Filed 3/25/19 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO OROZCO,

Defendant and Appellant.

 B288942

 (Los Angeles County

 Super. Ct. No. VA130104)

ORDER MODIFYING OPINION 

 NO CHANGE IN JUDGMENT

THE COURT:*

It is ordered that the opinion filed herein on February 28, 2019, 

be modified as follows:

1. At the bottom of page 5, where it reads: The autopsy, he 

reported, showed that Mia had “died at the hands of another,” 

replace as follows:

The autopsy, he reported, showed that Mia had “died at the 

hands of [an]other,” 
2

There is no change in the judgment.

____________________________________________________________

*

 LUI, P. J., CHAVEZ, J., HOFFSTADT, J.
Filed 3/7/19 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO OROZCO,

Defendant and Appellant.

 B288942

 (Los Angeles County

 Super. Ct. No. VA130104)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

 NO CHANGE IN JUDGMENT

THE COURT:*

It is ordered that the opinion filed herein on February 28, 2019, 

be modified as follows:

1. On page 2, second paragraph, line 5, where it reads, “the day 

before”, replace as follows: 

earlier the same day

2. On page 9, footnote 3, where it reads, “Because defendant 

‘points to no evidence in the record supporting his inability to 
2

pay’ (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence 

no evidence that he would suffer any consequence for nonpayment, a remand would serve no purpose.” replace as follows:

Because there is “no evidence in the record supporting his 

inability to pay” (People v. Gamache (2010) 48 Cal.4th 347, 

409), and hence no evidence that he would suffer any 

consequence for non-payment, a remand for further factfinding would serve no purpose.”

There is no change in the judgment.

Appellant's petition for rehearing is denied.

____________________________________________________________

*

 LUI, P. J., CHAVEZ, J., HOFFSTADT, J.
Filed 2/28/19 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO OROZCO,

Defendant and Appellant.

 B288942

 (Los Angeles County

 Super. Ct. No. VA130104)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. John A. Torribio, Judge. Affirmed.

Brad Kaiserman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Zee Rodriguez, Supervising Deputy Attorney 

General, and Daniel C. Chang, Deputy Attorney General, for 

Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of footnote 3.
2

* * * * * *

While watching his six-month-old daughter by himself one 

evening, a man struck her so hard that he killed her. He 

confessed to doing so while meeting privately with the child’s 

mother in a police interview room, and the trial court admitted 

the confession at trial. That meeting, however, was orchestrated 

by police and occurred just hours after defendant had been 

questioned by police, had proffered an innocent explanation for 

the infant’s death, and had thereafter repeatedly asked for a 

lawyer. This appeal presents three questions bearing on the 

admissibility of confessions in criminal cases: (1) Does a suspect’s 

invocation of his right to counsel under Miranda v. Arizona

(1966) 384 U.S. 436 (Miranda) preclude the admission of a 

confession a suspect subsequently makes to a person he is 

unaware is functioning as an agent of law enforcement, (2) Does 

continued questioning of a suspect after invocation of the 

Miranda right to counsel automatically taint any subsequent 

confession, and (3) Does the above described law enforcement 

conduct otherwise violate due process? We conclude that the 

answer to all three questions is “no,” and affirm the trial court’s 

ruling admitting his confession.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Underlying crime

Mia was a little over six months old at the time of her 

death. Mia died from blunt trauma. She had 29 bruises, seven 

rib fractures, a punctured right lung, bruised lungs, and a 

lacerated liver. Most of these injuries had been inflicted in the 

hours prior to Mia’s death, as a pediatrician’s appointment the 

day before revealed only a few bruises and no internal bleeding. 
3

Just hours before her death, however, Mia was playing 

with toys and “look[ing] fine.” That was how her mother Nathaly 

Martinez (Martinez) last saw Mia, when she left the infant in the 

sole custody of her boyfriend and Mia’s father, Edward Orozco 

(defendant). 

A few hours later, defendant called Martinez to report that 

Mia was not breathing. Martinez rushed back home, but Mia’s 

body was cold to the touch and attempts at CPR by defendant, 

Martinez, and Martinez’s relative did not resuscitate her. 

Administering CPR did not inflict any of Mia’s injuries. 

Someone called 911, and emergency medical personnel 

responded. A paramedic had to carry Mia out of the home while 

defendant, Martinez and other family members quarreled among 

themselves. 

Attempts to revive Mia failed. 

B. Subsequent interviews

1. Law enforcement interrogates defendant (the 

first interview)

A little before dawn the day after Mia’s death, defendant 

voluntarily accompanied police to the police station. He met with 

three officers in an interview room, and they told him he was “not 

in custody” and was “free to leave.” One of the officers 

nevertheless read defendant his Miranda rights, and defendant 

indicated that he understood them. 

Defendant then proffered his account of what happened. 

He said he gave Mia some baby Motrin when she was crying; that 

he put her in her crib; and that when he came back upstairs a 

few hours later to check on her, her face was up against the side 

of the crib and she was no longer breathing. Defendant had no 

explanation for how Mia got so bruised up. 
4

The interviewing officers expressed some skepticism, 

pointing out that defendant was “the last one with her” and 

pressing for an explanation of the numerous bruises on her body. 

