Filed 3/7/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON FELIX,

Defendant and Appellant.

 B317938

 (Los Angeles County 

 Super. Ct. No. PA089324)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. David Walgren, Judge. Affirmed with directions. 

Derek K. Kowata, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Rama R. Maline, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant Jason Felix was arrested after being 

stopped for a traffic violation in Utah and a consensual search of his 

car resulted in the recovery of a handgun, ammunition and over five 

kilograms of methamphetamine. While in custody in Utah on drug 

charges, defendant became a suspect in two murders that occurred 

in Southern California. Upon his return to California, defendant 

invoked his right to counsel while being interviewed by the

detectives investigating one of the murders. Afterward, he was 

placed in a cell with an undercover detective to whom he made 

incriminating statements about both murders. The trial court 

denied defendant’s motion to suppress the evidence recovered 

during the Utah traffic stop and admitted, over his objection, his 

incriminating statements made to the undercover agent. A jury 

found defendant guilty of two counts of first degree murder. 

On appeal, defendant contends the trial court erred in 

denying his motion to suppress the evidence recovered from the 

warrantless search of his car and in admitting his statements to the 

undercover agent because he had previously invoked his right to 

counsel while being interviewed by detectives. Defendant also 

contends he is entitled to an additional day of presentence custody

credits, a point to which the People agree. 

We remand with directions to the superior court to correct the

presentence custody credits and prepare a new abstract of 

judgment. We otherwise affirm the judgment of conviction in its 

entirety.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Murders

On March 27, 2017, Ricardo Mota was fatally shot in his neck 

and chest with a .22-caliber gun. His body was discovered slumped 

over in the driver’s seat of his car in the parking lot of a church in 

Montebello. At the time of his death, Mr. Mota was under 
3

investigation for drug trafficking. Detective Richard Ruiz of the Los 

Angeles County Sheriff’s Department was in charge of investigating 

the murder with his partner, Sergeant Robert Gray. 

On June 15, 2017, Jorge Gonzalez-Ortega was fatally shot in 

the head with a .22-caliber gun. His body was discovered by his 

family in the converted shed where they lived behind an apartment 

complex in San Fernando. A bindle of methamphetamine, 

aluminum foil and tape were found at the scene. Detectives 

Michael Valento and Amber Montenegro were assigned to 

investigate that murder.

2. The Traffic Stop in Utah 

Two days after the murder of Mr. Gonzalez-Ortega, defendant 

was stopped by Sergeant Charles Taylor of the Utah Highway 

Patrol. Defendant had been heading east on I-70 in southeastern 

Utah, close to the Colorado border, and he failed to slow down as he 

passed Sergeant Taylor who was parked on the side of the highway 

in a marked patrol car. Utah law requires drivers to slow down 

when passing any emergency vehicle. 

In response to Sergeant Taylor’s request for a license and 

registration, defendant provided a copy of an identification card 

issued in Mexico and registration indicating the white Lincoln MKZ

he was driving was registered in California in the name of a third 

party (Ricardo M. Aguilera). Sergeant Taylor gave that information 

to his radio dispatcher. While awaiting a response to the records 

check, Sergeant Taylor questioned defendant. Sergeant Taylor 

eventually asked for and received consent from defendant to search 

the car. The search resulted in the discovery of two cell phones, a 

.22-caliber gun, magazine and ammunition, and 10 taped packages 

of methamphetamine. Defendant was arrested and charged with 

possession of methamphetamine with intent to distribute. 
4

3. The August 2017 Interview in Utah

The investigations of the murders of Mr. Mota and 

Mr. Gonzalez-Ortega eventually led to the discovery of evidence, 

including surveillance videos, gun casings and fingerprints, 

indicating the two murders might be connected and that defendant 

was a possible suspect. 

On August 1, 2017, Detectives Montenegro and Valento went 

to Utah to interview defendant in connection with the shooting of 

Mr. Gonzalez-Ortega. Defendant was read his rights pursuant to 

Miranda v. Arizona (1966) 384 U.S. 436. During the course of the 

interview, defendant admitted picking up drugs from Mr. GonzalezOrtega at his home and shooting him in the head. Defendant said 

he shot him in self-defense. 

