Filed 5/25/21 P. v. Gutierrez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ULISES JOSE GUTIERREZ,

Defendant and Appellant.

 B302264

 (Los Angeles County

 Super. Ct. No. KA104376)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Robert J. Perry, Judge. Affirmed.

Marilee Marshall for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael Keller and Paul S. Thies, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________________
2

A jury convicted defendant and appellant Ulises Jose 

Gutierrez of two counts of first degree murder (Pen. Code, § 187, 

subd. (a); counts 1 & 8)1 and three counts of willful, deliberate, 

and premeditated attempted murder (§§ 664, 187, subd. (a);

counts 5, 6 & 7).2

The jury found true allegations that, as to counts 1, 5, and 

7, defendant personally discharged a firearm (§ 12022.53, 

subd. (d)); as to count 6, defendant personally used a deadly and 

dangerous weapon (§ 12022, subd. (b)(1)) and caused the victim 

great bodily injury (§ 12022.7, subd. (a)); as to count 8, a principal 

personally discharged a firearm (§ 12022.53, subds. (d) & (e)(1)); 

and, as to counts 1, 5, 7, and 8, the offense was committed for the 

benefit of, at the direction of, or in association with a criminal 

street gang with the specific intent to promote, further, and 

assist in criminal conduct by gang members (§ 186.22, 

subd. (b)(1)(C).)

Finally, the jury found true a multiple murder special 

circumstance allegation (§ 190.2, subd. (a)(3)) and, as to counts 1 

and 8, the special circumstance allegation that defendant carried 

out the murder to further the activities of a criminal street gang 

of which he was an active participant (§ 190.2, subd. (a)(22)).

The trial court sentenced defendant to an aggregate term of 

life without the possibility of parole plus 104 years to life in state 

prison.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 Defendant was found not guilty of one murder count 

(count 9).
3

In this timely appeal, defendant argues that his 

incriminating statements to undercover jail informants were

coerced and, therefore, the admission of those statements at trial 

violated his constitutional rights.

We affirm.

BACKGROUND3

I. Defendant’s Statements to Undercover Informants

As part of an investigation into the May 2013 shooting of 

Raymond Vasquez (Vasquez),

4 the Los Angeles County Sherriff’s 

Department conducted a Perkins5 operation, which entailed

placing an undercover agent posing as an inmate in a cell with a 

suspect to elicit incriminating statements. Defendant was 

arrested on January 16, 2014, taken to the Sheriff’s Station in 

San Dimas, and placed in a jail cell with two undercover 

informants, who were paid for their participation in the Perkins

operation.

Defendant initiated a conversation by asking, “What’s up, 

G?” Informant 2 asked defendant, “You a homie?” Defendant 

responded that he was from the Northside Bolen gang. He told 

the informants that he was 20 years old and had been with the 

gang since he was 12 or 13 years old. Defendant stated: “I’ve 

3 Because defendant does not challenge the sufficiency of the 

evidence supporting his convictions and no prejudice analysis is 

required, we only summarize the facts pertinent to defendant’s 

claim that his incriminating statements were coerced.

4 Vasquez’s murder was the basis of count 1.

5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
4

been all over, my boy. When they call me for Eme,

[6]

like, all 

over.”7

Defendant explained that he was being implicated in a 

murder and that someone was “snitching[.]” At first, defendant

denied knowing about a murder. He asked the informants 

whether the evidence that the police said they had—that is, a 

witness who would testify, text messages, and phone calls—

would be sufficient. Informant 2 asked defendant, “Dude, 

someone’s telling on you that was there?” Defendant responded, 

“I know who it is. No, not that was there.”

Both informants told defendant that they were “red band”

meaning “[h]igh power.” Informant 2 stated: “I had the whole 

county last time I was there, so they red band me every time I 

go.”8 Informant 2 explained that he did a “job” for Fox—a “big 

homie” who “got the county right now[.]”9 Informant 1 mentioned 

that he was related to Fox. Informant 2 stated, “once we get 

6 “Eme” refers to the Mexican Mafia.

7 Italicized text denotes translations from Spanish.

8 At trial, the defense gang expert, Martin Flores (Flores), 

testified that “when somebody says ‘I had the county’ they were 

literally running the operations in terms of the Surenos gang in 

the Los Angeles County Jail and they work closely with one or 

multiple [Mexican Mafia] members that may have been housed 

during that time frame.”