However, defendant stuck to his account of what happened and 

said he “would never hurt [his] daughter.” 

An officer then asked if defendant would be “willing to sit 

down and repeat the story on a polygraph machine.” Defendant 

responded by asking, “Can I have an attorney?” The officer 

responded, “Sure you can have an attorney,” but that officer and 

another officer then proceeded to ask defendant at least four 

times, “Why would you need an attorney”? In the midst of these 

further questions, defendant requested an attorney four more 

times, all the while maintaining that his account was truthful 

and that he had no explanation for Mia’s injuries. 

At that point, one of the officers placed defendant under 

arrest for Mia’s murder. Another officer told defendant, “[Y]ou 

ask[] for your attorney . . . but we’re asking for your honesty.” 

The officer then told defendant, “[i]f you’re willing to talk to us 

right now” “[w]ithout your attorney present” “and [to] explain 

what happened[,] I’m not going to take you to jail.” Defendant 

repeated his request for an attorney and the officer said, “All 

right. Go to jail. Done.” 

At that point, the interview ended. Defendant had not 

made any incriminating statements.

2. The conversation between defendant and 

Martinez

a. Pre-conversation

Several hours after the first interview, the police allowed 

defendant and Martinez to meet in an interview room at the 

police station. It is not clear who suggested the meeting. Before 

placing Martinez in the interview room, one of the police officers 
5

told her that maybe “you can get the full explanation out of 

[defendant].” The officer reminded her, “You are the mother of 

Mia and that you ha[ve] a right to know, that you ha[ve] to know, 

and that you ha[ve] to know everything.” The officer did not give 

Martinez specific questions to ask or describe the particular 

information to get from defendant, but Martinez felt like she had 

to report back to the police. 

b. First portion of conversation

The officer escorted Martinez into the interview room and 

immediately left, leaving Martinez alone with defendant. Their 

conversation was recorded.

Martinez asked defendant what happened while he was 

watching Mia. Defendant gave Martinez the same explanation 

he had previously given the police. Defendant said he was 

“scared,” but Martinez assured him that “[she] knew” he “didn’t 

do anything.” 

c. Interruption regarding autopsy and 

subsequent discussion

One of the officers then entered the interview room. He 

said he had received a call from the coroner’s office. The autopsy, 

he reported, showed that Mia had “died at the hands of another,” 

that Mia “didn’t suffocate,” and that her bruises were caused by 

“a beating.” The officer then told defendant, “[Y]ou were the last 

one with your daughter and there’s [no] doubt [about] it. She 

suffered major injuries. This may be the last time you guys get to 

talk to each other in person, okay?” He stated that “right now 

both of you are looking at going to jail for child neglect; causing 

the death of that baby.” He then asked, “Did either of you have 

anything you want to say to me?” Martinez said, “No”; defendant 

was silent. 

The officer left the interview room. 
6

Martinez again asked defendant, “What happened?” 

Defendant said he “want[ed] [the police] to leave [her] alone” and 

that he did not want “them to take” Martinez. Martinez again 

reassured him, “We’re . . . going to get through this.” 

d. Officer momentarily pulls Martinez out of 

the room

The same officer who announced the autopsy results reentered the room and asked Martinez to step outside. He asked 

if she would take a polygraph test, and informed her that 

defendant had refused to do so. The officer then escorted 

Martinez back to the interview room. The officer later admitted 

that his purpose in doing this was to “stimulate conversation” 

between Martinez and defendant. 

e. Resumption of conversation and 

confession

Once they were alone again, Martinez asked defendant, 

“[W]hy don’t [you] want to take [the] polygraph?” Martinez 

reminded defendant that she was “Mia’s mother,” that she 

“need[ed] to know what happened to her,” and that, “If you love 

me, you need to tell me the truth.” 

Defendant at first replied that he “didn’t do it,” but 

moments later said he “did it.” While sobbing, he went on to 

confess that he “hit her” “once” and that he “fucking killed Mia,” 

their “little baby.” 

A few minutes later, the officer returned, said “Time’s up,” 

and escorted Martinez from the interview room.
7

II. Procedural Background

A. Charges

The People charged defendant with (1) murder (Pen. Code, 

§ 187, subd. (a)),1 and (2) assault on a child causing death 

(§ 273ab, subd. (a)).2

B. Cross motions to suppress and admit

Defendant filed a written motion to exclude his confession 

as obtained in violation of Miranda. The People filed a crossmotion to admit the confession. 

The trial court ruled that the confession was admissible. 

