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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ULISES JOS E GUTIERREZ,

Defendant and Appellant. B302264

(Los Angeles County Super. Ct. No. KA104376)

APPEAL from a judgment of the Super ior Court of
Los Angeles County, Robert J. Perry , Judge. Affirmed.

Marilee Marshall for Defendant and Ap pellant.

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 m urder (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 count s 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 member s ( § 186.22,
subd. (b)(1)(C) .) Finally, t he 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 de fendant to a n 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 indic ated.

2 Defendant was found not guilty of one murder count (count 9).3 In this timely appeal, defendant argues that his incriminating statements t o undercover jail informants were coerced and, therefore, the admissio n of t hose statements at trial
violated his constitut ional rights.
We affirm.
BACKGROUND 3
I. Defendant’s Statements to Undercover Informants
A s part of an investigation into th e May 2013 sho oting of Raymond Vasquez (Vasquez)

, 4 the Los Angeles County Sherr iff’s Department conducted a Perkins 5 operation , wh ich 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

. D efendant ini tiated 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 s ince 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 defendan t’s claim that his incriminating statement s 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
D efen dant explained that he w as being implicated in a
murder and that someone was “snitching[.]” At f irst, 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 th ere?” Defendant responded, “I know who it is. No, not t hat 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

t hat 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 [Mexi can 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 influen ce 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 witne ss. This piqued defendant’s interest; he
wanted to hear more about ho w Informant 2 could “help” him.
Soon after , a deputy sher iff came to the cell to get defendant for

more interview s

. Informant 2 asked if the deputy was going to bring him back. The de puty asked defendant if he wanted to come back to the cell. Defendant responded, “I’ll feel fucked up by myself in a cell.”
D efendant later returned to the cell with the informants per his request

. He told the m that he was now being implicated
in other m urders 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 pro mises. He told defendant: “[I] f I find the fool for you, if I whack him, you’re

gonna owe m e a favor. You know that; right?” Defendant responded: “I’m a rider, [ 12 ] d og. I’ll do anything you say.”

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

c ommitted 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 a sk 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 Bay 13 about him. Defendant stated that he had
been “gangbanging” for seven years. Defendant explained that the police knew about three

m urders 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, ‘Wel l, 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 ou t, 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 Pr oceedings 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 st atements 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 ora l 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 larg er 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 e xert 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 d efendant’s conversations with the undercover
informants was pla yed for the jury as part of the People’s case

- in

chief.

15 Apart from defendant, there were four other subjects of the Perkins operation. On ap peal, 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 in ches and 5 feet 11 inches tall. The other informant was in his la te 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 ne w 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 memb ers 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

statemen ts 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
constitution al 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 w hen 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 co mpelling pressures’ that ‘undermine the individual’s will to resist’ questioning”

— “evaporate when, as here, an inmate speaks freely to someone he9

believes is a fellow inmate.” ( People v. Rodriguez (2019) 40 Cal.App.5th 194, 198 ( Rodriguez ) .) The due proce ss clauses of the federal and California
C onstitutions 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 m eans 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 imp roper 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 in validate 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 co urts 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.)
I II

. 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 conve ying 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 (202 0) 9 Cal.5th 147, 166 .) But t he informants did not physically t hreaten defendant with violence, use other tactics likely to p rocure an unreliable response , or make promises

. (See i bid. [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 d efendant to be
honest with him. Informant 2 also explicitly told defendant that he could not make any prom ises about killing the witness. Nor, hav ing 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 freque ntly 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 t he 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 c oercion, defendant asserts that he
invoked his Miranda rights when interrogated by detectiv es11

following his arrest 17 and was subsequently placed in the cell
with the undercover informants

. Defendant claims that h e did not make any incriminating statements to the informants until
after he was removed from the cell for further interrogation by
det ectives ( during which he was told about several additional charges against him ) and then returned to the cell with the
informants

. D efendant acknowledges that Miranda is inapplicable to his statements to the informants because he was
unaware at the time t hat they were acting under th e 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

mean t 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 detectiv es, he had still made incriminating
statements before he was removed for those interviews. For example, he stated that the witness was not someon e 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 circumvent ion
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 h ere 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 con versation with the mother by law enforcement].)
Third

, defendant’s conversations with the undercover
informants preceded the initiation of formal jud icial proceedings
in this case. Accordingly, Massiah

, supra , 377 U.S. at p. 206
, which held that a defenda nt’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, Tex as (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 Amendmen t 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