9 Flores testified that Fox was a member of the Mexican 

Mafia, who “had major influence in Los Angeles County Jail.”
5

downstairs, we’re gonna have everything we want.”10 He also 

said that he had been “down there with Lalo” and “Fly.”11

Informant 2 suggested that he could do defendant “a favor” 

regarding the witness. This piqued defendant’s interest; he 

wanted to hear more about how Informant 2 could “help” him. 

Soon after, a deputy sheriff came to the cell to get defendant for 

more interviews. Informant 2 asked if the deputy was going to 

bring him back. The deputy asked defendant if he wanted to 

come back to the cell. Defendant responded, “I’ll feel fucked up 

by myself in a cell.”

Defendant later returned to the cell with the informants

per his request. He told them that he was now being implicated 

in other murders and attempted murders, and was facing the 

death penalty.

Informant 2 again suggested that he could kill the witness 

for defendant but could not make any promises. He told 

defendant: “[I]f I find the fool for you, if I whack him, you’re 

gonna owe me a favor. You know that; right?” Defendant 

responded: “I’m a rider,[12] dog. I’ll do anything you say.”

10 Flores explained at trial that “‘going downstairs’ is 

basically going to where decisions are made . . . . In this case it 

would be most likely Men’s Central Jail which is where the high 

ranking Mexican Mafia members will be housed and/or where the 

most action is taking place.”

11 Per Flores’s trial testimony, Lalo and Fly were Mexican 

Mafia members. Fox, Lalo, and Fly were “three of the most 

powerful individuals in Los Angeles County Jail[.]”

12 According to the Sheriff’s Department report regarding the 

Perkins operation, a rider is “street slang for an individual who is 

committed to the gang[.]”
6

Informant 2 said that he needed defendant to tell him 

“everything” so that he “could do all [his] homework . . . .” He

told defendant: “[W]hen I ask you a question, I want you to 

answer·me honestly and not lie to me and bullshit me.” 

Informant 2 asked how he could know if defendant was a 

“rider[,]” and defendant said that the informant should ask 

people in Pelican Bay13 about him. Defendant stated that he had 

been “gangbanging” for seven years.

Defendant explained that the police knew about three 

murders and an attempted murder. Regarding why he shot one 

of the victims, defendant stated: “Because his son, he had beef 

with the barrio. I said, ‘Well, I’m going to go.’ So I went to the 

hood.” There was also an incident involving “Maria” during 

which she “got shanked up.”

14 Defendant said that he “was this 

close to kill [sic] her” but was stopped.

Informant 2 told defendant: “We’re gonna get you out, but 

remember you’re willing to do anything for me; right?” 

Defendant responded, “I’m gonna do everything, my boy.” 

Informant 2 clarified, “Even kill people; right?” Defendant 

replied, “Shhh, and that ain’t nothing to me.”

II. Relevant Trial Court Proceedings

On November 13, 2018, defendant filed a motion to exclude 

all evidence obtained through the Perkins operation conducted in

13 Defendant was presumably referring to Pelican Bay State 

Prison.

14 The attempted murder of Maria Moreno with a knife was

the basis of count 6.
7

January 2014.15 Defendant argued that “the operation . . . went 

far beyond merely ‘listening’ to statements by a suspect. 

Rather, . . . [the informants] used their age and experience to 

play upon the fears, naivete, and youthfulness ([defendant] was 

20 at the time) of the defendants, by making promises and 

exacting commitments as part of their shared gang culture.”

During oral argument on August 28, 2019, defense counsel 

contended that defendant’s statements to the undercover 

informants were the result of implied coercion because they 

followed “very intense . . . pressure being put on him by these 

very obviously older and larger individuals[16] who have spoken to 

him about politics at the jail. What he’s gonna have to do about 

the Mexican Mafia individuals that they’re familiar with who run 

the county, mentioning a Fox and a Lalo. . . . [T]his is all part of 

their efforts to exert some sort of coercion. It’s not the rubber 

hose treatment, of course. But, nonetheless, . . . coercion can be 

implied.”

The trial court denied the motion to exclude, and a

recording of defendant’s conversations with the undercover 

informants was played for the jury as part of the People’s case-inchief.

15 Apart from defendant, there were four other subjects of the 

Perkins operation. On appeal, defendant only challenges the 

admission of his own statements.

16 At the time, one of the informants was in his early to mid 

30’s, weighed 275 to 325 pounds, and was between 5 feet 8 inches 

and 5 feet 11 inches tall. The other informant was in his late 20’s 

to early 30’s and between 5 feet 6 inches and 5 feet 8 inches tall.
8

The defense called Flores, a gang expert, to testify. Flores 

was familiar with the two men used as undercover informants in 

the Perkins operation and believed that they could be 

“intimidating to a new person being incarcerated.” According to 

Flores, by mentioning Fly, Lalo, and Fox, one of the informants 

was showing that he had a connection to “major players” and had 

“influence with them at the county jail.” Flores also opined that 

younger gang members have a tendency to boast in the presence 

of older gang members, especially “in a setting where somebody is 

going to be housed at for a period of time” like the county jail.

DISCUSSION

The sole issue raised in this appeal is whether defendant’s 

statements to the undercover informants during the Perkins

operation were coerced and, therefore, inadmissible.

I. Standard of Review

Whether defendant’s incriminating statements were 

voluntary or coerced is a mixed question of law and fact affecting 

constitutional rights, to which we apply de novo review. (People 

v. Cromer (2001) 24 Cal.4th 889, 901.)

II. Applicable Law

The constitutional protections set forth in Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda) do not apply when a 

criminal suspect does not know that he is speaking to a law 

enforcement officer or an undercover informant. (Perkins, supra, 

496 U.S. at p. 294; People v. Davis (2005) 36 Cal.4th 510, 554.) 

The concerns underlying Miranda—“that a ‘police-dominated 

atmosphere’ generates ‘inherently compelling pressures’ that 

‘undermine the individual’s will to resist’ questioning”—

“evaporate when, as here, an inmate speaks freely to someone he 
9

believes is a fellow inmate.” (People v. Rodriguez (2019) 40 

Cal.App.5th 194, 198 (Rodriguez).)

The due process clauses of the federal and California 

Constitutions nevertheless bar the admission of an involuntary

confession regardless of whether the suspect knows he is 

speaking to law enforcement. (Rodriguez, supra, 40 Cal.App.5th 

at p. 199.) “Involuntariness means the defendant’s free will was 

overborne.” (People v. DePriest (2007) 42 Cal.4th 1, 34

(DePriest).) “‘A confession may be found involuntary if extracted 

by threats or violence, obtained by direct or implied promises, or 

secured by the exertion of improper influence.’ [Citation.] 

However, ‘no single factor is dispositive in determining 

voluntariness . . . rather[,] courts consider the totality of 

circumstances.’” (People v. Wall (2017) 3 Cal.5th 1048, 1066

(Wall).)

“Deception does not necessarily invalidate an incriminating 

statement.” (People v. Maury (2003) 30 Cal.4th 342, 411 (Maury); 

see also People v. Orozco (2019) 32 Cal.App.5th 802, 819 (Orozco)

[“‘“[p]olice trickery . . . does not, by itself, render a confession 

involuntary[]”’”].) “‘The courts have prohibited only those 

psychological ploys which, under all the circumstances, are so 

coercive that they tend to produce a statement that is both 

involuntary and unreliable.’” (Maury, supra, at p. 411.)

III. Analysis

Based on the totality of the circumstances surrounding 

defendant’s conversations with the undercover informants (see 

Wall, supra, 3 Cal.5th at p. 1066), we conclude that his

incriminating statements were voluntary and not the product of 

coercion.
10

Both informants made statements conveying their 

connections to the Mexican Mafia and influential gang figures. 

Informant 2, in particular, encouraged defendant to speak in 

detail about his crimes. “Certainly,” the informants were “more 

than . . . passive listener[s].” (People v. Fayed (2020) 9 Cal.5th 

147, 166.) But the informants did not physically threaten 

defendant with violence, use other tactics likely to procure an 

unreliable response, or make promises. (See ibid. [incriminating 

statements made to a cellmate, who “coaxed and prodded [the] 

defendant when he hesitated to speak,” were not coerced]; cf. 