4. The September 2017 Interview in California

After defendant was extradited to California, he was taken to 

the San Fernando Police Department. On September 21, 2017, 

defendant was interviewed by Sergeant Gray and Detective Ruiz

regarding the shooting of Mr. Mota. Defendant was read his 

Miranda rights. He did not immediately invoke his right to 

counsel. Defendant answered some questions, mostly concerning

general background information. He also confirmed his cell phone 

number and said he had borrowed the Lincoln MKZ from a friend. 

When shown photographs of the victim, Mr. Mota, and of a 15-yearold suspected accomplice in the murder, defendant denied knowing 

either one. Defendant eventually invoked his right to counsel and 

the interview was concluded.

5. The Undercover Operation 

Following the September 2017 interview, an undercover 

detective was placed in the same holding cell as defendant. The 

undercover detective was wearing civilian clothes and acted like he 

was a fellow detainee. He was wired to record audio of any 
5

conversation. Defendant initiated a conversation with the 

undercover detective, asking him if he spoke Spanish. The 

undercover detective said yes and they began to talk about what led 

defendant to being in custody. 

Defendant told the undercover detective he had been in 

custody in Utah on drug charges but the case had been “dropped.” 

He said he had been transporting drugs (“ten pounds of crystal”)

and was on his way from Los Angeles to New York when he was 

stopped for a traffic violation. 

Sergeant Gray and Detective Ruiz stopped by the cell and

removed defendant. They told defendant they had received 

evidence pointing to his involvement in the murder of Mr. Mota. 

They returned defendant to the holding cell and told defendant to 

think about what they had told him. 

After the detectives left, defendant resumed his conversation 

with the undercover detective. He said the detectives wanted him 

to “snitch” on some kid who had killed a man. Defendant 

eventually made incriminating statements about his involvement in 

the murder of Mr. Mota. He said the kid who did the shooting was 

15 years old and had already killed six people. He had given the 

kid a nine-millimeter Beretta handgun and drove him to “do it” 

outside of a church. Defendant said he never touched Mr. Mota and 

his fingerprints were not on the gun because he cleaned it well 

before giving it to the kid. As for the shooting of Mr. GonzalezOrtega, defendant said there were no witnesses so he could say it 

was self-defense. 

6. The Charges 

Defendant was charged with two counts of murder. (Pen. 

Code, § 187, subd. (a).) As to the murder of Mr. Gonzalez-Ortega, it 

was alleged defendant personally used and discharged a firearm in 

the commission of the offense. (§ 12022.53, subds. (b)-(d).) As to the 
6

murder of Mr. Mota, it was alleged a principal personally used and 

discharged a firearm. (§ 12022, subd. (a)(1).) 

7. The Motion to Suppress

Defendant moved to suppress all statements by Sergeant

Taylor, the Utah highway patrolman who stopped him two days 

after the murder of Mr. Gonzalez-Ortega, and any other officer 

involved in the Utah traffic stop, all of defendant’s statements 

during the detention and all items seized from the car. Sergeant 

Taylor, a 23-year veteran with the Utah Highway Patrol, testified

for the prosecution at the hearing on the motion. The dashcam 

video from his patrol vehicle was played during his testimony and 

showed the entire encounter beginning with defendant driving by 

Sergeant Taylor’s parked patrol vehicle in violation of Utah’s “slow 

down” law. 

Sergeant Taylor testified that when he first walked up to the 

Lincoln and spoke to defendant, he explained why he had pulled 

him over and asked for the requisite paperwork. Defendant gave 

him an identification or license card issued by Mexico and 

registration paperwork showing the car was registered in California 

to a third party. Defendant told Sergeant Taylor he was visiting 

the United States on vacation and had borrowed the car from a

friend. Defendant said he was going to Salt Lake City to visit a 

friend. 

Sergeant Taylor said he was suspicious of defendant’s 

response because he had been driving eastbound in the 

southeastern part of Utah, almost at the Colorado border, and not 

headed in the direction of, or anywhere near, the vicinity of Salt 

Lake City. Defendant had already “passed four different highways 

that he could have taken [toward Salt Lake City], and the last one 

he passed [was] about 20 miles behind him.” 
7

Sergeant Taylor asked defendant to come back to his patrol 

car while he checked his records through the dispatcher. He had 

defendant sit in the front passenger seat next to him. Sergeant 

Taylor explained he often did that when a driver had foreign 

identification documents because it helped to have the person next

to him so he could ask questions if he had difficulty deciphering the 

documents. 

Sergeant Taylor gave the radio dispatcher defendant’s name 

(Jason Axel Bugarin Felix), date of birth and a description of the 

white Lincoln he was driving. Sergeant Taylor explained that a 

records check involving a Hispanic name can be more complicated 

and time-consuming since Hispanics often have two middle names 

or surnames as was the case with defendant. The records search 

included attempting to verify defendant’s identity, the registration 

on the Lincoln, and whether defendant had any outstanding 

warrants. Sergeant Taylor also requested that a Spanish-speaking 

officer come to the scene. He believed they were communicating 

well in English, but he felt it would be appropriate to have the 

assistance of a Spanish-speaking officer in case the need arose. 

As they waited for a response on the records check, Sergeant 

Taylor continued to collect information relevant to writing a 

citation, including verifying defendant’s height and weight and 

other biographical data. He also tried to verify the purpose of 

defendant’s trip. It concerned him that defendant’s story continued 

to change. Defendant told him he had no address or phone number 

for the friend he was supposed to be visiting. He then said the 

person was actually a friend of his girlfriend and when he got to 

Salt Lake City he was going to call his girlfriend, who lived in Las 

Vegas, and she would arrange their meeting. Then defendant said 

he was actually going to pick up some clothes for his girlfriend that 
8

had been mailed from Mexico and that she could not do it because 

she had to work.

Sergeant Taylor said defendant’s changing and often illogical 

answers continued to raise his suspicions, as did the fact that 

defendant seemed nervous. Sergeant Taylor could see his pulse 

beating in his neck. While they continued to wait on the records 

check, Sergeant Taylor asked defendant if he was doing anything 

illegal or transporting anything illegal, like drugs or guns. 

Defendant said no. 

The dispatcher then reported to Sergeant Taylor that no 

state-issued license had come back for defendant using any 

variation of the names provided. There were records of defendant 

having made multiple border crossings and being involved in credit 

card fraud, but no outstanding warrants. At this point, the 

Spanish-speaking officer arrived on the scene and briefly spoke 

with defendant. 

Sergeant Taylor testified he repeated some questions to 

defendant to confirm defendant’s answers. He asked for and 

received confirmation from the dispatcher that it was not possible to 

run a check on the Mexican identification card. He asked the 

dispatcher to verify that a search had been done under the name of 

the registered owner of the Lincoln. 

Sergeant Taylor said he decided to give defendant a warning 

instead of a citation and to ask for consent to search the car. He 

explained this portion of the dashcam video by saying, “So at this 

point I’m going to ask for consent. You hear me print off a warning, 

and along with that is a consent form that I’ve asked if he would fill 

out for me and sign.” Defendant orally agreed the car could be 

searched. Sergeant Taylor explained to defendant that he was 

issuing just a warning and not a citation and returned his 

documents to him. 
9

Sergeant Taylor then gave defendant the consent form which 

was written in both English and Spanish. He asked him to “[r]ead 

it and then sign here if you agree.” Defendant reviewed the form 

for approximately two minutes and then signed it. At that point, 

the dispatcher responded that the further check on the Lincoln and 

its registered owner, Ricardo M. Aguilera, came back “inconclusive.” 

Sergeant Taylor proceeded with the search of the car which 

resulted in the discovery of 10 taped packages of methamphetamine

(5.4 kgs.), a .22-caliber handgun, magazine and ammunition, and 

two cell phones. 

The parties stipulated to various time stamps on the dashcam 

video relevant to the detention. Defendant did not present any 

witnesses or evidence. After entertaining argument, the court 

denied defendant’s motion. 

8. The Verdict and Sentencing 

The jury found defendant guilty of two counts of first degree 

murder and found true the firearm use allegations as to both 

counts. Defendant was sentenced to 75 years to life plus one year, 

calculated as follows: consecutive terms of 25 years to life on each 

murder count, plus a consecutive 25 years to life for the personal 

firearm use enhancement on count 1 and a consecutive one-year 

term for the principal firearm use enhancement on count 2. The 

court awarded defendant 1,547 days of presentence custody credits. 

This appeal followed. 

DISCUSSION

1. The Denial of Defendant’s Motion to Suppress 

Defendant contends the court erred in denying his motion to 

suppress because the traffic stop was unreasonably prolonged in 

violation of his Fourth Amendment rights, and his subsequent 

consent to the warrantless search of the car was invalid as a 

product of his wrongful detention. 
10

“ ‘The standard of appellate review of a trial court’s ruling on 

a motion to suppress is well established. We defer to the trial 

court’s factual findings, express or implied, where supported by 

substantial evidence. In determining whether, on the facts so 

found, the search or seizure was reasonable under the Fourth 

Amendment, we exercise our independent judgment.’ ” (People v. 

Redd (2010) 48 Cal.4th 691, 719.) “Thus, while we ultimately 

exercise our independent judgment to determine the constitutional 

propriety of a search or seizure, we do so within the context of 

historical facts determined by the trial court.” (People v. Tully

(2012) 54 Cal.4th 952, 979 (Tully).) 

Here, the trial court found the prosecutor had proven a lawful 

detention for the traffic violation, Sergeant Taylor acted diligently

in conducting his investigation, the detention was not unduly 

prolonged, and defendant’s consent to the search of the car was 

voluntary and free from coercion. We conclude substantial evidence 

supports those findings and agree that defendant’s Fourth 

Amendment rights were not violated. 

Defendant concedes his initial detention by Sergeant Taylor 

for the traffic violation was valid and did not violate his rights. 

Indeed, the law is well settled that a “seizure for a traffic violation 

justifies a police investigation of that violation.” (Rodriguez v. 

United States (2015) 575 U.S. 348, 354 (Rodriguez); Arizona v. 

Johnson (2009) 555 U.S. 323, 327, 333 [police may lawfully detain a 

vehicle and its occupants pending investigation of possible traffic 

violation].) 

The first six minutes of defendant’s detention consisted of 

Sergeant Taylor explaining to defendant why he had pulled him 

over, requesting identification and registration and asking where 

defendant was headed, all of which qualify as the type of ordinary 

inquiries an officer is allowed to conduct during a traffic stop. 
11

(Rodriguez, supra, 575 U.S. at p. 355 [“ ‘ordinary inquiries’ ” include 

such things as “checking the driver’s license, determining whether 

there are outstanding warrants against the driver, and inspecting 

the automobile’s registration and proof of insurance”]; Tully, supra, 

54 Cal.4th at pp. 980–981.) 

Sergeant Taylor gave the radio dispatcher the information he 

obtained from defendant to run a records check and also requested 

that a Spanish-speaking officer be sent to the scene. While 

awaiting a response from the dispatcher, Sergeant Taylor continued 

to ask questions relevant to writing a citation, including verifying 

certain biographical data. He also asked questions aimed at

dispelling the reasonable suspicions raised by defendant’s confusing 

answers for why he was in Utah and where he was headed, 

including asking whether defendant was transporting anything 

illegal. 

These questions, including the ones not directly related to the 

traffic violation, were permissible and did not unlawfully extend the 

duration of defendant’s detention as they occurred while Sergeant 

Taylor was awaiting a response on the records check. 

“ ‘Questioning during the routine traffic stop on a subject unrelated 

to the purpose of the stop is not itself a Fourth Amendment 

violation. Mere questioning is neither a search nor a seizure. 

[Citations.] While the traffic detainee is under no obligation to 

answer unrelated questions, the Constitution does not prohibit law 

enforcement officers from asking.’ ” (People v. Gallardo (2005) 

130 Cal.App.4th 234, 239; Arizona v. Johnson, supra, 555 U.S. at 

p. 333 [“An officer’s inquiries into matters unrelated to the 

justification for the traffic stop . . . do not convert the encounter into 

something other than a lawful seizure, so long as those inquiries do 

not measurably extend the duration of the stop.” (Citation 

omitted.)].) 
12

Defendant says the detention became illegal once the

dispatcher provided a response to the records check and Sergeant 

Taylor continued to ask questions and detain him for another five to 

six minutes, instead of writing a citation or releasing him. We 

disagree with defendant’s characterization of what transpired 

during this time period. 

There is no bright-line rule establishing an outside time limit 

for traffic violation detentions. (Williams v. Superior Court (1985) 

168 Cal.App.3d 349, 358.) “[T]he circumstances of each traffic 

detention are unique” and “the reasonableness of each detention 

period must be judged on its particular circumstances.” (Ibid.) 

The circumstances here involved a foreign national driving a 

car that did not belong to him. It was entirely reasonable, and 

within the scope of the appropriate inquiries for the traffic stop, for 

Sergeant Taylor to make further inquiries of the dispatcher 

regarding the registered owner of the car. It was also reasonable 

for Sergeant Taylor to take a few minutes to repeat some of his 

questions to defendant in the presence of the Spanish-speaking 

officer, who had only just arrived, in order to confirm that he had 

properly understood defendant’s responses. 

When Sergeant Taylor initially asked for consent to search 

the car, the lawful detention for the traffic violation was still 

ongoing. It did not end the moment the dispatcher gave the initial 

results of the records check to Sergeant Taylor. And it was not 

illegal for Sergeant Taylor to request consent from defendant. A

separate reasonable suspicion of wrongdoing is not required to ask 

for consent to search during the course of a traffic stop. (Tully, 

supra, 54 Cal.4th at p. 982.) 

Almost immediately thereafter, Sergeant Taylor told 

defendant he was giving him a warning only and not issuing a 

citation. Sergeant Taylor printed out a warning slip along with a 
13

consent form. He returned defendant’s identification documents to 

him and gave him the warning slip and the consent form, written in 

both English and Spanish. He asked defendant to read the consent 

form and sign it “if you agree.” It took defendant a little over 

two minutes to read the form and sign it, without any further 

prompting or comments by Sergeant Taylor. The radio dispatcher 

then responded with information that the search on Ricardo M. 

Aguilera, the registered owner of the car, had come back as

“inconclusive.” Nothing that occurred during the five to six minutes 

that elapsed after the dispatcher’s initial response transformed the 

detention into an unlawful one. 

Because we conclude defendant’s detention was lawful and 

not unduly prolonged, we reject defendant’s contention his consent 

was invalid as the product of an unlawful detention. The record 

demonstrates defendant’s consent to search was voluntary and 

freely given during the course of a lawful traffic stop and “not the 

result of duress or coercion, express or implied.” (Schneckloth v. 

Bustamonte (1973) 412 U.S. 218, 248.) 

2. The Admission of Defendant’s Statements to the

Undercover Detective 

Defendant argues the court erred in admitting the

incriminating statements he made to the undercover detective 

because he had invoked his Fifth Amendment right to counsel 

during his earlier interrogation by Detectives Ruiz and Gray. He 

says the court erred in overruling his objection and allowing the 

undercover detective to testify. 

It is undisputed that after defendant asserted his right to 

counsel during the interrogation by Detectives Ruiz and Gray, the 

interrogation ended, defendant was placed in a holding cell, and 

defendant made numerous incriminating statements to the 

undercover detective. In reviewing the propriety of the trial court’s 
14

order overruling defendant’s objection and allowing the statements 

to be admitted, we independently determine whether the 

statements were illegally obtained based on those undisputed facts. 

(People v. Elizalde (2015) 61 Cal.4th 523, 530.) 

We conclude the trial court correctly overruled defendant’s 

objection.

In Illinois v. Perkins (1990) 496 U.S. 292, 300 (Perkins), the 

Supreme Court held that an “undercover law enforcement officer 

posing as a fellow inmate need not give Miranda warnings to an 

incarcerated suspect before asking questions that may elicit an 

incriminating response.” Perkins came to this conclusion because 

“[c]onversations between suspects and undercover agents do not 

implicate the concerns underlying Miranda. The essential 

ingredients of a ‘police-dominated atmosphere’ and compulsion are 

not present when an incarcerated person speaks freely to someone 

whom he believes to be a fellow inmate. Coercion is determined 

from the perspective of the suspect. [Citations.] When a suspect 

considers himself in the company of cellmates and not officers, the 

coercive atmosphere is lacking.” (Id. at p. 296.) 

Perkins made clear that “Miranda forbids coercion, not mere 

strategic deception by taking advantage of a suspect’s misplaced 

trust in one he supposes to be a fellow prisoner.” (Perkins, supra, 

496 U.S. at p. 297.) 

Defendant acknowledges Perkins but says it did not address

the issue of whether undercover agents may be used to elicit 

statements from a suspect after the suspect has invoked his 

Miranda rights. Defendant also acknowledges that California

courts have relied on Perkins to assess the validity of statements 

made to an undercover agent even after a defendant has asserted 

Miranda rights during a prior custodial interrogation. (See, e.g., 

People v. Orozco (2019) 32 Cal.App.5th 802, 815 (Orozco) [rejecting 
15

the argument that a defendant’s invocation of right to counsel

under Miranda precluded the admission of a subsequent confession 

made to an undercover agent].)

Nonetheless, defendant says Perkins is not controlling, 

relying on Justice Brennan’s concurrence in Perkins and in 

particular, a footnote in which Justice Brennan said that while he 

agreed with the majority, if Mr. Perkins had previously invoked his 

right to counsel or his right to remain silent under Miranda, the 

relevant inquiry would be whether he knowingly waived that right, 

citing Edwards v. Arizona (1981) 451 U.S. 477, 484–485 (Edwards) 

(holding in part that once an accused invokes right to counsel under 

Miranda, he “is not subject to further interrogation” until counsel is 

made available or the accused initiates further communication). 

Orozco rejected the same argument, aptly noting that 

“Perkins had a seven-justice majority . . . so Brennan’s concurrence 

was not the critical fifth vote; as a consequence, the concurrence is 

dicta.” (Orozco, supra, 32 Cal.App.5th at p. 815.) Moreover, the 

United States Supreme Court has never adopted Brennan’s 

position. But, the court has said that while “ ‘[f]idelity to the 

doctrine announced in Miranda requires that it be enforced 

strictly’ ” it should only be enforced in “ ‘those types of situations in 

which the concerns that powered the decision are implicated.’ ” 

(Howes v. Fields (2012) 565 U.S. 499, 514, italics added.) This is so 

because “ ‘[v]oluntary confessions are not merely a proper element 

in law enforcement, they are an unmitigated good, essential to 

society’s compelling interest in finding, convicting, and punishing 

those who violate the law.’ ” (Ibid.) 

We conclude that Perkins applies here. When defendant 

invoked his right to counsel during the interrogation by Detectives 

Ruiz and Gray, the interrogation ended. During his conversation 

with the undercover detective that followed, defendant was not 
16

subjected to coercive interrogation of the type of which Miranda

was concerned. The incriminating statements he freely made to 

someone he believed to be a fellow inmate were properly admitted. 

Defendant contends that Detectives Ruiz and Gray violated 

his prior invocation of Miranda when they removed him from the 

cell to tell him they had received evidence pointing to his 

involvement in the murder of Mr. Mota and then returned him to 

the cell. We do not agree. 

Orozco is instructive. There, the defendant was in police 

custody following the death of his infant daughter and he invoked 

his right to counsel during questioning. (Orozco, supra, 

32 Cal.App.5th at pp. 807–808.) The officers thereafter arranged for 

the defendant’s girlfriend to speak with him in an interview room. 

The conversation was recorded, and the defendant was not aware 

his girlfriend was acting as an agent of the police. (Id. at pp. 808–

809, 816.) The officers interrupted the meeting and told them the

autopsy findings showed their daughter had been beaten and asked

them if they had anything they wanted to say. The defendant said 

nothing. (Id. at pp. 808–809.) The defendant argued that even if 

the undercover operation had been proper at the beginning, it 

became a custodial interrogation when the officers interrupted and 

sought to provoke a response. (Id. at p. 816.)

Orozco rejected the argument, explaining that defendant said 

nothing in response to the officers’ comments and simply waited for 

them to leave. (Orozco, supra, 32 Cal.App.5th at p. 816.) The 

defendant then “resumed his one-on-one conversation with [his 

girlfriend], completely unaware she was an agent of the police. His 

subsequent confession to her was accordingly not the product of an 

interrogation.” (Ibid.)

Similarly here, defendant was not subjected to additional 

interrogation when Detectives Ruiz and Gray told him they had
17

additional evidence. He made no incriminating statements to 

Detectives Ruiz and Gray. Rather, like the defendant in Orozco, he 

waited for them to leave and then resumed his voluntary 

conversation with the undercover detective, believing him to be a 

fellow inmate. His subsequent incriminating statements were not 

the result of coercive interrogation and were properly admitted.

The dissent cites Edwards, supra, 451 U.S. at page 484 in 

support of the statement that “as long as the second interrogation is 

initiated by the police, even under the guise of a Perkins agent, such 

an interrogation cannot occur without a valid waiver.” (Dis. opn., 

post, at p. 2.) Edwards does not support that proposition, as there 

was no Perkins agent involved in Edwards. The Supreme Court’s 

opinion in Perkins, nine years after Edwards, expressly rejected 

that proposition. We repeat that, in Edwards, the Supreme Court 

held that an “undercover law enforcement officer posing as a fellow 

inmate need not give Miranda warnings to an incarcerated suspect 

before asking questions that may elicit an incriminating response.” 

(Perkins, supra, 496 U.S. at p. 300.) 

The dissent fails to address the primary concern of Miranda

and its progeny: coercion. (Ariz. v. Mauro (1987) 481 U.S. 520, 

529–530 [“In deciding whether particular police conduct is 

interrogation, we must remember the purpose behind our decisions 

in Miranda and Edwards: preventing government officials from 

using the coercive nature of confinement to extract confessions that 

would not be given in an unrestrained environment.”].) Defendant 

was not subjected to coercive interrogation with the undercover 

detective. By focusing on the fact defendant had previously invoked 

without assessing whether he was subjected to coercive 

interrogation, the dissent seeks to change the law, not follow or 

extend the law with analysis to support the proposed change. But, 

“to construe Miranda to reach the noncoercive police conduct in this 
18

case is to untether Miranda from its purpose and, in so doing, 

undermine its legitimacy as one of the many bulwarks protecting 

the constitutional rights of criminal defendants.” (Orozco, supra, 

32 Cal.App.5th at p. 817.)

Finally, defendant argues we should apply a due process 

analysis to the court’s decision to admit his statements. We decline 

to do so. Defendant’s objection in the trial court was based only on 

a violation of the Fifth Amendment arising from his assertion of the 

right to counsel during the interview with Detectives Ruiz and 

Gray. Defendant did not object in the trial court on the grounds 

that the use of the undercover operation to obtain a statement from 

him was a violation of his due process rights. Constitutional claims 

may not be raised for the first time on appeal unless the new claim 

does not “ ‘invoke facts or legal standards different from those the 

trial court itself was asked to apply.’ ” (Tully, supra, 54 Cal.4th at 

p. 979.) A defendant “ ‘cannot argue the court erred in failing to 

conduct an analysis it was not asked to conduct.’ ” (Id. at p. 980.) 

The trial court was not asked to conduct a due process analysis. 

The contention has been forfeited. 

3. The Custody Credits

The People concede that defendant is entitled to an additional 

day of presentence custody credits. We agree. 

DISPOSITION

The case is remanded with directions to the superior court to 

award 1,548 actual days of presentence custody credits and to

prepare an amended abstract of judgment and forward it to the 
19

Department of Corrections and Rehabilitation. The judgment of 

conviction is affirmed in all other respects.1 

GRIMES, J.

I CONCUR:

WILEY, J. 

1 After briefing was completed, defendant wrote a letter asking 

this court to order the trial court to transmit the exhibits to this 

court for review. Defendant offered no explanation for the request. 

As is clear from this opinion, defendant did not contend there was 

not substantial evidence to support the judgment. We obtained the 

exhibits but see nothing out of order. Defendant’s request was 

improper and a misuse of court resources. Defendant did not file a 

Wende brief, pursuant to People v. Wende (1979) 25 Cal.3d 436, and 

we have no duty to independently search for error in the admission 

of exhibits in this case.
1

Stratton, P.J., Dissenting in part.

Appellant invoked his right to counsel. The police then 

immediately stopped their overt questioning of him and put him 

in a cell with a Perkins agent who proceeded to covertly get the 

information and confession the police wanted to elicit. (Illinois v. 

Perkins (1990) 496 U.S. 292 (Perkins).) I do not agree with the 

majority that it was permissible for a Perkins agent to 

interrogate appellant after he invoked his right to counsel 

without getting an express waiver of that right. In my view, this 

issue is not governed by Perkins nor does it implicate the 

principles underlying Miranda; it is governed by Edwards v. 

Arizona (1981) 451 U.S. 477 (Edwards).

Edwards could not have put it more succinctly: “[W]hen an 

accused has invoked his right to have counsel present during 

custodial interrogation, a valid waiver of that right cannot be 

established by showing only that he responded to further policeinitiated custodial interrogation even if he has been advised of 

his rights. We further hold that an accused . . . having expressed 

his desire to deal with the police only through counsel, is not 

subject to further interrogation by the authorities until counsel 

has been made available to him, unless the accused himself

initiated further communication, exchanges, or conversations 

with the police. (Edwards, supra, 451 U.S. at pp. 484–485, fn. 

omitted.) “It is reasonably clear under our cases that waivers of 

counsel must not only be voluntary, but must also constitute a 

knowing and intelligent relinquishment or abandonment of a 

known right or privilege, a matter which depends in each case 

‘upon the particular facts and circumstances surrounding that 

case, including the background, experience, and conduct of the 
2

accused.’ ” (Id. at p. 482; see also People v. Storm (2002) 

28 Cal.4th 1007, 1023.)

Perkins proceeded on the premise that conversations in a 

jail between an undercover agent and an accused are, indeed, 

“custodial interrogations.” (Perkins, supra, 496 U.S. at pp. 297, 

299 [the suspect was the “subject of the interrogation”].) 

Statements made during these types of interrogations, however, 

are not, in and of themselves, coerced. That is so because they 

occur when the accused is unaware that they are speaking with 

law enforcement. Because they are not considered the product of 

coercion, statements made to Perkins agents are generally 

considered voluntary under Miranda v. Arizona (1966) 384 U.S. 

436, 462. But, importantly, Edwards applies even if the 

subsequent interrogation after invocation of the right to counsel 

is not coercive. Under Edwards, no police-initiated interrogation 

whatsoever is to occur unless the accused has given a valid 

waiver of the right to counsel they previously invoked. (Edwards,

supra, 451 U.S. at p. 484.) The subsequent interrogation might 

occur, for example, without coercion, at home, in jail, on the 

street, in a coffee house. But as long as the second interrogation 

is initiated by the police, even under the guise of a Perkins agent, 

such an interrogation cannot occur without a valid waiver. 

Edwards is not about coercion; it is about securing a valid and 

knowing waiver of an invoked right. (Ibid.) I would find that 

Edwards governs the analysis here.

Using a Perkins agent here was a law enforcement 

procedure calculated to deceive appellant, so that he would not 

know to whom he was incriminating himself. He was not given 

an opportunity to knowingly and intelligently waive his 

previously asserted right to have counsel present during 
3

questioning. Admission of the statements without a valid waiver 

was error under Edwards. (Edwards, supra, 451 U.S. at p. 483.)

I would further find that admission of the statements 

appellant gave to the Perkins agent in contravention of his 

asserted right to counsel was not harmless beyond a reasonable 

doubt. (Chapman v. California (1967) 386 U.S. 18.) They were 

full-on compelling confessions that guaranteed his conviction. I 

would remand to the trial court with directions to vacate the 

denial of the motion to suppress, vacate the convictions, suppress 

the statements appellant made to the Perkins agent after 

invocation of his right to counsel, and set a new trial date.

STRATTON, P. J.