The court found that Martinez was an agent of the police at the 

time she spoke with defendant in the interview room, but ruled 

that “the case law”—specifically, Illinois v. Perkins (1990) 496 

U.S. 292 (Perkins), People v. Guilmette (1991) 1 Cal.App.4th 1534 

(Guilmette) and People v. Plyler (1993) 18 Cal.App.4th 535 

(Plyler)—foreclosed defendant’s argument that his prior 

invocation of his Miranda right to counsel mandated suppression 

because defendant had been unaware of Martinez’s role as a 

police agent and thought he was talking to his girlfriend. The 

court also rejected defendant’s argument that officer’s 

intervention to announce the autopsy results changed the 

analysis because the officer “just came in and then he left again.” 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 The People also alleged that defendant personally inflicted 

great bodily injury (§ 12022.7) regarding the murder, but later 

dismissed that allegation.
8

C. Verdicts, sentencing and appeal

The matter proceeded to a jury trial. The jury convicted 

defendant of second degree murder and assault on a child causing 

death. 

The trial court sentenced defendant to prison for 25 years 

to life on the assault count. The court imposed, but stayed under 

section 654, a sentence of 15 years to life on the murder count. 

The court also imposed $60 in court operations assessments, $80 

in criminal conviction assessments, and the minimum $300 

restitution fine, and imposed but suspended a $300 parole 

revocation fine. 

Defendant filed a timely notice of appeal. 

DISCUSSION

Defendant argues that the trial court erred in not 

suppressing his confession to Martinez under (1) Miranda and (2) 

due process.3 We independently review the trial court’s legal 

3 In supplemental briefing, defendant also seeks a 

sentencing remand pursuant to People v. Duenas (2019) 30 

Cal.App.5th 1157 (Duenas). Based on the constitutional 

guarantees of due process and excessive fines, Duenas held that 

trial courts may not impose three of the standard criminal 

assessments and fines—namely, the $30 court operations 

assessment (§ 1465.8), the $40 criminal conviction assessment 

(Gov. Code, § 70373), and the $300 restitution fine (Pen. Code, 

§ 1202.4)—without first ascertaining the “defendant’s present 

ability to pay.” (Duenas, at pp. 1164, 1172, fn. 10.) We need not 

decide whether we agree with Duenas because defendant is not 

entitled to a remand even if we accept Duenas. That is because 

the record in this case, unlike the record in Duenas, indicates the 
9

determinations on these issues but review its underlying factual 

 

defendant has the ability to pay the $440 in assessments and 

fines that should have been imposed in this case (that is, $300 

restitution fine and two sets of assessments, one for each of his 

two convictions). (Cf. People v. Bennett (1981) 128 Cal.App.3d 

354, 359-360 [remand for resentencing unnecessary where “the 

result is a foregone conclusion”].) A defendant’s ability to pay 

includes “the defendant’s ability to obtain prison wages and to 

earn money after his release from custody.” (People v. Hennessey

(1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 

Cal.App.4th 1374, 1376-1377.) Prisoners earn wages ranging 

from $12 per month (for the lowest skilled jobs) to $72 per month 

(for the highest). (Dept. of Corrections, Operations Manual, 

§§ 51120.6, 51121.10 (2019).) At these rates, defendant will have 

enough to pay the $440 in assessments and fines between 7 to 37 

months, which is long before his 25 year sentence would end. He 

would also be able to save up enough to pay the $300 parole 

revocation fine (which is only due if he violates parole) should he 

end up being paroled and violating parole. Even if defendant 

does not voluntarily use his wages to pay the amounts due, the 

state may garnish between 20 and 50 percent of those wages to 

pay the restitution fine. (§ 2085.5, subds. (a) & (c); People v. Ellis

(2019) __ Cal.App.5th __ [2019 Cal.App. LEXIS 90, *5].) The 

record also contains evidence that defendant, at the time of his 

crime, was employed and going to college. Because defendant 

“points to no evidence in the record supporting his inability to 

pay” (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence 

no evidence that he would suffer any consequence for nonpayment, a remand would serve no purpose.
10

findings for substantial evidence. (People v. Williams (2010) 49 

Cal.4th 405, 425 [Miranda determination]; People v. Carrington

(2009) 47 Cal.4th 145, 169 [due process determination]; People v. 

Tate (2010) 49 Cal.4th 635, 686 [factual findings].)

I. Miranda

Miranda established the now-familiar rule that prosecutors 

may not admit a suspect’s statements in their case-in-chief 

against the suspect-defendant unless (1) the defendant was 

advised that (a) “he has a right to remain silent,” (b) anything he 

says “may be used as evidence against him,” (c) “he has the right 

to the presence of an attorney,” and (d) the defendant will be 

provided an attorney if he cannot afford one; (2) the defendant 

waived those rights, either expressly (by affirmatively indicating 

a waiver) or implicitly (by answering questions); and (3) prior to 

making the statements to be admitted, the defendant did not 

invoke either his right to remain silent or his Miranda right to an 

attorney. (Miranda, supra, 384 U.S. at pp. 444-445, 473-474, 

476; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.) 

Critically, however, Miranda’s rule has a limit: It only 

applies when the suspect-defendant was the subject of “custodial 

interrogation.” (Miranda, supra, 384 U.S. at p. 444.) This 

limitation is a function of Miranda’s underlying rationale—

namely, as a “constitutional rule” implementing the Fifth 

Amendment’s privilege against self-incrimination. (Dickerson v. 

U.S. (2000) 530 U.S. 428, 440-444 (Dickerson).) The Fifth 

Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” (U.S. Const., 

5th amend., italics added.) Miranda was the first case to 

acknowledge that “in-custody interrogation of persons suspected 

or accused of crime contains inherently compelling pressures 
11

which work to undermine the individual’s will to resist and to 

compel him to speak where he would not otherwise do so.” 

(Miranda, at p. 467.) Although the “informal,” “psychological” 

pressures inherent in “incommunicado interrogation” do not 

themselves render a statement involuntary (id. at pp. 445, 449, 

461; Dickerson, at p. 444), Miranda reasoned that those 

pressures nonetheless necessitate a “protective device”—namely, 

Miranda’s rule—to ensure that suspects do not make the type of 

compelled statements at the core of the Fifth Amendment’s 

privilege (Miranda, at pp. 458, 465).

Defendant asserts that his confession to Martinez should 

have been suppressed for two independent reasons: (1) he 

invoked his Miranda right to counsel during the first interview 

and the police officers violated Miranda by subsequently sending 

Martinez to speak with him, and (2) the officers violated Miranda

during the first interview, and that his subsequent confession to 

Martinez was the “tainted fruit” of that earlier violation.

A. Does defendant’s prior invocation of his 

Miranda right to counsel require suppression of his 

statements to Martinez?

Defendant argues that his repeated invocation of his 

Miranda right to counsel during the first interview precluded the 

court from admitting the confession obtained during his 

subsequent, arranged meeting with Martinez. For support, he 

cites Edwards v. Arizona (1981) 451 U.S. 477 (Edwards), which 

holds that a suspect’s invocation of his Miranda right to counsel 

precludes “further police-initiated custodial interrogation” unless 

and until counsel is present or the suspect “initiates further 

communication” with the police. (Id. at pp. 484-485.) The People 

respond that defendant’s confession to Martinez does not run 

afoul of Miranda because (1) Martinez was not an agent of the 
12

police, and (2) defendant did not know Martinez was working 

with the police. For support of their second argument, the People 

cite Perkins, supra, 496 U.S. 292, which holds that “Miranda

warnings are not required when the suspect is unaware that he is 

speaking to a law enforcement officer and gives a voluntary 

statement.” (Id. at p. 294; accord People v. Williams (1988) 44 

Cal.3d 1127, 1141-1142 [same].) Substantial evidence supports 

the trial court’s findings that Martinez was an agent of the police 

when she met with defendant (because the officers implored her 

to “get an explanation” from defendant) and that defendant did 

not know Martinez was such an agent (because there is no 

evidence defendant knew of any of the conversations between 

Martinez and the officers). Accordingly, this case squarely 

presents the question: When a suspect invokes his Miranda right 

to counsel and law enforcement subsequently orchestrates a 

conversation between the suspect and someone the suspect does 

not know is an agent of law enforcement, which decision 

controls—Edwards or Perkins? 

We conclude that Perkins controls, and we do so for three 

reasons.

First, the language in Edwards itself dictates that Edwards

is inapplicable. Edwards fleshed out what Miranda meant when 

it said that “[i]f the individual states that he wants an attorney, 

the interrogation must cease until an attorney is present.” 

(Miranda, supra, 384 U.S. at p. 474.) Specifically, Edwards held 

that a suspect who has invoked his Miranda right to counsel may 

not be “subject[ed] to further interrogation by the authorities” on 

any crime at all unless (1) counsel is present “at the time of [any 

further] questioning,” or (2) the suspect “himself initiates further 

communication, exchanges or conversations with the police.” 
13

(Edwards, supra, 451 U.S. at pp. 484-485, italics added; Arizona 

v. Roberson (1988) 486 U.S. 675, 677 (Roberson); Minnick v. 

Minnesota (1990) 498 U.S. 146, 147, 153 (Minnick).) By their 

terms, Edwards and its progeny have applied these restrictions 

only to further “interrogation” of the suspect. (Edwards, at pp. 

478, 482, 484-486; Roberson, at pp. 677, 680, 687; Minnick, at p. 

157.) Indeed, Edwards specifically noted “[a]bsent . . . 

interrogation, there would be no infringement of the [Miranda] 

right [to counsel] that Edwards invoked.” (Id. at p. 486, italics 

added; cf. id. at p. 485 [“nothing . . . would prohibit the police 

from merely listening to [a suspect’s] voluntary, volunteered 

statements and using them against him at the trial.”].)

For purposes of Miranda, “interrogation” means “express 

questioning” or “words or actions on the part of the police . . . that 

the police should know are reasonably likely to elicit an 

incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 

291, 300-301 (Innis).) Because interrogation “reflect[s] a measure 

of compulsion above and beyond that inherent in custody itself” 

(id. at p. 300), not all statements a defendant makes while in 

custody are “the product of interrogation” (id. at p. 299). 

Whether the police action is “reasonably likely to elicit an 

incriminating response” is judged by what the suspect perceives, 

not what the police intend. (Id. at p. 301.) Implicit in the 

definition of “interrogation” is that (1) the suspect is talking to 

the police or an agent of the police, and (2) the suspect is aware

that he is talking to the police or one of their agents. This is why 

a suspect can be subject to “interrogation” when he knowingly 

interacts with the police or their agents. (Id. at p. 295 [speaking 

with police]; In re I.F. (2018) 20 Cal.App.5th 735, 773 [same]; In 

Interest of D.W. (Ill. App. Ct. 1982) 108 Ill. App. 3d 1109, 1110-
14

1111 [same]; People v. Ghent (1987) 43 Cal.3d 739, 750-751 

[speaking with psychiatrist retrained by the police]; People v. 

Sanchez (1983) 148 Cal.App.3d 62, 69-70 [speaking with doctor 

working with police in presence of police]; see also Estelle v. 

Smith (1981) 451 U.S. 454, 467-468 [speaking with prison 

psychiatrist pursuant to court order].) 

Conversely, there is no “interrogation” when a suspect 

speaks with someone he does not know is an agent of the police. 

(Arizona v. Mauro (1987) 481 U.S. 520, 521, 526-529 [spouse]; 

People v. Tate (2010) 49 Cal.4th 635, 685-686 [possible 

accomplice/accessory]; People v. Mayfield (1997) 14 Cal.4th 668, 

758 [father]; People v. Leonard (2007) 40 Cal.4th 1370, 1398-1402 

[father]; People v. Webb (1993) 6 Cal.4th 494, 526 [“friend and 

lover”]; People v. Thornton (2007) 41 Cal.4th 391, 429-430, 432 

[grandmother]; People v. Jefferson (2008) 158 Cal.App.4th 830, 

840-841 [“friend[]” and “neighbor[]”].) Because there is no 

“interrogation” in these circumstances, there is also no basis to 

apply Edwards’s restrictions on further “interrogation.”

Second, the rationale underlying Miranda dictates that 

Perkins, not Edwards, should control. As described above, 

Miranda’s rule requiring a warning, a waiver and the cessation of 

questioning if a suspect invokes his Miranda rights is designed to 

dispel the “compelling” “psychological” “pressures” that are part 

and parcel of “in-custody interrogation.” (Miranda, supra, 384 

U.S. at pp. 448-449, 461, 467.) Edwards’s rule is based on those 

same pressures: A suspect’s invocation of his Miranda right to 

counsel means “he is not capable of undergoing such questioning 

without advice of counsel,” and “any subsequent waiver [by the 

suspect of his Miranda rights] . . . has come at the authorities’ 

behest, and not at the suspect’s own instigation. [Citation.]” 
15

(Roberson, supra, 486 U.S. at p. 681.) Edwards’s rule is 

accordingly “justified only in circumstances where th[ose] 

coercive pressures” exist. (Maryland v. Shatzer (2010) 559 U.S. 

98, 115-116 (Shatzer).) This makes sense: Edwards implements 

Miranda, so should be limited to the evil Miranda was created to 

combat. 

Because “[t]he essential ingredients of a ‘police-dominated 

atmosphere’ and compulsion are not present when an 

incarcerated person speaks freely to someone” that he thinks is a 

lover, a family member, a friend or even a fellow criminal 

(Perkins, supra, 496 U.S. at p. 296; People v. Terrell (2006) 141 

Cal.App.4th 1371, 1386 [“there can be no coercion for Miranda

purposes when the defendant is subjectively unaware of any 

police involvement in eliciting or recording his statements”]), 

Miranda’s (and, by extension, Edwards’s) purpose in combating 

that atmosphere and compulsion is simply not implicated in such 

situations. To apply Edwards here is to require police to provide 

counsel while a suspect is speaking with a lover, family member 

or friend in what he (mistakenly) thought was a private 

conversation. This would undoubtedly discourage suspects from 

speaking to anyone and thus effectively convert Edwards into a 

rule automatically excluding all post-invocation statements, a 

result that Edwards itself acknowledged swept far beyond 

Miranda’s reach. (Edwards, supra, 451 U.S. at p. 486; see also 

Shatzer, supra, 559 U.S. at pp. 110-111 [post-invocation 

statements made after sufficient break in custody may be 

admitted].)

Third, and not surprisingly, California courts have 

uniformly come to the conclusion that Perkins controls when a 

suspect invokes his Miranda right to counsel but later speaks 
16

with someone he does not know is an agent of the police. That 

was the holding of Guilmette, supra, 1 Cal.App.4th at pp. 1540-

1541, and Plyler, supra, 18 Cal.App.4th at pp. 544-545.

Defendant resists this conclusion with what boil down to 

five categories of arguments.

First, defendant contends that Perkins should not control 

because Perkins did not involve a suspect who had previously 

invoked his Miranda right to counsel; Edwards, he urges, should 

control where there is such an invocation. For support, he cites 

two sources. He cites a footnote from Justice Brennan’s 

concurrence in Perkins, where Justice Brennan opined that “[i]f 

[Perkins] had invoked either [his Miranda right to remain silent 

or his Miranda right to counsel], the inquiry would focus on 

whether he subsequently waived the particular right” and then 

proceeded to cite Edwards. (Perkins, supra, 496 U.S. at p. 300, 

fn. * (conc. opn. of Brennan, J.).) Perkins had a seven-Justice 

majority, however, so Brennan’s concurrence was not the critical 

fifth vote; as a consequence, the concurrence is dicta. (E.g., 

Maryland v. Wilson (1997) 519 U.S. 408, 412-413.) Justice 

Brennan also makes no attempt to reconcile Edwards’s limitation 

to post-invocation “interrogations” with his concession elsewhere 

in his concurrence that the “questioning” of Perkins in that case 

“does not amount to ‘interrogation.’” (Perkins, at p. 300.) 

Defendant also cites the state appellate decision on remand from 

Perkins, where the court held that Perkins’s conversation with 

the undercover agent constituted “interrogation.” (People v. 

Perkins (Ill. App. Ct. 1993) 248 Ill. App. 3d 762, 771.) Curiously, 

however, that decision nowhere addressed the Supreme Court’s 

prior decision in Perkins and, as a result, is simply incorrect in 

holding that the conversation constituted “interrogation.”
17

Second, defendant asserts that the law otherwise dictates 

that conversations between a suspect and people he does not 

know are agents of the police constitute “interrogation,” such that 

Guilmette and Plyler were wrongly decided. For support, he 

again cites two sources. He cites Justice Marshall’s dissent in 

Perkins, where he opines that “[t]he Court does not dispute that 

the police officer here conducted a custodial interrogation of a 

criminal suspect.” (Perkins, supra, 496 U.S. at p. 304 (dis. opn. of 

Marshall, J.).) Beyond the obvious facts that what is said in a 

dissenting opinion is usually the opposite of the court’s holding 

and is in any event dicta, Justice Marshall’s characterization of 

the Perkins’s majority decision is at odds with both the majority 

opinion itself and, as noted above, with Justice Brennan’s 

concurrence. Defendant also cites language in a footnote in 

Patterson v. Illinois (1988) 487 U.S. 285, stating that “a 

surreptitious conversation between an undercover police officer 

and an unindicted suspect would not give rise to any Miranda

violation as long as the ‘interrogation’ was not in a custodial 

setting.” (Id. at p. 296, fn. 9.) Patterson made this statement in 

the context of distinguishing the protections afforded by Miranda

from those afforded by the Sixth Amendment under Massiah v. 

U.S. (1964) 377 U.S. 201. Patterson was not attempting to define 

the meaning of “interrogation” and, more importantly, Patterson

came before Perkins. As the latter decided case that squarely 

addresses the issue, Perkins controls.

Third, defendant posits that even if Guilmette and Plyler

are not wrongly decided, they are distinguishable. In each case, 

he points out, the suspect had been the one to initiate the postinvocation conversation that resulted in a confession. (Guilmette, 

supra, 1 Cal.App.4th at p. 1538; Plyler, supra, 18 Cal.App.4th at 
18

p. 541.) In this case, the evidence is conflicting over whether 

defendant was the one to suggest speaking with Martinez. But 

even if we assume that the police orchestrated the conversation, 

what makes Edwards apply rather than Perkins is whether the 

suspect knew he was talking to a police agent, not who initiated 

that talk in the first place.

Fourth, defendant urges that even if his conversation with 

Martinez did not start out as an interrogation, it became one once 

the officer returned with a summary of the autopsy findings and 

asked if either parent had “anything [they] want[ed] to say.” Had 

defendant answered the officer’s question with an incriminating 

statement, he would have been interrogated. But he did not. 

Instead, defendant said nothing, and the officer left. At that 

point, defendant resumed his one-on-one conversation with 

Martinez, completely unaware she was an agent of the police. 

His subsequent confession to her was accordingly not the product 

of an interrogation.

Lastly, defendant argues that the police engaged in a 

“persistent, underhanded attempt . . . to obtain a confession” by 

blatantly disregarding his repeated requests for counsel and then 

orchestrating a tearful confrontation with his girlfriend and the 

mother of his now-dead infant. The police conduct in this case 

was deplorable. (Accord, Missouri v. Seibert (2004) 542 U.S. 600, 

616 (plurality) [decrying “police strategy adapted to undermine 

the Miranda warnings”].) But the question we must decide is 

whether it is unconstitutional.

4 Miranda is not a free-floating 

4 Orchestrating the conversation between defendant and 

Martinez clearly constitutes “deliberate elicitation” within the 

meaning of the Sixth Amendment. (Kuhlmann v. Wilson (1986) 
19

bulwark against unfair police tactics. Constitutional rules are 

anchored to their rationales (Shatzer, supra, 559 U.S. at p. 106 

[“A judicially crafted rule is ‘justified only by reference to its 

prophylactic purpose . . .’ [Citation]”]), and Miranda’s rule is 

moored to its purpose of “preventing government officials from 

using the coercive nature of confinement to extract confessions” 

(Mauro, supra, 481 U.S. at pp. 529-530; Oregon v. Elstad (1985) 

470 U.S. 298, 304-305 (Elstad) [Miranda is designed to combat 

the “psychological pressures to confess emanating from . . . 

official coercion”]). “Miranda forbids coercion,” the Supreme 

Court has said, “not mere strategic deception by taking 

advantage of a suspect’s misplaced trust in one he supposes to be” 

someone he can trust. (Perkins, supra, 496 U.S. at p. 297.) To 

construe Miranda to reach the non-coercive police conduct in this 

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

undermine its legitimacy as one of the many bulwarks protecting 

the constitutional rights of criminal defendants. We decline to 

sully Miranda in this fashion.

 

477 U.S. 436, 473 (plurality opinion).) But this is doubly 

irrelevant: Not only is the Sixth Amendment’s “primary concern” 

with stopping “secret interrogation” different from Miranda’s 

concern with stopping the coercion inherent in incommunicado 

interrogation (id. at p. 459; Roberson, supra, 486 U.S. 675, 685), 

but the Sixth Amendment is also inapplicable here because 

defendant was not yet formally charged with any crime at the 

time of his confession (Moran v. Burbine (1986) 475 U.S. 412, 428 

(Moran)).
20

B. Is defendant’s confession to Martinez the tainted 

fruit of his first interview?

Defendant alternatively argues that, even if his confession 

to Martinez was not the product of an interrogation barred by 

Edwards, supra, 451 U.S. 477, the confession must nevertheless 

be suppressed because it is the fruit of the first interview during 

which the police violated his Miranda rights by continuing to 

interrogate him despite his repeated invocation of his Miranda

right to counsel. For support, defendant cites People v. Montano

(1991) 226 Cal.App.3d 914 (Montano).

When the police violate a suspect’s Miranda rights, the 

statement immediately resulting from that violation is 

inadmissible in the prosecution’s case-in-chief. (Miranda, supra, 

384 U.S. at pp. 444-445.) That violation may also warrant

suppression of subsequent statements obtained as a result of the 

initial violation. (People v. Storm (2002) 28 Cal.4th 1007, 1027.) 

However, because a violation of Miranda does not necessarily 

result in a confession that is “compelled” within the meaning of 

the Fifth Amendment (Dickerson, supra, 530 U.S. at 444; Elstad, 

supra, 470 U.S. at p. 310), an initial Miranda violation does not 

“inherently taint[]”—and thus warrant suppression of—all 

subsequent statements (Elstad, at p. 307). Instead, a defendant

seeking to suppress a statement as the tainted fruit of a Miranda

violation must establish that any subsequent confession was 

involuntary. (Storm, at pp. 1029-1030; People v. Case (2018) 5 

Cal.5th 1, 23-26 (Case); People v. Bradford (1997) 14 Cal.4th 

1005, 1039-1041 (Bradford).) We adjudge whether a confession 

was voluntary by looking to the totality of the circumstances. 

(Moran, supra, 475 U.S. at p. 421.)

Applying these standards, defendant’s confession to 

Martinez was not the suppressible fruit of an earlier Miranda
21

violation. Significantly, the officers’ initial Miranda violation in 

questioning defendant despite his repeated request for counsel 

did not produce any confession. Instead, defendant steadfastly 

maintained his innocence. This is accordingly not a case where 

the initial Miranda violation produced a confession that, once 

made, put pressure on a suspect to reaffirm that prior confession; 

in this case, the proverbial “cat” never got out of the “bag.” 

Further, and for the reasons outlined in detail above, defendant’s 

statements to Martinez were voluntary because he (mistakenly) 

believed he was having a private conversation with his girlfriend; 

he had no idea that police were exerting any pressure on him at 

all. 

Montano does not dictate a different result. Montano held 

that a police officer’s repeated refusal to honor a suspect’s 

invocation of his right to remain silent under Miranda by itself 

constituted “coercion” that automatically rendered any 

subsequent confession the tainted “fruit” of that earlier violation. 

(Montano, supra, 226 Cal.App.3d at pp. 933-934.) Our Supreme 

Court subsequently rejected Montano’s holding when it ruled that 

“continued interrogation after a defendant has invoked his” 

Miranda “right[s]” does not “inherently constitute coercion.” 

(Bradford, supra, 14 Cal.4th at p. 1039; Storm, supra, 28 Cal.4th 

at pp. 1031-1033.) Indeed, Storm went so far as to declare 

Montano to be “not” “persuasive” on this precise point. (Storm, at 

p. 1037, fn. 13.)

II. Due Process

Defendant argues that his confession should have been 

suppressed as obtained in violation of due process because the 

police officers (1) deliberately ignored his repeated requests for 

counsel during the first interview and thereafter sent Martinez in 
22

to “get the full explanation” from him; and (2) highlighted the 

seriousness of the crime, threatened to arrest him and put him in 

jail if he did not “explain what happened” and stated that he and 

Martinez were “looking at going to jail for child neglect.” The 

People respond that defendant cannot raise a due process-based 

objection now because he did not do so before the trial court.

A. Forfeiture

Defendant has forfeited any due process challenge to his 

confession. His motion to suppress was based solely on Miranda, 

and our Supreme Court has held that a Miranda-based objection 

to a confession is legally distinct from a due process-based 

objection; one objection does not preserve the other for appellate 

review. (People v. Ray (1996) 13 Cal.4th 313, 339.) However, 

because defendant responds that his counsel was constitutionally 

ineffective for not making a due process-based objection, we elect 

to exercise our discretion to reach the merits of his due process 

claim.

B. Merits

The constitutional right to due process secured by the 

federal and California Constitutions mandates the suppression of 

an involuntary confession. (People v. Linton (2013) 56 Cal.4th 

1146, 1176 (Linton).) For these purposes, a confession is 

involuntary if official coercion caused the defendant’s will to be 

overborn, such that the resulting statement is not the product of 

“‘“‘“a rational intellect and free will”’ [citation].’”” (Ibid.; People v. 

Guerra (2006) 37 Cal.4th 1067, 1093 (Guerra), overruled on other 

grounds by People v. Rundle (2008) 43 Cal.4th 76.) We judge 

whether a confession was involuntary by examining the totality 

of circumstances surrounding the confession. (Linton, at p. 1176; 

Guerra, at p. 1093.)
23

1. Officers’ circumvention of Miranda

The officers’ deliberate circumvention of Miranda’s 

protections by disregarding defendant’s requests for counsel and 

orchestrating the monitored conversation between defendant and 

Martinez did not violate due process. 

Due process requires coercion and, for the reasons set forth 

above, defendant’s statements to Martinez were not coerced 

because, as far as he knew, he was talking to his girlfriend. 

(Accord, Webb, supra, 6 Cal.4th at p. 526 [finding no coercion 

under Miranda because “[f]rom defendant’s perspective, he was 

talking with a friend and lover”].) The officers’ behind-the-scenes 

manipulation is, at most, a form of deception, but “‘[p]olice 

trickery . . . does not, by itself, render a confession involuntary.’” 

(People v. Mays (2009) 174 Cal.App.4th 156, 164-165.) The 

trickery here consisted of placing defendant in a room with 

someone he trusted to see if he would talk. Because the 

“proximate caus[e]” of his ensuing confession was the 

conversation—and not the deceptive act of orchestrating its 

occurrence—the requisite proximate causal link between the 

police stratagem and defendant’s confession is missing. (People v. 

Musselwhite (1998) 17 Cal.4th 1216, 1240.) 

Absent a showing that the police conduct in this case 

independently violates due process, defendant is effectively 

asking us to expand Miranda under the aegis of due process. 

This we may not do: “Where,” as here, “a particular Amendment 

‘provides an explicit textual source of constitutional protection’ 

against a particular sort of government behavior, ‘that 

Amendment, not the more generalized notion of “‘“substantive [or 

procedural] due process,” must be the guide for analyzing these 

claims.’” (Albright v. Oliver (1994) 510 U.S. 266, 273, quoting 
24

Graham v. Connor (1989) 490 U.S. 386, 395; see also Portuondo v. 

Agard (2000) 529 U.S. 61, 74; cf. Doyle v. Ohio (1976) 426 U.S. 

610, 617-618 [due process prohibits use of a defendant’s silence 

after receiving Miranda warnings because such use 

independently violates due process, as it is “fundamentally 

unfair” to use a suspect’s post-warning silence after implicitly 

promising not to do so].)

2. Warnings about severity of penalty and threats 

of jail

The officers’ reminders to defendant that the penalty for 

causing Mia’s death was severe, their threat to arrest him 

immediately if he did not “explain what happened” (by promising 

not to immediately arrest him if he did), and their reminder that 

he (and Martinez) were “looking at going to jail” for Mia’s death 

did not violate due process. Law enforcement does not violate 

due process by informing a suspect of the likely consequences of 

the suspected crimes or of pointing out the benefits that are likely 

to flow from cooperating with an investigation. (People v. 

Holloway (2004) 33 Cal.4th 96, 115-116 [recounting 

consequences]; People v. Williams (2010) 49 Cal.4th 405, 442-443 

[same]; People v. Spears (1991) 228 Cal.App.3d 1, 27-28 [benefits 

that flow from cooperation].) The officers’ conduct in 

emphasizing the severity of the crime at issue and telling 

defendant that he was “looking at going to jail” for that crime did 

not transgress these limits. The officers’ promise not to arrest 

defendant immediately if he confessed presents a closer question, 

but there is no causal link between that promise to give 

defendant a temporary reprieve from custody if he confessed for 

the simple reason that that promise did not produce any 

confession. To the contrary, defendant steadfastly stuck to his 

initial story and continued to request an attorney. As our 
25

Supreme Court recently observed, a defendant’s “steadfast[] 

mainten[ance]” of his “innocen[ce]” “tends to undercut the notion 

that his free will was overborne by the [officer’s] remarks.” (Case, 

supra, 5 Cal.5th at p. 26.)

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