Arizona v. Fulminante (1991) 499 U.S. 279, 288 [alleged child 

murderer’s confession to fellow inmate was coerced because it 

was motivated by “fear of physical violence, absent protection 

from his friend (and Government agent)”].) To the contrary, 

Informant 2 emphatically stated that he wanted defendant to be 

honest with him. Informant 2 also explicitly told defendant that 

he could not make any promises about killing the witness.

Nor, having listened to the recordings of the conversations 

and reviewing the transcripts, do we find anything to suggest 

that defendant was fearful of the informants. Defendant 

initiated the conversation and early on boasted about his gang 

bona fides. He frequently laughed with them and asked 

questions. He repeatedly used the terms “fool” and “my boy” to 

refer to the informants casually and with familiarity. When 

defendant was removed from the cell for additional interviews 

with detectives, he requested to be returned to the same cell as 

the informants. Thus, given the opportunity to be separated from 

them, defendant actively sought to return to them.

Urging us to find coercion, defendant asserts that he

invoked his Miranda rights when interrogated by detectives
11

following his arrest17 and was subsequently placed in the cell 

with the undercover informants. Defendant claims that he did 

not make any incriminating statements to the informants until 

after he was removed from the cell for further interrogation by 

detectives (during which he was told about several additional 

charges against him) and then returned to the cell with the 

informants. Defendant acknowledges that Miranda is 

inapplicable to his statements to the informants because he was 

unaware at the time that they were acting under the direction of 

law enforcement. (Perkins, supra, 496 U.S. at p. 294.) He 

nevertheless contends that interspersing his contact with the 

informants with further police interrogation was a coercive tactic 

meant to evade Miranda, which also violated his rights under 

Massiah v. United States (1964) 377 U.S. 201 (Massiah).

We are unpersuaded.

First, while defendant was more forthcoming with the 

informants when he returned to the cell following the additional 

interviews with detectives, he had still made incriminating 

statements before he was removed for those interviews. For 

example, he stated that the witness was not someone who was 

present at the crime. Defendant had also already expressed 

interest in the possibility of Informant 2 killing the witness.

Thus, the record undermines the suggestion that “defendant’s 

17 The People argue that the appellate record does not 

demonstrate that defendant actually invoked his Miranda rights 

when he was interviewed by detectives. The record is ambiguous

in this respect, but for the sake of argument we accept 

defendant’s representation that he did invoke his rights.
12

free will was overborne” (DePriest, supra, 42 Cal.4th at p. 34) by 

the additional questioning by law enforcement.

Second, even if police engaged in “deliberate circumvention 

of Miranda’s protections by disregarding defendant’s requests for 

counsel and orchestrating the monitored conversation between 

defendant and” the informants, due process was not violated. 

(Orozco, supra, 32 Cal.App.5th at p. 819.) To find otherwise here 

would be “to expand Miranda under the aegis of due process. 

This we may not do[.]” (Orozco, supra, at p. 820.) This remains 

true even though defendant’s contact with the informants was 

interrupted by additional interviews with detectives. (See id. at 

pp. 808–809, 819–820 [no violation of due process where a 

defendant confessed to killing his daughter during a conversation 

with the child’s mother, which followed the defendant’s 

invocation of his Miranda right to counsel and an interruption of 

his conversation with the mother by law enforcement].)

Third, defendant’s conversations with the undercover 

informants preceded the initiation of formal judicial proceedings 

in this case. Accordingly, Massiah, supra, 377 U.S. at p. 206, 

which held that a defendant’s incriminating statements elicited 

after his indictment and in the absence of his counsel violated the 

Sixth Amendment, is inapplicable. (See Rothgery v. Gillespie 

County, Texas (2008) 554 U.S. 191, 198 [Sixth Amendment right 

to counsel commences with the initiation of adversary criminal 

proceedings through formal charges, preliminary hearing, 

indictment, information, or arraignment]; Perkins, supra, 

496 U.S. at p. 299 [where no charges had been filed on the subject 

of the interrogation, Sixth Amendment was inapplicable].)
13

Having concluded that defendant’s statements to the 

undercover informants were not coerced, we find no error in the 

trial court’s admission of those statements at trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT