Petition for Writ of Certiorari — Estevan Saucedo, Petitioner v. California

Supreme Court briefDec 27, 2021

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FILED

DEC 2 7 2022

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED S'

F<;+ebo%"> 6bcocejo

— PETITIONER

(Your Name)

vs.

JT\w> F-oberbSo^

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Cout-V of Appe^Vf

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, Afo-Fe of Co-\vfcwyv,i>-

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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(Your Name)

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(Address)

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(City, State, Zip Code)

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(Phone Number)

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QUESTION(S) PRESENTED

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LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

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RELATED CASES

\S-ee, To-W\e of- Au+lnov'i't'ieS

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TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

■at

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

i-5

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A -

oT 5+acf*- Colk4 of

APPENDIX B -#pecv,VOv> of

ft,p-cew,e Co*/r+ Pe«y*v^ Rev tew *

APPENDIX C -* feVAso^ For teheaf/09

APPENDIX D

APPENDIX E

APPENDIX F

WoT

(see /kTTAtrieP l*=ttg\^c

Sou she

scc

TABLE OF AUTHORITIES CITED

CASES

•— jce- Tt>^b\eS oF' Au^or l+teS - /\

STATUTES AND RULES

//gW

— 5e« TAsle

OTHER

— See T^b'e of- Au+^O’c^eS ' 6>N • - -

PAGE NUMBER

...

6^U

TABLE OF AUTHORITIES

OASES

Arizona c. Fubninante (1991) 499 U.S. 279 ...........

Arizona r. Roberson (19SS) 486 U.S. 675 ...............................

Auto Equity Sales e. Superior Court (1962) 57 Cal.2d 450 .

Chapman e. California (1967) 3S6 U.S. 18.............................

Eduards v. Arizona (1981) 451 U.S. 477 .............................

Illinois v. Perkins (1990) 196 U.S. 292 .................................

Kimniebnan v. Morrison (1986) 477 U.S. 365 ......................

Kuhlmann v. Wilson (L936) 477 U.S. 436...........................

Lego v. Ticomey (1972) 404 U.S. 477........................................

Lcyra r. Den no (195 1) 3 17 U.S. 556 ........................................

Messiah v. United States (1961) 377 U.S. 201......................

McXeil t\ Wisconsin (1991)501 U.S. 171...............................

Michigan c. Mosley (1975) 423 U.S. 96....................................

Miller c. Fenton (L9S5) 474 U.S. 101......................................

Minnick c. Mississippi (1990) 498 U.S. 146...........................

Miranda c. Arizona (1966) 384 U.S. 436 .............................

Oregon v. Elstad (1985) 470 U.S. 298......................................

People e. Benson (1990) 52 Cal.3d 75 1....................................

People v. Case (2018) 5 Cal.5th ! ......................................

People i . l)e Jesus Valencia (Dec. 1 1. 2019. N'o. S25S038)

(2019 Cal. LEXIS 90911 (dis. stmt, of Liu. J.)...........

People v. Fayed (2020) 9 Cal.5th 147..................................

People c. Gallardo (2017) IS Cal.App.5th 51.........................

People t\ Godbnlt (June 30. 2021. N'o. S268M8)

(2021 Cal. LEXIS 16001 (cl is. stmt, of Liu. J.)...........

(A'-H

People i'- GutImette (199L) 1 Cal.App.4th to3 l...........

People v. Howard (1957) 190 Cal.App.3cl 41.................

People e. Johnson (2016) 62 Cal.-Ith GOO...........

People v. Ledesma (1937) 43 Cal.3d 1/1.............

People u. Linton (2013) 56 Cal.4th 1146.............

People v. Lopez (1935) 163 Cal.App.3cl 602.........

People v. Massic (1993) 19 Cal.4th 550...............

People v. Mendoza Tello (1997) 15 Cal.4th 264 .

People v. Mesa (2006) 144 Cal.App.4th 1000 . . .

People v. Orozco (2019) 32 Cal.App.5th S02 ....

People e. Plylcr (1993) IS Cal.App.4th 535.........

People e. Pope (1979) 23 Cal.od 412....................

People v. Rodriguez (2020) 40 Cal.App.5th 191 .

People e. Sims (1993) 5 Cal. 4th 405 ....................

People i. Tcite (2010) 49 Cal.4th 635....................

Cal.5th

People v. Valencia (Dec. 11. 2019. No. S25303S)

[2019 Cal. LKXIS 90911 pp. 5-S (dia. stint, of Liu. J.) Passim

People c\ Watson (1956) 46 Cal.2d SIS..........................................

People r. Whitt (19S 1) 36 Cal.3cl 724...............................................

People v. Williams (2010) 49 Cal.4th 405....................................

Powell v. Alabama (1932) 287 U.S. 45........................................

Rhode Island v. Innis (1950) 446 U.S. 291...................................

Rogers i\ Richmond (1961) 365 U.S. 534 ....................................

Schneehloth e. Bustamante (1973) 412 U.S. 218......................

Spano i\ Seie York (1959) 360 U.S. 315......................................

Strickland c. Washington (195 1) 466 U.S. 665.........................

United States e. Henry (.1950) 4 17 U.S. 264 .............................

(A'3-)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix WA

the petition and is

; or,

[ ] reported at__

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix &VA.. to

the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix B- to the petition and is

t^/A

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

The opinion of the

appears at Appendix —^

j APP

to the petition and is

. fYiU

<2-

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

J>T is unpublished.

court

(

! i/

\ \

*, •

; I

;

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

NJ/A

was

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

r*J/As_______ , and a copy of the

Appeals on the following date:

order denying rehearing appears at Appendix

f 1 An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including

in Application No. cj£AA

—

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

For cases from state courts:

The date on which the highest state court decided my case was Or.*

A copy of that decision appears at Appendix __S----[ ] A timely petition for rehearing was thereafter denied on the following date:

n//A ___________ , and a copy of the order denying rehearing

appears at Appendix

—

\A An extension of time to file the petition for a writ of certiorari was granted

(date) nn^l~ (date) in

^ to and including

Application No. ---- A----------The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

'See~Ta)o\e. qP Au-fhar-ifies

...

"TTt

B2-

TABLE Of /lUTHQOztxes

CONSTITUTION

United States Constitution

Fifth Amendment.........

Fo u r t e e n t h A m e n d m o n t

Sixth Amendment

California Constitution

Article I. section 15

STATUTES

Evidence Code

Section -353

Section 402

Penal Code

Section 1127a. subdivision (a).........

Section 1S6.22. subdivision (b)(1)(C)

Section 1ST...........................................

Section 4001.1 .....................................

Section 4001.1. subdivision (c) ....

Section 4001.1. subdivision (b) ....

Section 00 1...........................................

Vehicle Code

Section 10-351

RULES

California Rules of Court

Rule S.500, subdivision (b)

OTHER

Stats. 1939, ch. 901. section 4. page 3095...........

(&-±)

mssrOFTffiGftg

SEK

By an amended information, filed IWi 7, 2019, appellant was charged with the following offenses

and special allegations; Ccunt 1-mirder of Oliver Write, in violation of section 187* fVutnh 7- jiu.ii

n^er of tonald J^in violation of sectio, 6W187.

nurder was willful, deliberate and premeditated, within the meaning of section^.

subdivision^)

to both offenses, the following special allegations were alleged/

Ul criminal street gang enhancement, pursuant to section 186.22, subdivisianfhimfCV

u; personal and intentional discharge of a firearm, causing great bodily injury and death, within

the meaning of section 12022.53. subdivision (d);

(3) personal and intentional discharge of a firearm,within the loaning of section 12022.53

subdivision (c);

(4) personal use of a firearm, within the meaning of section 12022.53. subdivision(b);

(5) a principal personally and intentionally discharged a firearm, causing great bodily injury and

death, within the meaning of sections 12022.53. subdivisions (b) and (e)(1);

Jury trial began September 9,2019. (2CT 175.) The prosecution filed 402 motions regarding admission

vJFF18 011 thesg«btieils in chambers (2CT-'f75), and its

flings w^e mowed on the re^d as follows; (iFthe tape of the 911 call was admitted; (2) the Peridns tape

cter the jury was s»om , juror number % brought up that because of his occupation he wornTnot "go against v

jlice (Officers. (2RT22.) The court ultimately granted this motion and excuse juror No. 5 before the

was submitted

> the jury for deliberation. (3RT 713-714.)

Appelant's 1118.1 motion brought at the close of the prosecution's case was denied. (3RT 678.)

Jury instructions were reviewed off the record in chambers.

There were no objections or request for modification or additions by defense counsel. (3RT 679.)

Before closing arguments the court granted the prosecution's motion to dismiss-the special allegation

pursuant to the section 12022.53. subdivision (e). (3RT 715: 2CT 264.) After the case has been suhnitted to

the jury, the court granted the prosecution's motion to rii-<=airi.«gq the 12022.53, subdivisions (d) gun

allegations as to count 2. (3RT 953-954; 2CT 312.)

Jury deliberations began the morning of September 12, 2019. (2CT 312.) At noon that day, the jury

asked to be given the jailhouse recordings and the transcripts to follow along with. They also asked for

transcipts far witness Anny Wi, the prosecution's gun analyst. (@CT 305) After lunch, the jurors

were provided with the tape transcripts. Thereafter, they heard readback for. witness Wi's tectimony.

(2CT 313.) The jury reached verdicts at 3;00 p.ra. later that day (September 12, 2019). Appellant was

found guilty of both counts, and the remining special allegation were found true. (2RT 306-307, 314-315.)

Sentence was pronamce February 10, 2020. For count one, appellant was sentence to ^25-years-to-life

with a consecutive sentence of 25-years—to—life for the section 12022.53, subdiviisicn (d) enhancsnent.

The court struck the section 186.22 gang enhancement, The court denied appellant Vs motion

(3RT1012) to stay the section 12022.53 enhancement. (#RT 1203.)

For count two, appellant was

sentence to a consecutive indeterminate life term, with a nrininun term of seven years. As to count

two only, the court struck the enhancements pursuant to sections 186.22 and 12022.53, subdivision^)

(3RT 1204.)

The court imposed a $300.00 restitution fund fine, pursuant to section 1202.4, subdivisions (b) and

a stay $300.00 parole revocation fine pursuant t o section 12022.45 It also imposed a section 1465.8

cort security fee of $80.00, and a .criminal conviction a

it (Gov. Code § 70373) of $60.00. (2CT 343.)

Because appellant is eligible for a Youth Offender Rarole Hearing pursuant to section 3051, defense

counsel usbnitted a "Franklin Hearing fecket" to be forwarded to the Department of Corrections.

C2CR 343.)

Appellant's timely notice of appeal was filed February 10, 2020. (2CT 344.)

A. Evidence Regantiqg Hie footing

1. Tfestiiaony About the Offense.

Ch February 1, 2016 Oliver Vhite and his friend Ronald Jackson were standing in the driveway of the

Mute Tesidence having a conversation when someone began shooting, Mr. Wiite was struck and died from a

gun shot wound to his head which traveled front to back. (2FT 324-325, 328, 330; ;3RT 674, 676).) Although

Mr. Write was not a gang member (2RT 311-312), other members of the household were East Coast 76 Crips

members. (2RT 317.) The heme had been shot at before, including the previous evaiing were there was a

driven by shooting perpetrated by three latinos. (2RT 317,)

Mr. Jackson saw Mr. Write get shot, and then jimp under his truck, While under the truck he saw

seme shoes and somebody walking, headed.towards tennslee Street. He thought the person with the shoes

was about 100-200 feet away, on the Southeast comer of 78th and Rarmelee. (2RT 331-332.) The shooter

never cane close to them, and never cane onto Mr. White's property. In other-words, the footer never

"ran up on them and did the shooitng." (2FT 339.) After the shooting, the person with the shoes began

walking north on tennelee.(2KT 332.) Jackson did not see anyone get on a bicycle and leave the area,

in fact he did not see anyone on a bicycle during his ten minute conversation with Mr. White. (2RT 340,)

It was just getting dark when the shooting occured. (The 911 call was placed at 5;54 pjn. (2CT 178.))

(2FT 340.) Mr. Jackson believed there was a streetlight on the comer, and maybe one down the middle

of the block. (2FT 340.) No gang slogans were railed out. (2RT 341.) No other, person died as a result

of the footing that day. (2 FT 436.) No one was crippled . (2FT 440.)

Mr. White's daughter, Deshika White, was present at the time of the shooting, and call 911 to

report it. The tape of this rail was played to the jury and admitted in evidence. (2RT 313; People's

Exhibit 2A, transcripts of 911 rail tape, at 2CT 177-182.)

Mr. Jacksoin also spoke with the 911 operator. In his description of the incident Mr. Jackson

alternately used the singular and plural to describe the assailant(s). (See e.g., 2CT 180["they walked

up and shot him;" "some little young guys, Scme little young^guys"].) Then Jackson said there was one

young guy who lock like he had on a made or something.; (2CT 181.)

On the 911 call, when asked whether the shooters were Hispanics or black, Mr. Jackson responded

that the footers were black. (2CT 180.) At trial, however,he testified that he was not sure of the raec

race of the footer, that he just saw something darck. )2RT 334-335.) Explaining what he meant by seeing

something dark, or possibly a mask. Mr. Jackson explained that he could not see features because it was

nighttime. (2ST 336)

tele Whgner was walking her dogs that evening, She was on the Southeast comer of 78th and termelee.

(2RT 345-346.) She saw one or two guys go in unison from standing to kneeling and shoot. Ms. Vfagner fell

to the ground. She lock in the direction of the shots and saw a man on the ground, (2KT 347.) As did

Mr. Johnson. Ms. Vhgner seemed unclear about whether there was one ot two shooters. For example, Ms.

Wbgner spoke with officers shortly after the shooting..At that time she said there were two shooters.

(2FT 440441.) But dudring testimony she said she had told them it also could have been one. (2RT 353354.) Sergeant Quintero testified that Ms. Wbgner was not quite sure it had been two people. (2RT 444.)

At the preliminary hearing , Ms. Vfegner testified there wer two people, but she was not completely sure

(2RT350.)

She thought it looked like the shooter was five feet five inches tall, she believed Dale,and

completely covered. (2RT 348-349.) She could not see facial features because the shooter was wearing a

made or bandana, and was in all black. (2RT 349.) Ms. Whgner describe the facial coverings as either

bandanas or hooded sweatshirts covering their faces. (2RT 354.)

Ms. Vhgner was about 50 feet away. (2RT 355.) After the shootings the 9009 ilant(s) ran Northback

down tennelee. Ms. Vkgner got up and ran to the comer, but did not see anyone. (2RT 350*351.) She

never saw anyone get on a bicycle; (2KT 355.)

After the drafting Ms. Vhgner saw three or four men dispersing from near where the van was.(2RT 393.)

*1Fip Tiiyaai ig^Hm.

Sergeant Quintero was the case investigator, and testified to certain findings at the crime scene.

(2RT 393.) Fifteen 9 millimeter bullet casings were found on the southeast comer of 78th and termelee.

(2FT 397-396.) The presence of casings indicated that the weapon used was a senzi-autcraatic pistol.

(2RT 399.) The location of the casing indicated that the shooter fired from that comer. (2KT 401.)

Sane bullets and fragments were also located in the area of the hanicide. There were fewer bullets

recovered than casings. One of the fragments was consistent with a .22 caliber bullet versus a 9 millimeter.

(2RT 405.)

Criminalist Army Wu examined the fifteen shell casings collected at the crime scare. She determined

that they were all fired from the same gun, most likely a dock 9 millimeter pistol. (3RT 613-618.)

(he bullet fragment located near the hone was consistent with a bullet used in .22 long, short and long

rifle cartridges. (3KT 619.) This would have been a separate gun fran the 9 millimeter. (3FT.620.)

A .22 caliber is a snaller caliber than a 9 millimeter. (3RT 620.) The murder weapon in this case was

never recovered. (2RT 423.)

The distance between 75th and termelee and 78th and termelee is about a mile as the crow flies.

(2KT 430-431.) This gas not a quiet neighborhood. (2RT 431;)

On February 1,2016, sunset occurred at 5:24P.M..(2RT 434.)

Paid Informant Ana Ortiz

Ana Ortiz(The undercover jail informant who later elicited

appellants statement was el«n named Ortiz. Appellant- refers to Ana Ortiz by her first nane at

fimpfi to avoid confusion.) was a paid police informant. According to Ortiz, around the time

of the shooting she had a boyfriend named Estevan terra; During the time she was hanging out

with terra die was

associating with manbers of the Florencia 13 gang, to which Mr.terra

belonged.(2RT 360.) Ana also rladmed to know appellant, who she identified as a friend of terra's

(2ET 361-362.) Ana said that appellant's'Wiiker" was "ckV" (2RT 366.)

Ana testified that in the late afternoon-early evening on the day of the shooting she was

hanging around outside a hone on 75th Street with terra, appellant, and sanecne named MiUy.

(2RT 363-364, 367-368.) Ana r/laimed to see terra give appellant a gun. Ana was not sure what kind;

she just described it as a handgun. (2RT 368.) She "did not recall" (During the 31 pages of her

foqHwrfiy)pftrrini1ar1y in response to questions by defense counsel,Ortiz answered that die "did not recall"

at least 32 times.(2KT 360-391).) any conversation between terra and appellant whenterra gave him the

gun.

According to Ana, After terra gave appellant the gun, die saw appellant aid terra ride their bikes

towards termelee to West Nato. She"did not recall what happened next,"Oily that terra cane back first,

and a couple of minutes later she heard 3-4 shots. (2KT 365, 369-370.)

Appellant returned after the shots. He was on a bike. (2RT 371.) Ortiz "did not recall which direction

he rang fran. She Described appellant as "sweaty" and "nervous." According to Ortiz .appellant gave

terra something, and then left. Ortiz " did not recall" if she saw what appellant gave PArra. Appellant

then laft in a car with terra's brother May. (2RT 370-371.)

Ana Ortiz first «aid she did not recall what appellant was wearing (2RT 371.) but when prosecutor

asked if he was wearing a sweatshirt, die answered "yes". (2ET 371.)

Ana first gave her information to sergeant Quintero about a month or more after the shooting.

She HaimPfl to have done this because she was "scared" about 'Vhatever was going around'." (2RT 372-373.)

Ana had been arrested on another new case and was in custody when she spoke with Quintero. (2RT 373.)

Ana Ortiz had a nunber of prior arrests and convictions for various offenses. (2RT 373.-)"She had

given testimony under a grant of innunity in a prior nurder case in exchange for lenient treatment.

(2KT 373, 377-378.) Ana had received thousans of dollars in payment fran the Sheriff's office several times

in the past, including for her testimony in the prior hcmcide case. (2RT 378-379.) She had also obtained

relocation assistance from the California State Victim's Compensation Board, because die had been

receiving "messages" fran gang manbers. (2RT 374.)

Ana had been working with Office Guillen since possibly 2016. (2RT 379-380.) She reached out to him

while die was incarcerated on her newest case, to give him information about the shooting on February 1,

2016. (2RT 380.) During the time Am was working with Office Guillen, die continued to camdt crimes.

(2RT 381-382.)

Am had been convicted in Ifey of 2015, fen: petty theft; in June of 2015, for felony receipt of

stolen property; in July of 2015, for felony identity theft; in April of 2016, for receipt of stolen property.

(2RT 383-384.) She also had mmerous additional arrests: March 2016, for joy riding; June 2016, for felony

identity theft; May 2017, for burglary, conspiracy, identity theft and receipt of stolen property. She

"did not recall" an arrest in April 2016, for joyriding and receipt of stolen property. (2RT 384-385.)

Sane of these arrests were while die was working with Officer Guillen. (2RT 385.) Am said die was not

a mpmher of Florencia 13, but had caimitted crimes to earn neney for the gang. (2RT 386.) Am stated

she was not being paid for her testimony in the instant case. (2RT 389.)

Am was currently on sunnary probation. (2KT 390.) She had been placed on five years probation.

(2FT 390.) She had been planed on five years probation in 2015, hit her probation was subsequently dismissed.

(2KT 391.)

4. Appellant's Recorded Perkins Statement To Undercover Jail Informant.

The investigation went several months without a prime suspect, until Quintero was

contacted by Offiner Guillen, who said he might have a witness wtith sane information. The witness was Am

Ortiz, who told him that "dc" was the shooter. (2RT 406,409.)

BagpH cn this information, Quintero arranged for an in-custody operation to obtain incriminating

information fran appellant. This "operation" was conducted cn November 15, 2016. (2KT 427.) Quintero arranged a ;

set-up where appellant was placed in the company of an undercover informant posing as an older adult

gang manber. This informant, Ortiz, was in his early 30s. ffe had a nunber of tattoos, including on

his neck and arms. (2KT 435.)

In these operations, the undercover informant asks "prodding" questions about the crime under

investigation. In the present case, this was done, The undercover agsit, Ortiz, "stiiiulated and guided"

his conversation with appellant towards the nurder which was the subject of the trial. Ortiz and

appellant were in the jail together for between three and four hours. (2RT 410.)

The police

did seme "stimilation." (ZRT 410-411.) In this case, the police went up to appellant's

cell,

for him by name, and told him they were there to speak to him about a murder that happened cn

Bth and Rannelee were a black man was shot in the head. This was done within earshot of the undercover

informant in hopes it would stimulate conversation about the crime. (2RT 411.)

Cttiz was equipped with a recording device. (2RT 414,) An edited, translated, (The defense stipulated

to':the Spanish-English translation in the tape.(2ET 414; 2CT 250).)version of this tape was admitted as

People's Exhibit 7. The tape was divided into three parts: Cell recordings 1,2, and 3 (2~KT 413-414.)

Exhibits 7A,7B, and 7C are the written transcripts included in the record. (2CT 183-248.)

For the first half of the tape, appellant did not acknowledge any involvement in the shooting.

Consequently, the police engaged in further "coercion"where they took appellant out of the cell, and

then put him on a hallway bench next to Ortiz. (2RT 411.)

During his''stimulation*' Sergeant Quintero told appellant- that police had obtained his fingerprints

from the evidence. This was a "ruse"*:and a tactic to tey to get appellant to talk. (2KT 420.) In fact

they did not obtain any usable prints from the bullet casings. (2RT 419.) During the recording, Quintero's

partner, Sergeant Ruiz, obtained a ENA swab from appellant. Again, ,this was a "prodding” technique

to get appellant to talk about the crime. (2RT 422.) IN fact, the dkll ratings were sent for ENA

analysis, but nothing was extracted. (2RT 422.)

Sergeant Quintero told appellant the race of the footing vict±p,<,but denied telling him where

Hr. Write had been shot,(2RT 442.) Ik did not tell appellant- that the shooter had been wearing a mask.

(2RT443.)

After appellant was moved onto the bench,his statements regarding the offense changed, and he

made ccmnents coward the case. (2CT 412-413.) IN the tape, appellant identifies himself as "ck from

Florence/' (2,6 T 194.) later, appellant said he had been "from Florence" since he was 14. (2CT 248.)

Appellant told Ortiz that someone else got rid of the gun. (2CT 225.) Ik described the gun as 1

"compact." (2CT 226.) It was a plastic gun. (Ibid.) It was not a big caliber. (2CT 227.)

Appellant said he was wearing a mask, and that he was walking. (2CT 230.) Ufcre were alot of other

black people there. (2CT 233.) Appellant said he thought the shooting took place in the afternoon.

(2CT 234.) Appellant later burned his clothes and stoes and the mask. (2 CT 334.) Ik did not think there

were any witnesses. (2CT 236.)

Appellant

there waseno tunsrfor the other people to shgot back. (2CT 238.) Appel lent said

that he ran up to them. Ik cat through cars and they did not see him earring. (2CT 239.)

Appellantttold Ortiz that he was ssnrprised the police were not trying to get him for another

hanicide because three of them died that day. (2CT 240)) Right there in that spot. (2CT @41.)

They were fran 76 East Coast. Che was hefty. (2CT 241.)

Appellanttresponded that this was not Ms first time; "I got other times." but this time was

tte first time he "dropped noodles" on the floor. Appellant said the shooting was face torface.

(2CT 242-243.)The distance described by appellant was determined to be 12-to 15 feet. (2ET 426.)

Appellant told Ortiz the victims were just having a good time. They did not see appellant becausehe was

walking, and just jimped out. (2CT 242.) Che victim was sitting on the floor, and one was supposedly

crippled. (2CTn243.)

Appelant ‘gyid it was him and another person who went. The other person was sixteen. (2CT 243-244.)

Nb one

was arrested for the offense. (2RT 440.)

Appellant's birthdate is September 7, 1996, and he was nineteen years old at the time of the

shooting (2RT 427.)

JL CMC ESHBCE.

Efetective Micah Lopez testified as the prosecution's gang expert. (3KT 625.) According to lopez,

the gang Florencia 13 ted been around since tte 1950s, and had over 2,000 members!.Lopez described

Florencia 13's comm "signs and symbols." (3KT 626-627.) The primary activities of Florencia 13

included vandalisn, robberies, weapons possession, drug sales, assaults with deadly weapons and

nurders. (3®1 627.)

vould not be

gang mad

had prior ’,ca9£S-" OW 628.) Riley had tattoos,

tattoo. (3RT 629.)T^

S’

£&

2S.J5

E^r^S

ssrs’

s K?s.“iissrisf;

lopezalflo testified about Gonzalo Lozano, with whom he'd had prior contacts and arr^ (w a^i n

Anong other tattoos, Iozano had one on his upper body tfat grid "Flnrpnr-iQ1™ Tn Tnr*wf

• * * t

v«s

13 ^ naiXr- (3Kr 6320 Pe0ple's

uTSSir

was

3 Pn°r ccnvlc,:ion for Gaaaalo Iozano, (3KT 632; 2CT 259-260.) Ch

zP3'^f230^plfiad 00 contest to a violation of Rsnal Code sectiai 29900, subdivisicnt'aX'l) CXT 9so-9*n ^

The docket sheet alleged that the offense occurred cn Septal U,m3.

(2CT

to tetective k?*- the Eist Cfaast 76 Crips *re a rival gang to Fliatia 13. (m M3 3

rding

lopez, gangs ajiuut crimes for several reasons, including to increase the gang’s

reputation and still fear . (3RT 633.) Crimes nay be ccnmitted against rival ^ng*s to

establish dominance over a parti cuar area or increase the gang's reputation. (3FT 635.) There was a

dispute over territory between East Coast Crips; and FLorenda 13. (3KT 638.)

Detective Lopez had never met appellant, and had never investigated any rasas involving him.

( 3RT 644-645.) Based on a hypothetical given to lopez by the prosecution. Lopez gave his opinion that

appellant ves a member of FLorenda 13. (3RT 648.) According to Lopez, the acronym "ck" stood for "crip

killer"(3KT 649.) For appellant the name ''CK" stood for Calvin Klien beeOIIOO appellant would like to wear

that clothing since young .Though without objection, Lopez testified that this suggested to him that

the person with this moniker had killed a crip. (3RT 649.) There would be repercussions if a person

claimed membership inM gang if they were not a member. (3KT 650.) According to lopez, gang

hers

are expected to "put in work" for the gang, which included cannitting crimes to benefit the gang.

(2RT 629-630.)

Given a hypothetical with the facts of this case, Lopez testified that in his opinion the crime

vould be for the benefit of and in association with the FLorenda 13 gang ,and would have been done

with the specific-intent to further promote criminal activity and gang violence. (3FT 651-652.) According

to lopez, it ves imnaterial that no gang slogans were railed out during the shooting. (3RT 653.)

Altho^h he agreed that generally gangs want to advertise their crimes. (3d 664.)

REH3CNS HR GRANTING HE rtTOHW

GROUD CWE

QffiSEMH)

AN IHEE&ffR

StttHD'S FIFTH A Sf us J ' RUSES WEE V3HAE0) VH0J IE WAS ___

___

CTtfT TF TAM rawnmeir AFTHE HE HID HWCB3) HIS MOMMA teams IN AMlOERGfig.

LOTTE -m HRimf TO AMUHft OSE. AHHIiNT IS MHMMHZH) AM> ASMS HIS mmis,

APPETiiifr TR gTITL IN dSICPf VflEN RUDE dHPCT THE FHPN5 (MMCEKII BfAN AOTBfT ID H33CTT

iioaMiNmNGSDaBfiasaHSSNiiCTffiram. aewii^ is not he^iimmhzhjw ikes ror wove

HIS Rians fflKKE MAKING DOOMINmNG SDflHeflS TO HE IMHfiWFR DiOMMff.

Appellant Is Advised Of, And Asserts, His Miranda Rights In A Different (bse.

The subject of appellants prior Miranda invocation came up in the context of a 402 hearing on

the defense motion to wrlmte any admission of gang involvanent. by appellant after he was arrested

for another offense. (3KT 607.) Appellant was arrested on October 8, 2016, for violation of Vehicle

section 10651. At the tine he was advised of his Miranda rights. (3ST 605.) Appellant asserted his

rights, arei refused to speak with the police. (3KT 606.) Etespite his invocation, the arresting officer

continued to question appelant with regard to his gang membership, ostensibly as "booking questions.

(3KT 607.) Appellant answered those questions. (3RT 608-609.) The trial court conrliried it was tyrn

nr EM? appellant had asserted his Miranda rights (3KT 610) and therefore granted the defense motion to

delude appellants subsequent statement about gang membership as evidence at trial in the instant case

(3RT 612.)

“

nfwaianfr «w s^-m in OEtody Vhen fe Ne The BfcrinrimHnB

^ragnjs Operative, He Ws Not Re MjrandjzedT

Appellant was still in jail on the 10851 offense when, on Novato 15, 2016, police decided to

r-nrvWi- the Fterians operaticn in an attempt to elicit a confession to the hcmcide. (2RT 427, 3RIc€G2,

2CT 204.) The "official isolation of a criminal suspect in a police station" is "the clearest exanple

of custody" for Miranda purposes. (People v. Lopez (1985) 163 Gal.App.3d 602, 605, citing Miranda,

supra, 384 U.S. at p. 445.) Appellant was unquestionably still in custody for Fifth Amendment Purposes

whsi incriminating statsnents were elicited from Mm by the government.

AppoTiart-1* teemed Perkins Stata*^ T» Ifaferower Jferil Mtmt. Cttiz,

After Sergeant Quintero learned that Ana Ortiz told Officer Guillen that "ck" was the "footer1.1’1

Quintero

to pursue an in-custody operaticn in an attempt to obtain incriminating statements

from appellant.This " Perkins operation" was corriucted cn November 15th, 2016. (2RT 427.) Quintero

arranged a set-19 where appellant was placed in the company of an mdercover informant,posing asjan

older adult gang member. This informant, Ortiz, was in his early 30's. He had a nunber of tattoos,

inditing on his neck and arms. (2RT 435.) There was no real information in the trial record with

fcegard to Ortiz, Such as whether he was in custody himself, or was being paid for his service's, EIC...

Appellant asked for information but was not given none till after trail.

In these Perkins operations, the undercover informant adcs " prodding" questions about the crime

under investigation. In the present case, this was done. Ortiz and appellant were in the jail together

for between three and four hours. (2KT 410.) During this time Ortiz, "stimlisted and guided" his

conversation with appellant towards the minder which was the subject of the trial.

Although Ortiz told appellant it was iUpgal for the police to record his conversations without

telling him (2CT 203), in feet Ortiz was equipped with a recording device, (2RT 414.) An edited,

translated( the defense stipulated to the Spanish-English translation in the tape. (2RT^4; 2CT 250.),)

version of this tape was admitted as People's Exhibit 7, The tape was divided into three parts;

Cell..recordings 1,2 and 3, (2RT 413-414.) Exhibits 7A,7fBand 7C are the written transcripts includedg

in the record (2CT 183-248,)

During the three to four hours of their tine together, Qrti* continually questioned appellant

about his involvement in the shooting. (2CT 183-248.) The recording was edited such that the only parts

admitted in evidence supported the prosecution's theory of appellant's guilt. (See 2CT 41CH411.)

Thepolice also did their cwn "stimulation" in an effort to obtain incriminating statements from appellant.

(2RT 410-411.) In this case, the police first went 19 to appellant's cell, a^j for him by

name.

Fblice told him they were there to speak to him about a murder that happened on 78th and farmelee.

This was done within earshot of the undercover informant Ortiz in hopes it wouls stimulate conversation

about the crime. (2RT 411.)

Far the first half or more of the tape, while appellant and Ortiz were in a cell together, appellant

did notacknowledgerany involvement in the shooting. Consequently, the police engaged in even further

"stinulation" in which they took appellant out of the cell. (2FT411.) Hiring the second "stimulation"

and violation of Miranda Sergeant Quintero told appellant that police had obtained his finger prints

fron the evidence after appellant had just told them no more then one hour ago that he wanted to speak to

his lawyer. This "tactic" as they called is was simply a "ruse" designed to get appellant to talk.

(2RT 420.) In fact, police did not obtain any usable fingerprints from the bullet casing. (2RT 419.)

After the second "stimilaticn" appellant was moved cnto a bench in a hallway outside a cell,

again appellant wgy=*ip1*rpd next to Ortiz. The locaticnbchangedwas because Quintero thought* appellant might

have been concerned about being recorded when he was inside the cell (2RT 411-412. )Qrtiz reamed prodding

appellant with questions about the offense, but appellant was still not providing mich in the way of

incriminating responses because appellant had asked for his lawyer and was waiting for him to arrive.

For exanple, in response to a question from Ortiz: " Ifave you ever done shit up in personal?" appellant

responded "I Don't Vhnna Say, you know?" (2CI202.) At this point Ortiz told appellant that the law

prevented tte poljrp from recording him mless they told him he was being recorded.(2CT 203.)

Appellant expressed concern about the supposed fingerprint evidence the policetold him they had.

Ortiz told appellant the police likely had other evidence as well. He then began asking appellant about

the weapon used, and wbfefcter he had gotten rid of it. (2CT 188.) "And you touche&mething, you could leave

ENA behind, ttet's how they get you now. The ENA is what’s fucking everybody up, man. Nowadays, have

(INAUDIBLE) INA and shit." (2CT 189.)

Not long after this, in a third act of "stinulation'.'" Quintero's partner. Sergeant Ruiz, obtained

a ENA swab from appellant. This was dene while Ortiz and appellant were sitting on the bench outside

the cell. When appkLlant adeed if he was being charged with nurder,kRuiz replied: "Roght new like

I said flrfcfe is just a ccnfirmaiton. \fe need to confirm with the results that came back. So this is

gonna basically tell the DA this is the dude." (2CT 221.) Again, this was a "prodding" technique to

get appelllant ot tqlk about the crime. (2RT 422.) In fact, the shell casings had been sent for DNA

analysis, but nothing was extracted. (2RT 422.)

After the ENA collection Ortiz told appellant;

Hheyl already know that you're [sic] prints are on the spot. Somebody fuckin' died...

This focrl jtmt took your DNA. They're hitting you with that shit. ’Your, you're booked • *

far itt..He's gonna add charge you. That's what they're doing. That's why they cane for

the fuegin ENA. Without that ttey can't do-they can't hit you with it. After that it's

a wrap. You're gonna get hit with that shit.

(2CT 223.)

It was at this point that appllant began responding to Ortiz' question abou the scooting.

Otitz asked appellant tow he was going to explain his fingerprints on the ggn, and then led into

Questioning appellant about whether he was sure he got rid of the gun. (2CT 225-227.) Ortiz

than askprf about caneras near the site of the shooting, and whether appellant could be ID'd.

about tow appellant got ot the scene of the shooting. (2CT 230-231.) Ortiz continued

to ask appellant specific questions about possible witnesses,what time of day the shootinggoccurred,

whether he burned the madk, (2CT 233-234.) He asked whether the other people s§ot back. (2CT 238.)

Ortiz

where the victims were from. (2CT 241.)

In response to Ortiz' questioning, appellant made the incriminating statements introduced in evidence

against him in trial. (2CT 225-245.)

Appelant was 20 years old at the time of the Rsridn's operation. (2CT 203,321.) There was no

information about whether he had graduated High School. (2CT 330.) He wass still loiving with his

nether . (2CT 331.) Appellant admitted to smoking marijuana since the 6th grade. Appellant had been

diagnosedjwith Attention Deficit Hjperdetivity Disorder and Inscnnia, for which he had been prescribed

Mathylin andirDiphenhydranrine. (2CT 33.)

B. LAW EHFORCEMENT VIOLATED APPELLANT* RIGHTS

BY EHGAGING IN'THE PERKIN*S OPERATION AND OSIWG

UNDERCOVER INFORMANT ORTIZ TO ELICIT INCRIMINATING

STATEMENTS AFTER APPELLANT HAD ASSERTED HIS MIRANDA

RIGHTS IW ANOTHER CASE. APPELLANT'S STATEMEWTS WERE

INADMISSIBLE AT TRIAL.

The Fifth Arendment to the United States Constitution guarantees a right against selfincrimination, To effectuate this right an accused mist also have the right to consult with an attorney

and to have an attorney present during questioning if he or she desire. (Miranda V. Arizona, Supra, 384

U.S. 436, 469.) Under Miranda, a defendant’s statements obtained during custodial interrogations are

made inadmissible by the Fifth Amendment unless prior to any questioning, the accused is "tamed that

he has a right to raisin silent, that any statement he does make nay be used as evidence against him,

and that he has a right to the presence of an attorney, either retained ot appointed" (Miranda, supra

384 U.S. at p. 444.)

Chfp advised a person nay waive these rights and choose to speak with law enforcement, (ibid.)

If, however the suspect "indicates art; any manner and at anytstage of the process that he wishes

to consult with an attorney before speaking there can be no questioning. likewise, if the individual

is alcne and indicates in any manner that he does not wish to be interrogated, the police nay not

question him. The mere fact that he may have answered sane questions or volunteered sane statements

ot his own does not deprive him of the right to refrain from answering any further inquiries until he

has consulted withh an attorney and thereafter consents to be questioned." (Id. atpp.444-445.)

The right- to cut off questioning and seek assistance of counsel is deeply embedded in the

f-nnor-inugnpgg of our riHygnry. as a fundanentallprotection against the formidable powers of the police.

Statansnts obtained in violation of MLrandaaare inadmissible to establish guilt, (People V. Sims (1993)

5 Chi. 4th 405, 440.)

Appellant was given Miranda warnings on October 8, 2016, after being arrested for violation of

vehicle code section 10851. Appellant asserted his right to remain silent and refused to speak with

officers. (3BT 605-606.) law enforcement must "scrupulously honor" a person’s invocation. (Michigan

V. Fbsley (1975) 423 U.S. 96, 106.) Ifere,ddespite appellant’s invocation of his Miranda rights, the

prVHrp fYiifiniwi to ask him questions about hid gang manberdiip. The trial court concluded appellant

ted validly asserted his Miranda rights (3RT 610.) and therefore gx_an tleite tirade f e n s e motion

to exclude those statements as evidence at triallin the instant case. (3KT 612.)

GOTerally, once tan accused has invoked his right to counsel, he "is not sibject to further

interrogation by the authorities until counsel has been made available to him, unless the accused

hineelf initiates further camunication, exchanges, or conversations with police. (Edvards V. Arizona

supra, 451 U.S. 477, 484-485; see Minnick V. Mississippi (1990) 498 U.S. 146, 150.) In Edwards, the

defendant , after initially speaking with officers, stated that he wanted an attorney. (Edwards, supra,

451 U.S. at p. 479.) The officers ceased questioning him. (Ibid)) The follcwing morning, two detectives

again approached the defendant and inform him again of his Miranda rights* (Ibid.) The defendant

subsequently agreed to speak with the detectives. (Ibid.)

The United States Supreme Court held "thatiit is inconsistent with Miranda and its progeny for

the authorities at their instance, to reinterrogate ateaccused in custody if he has clearly asserted

his right to counsel." (Id. at p. 485.) The Edwards court elaborated that the State ted applied an

erroneous standard "byyfocusing on the voluntariness of the waiver as opposed to determining whether

the waiver "constitute^] a knowing and intellife^ixelinquishiEnt :or abandcnneut of a known right or

privilige." (Id. at p. 482.) The Edwards court ’’reccnfimEd" the principle that "in a case where a

suspect in custody has invoked his Miranda right to counsel, [he had an] ’undisputed right' under

Miranda to rarain silent and to be free of interrogation until he had ccnsulte with a lawyer." (Id. at

p.485, quoting Rhode Island V. Innis (I960) 446 U.S. 291, 298.) Accordingly, the court found the

defaidant's statement to the detectives should have been inadmissible. (Edwards, supra, 451 U.S. at

p. 487.)

Similarly, in Minnick, the defendant, after initially speaking with officers, stated that he wanted

an attorney. )Minnick, supra, 498 U.S. at p.148.) The interview ended and the defendant met with an

attorney two or three tines. (Id. at p. 149.) Three days after the initial interview with thedetective

a deputy approached the defendant and advised the defendant again of his rights. (Id. at p. 149.) .The

d@fdndanti.then madp incriminating statements. (Ibid.) The United States Supreme Court explained that

" a fair reading of Eduards and subsequent cases demonstrates that we have interpreted the rule to

bar policerLnitiated interrogation unless thevaccused has counsel with him at the Hhp of questioning.

Wiatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested,

interrogation must cease, and officials nay not reinitiate interrogation without counsel present, whether

or not the accused has consulted with his attorney." (Id. at p. 153.)

Die Fifth Amendment right to counsel in not offense-specific. Thus, cnce appellant invoked his Miranda

right to counsel for the 10651 offense, since he remained in custody he mnlH not be re-approached regarding

any offense unless counsel was present. (JfcneU v. Wisccnsin(1991) 501 U.S. 171, 177; Arizona v. Roberscn

(1968) 486 U.S. 675; People v. Fayed (2020) 9 (HL,5th 147, 165.)

Die police sought a way around this well-established rule of constituticnal law by instead employing the

services of Ortiz, ,an undercover agent of the police posing as a fellow innate. An individual acts as an

agent of the police when the police and their informant [take] seme action, beyond merely listening, that

was designed deliberately to elicit incriminating remarks." (Kuhlmann v. Wilson (1986) 477 U.S. 436, 437.)

Dms, for example, "a doctor interviewing a defendant to secure evidence on behalf of the prosecution is <n

agent c£

enfancemmt." (People v. Sanchez (1983) 148 Cal.App.3d 62, 69, citing People v. Uhlker(1972)

29 Cal.App.3d 448, 453 [ doctor was an agent of the district attorney]; Estelle v. Smith (1981) 451 U.S.

454, 467

[court-appointed doctor "became essentially like that of an agent of the State recounting unwarned

statements made in a postarrest custodial setting"].) A psychiatrist retained by law,enforcement also

acts as an agent of the police where the" interview1 constituted a continuation of the prior interrogation."

(People v. Ghent (1987) 43 Cal .3d 739, 750.)

"[T] he term interrogation1 under Miranda refers not only to express questioning, but

to any words or

actions on the part of the police... that the police should knew are reasonably likely to elicit an incriminating

response fran the suspect. (Rhode Island v. Innis, supra, 446 U.S. 291, 301.) In appellant’s case.law enforcement

used Ortiz, with police assistance in "stimulating" conversation, to elicit incriminating statements

fran appellant. Appellant's rights under Miranda and Edwards were thereby violated,

D»e method used here is connonly known as a "Perkins operation." after the decision in niinn-jff v. Pterions

supra. 496 U.S. 292 (Perkins), In Perkins, the United States Supreme Court held that "[c]onversations

between suspects and undercover agents do not implicate the concerns underlying Miranda." (Id. at p. 296.)

In Psridns, after the defendant was placed in a cell with an undercover government agent while in custody on

charges unrelated to the tried offense, the agent proposed a sham escape plot and elir-ired statements fran the

defendant implicating himself in the crime with which he was later charged, (Perkins, at pp. 294-295.)

Die Radons majority held that " Miranda forbids coercion, rot mere strategic deception by taking

advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. ...

If Miranda was not meant to protect suspects from boasting about their REAL criminal activities in front

of people whom they believe to be their cellmate?(In this case both were never cellmates.) (Id. at pp. 297296;see ffeople v. Tate (2010) 49 Gal.4th 635, 685-686; People v. Fayed, supra, 9 Cal.5th 147, 165.)

Perkins concluded that no Miranda warnings were necessary because such warnings are limifpH to protecting

against the inherently coercive pressures of a "police-dominated atmosphere." and when a suspect is unaware

that he is speaking with the police that coercive atmosphere is lacking. (Ibid;)

Although Perkins gave a green light to various undercover police operations, it did rot address

surreptitiousiquesticning of a suspect after he invoked his Miranda rights. In fact, neither the United

States Supreme Court nor the California Supreme Court has addressed the application of Miranda in a case

where the defendant has invoked his or her Miranda rights prior to a Perkins interview. (See People v.

Valencia (Dec. 11,2019, No.S258038) ^Cal.5th__[2019 Cal, LEXIS 9091] pp. 5-6, 14-15, 21(dis, opn. Iiu, J.).)

ftwever, relying on language in Perkins and the underlying policy of Miranda and Edwards, California courts

of appeal, including this court, have held that Miranda and Edwards are rotiimplicated when defendants who

have invoked theirMiranda right to counsel subsequently speak to someone they do rot know is an agent

of the police. (People v. Orozco (2019) 32 Qil.App.5th 802, 814 [Miranda forbids coercion, not strategic

deception]: see also People v. PLyler(1993) 18 Cal.App.4th 535 , 544-545; Reoplebv. Guilmette (1991) 1 Gal.

App.4th 1534, 1539-1543.)

Other states that have considered the issue have, with one exception, reached the same conclusion,

(See People v. Hunt (HL. 2012) 969 N.E.2d 819. 827; Halm v. State (FLa.Dist.Ct.App. 2007) 958 So.2d 392,

395; State v. Fitzpatrick (fe.Ct.App. 2006) 193 S.W.3d 280, 288; State v. Anderson (Alaska Ct.App. 2005) 117

P.3d 762, 768; State v. fell (2003) 65 P.3d 90, 100; but see Boehm v. State (Nev. 1997) 944 P.2d 269,

271-273[holding the perkins practice of using a jailhouse informant violated the Fifth Amendment wten

employed after a suspect formlly invoked his Miranda right to counsel].)

It is noteworthy, however, that the policy manual for the Orange County District Attorney’s Office,

Which is one of the largest prosecutors’ offices in the California state, expressly provides that; " A

Bakins operation should not be conducted after the suspect has invoked his/her Miranda rights." '

(Orange County District Attorney’s Office, Informant KELicy I'fenual (Jan, 2017) p. 28<orangecountyda.org/

civicax/fliebank/

blobdload.aspx?BlobID=23499> [as of October 8, 2020].)

In this case Ortiz, representing himself to be a senior gangster, was not a mere informant acting

tint his own in hopes of trading information to t-he police. The operation employed by police go far more then

merely listening while a suspect voluntarily bragged to a cell note. It violated one of the main underpinnings

of the miranda warning— to act as a check against coercive police activity. (Miranda, supra, 384 U.S.

at p. 479["the Constitution ha prescribed the rights of the individual when confronted with the power of

goveniuait when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness

against himself. That right cannot be abridged government trickery.”].)

"Although Miranda discussed the ’inherently canpelling pressures' of an official interrogation [citation], .

its holding was gromded in a broader recognition that "the constitutional foundation underlying the privilege

[against self-incrfmirationj is the respect a governnsnt —state or federal— mist accord to the dignity

and integrity of its citizens” [citation], (fteople v. Valencia, supra,—Cal,5th—[2019 Chi. 1EJQS 9091]pp. 12

(dis. opn. Liu, J .).) By using stimulation and interrogation to get appellant to make incriminating statement,

appellant’s Fifth Amendment rights were abridged.

The remedy for eliciting statements from a suspect who has invoked his Miranda rights is exclusion of the

statensit at trial. (Oregon v. Elstad (1965) 470 U.S. 298, 307.) The incriminating statements appellant made

to the undercover operative Ortiz diould not have been admitted at trial.

meR IN MMUTDC THE SHHMKr WAS NOTHAMfSS BERN) A REASCNABE HXET.

The harmless error test of Chapman v. California (1967) 386 U.S. 18, applies to the admission of a

defendant’s statement obtained in violation of the Fifth and Fourteenth Amendments. (People v. Chse(2018)

5 Gal.5th l,22;cf. Anizora v. Fulnrinante (1991) 499 U.S. 279, 308-312 [involuntary confession].) Accordingly,

the goverment, as the beneficiary of the error, bears the burden of proving it was harmless beyond a

reasonable doubt. (Chapman, supra, 386 U.S. 18, 24; Case, supra, at p.22.) Appellant’s convictions should

be reversed because the government cannot show beyond a reasonable doubt that the erroneous admission of

his statements in violation of the Fifth Amendnent was harmless and did not contribute to the jury's

verdict. (Chapman, supra, at p. 24.)

Fteople v. Cahill (1993) 5 Cali4th 478 gave exanples of situations where an improperly admitted

confession might be found harmless;

The erroneous admission of an involuntary confession properly might be found harmless,

for example, (1) when the defendant was apprehended by the police in the course of ccnmitting

the crime, (2) when there are nunerous, disinterested reliable eyewitnesses to the crime whose

testimony is confirmed by wealth of uncontroverted physical evidence, or (3) in a case in which

the prosecution introduced, in addition to the confession, a videotape of the camdssion of the

crime [citation]. As these examples suggest, although in sane cases a defendant’s confession

will be the centerpiece of the prosecution’s case in support of an appellante court to determine

with confidence that there is no reasonable probability that the exclusion of the confession

would have affected the result.

(Id, at p. 605.)

No similar scenarios exist in appellant's case. Appellant was not identified by anyone at the scene as

the shooter, in fact, no one at the scene identified or gave a detailed description of the footer. The

gun used in the crime was never recovered. Police were not able to obtain fingerprint or ENA evidence, (2RT

419, 422^423.)

Aside from appe.1 Ian’s statements to the Parkins operative Ortiz, the only evidence against appellant

was the extremely unreliable testimony of paid police informant, Ana Ortiz, whose testimony was so

questionable that even the prosecutor expressed doubt about her veracity, conceding in his argunent,

'tfeybe she [Ana Ortiz] was there, maybe die wasn't...." (3RT 946; see also 3RT 913-916.) Lx fact,in

closing argunent the prosecutor frankly told the jury that, "It is the recorded admission that is the

darning evidence in this case." (33* 916.)

A brief review of Ana’s testimony confirms the unreliability of her evidence. Ana first reached out

to officer Guillen claiming to have informaticn about the shooting after cnce again being incarcerated

on a new case. (2KT 373, 380.) Ana had a lumber of prior arrests and convictions for various offenses, and

had received thousands of dollars in payment from the Sheriff’s office in the past for information and

testimony. (2RT 373, 373-379.) She had also obtained relocation assistance from the California State

Victim's Compensation Board. (2FT 374.)

Wiring the time Ana was working with Officer Guillen she continued to ccranit crimes, (2RT 381-382.)

She was convicted in toy ^ t™* r

, „

y of 2015, for petty theft: in .limp nf 2015,

for felony receipt of stolen property in July of 2015, for felony identity theft; in April of 2016, for

receipt of stolen property. (2RT 383-384.) She also had nunsrous additional arrests/ March 2016, for joy

riding/ June 2016, for felony identity theft/ May 2017, for burglary,conspiracy, identity theft and receipt

of stolen property. She "did not recall" an arrest in April 2016, for joyriding and receipt of stolen property,

(2RT 384-385.) She was currently on sunnary probation. (2RT 390.) She had been placed on five years probation,

in 2015, but her probation was subsequently dismissed. (2RT 391.) Defense counsel aptly described Ana as "fraud

personified." (3KT 933.)

The inreliability of Ana Ortiz1 testimony is further demonstrated by her evasiveness during questioning.

For example, during the 31 pages of her testimony, particularly in response to questions by defense

counsel. Ortiz answered that she "BP) HOT Uffll." at least 32 times. (2ET 360-391.) Jti addition, Ana did

not rtaim to have personally witnessed the shooting. Her testimony was, at best, circunstantial evidence

of appellant’s involvement.

Simply put, the testimony by Ana Ortiz was far too unreliable for this court to determine with confidence

that, there is no reasonable possibility that exclusion of appellants incriminating statements vculd have

affected the result. (See People v. Cahill, supra, 5 Chi.4th at p. 505.) Again, this was even acknowledged

by the prosecutor during his closing argunent to the jury, when he expressly conceded that appellants

recorded statement were " the damning evidence in this case." (3RT 916.)

In Arizona v. FUlnrinante, the high court pointed out. "[a] confession is like no other evidence, ' Indeed,

the defendant's own confession is probably the most probative and damaging evidence that can be admitted

against him. . . The admissions of the defendant conefrom the 4CRX himself, the most knowledgeable and

unimpeachable source of information about his past conduct. Certainly, confessions have profound impact

on the jury, so much so that we nay justifiably doubt its ability to put than out of mind even if told

to do so . [Citaticns.il" (Arizona.v. Rilminante, supra , 499 U.S. at p. 296.)

In this ragp the admission of appellant's confession cannot be found harmless beyond a reasonable

doubt. (Chapnan v. California, supra, 386 U.S. at p. 24.) His convictions must therefore be reversed.

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Appellant recognizes that his trial counsel did not make any objection to the admission of his recorded

gtatwnpntB to the Feridns operative Ortiz, and that this lick of objection has likely forfeited the issue

for direct review of the merits of his claims of error. (Evid. Code section 353.) If this court finds the issue

forfeited by lack of objection, appellant's arguments oust be considered on the alternative basis that

his trial counsel rendered ineffective assi.sranra by not objecting to admission of hisstatements on the

grounds raised herein

The Sixth Amendment of the United State Constitution and Article I, section 15, of the California

Constitution guarantee a criminal defendant the right to effective assistance of counsel." (Pcwell v.

Alabama (1932) 287 U.S. 45, 68; People v. Ledesma (1987) 43 Cal.3d 171, 215.) Effective assistance is

tlat which meets an objective standard of reasonableness under prevailing professional norms, (Strickland

v. Vhrfringtcn (1984) 466 U.s. 668, 688.)

There is a two-prong standard for reviewing clainw of ineffective assistance of counsel which is

well-settled. A defendant uust show that counsel's representation fell below an objective standard of

TTiwYTiahlmpjCiB under prevailing professional norms, and that he or die suffered prejudice as a reailt.

(People v. Johnson (2016) 62 Cal.4th 600, 653.)

1. Tfipr^'-fimilii ft* ifa fcagwAlff. Tartjol Bgria

fimral

To ftwe Objected 1b Ahriffikn Of

Anwiiin-’s flMiHMht Tb (kti*faT*»-ft—id That TheyWere ONaineri In VSnlatratt OfHis Eiflih

kiihwl Rights.

As to the first prong, " the defendant mist show that counsel's representation fell belcw an

objective standard of reasonableness." (Strickland v. VkdrLngton, supra, 466 U.S. 668, 688.) Vfoere

the record dieds no light- cn why/counsel acted in manner challenged, a claim that counsel's performance

was deficient should be rejected unless there could be no satisfactory explanation. (People v. Rope (1979)

23 Gal.3d 412, 426.) Axordingly, "[rjeviewing courts will reverse a conviction on the ground of inadequate

counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose

for his act or omission. . . or where there simply could be no satisfactory explanation therefor,"

(People v. Plager (19J7) 192 Gal.App.3d 1537, 1543, citing and quoting Pape, supra, 23 Cal.3d 412, 426,

internal punctuation emitted; People v. Msndoza Tello (1997) 15 Cal.4th 264 , 266.)

Nothing beyond the appellate record could possibly provide a satisfactory explanation for counsel's

failure to seek exclusion of the single most important piece of evidence in this case. In this case trial

counsel could have had no reasonable, tactical, basis for not seeking to exclude the single most important

piece of evidence against appellant. As noted above, it is well-recognized that "an accused's confession

" (Arizona v. Rilminante,

is the most probative and damaging evidence that can be admitted against him

supra, 499 U.S. at p. 296, internal citation and quotation narks emitted.)

It is Reasonably Probable That, But

For Trial Counsels Error, The Result

Of The Proceedings Would Have

Been Different.

The second prong of Strickland requires that a defendant

demonstrate a reasonable probability that, but for counsel's

errors, the result of the proceedings would have been different.

I Strickland, supra, -106 I'.S. at pp. 693-695: People v. Ledesma,

supra. 43 Cal.3d 171. 216-218.)

As discussed above in connection with appellant's argument

as to why admission of his statements cannot be found harmless

beyond a reasonable doubt, it is beyond question that, but for this

evidence, the result of the proceedings would have been different.

There was no identification evidence, and no forensic evidence

linking appellant to the shooting. The testimony by paid

informant Ana Ortiz was so lacking in indicia of reliability, that

even the prosecutor chose not to rely on it when asking the jury to

return a guilty verdict, instead conceding that *'[m|aybe she was

there, maybe she wasn't...." (3RT 946; see also 3RT 913-916.)

Instead the prosecutor frankly told the jury that. "It is the

recorded admission that is the damning evidence in this case."

(3RT 916.)

It is reasonably probable that, but for the "damning

evidence" of appellant's recorded incriminating statements, the

result of these proceedings would have been different.

Appellant's trial counsel was therefore ineffective for no:

objecting to admission of these statements, and appellant ^

conviction should be reversed.

Appellant Alternatively Asserts That

Prejudice Should Be Judged under

the Same Standard Used for

Assessing the Error on its Merits.

The error here implicated appellant s federal constitutional

rights, and reviewed on the merits is therefore reversible unless it

can be found harmless beyond a reasonable doubt. (Chapman

supra. 36S Lr.S. at p. 24.) With this ia mind appellant

alternatively contends that, even if considered as a claim of

ineffective assistance of counsel, this court should "look through

to the substance of the underlying error and judge its effect

according to the same standards as if ruling on the merits.

Kimmelman v. Morrison and

Strickland v. Washington.

Appellant acknowledges that on the face ot it his argument

appears foreclosed by the decision in Kimmelman v. Morrison

(19S6) 477 U.S. 365. (Auto Equity Sales i. Superior Court (1962)

57 Cal.2d 450. 455.) However, as explained below, appellant

believes Kimmelman is distinguishable and should not apply

here. Even assuming this court disagrees and finds Kimmelman

to be controlling. appelLant respectfully raises this issue to

preserve it for further review.

The inherent unfairness in this discrepancy between the

prejudice standard employed on a direct merits review ot an

issue, versus the standard used to assess a claim of ineffective

assistance of counsel, has previously been recognized. In People

i\ Mesa (2006; 144 Cal.App.4th 1000. addressing the defendant's

majority found that the defendant had failed to demonstrate

prejudice under the Strickland "reasonable probability" standard,

and upheld the conviction. In a concurring opinion. Justice

Johnson expressed his concern about requiring a defendant to

demonstrate this greater degree of prejudice where counsels

ineffectiveness deprived the defendant of a fundamental

constitutional right which otherwise would have been evaluated

under the "harmless beyond a reasonable doubt" standard

demanded by Chapman (Chapman v. Californiat supra, 336 U.S.

IS). (Mesa, supra. 144 Cal.App.4th at p. 1012. Johnson. J..

concurring.)

Justice Johnson elaborated:

The threshold issue, in my view, is what would

have happened if that objection had been made

instead of omitted. If the answer is that there is a

reasonable doubt whether the outcome would have

remained the same because the enforcement of the

constitutional right would have made that degree of

difference, then the logic behind Chapman suggests

the conviction should be reversed. It seems contrarv

to the principle that federal constitutional rights

warrant the higher standard of protection afforded by

Chapman to do otherwise. It undermines

enforcement of the federal constitutional right to say.

no. despite the fact there is a ‘reasonable doubt’ the

conviction would have happened if the objection had

been made we refuse to reverse because the

defendant has failed to establish a ‘reasonable

probability' a different outcome would have resulted

had the objection been made.

(Ibid.)

Adopting this approach a court would first review the

federal constitutional error to determine whether the error was

harmless beyond a reasonable doubt under Chapman. If the

error was not harmless under this standard, it would follow that

the client did not receive constitutionally effective assistance of

counsel. (Ibid.) As Justice Johnson explained: "In my view, the

two are linked inextricably. If the constitutional error the

.v. uj

consequences that raised a reasonable doubt about the trial’s

outcome then that mistake ought to satisfy the prejudice prong,

at least, of the standard for ineffective assistance of counsel.” (Id.

at p. 1014.)

Justice Johnson further recognized that simply because the

defendant may have been denied the right to effective assistance

of counsel, that did not somehow eliminate the underlying

constitutional violation. "[Tjhis is not solely or even primarily a

Sixth Amendment ‘ineffective assistance of counsel' violation to

be tested under the standard of review applicable to that

constitutional error. No, in this case it is a Fifth

Amendment

violation combined with a Sixth Amendment violation -- and more

the former than the latter. As such the error should have to pass

muster under both standards, not just the easier one. before being

deemed harmless.” (Id. at p. 1014.)

Appellant recognizes that in Kimtnelrnan the Supreme

Court approved application of the Strickland "reasonable

probability" prejudice inquiry even though the underlying claim

of error involved the defendant’s Fourth Amendment right

against unreasonable search and seizure. (Kimmelman, supra.

477 U.S. 365. 3S3. fn. 7: and see People v. Mesa, supra 144

Cal.App.4th at pp. 1003-1009.) However, appellant believes that

the procedural posture of the Kimmelman case played a part in

the Court’s decision. The primary issue in Kimmelman was

whether a court on federal habeas review could reach a defaulted

Fourth Amendment claim on the grounds of ineffective assistance

of trial counsel for failing to seek suppression of evidence.

Importantly, had counsel sought suppression in the trial court

and lost, the issue would not have been cognizable on federal

habeas review. (Stone c. Powell (1976) 425 U.S. 465.) The

decision in Kimmelman was thus an expansion of a defendant’s

remedies, permitting a challenge to the unlawful search and

But while expanding the available remedy, the Kimmelman

Court also held that review of the issue would be conducted under

the less favorable Strickland standard, rather than the Chapman

standard normally applicable to review of federal constitutional

errors. (See Kimmelman, supra. 477 U.S. at p. 332. fn. 7.) In

doing so. the Court responded to a hypothetical concern that a

trial attorney might intentionally default a substantive issue in

hope? of later gaining a more favorable review of the claim on

Sixth Amendment grounds. Rejecting this concern, the

Kimmelman Court expressly pointed to the more difficult burden

of proving ineffective assistance of counsel claims as a reason

trial counsel would not intentionally forego raising an issue in

state court in hopes of receiving more favorable treatment of the

issue on federal habeas review. (Id, at p. 3S2. in

.) Be vend

that, however. Kimmelman did not really provide any rationale

for the discrepancy between the standards of review where the

underlying error from the defendant's perspective involved the

denial of a federal constitutional right.

This lack of reasons was noted by the court of appeal in

People v. Howard, which was tasked with applying the thenrecent Kimmelman decision. (Howard, supra. 190 Cal.App.3d

41.) The Howard court declared itself constrained by Kimmelman

to assess the error from trial counsel's failure to bring a

meritorious suppression motion under the less rigorous

Strickland standard. The court nevertheless complained that

'*[w]e might have preferred that ... the [Kimmelman] Court

discuss the factors which make itwilling to tolerate a greater

likelihood of error in the outcome where the mistake is defense

counsel's rather than that of the trial judge." (Howard, supra.

190 Cal.App. 3d 41. 46-47.)

In articulating its prejudice standard for ineffective

assistance claims. Strickland referenced the lack of government

the defendant to prove a claim of ineffective assistance. "Conflict

of interest claims aside, actual ineffectiveness claims alleging a

deficiency in attorney performance are subject to a general

requirement that the defendant affirmatively prove prejudice.

The government is not responsible for. and hence not able to

prevent, attorney errors that will result in reversal of a conviction

or sentence." (Strickland, supra, 466 U.S. at p. 693.)

The Strickland Court also noted that many claims of

ineffective assistance relate to the art of representation, and thus

may be difficult to assess in a given situation. "Attornev errors

come in an infinite variety and are as likely to be as utterly

harmless in a particular case as they are to be prejudicial. They

cannot be classified according to the likelihood of causing

prejudice. Nor can they be defined with sufficient precision to

inform defense attorneys correctly just what conduct to avoid.

Representation is an art. and an act or omission that is

unprofessional in one case may be sound or even brilliant in

another. Even if a defendant shows that particular errors of

counsel were unreasonable, therefore, the defendant must show

that they actually had an adverse effect on the defense." (Ibid.)

Appellant respectfully suggests that the "artistic" aspect of

representation is more appropriately considered in connection

with Strickland's first prong - whether reasonably competent

counsel would have done (or omitted doing) the same thing. If so.

then the outcome - good or bad - is irrelevant. If not. then the

defendant should not have to meet a higher threshold of

demonstrating prejudice from transgression of a federal

constitutional right, or where, as here, the error takes place at

the penalty phase of a capital case.

Moreover, the Strickland decision did not specificallv

consider the discrepancy in requiring different standards of

prejudice depending on the manner in which an error reaches

addressed the situation where an appellate c-Hirt declines to

address the merits oi an error on the grounds taut tnai counsri:

failure to object or request necessary instruction* has ‘’forfeited"

che issue for the direct appeal, and the defendant is thus forced to

seek review on the alternative ground of 1AC.

In these situations, by successfully asserting'-forfeiture" of

issues in the direct appeal, and instead requiring defendants to

pursue potentially meritorious claims otherwise reviewable under

Chapman (Chapman. supra. 330 L'.S. IS) via alternativeallegations of inefiective assistance of counsel, the government

succeeds in re-allocating the burden of demonstrating prejudice to

the defense. Although from the defendant’s standpoint the error

and the harm are the same, the chances of prevailing on appeal

are diminished. (See, e.g.. Mesa, supra. 144 Cal.App.4th 1000

(maj. opn.).)

Appellant asserts that in such cases it makes no sense to

doubly penalize the defendant for the errors of his trial counsel by

also requiring a greater showing of prejudice. The harm to

appellant is no less significant because this court may find it

attributable to his trial counsel rather than the trial judge.

Appellant's case does not present a situation, such as in

Kirnmelman, where the defense is actually being given the

opportunity to collaterally pursue an issue which would otherwise

have been proeedurally barred. It also does not involve the sort of

strategic decision-making involving the presentation of the

defendant's case at issue in Strickland. Finally, there would be

no reason for trial counsel to intentionally inflict error into the

trial proceeding by failing to request that the jurors be instructed

not to double-count the sixteen prior robbery offenses when

making a decision between life and death.

Weaver i\ Massachusetts.

More recently, in Weaver v. Massachusetts (2017)__. 137

n r> A A

O'___

►a

prejudice should be used where trial counsel failed to object to an

unlawful courtroom closure during voir dire. Had the improper

closure taken place over counsel's objection, the error would have

oeon i £*versibltr per se. However, within the narrow confines of

the issue as presented (a public-trial violation raised via an

ineffective assistance of counsel claim) a majority of the Court

concluded that the Strickland standard should apply. (137 S.Ct.

at p. 1907. 1911. 1913.)

The Couit t decision to place the burden on the defendant

to demonstrate error was based in part on the nature of the error

(a public trial violation), which does not in everv case lead to a

fundamentally unfair trial. (Weaver, supra. 137 S.Ct. at p. 1910.i

It was also based on the difference between this error being

preserved at trial and raised on direct appeal, versus being raised

in a collateral proceeding via an ineffective assistance claim.

( Weaver, supra, 137 S.Ct. at p. 1912,) In the latter situation, a

timely objection would have permitted at least an opportunitv for

contemporaneous correction, or articulation of reasons for the

court's ruling. (Ibid.)

But tne Weaver opinion also expressed concern with the

"systemic costs" of remedying the error. In this regard, the Court

pointed out that where an error is raised on direct appeal there is

a better chance that less time will have elapsed between trial and

a remand. As a result witness memories more likely remain

accurate, and physical evidence is still available. In addition, a

reviewing court could provide direction to the trial courts "in a

familiar context that allows for elaboration of the relevant

principles based on review of an adequate record.” In other

words, the issue is better considered in a regular appellate

process, not in a subsequent collateral proceeding with additional

time delays. (Id. at p. 1912.)

By contrast, the greater time delay common to collateral

. .1 •

, 1

i •

There has also usually been an opportunity for review of the trial

court proceedings in a direct appeal. "These differences justify a

different standard for evaluating a structural error depending on

whether it is raised on direct review or raised instead in a claim

alleging ineffective assistance of counsel." {Id. at p. 1912.)

Here, although trial counsel did not object to admission of'

appellant’s incriminating statements at trial with the possibility

of a contemporaneous ruling7, it is nevertheless being raised in

the direct appeal as opposed to a subsequent collateral

proceeding. For these reasons, appellant believes u is proper to

apply the Chapman standard, which would otherwise have been

the standard for assessing prejudice inJi^us contextv ^

....

Applying that standard', for the reasons set forth in section

C. supra, (addressing why the error cannot be found harmless

beyond a reasonable doubt) the government cannot show beyond

a reasonable doubt that the erroneous admission of appellant's

statements obtained in violation of the Fifth Amendment was

harmless and did not contribute to the jury’s verdict. (Chapman,

supra, at p. 24.) Appellant's conviction must therefore be

reversed.

II.

APPELLANT'S STATEMENT SHOULD HAVE BEEN

EXCLUDED BECAUSE THE POLICE TACTICS USED TO

INDUCE HIS INCRIMINATING STATEMENTS VIOLATED

HIS RIGHT TO DUE PROCESS OF LAW UNDER THE

FOURTEENTH AMENDMENT.

THE PERKINS OPERATION VIOLATED

APPELLANT'S DUE PROCESS RIGHTS.

In addition to transgressing appellant's Fifth Amendment

rights, the police in this case also violated appellant's right to due

process of law. (U.S. Const. 14th Amend.: See Miller i\ Fenton

(1935) 474 U.S. .104. 110 [notwithstanding Miranda’s prophylactic

7. Although different counsel did object to admission of the

statements at the preliminary hearing. (2CT 99.)

protections, "the Court has continued to measure confessions

against the requirements of due process"]; Perkins, supra. 496

l\S. at pp. 301-303 iconc. opn. of Brennan. J.) citing Miller i.

Fenton, supra. 474 l\S. 101. 109-110. 116: People c. Benson

(1990) 52 Cal.3d 754. 773: see also Justice Liu's dissent from

denial of review in People i\ Valencia, supra. __Cal.5th__[2019

Cal. LEXIS 9091] [expressing a willingness to consider whether

the use of deceptive techniques to deliberately circumvent a

suspect's invocation of Miranda rights violates cue process;..1

The United States Supreme Court nas long neiu u:ai

"certain interrogation techniques, either in isolation or as apptiec

to the unique characteristics of a particular suspect, arc so

offensive to a civilized system of justice that they must be

condemned under the Due Process Clause of the Fourteenth

Amendment. ... [TJhe Courts analysis has consistently been

animated bv the view that ours is an accusatoiial and not. an

inquisitorial system.’ [citation], and that, accordingly, tactics tor

eliciting inculpatory statements must fall within the bioad

constitutional boundaries imposed by the Fouiteenth

Amendment’s guarantee of fundamental fairness.

{Miller u.

Fenton, supra. 474 l-.S. 101. 109-110.)

An involuntary statement obtained through coercive police

activitv is inadmissible under the due process clauses of the

federal and state Constitutions. (People v. Benson, supra. 52

Cal.3d 754. 778: People r. Linton (2013) 56 Cal.4th 1146, 1176:

Lego c. Ticomes (19 /2) 404 U.b. 4 / /, 4b3

Coeicion in this sense

means "overcoming] a person's free will" because ”[t]he question

is whether the statement is the product of an essentially free and

unconstrained choice or whether the defendant's will has been

overborne and his capacity for self-determination critically

impaired bv coercion." (People V- Willictns (2010) 49 Cal.4th 405.

436. internal quotations omitted: accord, Peop i€ V. Case, supra. 5

Pal nth at n. *25: Rosers c. Richmond (1961) 365 l .5. 534. 544.)

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.” (Sckneckloth v. Bustamante (197-3)

412 U.S. 21S. 226: Arizona v. Fulnxinante, supra. 499 L\S. 279.

285.) Under both state and federal law. courts apply a totality of

circumstances test to determine the voluntariness of a confession.

{People v. Massie (1993; 19 Cal.4th 550. 576: People v. Orozco,

supra. 32 Cal.App.5th at p. S19.)

"Prior to Miranda, the admissibility of an accused's in

custody statements was judged solely by whether they were

'voluntary' within the meaning of the Due Process Clause.

[Citations.] If a suspect's statements had been obtained by

'techniques and methods offensive to due process.' [citation], or

under circumstances in which the suspect clearly had no

opportunity to exercise 'a free and unconstrained will.’ [citation],

the statements would not be admitted/' (Oregon v. Elstad, supra.

470 U.S. 29S. 304. ) Justice Brennan's concurrence in

Perkins supported application of due process principles to ensure

that "the admissibility of a confessions turns as much on whether

the techniques for extracting the statements ... are compatible

with a system that presumes innocence and assures that a

conviction will not be secured by inquisitorial means as on

whether the defendant's will was in fact overborne.'** {Perkins,

supra. 496 l. .S. a: pp, 301*302 (cone, opn; of Brennan. J.). quoting

Miller v. Fenton, supra. 474 U.S. 104. 116.)

Justice Brennan joined with the majority in Perkins, but

wrote separately to warn that Perkins could be limited on its facts

and that a different result might obtain where, as here, the police

use more coercive or otherwise improper tactics to facilitate a

confession, noting that "the deception arid manipulation pracri: c.n

on respondent raise a substantial claim that the confession was

obtained in violation of the Due Process Clause...." (Perkins.

supra. 496 U.S. at p. 301, cone. opn. of Brennan. J.)

9-9-

Though often couched in the "convenient shorthand" of

whether a statement was ‘■involuntary," due process protections

preclude law enforcement not only from using threats, violence.

or even promises, but also deception and manipulation such as

what occurred here. The focus is not only on whether the

suspect's will was actually overborne, but depends just as much

on whether inquisitorial means of "deception and manipulation"

were employed to obtain the statement. (Perkins, supra. 496 U.S.

at pp. 301-392. cone. opn. of Brennan. J.) “The deliberate use of

deception and manipulation by the police appears to be

incompatible ‘with a system that presumes innocence and assures

that a conviction will not be secured by inquisitorial means.'

Miller, supra, at 116. and raises serious concerns that

respondent's will was overborne." (Perkins, supra. 496 U.S. at p.

303. cone. opn. of Brennan. J.)

Our own Supreme Court at one time recognized that an

incriminating statement made to an undercover inmate might yet

be involuntary where, as here, the government causes the

defendant to speak when he otherwise would not have done so:

This court does not foreclose the possibility that when

an accused is in custody and confides in a government

agent who is "ostensibly no more than a fellow

inmate" [citation], his statements mav be deemed

involuntary even though there is no coercion. The

accused may well make "voluntary" statements when

he believes he is conversing with an ally. Yet by

purposefully creating a false sense of security, the

state is in a sense causing or compelling the accused

to speak when he would not otherwise do so.

(People v. Whitt (1984)36 Cal.3d 724. 7 45-746.)

As Justice Brennan cautioned in Perkins. "The method used

to elicit the confession in this case deserves close scrutiny. The

police devised a ruse to lure respondent into incriminating

himself when he was in jail on an unrelated charge. A police

aeent. posing as a fellow inmate ... tricked respondent into

confessing that he had once committed a murder, [Perkins,

supra. 496 U.S. at p. 302. cone. opn. of Brennan. J.)

\Ve have recognized that "the mere fact of custody

imposes pressures on the accused: confinement may

bring into play subtle influences that will make him

particularly susceptible to the ploys of undercover

Government agents." [Citation.1 As Justice Marshall

points out. the pressures of custody make a suspect

more likely to confide in others and to engage in

"jailhouse bravado." [Citation.] The State is in a

unique position to exploit this vulnerability because it

has virtually complete control over the suspect's

environment. Thus, the State can ensure that a

suspect is barraged with questions from an

undercover agent until the suspect confesses.

[Citations.] The testimony in this case suggests the

State did just that.

{Perkins, supra. 496 U.S. at pp. 302-303, cone. opn. of Brennan.

J.)

Prior to its 1966 decision in Miranda i\ Arizona, the United

States Supreme Court, applying a due process voluntariness test,

recognized in several cases that trio police use or cnvc-pre- interrogation, tactics played a significant role in producing

involuntary confessions. In Leyra c. Dcnno (1954) 347 L.S. 556.

Levra asked the police to allow him to see a physician because he

was suffering from sinus problems. The police brought in a

psychiatrist who posed as a general physician. (Id. at p. 559.)

The Court held that the "subtle and suggestive" questioning by

the psychiatrist amounted to a continued interrogation of the

suspect w ithout his knowledge. This deception and other

circumstances of the interrogation rendered Leyra's confession

involuntary. (Id. at pp. 561.)

Similarly, in Spano v. Xea York (1959) 360 U.S. 315. the

police used a new officer Spano considered to be a close friend to

play on Spano’s sympathies and deceive him by telling Spano the

friend/officer's job was in jeopardy because of Spano. Spano relied

on counsel’s advice to not answer questions, but aUei xelentlec^

pn treaties bv his "friend." he eventually confessed. (Spano v. Xea

York-, supra. 360 U.S. at pp. 318.319.) The Court held that the

officer's deception was a key factor in rendering Spano's

confession involuntary. (Id. at pp. 323-324.)

Appellant's case is distinguishable from People v. Orosco.

where this Court found the detendant was tricked, not coerced.

found the confession was not involuntary, and that there wa» no

violation of due process. (Orosco, supra, 32.Cal.App.5th at p.

619.) That case involved the death of Orozco's six-month old

daughter from blunt trauma inflicted in the hours prior to her

death when Orozco was alone with her. (Id. at pp. S06-S0T.)

Orozco voluntarily spoke to the police and denied that he hurt

her. (Id. at p. SOT.) When he was asked if he would take a

polygraph test, he requested an attorney and was placed under

arrest. (Id. at pp. 807-803.)

After several hours, the police told Orozco's girlfriend, the

child's mother, that she had a right to know what happened to

her daughter and had her talk with Orozco in a monitored

interview room. (Orozco, supra. 32 Cal.App.5th at pp. 807-S03.)

To stimulate conversation, an officer entered the interview room

and informed the couple the autopsy report showed the child had

been beaten and indicated that both of them were looking at

going to jail for child neglect. (Id. at p. 809.) Orozco then told his

girlfriend he did not want the police to "take" her. (Ibid.) The

officer reentered the room and asked her to step outside. He

asked if she would take a polygraph test and told her that Orozco

had refused to take one. This was to stimulate conversation.

(Ibid.) Returning to the interview room. Orozco’s girlfriend asked

Orozco why he refused to take a polygraph tost and implored him

to tell her the truth. After initial denials, he broke down sobbing

and told her that he killed their baby. (Ibid.)

Although this court called the police conduct in Orozco

"deplorable." and a "deliberate circumvention of Miranda’s

nrnfopHnn;" (Dr?nm. sunra. at DD. 816. 819) it nevertheless ruled

the conduct was not coercive because the Miranda rule is

designed to combat coercion, "‘not mere strategic deception by

taking advantage of a suspect's misplaced trust in one he

supposes to be' someone he can trust.” {Orozco, supra. 32

Cal.App.5th at p. 817. quoting Perkins, supra. 196 I’.S. at p. 297. ■

This Court found that the "proximate cause” of Orozco's

confession was Orozco's conversation with his girlfriend and not

the deceptive act of orchestrating its occurrence, thus, the

requisite proximate causal link between the police attatagem and

defendant's confession was missing. {Id. at p. 820.)

But here, the proximate cause of appellant's confession was

the strategic tactics of the police. Appellant confessed only after

multiple applications of1 stimulation combined with ongoing

questioning by the undercover operati\e led him to make

incriminating statements.

This tactic integrates official

questioning and surreptitious questioning into a single

coordinated scheme to exhaust defendants into confessing,

extending the coercive effects of official interrogation beyond the

interrogation room." (People v. Valencia (Dec. 11. 2019. No.

S25303S)__ Cal.5th

Liu. J.).)

[2019 Cal. LEXIS 9.091) p. 7 (dis. opn.

Essentially the same tactic is involved where police

enlist the use of inmate informants. {Id. at p. S.)

In People i*. Rodriguez (2020) 40 Cal.App.5th 194; using a

stratagem similar to this case. a police agent posed as an older.

well-connected gang member to get the defendant to confess. {Id.

at p. 193.) Division Eight of this court pointed out that the

defendant was 26 years old while the police agent claimed to be

35 years old. not a huge age difference. {Id. at p. 199.) It stated.

"jy^I’ence to semontv could be a facto* in some factual settings.

but we will not embrace this theory as a universal principle based

on c^p^cdotal speculation, and in ligm oi the iiial couiiS finding

tnev talked to each other like "new best friends." it held the

At the time of the Perkins operation in this case, appellant

had recently turned 20 years old. (2CT 203. 321.) There was no

information about whether he had graduated from High School.

(2CT 330.) He was still living with his mother. (2CT331.)

Appellant had been diagnosed with Attention Deficit

Hyperactivity Disorder and Insomnia. (2CT 33.) Ortiz was m

his early 30s. and had numerous tattoos. (2RT 435.) Appellant's

age and apparent lack of maturity, coupled with the ADD. likely

made him more susceptible to the police "stimulation" and

ongoing prodding by the undercover operative Ortiz to elicit

incriminating statements.

In Spano c. Sen York, supra. the Court cautioned: "as law

enforcement officers become more responsible, and the methods

used to extract confessions more sophisticated, our duty to

enforce federal constitutional protections does not cease. It only

becomes more difficult because of the more delicate judgments to

be made.” (Spano, supra, 360 U.S. at p. 32]; accord. lllinoi s v.

Perkins, supra. 496 U.S. at p. 303. cone. opn. Brennan. J.)

In this regard. Justice Marshall's dissenting opinion in

Perkins was prophetic: "The 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, supra. 496 t \S. at p. 309 (dis. opn. Marshall. J.).) That,

indeed, is what has occurred-in the intervenin g rears.

Justice Liu's dissent to the California s^-wipreme Court’s

denial of the petition for review in People c, Valencia, supra.

__ Cal.5th___[2019 Cal. LE1XIS 9091J, referenced five

unpublished California cases decided in *2019 and seven earlier

cases from 1991 to 2015 where the police used deceptive schemes

to elicit confessions from suspects who had invoked their Miranda

pp. 5-6.) Questioning the legality of the procedure. Justice Liu

commented. ”[I]t is difficult to see how the use of deceptive

schemes by the police to continue questioning the suspect can be

compatible with *[p]reserv[ing] the integrity of an accused's choice

to communicate with police only through counsel. [Citation.]

(Id. at p. IT.)

A police tactic recognized by jurists as a deceptive and

manipulative practice {Perkins, supra. 496 L'.S. at pp. 300-301.

cone, opn . of Brennan. J.). a "deplorable." and "deliberate

circumvention of Mirandas protections" {Orzoco, supra, at pp.

816. 819). which "trivializes" the right to cut off questioning and

seek the assistance of counsel (People v. Valencia (Dec. 11, 2019.

N'o. S25803S)__ Cal.5th___[2019 Cal. LEXIS 9091] p. 24 (dis.

opn . Liu. J.) should not be countenanced and enabled by courts*

refusal to acknowledge the practice for what it is - a clear

violation of a citizen’s right to due process of law.

This court should so hold, and find that the Perkins

operation in this case transgressed appellant’s right to due

process of law. Because appellant's statements were obtained by

"techniques and methods offensive to due process" they should

not have been admitted as evidence against him at trial. (Oregon

u. Elstad, supra, 470 L.S. 29S, 304.)

THE ERROR IN ADMITTING THE STATEMENT

WAS NOT HARMLESS BEYOND A

REASONABLE DOUBT.

The error in admitting a statement obtained in violation of

an accused’s Fourteenth Amendment right to due process of law

is subject to review under Chapmans harmless error standard.

(Arizona v. Fulniinante, supra, 499 U.S. 279. 30S-3I2.) The

government, as the beneficiary of the error, thus bears the burden

of proving it was harmless. (Chapman, supra. 3S6 U.S. 18. 2 4:

Case, supra. 5 Cal.5th at p. 22.) For the reasons set forth in

Argument I. section C. Appellant's convictions should be reversed

that the erroneous admission of his statements was harmless and

did not contribute to the jury's verdict. {Chapman, supra, at p.

24.)

In appellant’s related argument that his statements were

admitted in violation of his Fifth Amendment rights (Argument I.

section C. supra), appellant discussed factors which might lead a.

court to conclude admission of incriminating statements was

harmless error. These included: (I) whether the defendant was

arrested at the scene; (2) whether there were numerous,

disinterested and reliable witnesses whose testimony was

confirmed by significant amounts of uncontroverted physical

evidence: (3) introduction of a videotape of the crime. (Cahill,

supra. 5 Cal.4th at p. 505.)

Clearly none of these examples apply to appellant's case.

There was no eyewitness identification and no physical evidence

was recovered which tied appellant to the crime. The only

evidence besides appellant's statements was the extremely

unreliable testimony by paid police informant. Ana Ortiz, whose

testimony was so questionable that even the prosecutor ex-pressed

doubt about her veracity (3RT 946; see also 3RT 913-916) and

expressly conceded in closing argument that ‘It is the recorded

admission that is the damning evidence in this case." (3RT 916.)

The admission of appellant’s confession - the most

probative and damaging evidence that could be admitted against

him (Arizona v. Fulminante, supra. 499 L\S. at p. 296) -- cannot

be found harmless beyond a reasonable doubt. (Chapman supra.

3S6 I’.S. at p. 24.) His convictions must therefore be reversed.

IF THIS COURT FINDS THE ISSUE WAS

FORFEITED, THEN THE ISSUE SHOULD BE

ADDRESSED ON THE ALTERNATIVE BASIS

THAT APPELLANT RECEIVED INEFFECTIVE

ASSISTANCE OF COUNSEL

As he did in connection with this Fifth Amendment

argument, appellant recognizes that because his trial counsel did

issue is likely forfeited for direct review. (Evid. Code section 353.)

Appellant’s arguments must therefore be considered on the

alternative basis that his trial counsel rendered ineffective

assistance by not objecting to admission of his statements on the

grounds raised herein.

Under both the Sixth Amendment of the United States

Constitution and article I. section 15. of the California

Constitution, appellant is guaranteed the right to effective

assistance of counsel. {Powell i\ Alabama, supra, 287 U.S. 45. 68:

Ledesma, supra. 43 Cal.3d 171. 215.) In Argument I. Section D.

supra, appellant fully set forth the requirements for raising an

ineffective assistance of counsel argument, and incorporates the

discussion of the legal and constitutional standards as more fully

set out therein.

There Could Be No Reasonable,

Tactical Basis For Counsel Not To

Have Sought Exclusion Of

Appellant’s Inculpatory Statements

On The Ground That They Were

Obtained In Violation Of His Due

Process Rights.

Appellant's argument here is essentially the same as with

regard to his claim that the statements were obtained in violation

of his Fifth Amendment rights. Simply put. trial counsel could

have had no reasonable, tactical, basis for not seeking to exclude

the single most important piece of evidence against appellant.

{See Arizona t\ Fulminante, supra. 499 U.S. at p. 296.) There is

nothing in or beyond the appellate record that could possibly

provide a satisfactory explanation for counsel's failure to object to

admission of this highly inculpatory evidence. Counsel's failure

to seek exclusion of appellant's statements therefore fell below

the objective standards of reasonableness. (Strickland v.

Washington, supra, 466 U.S. 66S. 6SS.)

It is Reasonably Probable That, But

For Trial Counsel's Error. The Result

Of The Proceedings Would Have

Been Different.

The second prong of Strickland requires that a defendant

demonstrate a reasonable probability that, but for counsel s

errors . the result of the proceeding would have been different,

fStrickland, supra, 4G6 U.S. at pp. 693-695: People v. Ledesma,

supra. 43 Cal.3d 171. 216-21S.)

As discussed above in connection with appellant's argument

as to why admission of his statements cannot be found harmless

bevond a reasonable doubt, it is beyond question that but for this

evidence, the result of the proceedings would have been different.

There was no identification evidence, and no forensic evidence

linking appellant to the shooting. The testimony by paid

informant Ana Ortiz was so lacking in indicia of reliability, that

even the prosecutor chose not to rely on it when asking the jury to

return a guilty verdict, instead conceding that ’■[m]aybe she was

tnere . maybe she wasn’t....' (3RT 946: see also 3R1 91o-916.)

Instead the prosecutor frankly told the jury that. "It is the

recorded admission that is the damning evidence in this case.”

(3RT 916.)

It is reasonably probable that, but for the "damning

evidence" of appellant’s recorded incriminating statements, the

result of these proceedings would have been different.

Appellant's trial counsel was therefore ineffective for not

objecting to admission of these statements, and appellant's

conviction should be reversed.

Appellant Alternatively Asserts That

Prejudice Should Be Judged under

the Same Standard Used for

Assessing the Error on its Merits.

The error here implicated appellant’s federal constitutional

right to due process of lav,-. Reviewed on the merits it is therefore

doubt. {Chapman, supra. 363 lT.S. at p. 24.) As he did in

Argument I. section D.3, supra, appellant alternatively contends

that, even if considered as a claim of ineffective assistance of

counsel, this Court should "look through" to the substance of the

underlying error and judge its effect according to the same

standards as if ruling on the merits.

Appellant previously set forth this legal argument in derail

and will not reiterate it here, but instead incorporates it as if fully

set forth herein. For the same reasons previously given, this

court should evaluate the effect of the error from admission of

appellant's statements under the same standard (Chapman) as if

the issue was addressed on the merits, instead of through the

lease of an ineffective assistance of counsel claim applying the

"but for” prejudice standard of Strickland.

III.

APPELLANTS CONFESSION WAS INADMISSIBLE

BECAUSE POLICE TACTICS WERE "DELIBERATELY

DESIGNED TO ELICIT INCRIMINATING REMARKS” IN

VIOLATION OF SECTION 4001.1(B)

THE POLICE TACTICS VIOLATED SECTION 4001.1.

Appellant's incriminating statements were also

inadmissible because they were obtained in violation of Penal

Code section 4001.1(b). which states: "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." Here, law enforcement actions went "beyond mere

listening" and were "deliberately designed to elicit incriminating

remarks" from appellant.

An "in custody informant" for purposes of section 4001.1.

subdivision (c) is defined by reference to section 1127a.

subdivision (a), which provides that an "in custody informant" is

"a person, other than a codefendant, percipient witness.

statements made by the defendant while both the defendant and

the informant are held within a correctional institution.” The

record in the present case is undeveloped with regard to the

status of the undercover operative Ortiz - - whether he was an

actual in-custody informant, or a police operative posing as an

inmate. Regardless, for purposes of section 4001.1 he was clearly

acting as an agent of the state and appeared to be held in custody.

Ortiz also did more than merely listening to appellant's

statements. He purposefully "stimulated" and "guided" appellant,

during the three to four hours they were together, into making

incriminating statements regarding the homicide under

investigation. (2RT 410.)

In addition, the investigating officers involved in this

Perkins operation themselves took actions designed to "stimulate"

appedlant into making incriminating statements. During his

"stimulation" Sergeant Quintero lied and told appellant that

police had obtained his fingerprints from the evidence. (2RT 419420.) In a "prodding" effort to get appellant to talk to Ortiz about

the case, police also obtained a DXA swab from appellant, even

though they knew no DXA evidence had been obtained from

evidence at the scene. (2RT 422.)

These police actions went far beyond "merely listening.”

and included giving appellant false information about evidence in

the case, which was done for the express purpose of prodding

appellant into making statements in response to Ortiz' questions.

Clearly, the actions of both Ortiz and the detectives violated

section 4001.1.

People v. Gallardo (2017) 18 Cal.App.5th 51. the only

published state court decision thus far to consider a challenge to a

Perkins operation raised under section 4001.1, found the statute

inapplicable in the circumstances of its case. Gallardo relied on

the following language in the statute enacting section 4001.1: "It

c + u ~ t -.^ l

»U ~ f

4001.1 of the Penal Code is a restatement of existing case law and

where the language in that subdivision conflicts with the

language of that case law. the decisions of Kuhlmann v. Wilson

[(19S6) 477 U.S. 436]. and United States v. Henry [(I960) 447 U.S.

264]. and other United States Supreme Court decisions which

have been decided at the time this act is enacted shall be

controlling." (Stats. 1939. ch. 901. section 4. page 3095.)

Applying the holdings in Kuhlmann and Henry. Gallardo

pointed out that both decisions were concerned with application

of a defendant's Sixth Amendment rights as set forth in Massiah

t\ United States (1964) 377 U.S. 201. Massiah held that

incriminating statements deliberately elicited bj* law enforcement

agents once a defendant's Sixth Amendment rights have attached

are inadmissible. This rule is "offense specific." {Gallardo, supra.

IS Cal.App.5th at p. 7S.) Gallardo therefore concluded that

section 4001.1 does not apply to statements obtained by

undercover informants or law enforcement personnel regarding

uncharged offenses to which a defendant's Sixth Amendment

rights have not yet attached. (Gallardo, supra, IS Cal.App.5th at

pp. /S-79.)

Importantly. Gallardo. and the U.S. Supreme Court cases

of Kuhlmann and Henry on which Gallardo relied, were all

premised on a claimed Sixth Amendment violation. None of those

cases involved, a situation where the defendant had invoked his

Miranda rights prior to the undercover operation. Appellant's

argument, which relies on the Fifth Amendment right to counsel

which appellant asserted when he earlier invoked his Miranda

rights, is therefore distinguishable and the holdings of

Kuhlmann, Henry and Gallardo do not preclude extending section

4001.1 to appellant's case.

Thus, in United States t\ Henry, supra. 447 U.S. 264. the

United States Supreme Court held that a defendant's Sixth

Amendment right to counsel is violated when a government

about a charged offense. {Id. at pp. 269-270.) And in Kuhlmann,

supra. 477 L'.S. 436. the court concluded no Sixth Amendment

violation had occurred where the police had instructed an

informant to merely listen to the defendant, and report any

incriminating information he might disclose regarding a charged

offense. {Id. at pp. 459-460.) Neither Kuhlmann nor Henry

addressed or even mentioned the decisions in Miranda or

Edwards.

In fact, the decision in Gallardo does not actually pertain to

appellant's case, which involves a Fifth vs. a Sixth Amendment

claim. Moreover, the language of the statute enacting section

4001.1 is very broad and makes clear that section 4001.1 was not

limited to the scenario addressed in Kuhlmann and Henry. but

was expressly intended to also apply the then-existing law of

"other United States Supreme Court decisions which have been

decided at the time this act is enacted shall be controlling.''

Miranda (3S4 U.S. 436) and Edwards (451 U.S. 477) were

both existing decisions at the time section 4001.1 was enacted in

1989/ and are thus "other United States Supreme Court

decisions 0 decided at the time" section 4001.1 was enacted.

(Stats. 1989. ch. 901. section 4, page 3095.) As such, they are

"controlling." {Ibid.) In addition. Perkins had not yet been

decided, and therefore has no bearing on how section 4001.1

should be interpreted or applied.

As discussed in Argument I. supra, the Perkins operation

here transgressed appellants-Fifth Amendment rights, as set

I-jL iu

in Edwards and Miranda. Section 4001.1 must be

interpreted in light of these controlling United State? Supreme

Court decisions, which prohibit law enforcement from question ing

an in-custody suspect about any case, once that person has

invoked their Fifth Amendment rights. {MeSell v. Wisconsin,

supra, 501 U.S. 171, 177: Arizona c. Roberson, supra.. 4S6 U.S.

r•

075; People v. Fayed, supra. 9 Cal.5th 147. 1G5.) Thus properly

interpreted, the government agents here violated section 4001.1

when they conducted the Perkins operation after appellant had

invoked his Miranda rights on his other case.

THE REMEDY SHOULD BE EXCLUSION OF

THE STATEMENTS.

Section 4001.1(b) does not specify a penalty, but since the

Legislature stated that this provision was a codification of cases

which required exclusion of confessions where police went beyond

mere listening, and because exclusion is the normal remedy for

improperly obtained confessions, the only consequence here that

makes sense is exclusion of any evidence obtained in violation of

the statute. (Cf. Case, supra. 5 Cal.5th 1.22

Accordingly, the confession elicited in violation of this

statute should not have been admitted.

THE ERROR IN ADMITTING THE STATEMENT

WAS NOT HARMLESS.

Viewed as an error of state law, the effect of the erroneous

admission of appellant's statements must be evaluated under

California's "reasonable probability" standard. Reversal is thus

required if there is a "reasonable probability" the result could

have been different without the error. (People v. Watson (1956)

46 Cal.2d SIS. S36.) In this context, the Supreme Court has

made it clear that ’"probability’ does not mean more likely than

not. but merely a reasonable chance, more than an abstract

possibility. [Citations.1" (People c. Wilkins (2013) 56 Cal.4th 333.

351. internal quotation marks omitted, italics in text.) Therefore.

if there is a "reasonable chance" even one juror would have had a

reasonable doubt whether appellant committed the offense, the

error requires reversal. (People v. Soojian (2010) 190 Cal.App.4th

491. 520.) Here, it is reasonably probable that admission of

appellant's incriminating statements affected the outcome of the

trial.

might lead a court to conclude admission of incriminating

statements was harmless error, none of which is present in

appellant’s case. There was no eyewitness identification and no

physical evidence was recovered which tied appellant to the

crime. The only evidence besides appellant’s statements was the

extremely unreliable testimony by paid police informant. Ana

Ortiz, whose testimony was so questionable that even the

prosecutor expressed doubt about her veracity (3RT 946: see also

3RT 913-916) and expressly conceded in closing argument that ;'It

is the recorded admission that is the damning evidence in this

case." (3RT916.)

The admission of appellant’s confession -- the most

probative and damaging evidence that could be admitted against

him -- (Arizona v. Fulminate, supra. 499 L’.S. at p. 296) was not

harmless error. (People c. Watsori, supra. 46 Cal.2d 813. S36.)

His convictions must therefore be reversed.

IF THIS COURT FINDS THE ISSUE WAS

FORFEITED, THEN THE ISSUE SHOULD BE

ADDRESSED ON THE ALTERNATIVE BASIS

THAT APPELLANT RECEIVED INEFFECTIVE

ASSISTANCE OF COUNSEL

As he did in connection with his earlier arguments,

appellant recognizes that because his trial counsel did not make

any objection to the admission of his statements the issue is likely

forfeited for direct review (Evid. Code section 353) and must

therefore be considered on the alternative basis that his trial

counsel rendered ineffective assistance by not objecting to

admission of his statements on the grounds raised herein.

Under both the Sixth Amendment of the United States

Constitution and article I. section 15. of the California

Constitution, appellant is guaranteed the right to effective

assistance of counsel. (PolvcII i\ Alabama, supra. 237 U.S. 45. 63:

Ledesma, supra. 43 Cal.3d 171. 215.) In Argument 1. Section D.

. t

ineffective assistance of counsel argument, and incorporates the

discussion of the legal and constitutional standards as more fully

set out therein.

There Could Be No Reasonable.

Tactical Basis For Counsel Not To

Have Sought Exclusion Of

Appellant's Inculpatory Statements

On The Ground That They Were

Obtained In Violation Of Section

4001.1.

Appellant's argument here is.essentially the same as raised

in connect with his earlier claims. Simply put. trial counsel could

have had no reasonable, tactical basis for not seeking to exclude

the single most important piece of evidence against appellant.

(See Arizona v. Fulminate, supra, 499 U.S. at p. 296.) There is

nothing in or beyond the appellate record that could possibly

provide a satisfactory explanation for counsel's failure to object to

admission of this highly inculpatory evidence. Counsel's failure

to seek exclusion of appellant's statements therefore fell below

the objective standards of reasonableness. (Strickland r.

Washington, supra, 466 U.S. 668. 6SS.)

It is Reasonably Probable That, But

For Trial Counsel’s Error, The Result

Of The Proceedings Would Have

Been Different.

The second prong of Strickland requires that a defendant

demonstrate a reasonable probability that, but for counsel's

errors, the result of the proceeding would have been different,

fStrickland, supra, 466 U.S. at pp. 693-695; People t\ Ledesma.

supra. 43 Cal.3d 171. 216-218.)

Appellant has already discussed why admission of his

statements cannot be found harmless under either Watson or

Chapman. There was no identification evidence, and no forensic

evidence linking appellant to the shooting. The testimony by paid

informant Ana Ortiz was so lacking in indicia of reliability that

return a guilty verdict, conceding that "It is the recorded

admission that is the damning evidence in this case." 03 RT 946: