition, Padillagomez accused his attorney of not providing
him with discovery and lying to him about “a bunch of stuff.” When asked for
an example of the alleged lying, Padillagomez claimed counsel failed to come
through on his promise to subpoena the victims’ school records. However, the
trial court explained to Padillagomez those records had in fact been
subpoenaed by his attorney and reviewed by the court.
During the hearing, Padillagomez also suggested he did not
understand he was facing a possible life sentence. He said that when the
prosecution offered him a deal of 17 to 20 years in prison, he turned it down
because his attorney told him that, even if he were convicted, the most he
could get was 17 years.
Padillagomez also reiterated his complaints that defense counsel
was not communicating with him or fighting hard enough on his behalf.
23
Citing “irreconcilable conflicts” with his appointed attorney, Padillagomez
said he wanted to hire a new attorney, which his family would pay for.
In response, defense counsel informed the court he had numerous
discussions with Padillagomez about the case over the past several months.
And he had provided Padillagomez with discovery and personally visited him
in jail on multiple occasions to talk strategy and prepare him to testify.
Counsel also described the motion work he did before trial and explained
what he was attempting to accomplish through his cross-examination of the
prosecution’s witnesses.
Regarding a possible plea deal, defense counsel told the trial
court the prosecution’s offer of 17 to 20 years in prison was based solely on
Padillagomez’s maximum exposure for the determinate component of his
sentence. But due to the multiple victim allegations, Padillagomez was
looking at 15 years to life as to each victim, which is why counsel
3
recommended he take a plea deal in the 17- to 20-year range.
Ultimately, Padillagomez told the trial court he was not
interested in taking a plea deal because, in his mind, he was not guilty of the
charged offenses. Therefore, even if the prosecution’s offer were still on the
table, he would not accept it.
The trial court informed Padillagomez that was his choice, but
based on the record before it, he had not presented grounds for a new
attorney. The court therefore denied his Marsden motion.
3
Padillagomez originally was charged with multiple counts of
aggravated kidnapping and aggravated sexual assault, which also carried life
terms. As the trial court explained to him, however, those charges were
dropped before his trial started. So, the only way Padillagomez could get a
life term was if the jury found the multiple victim allegations true.
24
B. Applicable Law and Standard of Review
“‘When a defendant seeks substitution of appointed counsel
pursuant to [Marsden, supra,2 Cal.3d 118
] “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’ [Citation.] We review a trial court’s denial of a Marsden motion for abuse of discretion. [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.”’” (People v. Ng (2022)13 Cal.5th 448, 500
.)
In assessing Padillagomez’s Marsden claim, we must also keep in
mind “‘[t]here are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular
client in the same way.’” (In re Andrews (2002) 28 Cal.4th 1234, 1253–1254.)
In alleging ineffective assistance of counsel, the defendant must overcome the
strong presumption that counsel’s performance falls within the wide range of
reasonable professional conduct. (Ibid.)
C. Analysis
In arguing the trial court abused its discretion in denying his
Marsden motions, Padillagomez renews his claims that his attorney did not
do an adequate job of communicating with him, working up his case, or
implementing an effective trial strategy. He also claims his attorney was
somehow to blame for his “foolish” decision not to accept the prosecution’s 20-
year plea offer.
25
Although Padillagomez may have construed counsel’s adamant
(and sometimes uncivil) advice on the plea offer and other matters as
evidence counsel did not believe in his case and was not working hard for
him, counsel told the court his frustration with Padillagomez was rooted in
his concern that Padillagomez was making decisions that would hurt him at
trial. The fact Padillagomez lacked trust in counsel, had trouble dealing with
him at times, and disagreed with some of his trial tactics is not grounds for a
new attorney. (See People v. Jackson (2009) 45 Cal.4th 662, 688[defense counsel is “‘“‘captain of the ship’”’” when it comes to trial strategy]; People v. Hines (1997)15 Cal.4th 997, 1026
[counsel’s representations defeated the
defendant’s claim that their alleged communication problems were insoluble
and evinced an irreconcilable conflict that was likely to lead to ineffective
representation].)
Furthermore, the record is clear Padillagomez rejected the plea
offer against the advice of his attorney. Padillagomez suggests his decision
stemmed from counsel’s failure to inform him that, if convicted, he could be
sentenced to a life term. But even after that risk was explained to him by the
trial court, Padillagomez insisted—as was his right—on going to trial.
Padillagomez also claims his attorney was ineffective for not
presenting certain evidence on his behalf. For example, Padillagomez
contends his attorney should have introduced sexually-oriented Instagram
conversations he had with adult users, to prove he was an “equal
opportunist” and was not using his Instagram account solely to prey on
underage females. But Padillagomez testified to that effect at trial. Further
proof he was soliciting sex online from both minors and adults was not likely
to have swayed the jury in his favor.
26
As it turned out, defense counsel was able to hang the jury on
several of the charges, including one that carried an indeterminate life term,
and those charges were eventually dismissed. We do not believe defense
counsel was ineffective or the trial court abused its discretion in denying
Padillagomez’s Marsden motions.
DISPOSITION
The judgment is affirmed.
GOODING, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
SCOTT, J.
27