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Filed 6/28/22 P. v. Lara CA4/2

Opinion after vacating opinion filed 5/17/21

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID DELEON LARA,

Defendant and Appellant.

E074161

(Super.Ct.No. INF1501389)

OPINION

APPEAL from the Superior Court of Riverside County. Randall Donald White, 

Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant 

to art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions.

Joshua L. Siegel, under appointment of the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys

General, Daniel Hilton, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, 

for Plaintiff and Respondent.
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I. INTRODUCTION

In an information filed in March 2016, defendant and appellant David DeLeon 

Lara was charged with the murder of John Doe in 2011. (Pen. Code, § 187, subd. (a);

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count 1.) Defendant was only 16 years old at the time of the murder. It was further 

alleged that defendant personally discharged a firearm in the commission of the murder

(§ 12022.53, subds. (d), (e)), and intentionally killed John Doe under the special 

circumstance of lying in wait2(§ 190.2, subd. (a)(15)). Defendant was tried as an adult. 

In February 2019, a jury convicted defendant of first degree premeditated murder (§ 189, 

subd. (a)) and found the firearm and special circumstance allegations true.

Before the jury was empaneled, defendant waived his right to a jury trial on a gang 

allegation on the murder charge, and the court bifurcated the gang allegation to be heard 

at a later bench trial. After the jury returned its guilty verdict on the murder charge and 

found the firearm and special circumstance allegations true, defendant admitted the gang 

allegation as part of his guilty plea in another criminal case. (Riverside Super. Ct., 

No. RIF1704088.) Before sentencing, defendant moved to withdraw his admission, and 

the court denied the motion.

1

 Undesignated statutory references are to the Penal Code.

2

 Defendant’s codefendant, Robert Parra, was charged in the same information 

with defendant, but he pled guilty to second degree murder before the jury was 

empaneled in what was to be a joint trial.
3

On November 1, 2019, defendant was sentenced to 50 years to life: consecutive 

terms of 25 years to life for the murder and the firearm enhancement.3 The court 

expressly declined to exercise its discretion to strike the section 12022.53, subdivisions

(d) and (e) firearm enhancement. (§ 12022.53, subd. (h).) Defendant did not ask the 

court to consider imposing a lesser term on a lesser firearm enhancement. (§ 12022.53, 

subds. (b) [personal use; 10 years] or (c) [personal discharge; 20 years].) Defendant was 

sentenced to seven years in prison in his other case. (Riverside Super. Ct., 

No. RIF1704088.)

On May 17, 2021, we issued a decision in this appeal. (People v. Lara

(May 17, 2021, E074161) [nonpub. opn.].) Among other things, we rejected defendant’s 

claim that the matter had to be remanded for resentencing so the court could consider 

whether to impose a lesser firearm enhancement on the murder charge. (§ 12022.53, 

subds. (b), (c).) We concluded that trial courts had no authority to impose lesser firearm 

enhancements that were neither charged nor found true, though we recognized there was 

a split of authority on the question.

3

 Because he was only 16 years old when he committed the murder, defendant 

was not sentenced to life without the possibility of parole (LWOP) for the murder based 

on the special circumstance finding, which otherwise would have mandated an LWOP 

sentence for the murder. (See § 190.5, subd. (b); Miller v. Alabama (2012) 567 U.S. 460, 

465 [Eighth Amendment prohibits mandatory LWOP sentence for juvenile offender who 

commits homicide].) At sentencing, the court also noted there was “no consequence” to 

the gang enhancement on the murder conviction pursuant to People v. Lopez (2005) 

34 Cal.4th 1002, 1006-1009 (A gang-related first degree murder, punishable by 25 years 

to life, is not subject to a 10-year enhancement under § 186.22, subd. (b)(1)(C); rather, 

under § 186.22, subd. (b)(5), the 25 year-to-life term is subject to a minimum 15-year 

parole eligibility date (MPED), but under § 190, subd. (e), a defendant has an MPED of 

25 years on a 25-year-to-life sentence for first degree murder.).
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Our Supreme Court granted review and later transferred the matter back to this 

court with directions to vacate our decision and reconsider the matter in light of People v. 

Tirado (2022) 12 Cal.5th 688 (Tirado). In Tirado, our Supreme Court concluded that 

trial courts have discretion to strike section 12022.53 firearm enhancements in the 

interest of justice (§ 12022.53, subd. (h)) and to impose no punishment or punishment on 

a lesser section 12022.53 enhancement, if the elements of the lesser enhancement were 

alleged and found true (Id. at subd. (j); Tirado, at pp. 696-700 & fn. 13).

We vacated our May 17, 2021 decision on April 22, 2022, in accordance with the 

transfer order. Defendant then filed a supplemental opening brief, raising two additional 

claims in this appeal: (1) the matter must be remanded for resentencing so the court may 

exercise its discretion to strike his firearm enhancement (§ 12022.53, subds. (d), (e)), and 

impose either no punishment on any firearm enhancement or impose punishment on a 

lesser firearm enhancement under section 12022.53, subdivisions (b) [10 years] or (c) [20 

years]); and (2) his waiver of his right to a jury trial on the gang allegation, and admission 

of the gang allegation in connection with his guilty plea in the other case, are no longer 

valid in light of Assembly Bill No. 333 (Stats. 2021 ch. 699, § 1, eff. Jan. 1, 2022)

(Assembly Bill 333), which changed the elements necessary to prove a gang allegation.

In their supplemental respondent’s brief, the People argue: (1) defendant forfeited 

his right to ask the court to exercise its discretion to impose a lesser firearm enhancement

because, at his November 1, 2019 sentencing, his counsel did not ask the court to impose 

a lesser firearm enhancement but only asked the court to the strike the existing 

enhancement; and (2) defendant has not established grounds to overturn his jury trial 
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waiver to, and his admission of, the gang enhancement because he has not shown that the 

retroactive changes to the elements necessary to prove a gang enhancement, wrought by 

Assembly Bill 333, would have affected his waiver, admission, and plea.

We remand the matter for resentencing in light of Tirado. We agree with the 

People, however, that defendant has not established grounds to overturn his jury trial 

waiver to, and admission of, the gang enhancement allegation on the murder conviction. 

We reaffirm the holdings of our May 21, 2021 decision, to the extent these holdings are 

unaffected by the grant of review and transfer order.

That is, we reject defendant’s claims that the trial court prejudicially erred in 

admitting statements into evidence against him—statements he made while he was 

incarcerated in another case in 2014 to two informants who were working as law 

enforcement agents—that he shot John Doe twice and admitting other details concerning 

the shooting. Defendant claims the admission of his statements to the informants both 

(1) violated his Miranda4rights because he had previously invoked his Miranda rights 

and refused to answer law enforcement officers’ questions concerning the shooting; and 

(2) violated his due process rights because his statements were involuntary.

We find no merit to defendant’s claims of Miranda and due process error. As we 

explain, a suspect’s invocation of his Fifth Amendment right to counsel under Miranda

does not preclude the admission of a confession and related statements that the suspect 

subsequently makes to persons whom the suspect is unaware are functioning as law 

4

 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
6

enforcement agents. (People v. Orozco (2019) 32 Cal.App.5th 802, 812-813 (Orozco).) 

The admission of defendant’s statements also did not violate defendant’s due process 

rights because the statements were voluntary under the totality of the circumstances.

We also reject defendant’s claims that the trial court prejudicially erred in denying 

his motion to withdraw his admission of the gang enhancement allegation. The parties 

and we agree, however, that defendant is entitled to 196 additional days of presentence 

custody credits. (§ 2900.5.) Thus, we modify the November 1, 2019 judgment to award 

defendant 196 additional days of presentence custody credits, and we remand the matter 

for resentencing so the court may consider whether to exercise its discretion to impose a 

lesser term on a lesser firearm enhancement under Tirado, supra, 12 Cal.5th 688. We 

affirm the judgment in all other respects.

II. BACKGROUND

A. The September 20, 2011 Shooting

On September 20, 2011, E.M. and her friend John Doe, whom she knew as D.J.,

met M.S. at a location where M.S. was remodeling a home. M.S. purchased a door from 

John Doe, and all three of them used methamphetamine. While E.M. and John Doe were 

still at M.S.’s workplace, two male Hispanic teenagers walked up to John Doe’s white 

van and asked him to give them a ride to “Bitch Town” or “Browns Town,” which was in 

Desert Hot Springs. E.M. identified defendant at trial as one of the two teenagers. John 

Doe, E.M., defendant, and the other teenager left in John Doe’s van. John Doe was 

driving, E.M. was in the front passenger seat, and defendant and the other teenager

squatted in the open back area of the van because there were no seats there.
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While they were traveling in the van, E.M. received three phone calls from M.S., 

asking to speak to either one of the two teenagers, but neither would take the phone. 

M.S. later told deputies that he told E.M. that the teenagers, who were known as “G” and 

“Little Crazy,” had a “beef” or a problem, and to pull the van over; but E.M. said that it 

was “too late.” During the third call from M.S., E.M. handed the phone to John Doe, 

who listened to what M.S. had to say, then hung up the phone without saying anything.

Shortly after John Doe hung up the phone, the teenager who was with defendant 

told John Doe to “stop the car.” John Doe stopped the van, and E.M. recalled that 

“everything got quiet.” E.M. heard one gunshot, turned, and saw defendant hand a .45-

caliber revolver to the other teenager. The rear doors to the van did not work, so the 

teenagers told E.M. to open the front passenger door in order to let them out of the van, 

and E.M. did so. E.M. saw that John Doe’s “head was back,” and he had been shot. 

Defendant and the other teenager told E.M. to run, and E.M. ran in one direction while 

defendant and the other teenager ran in the opposite direction.

E.M. went to a nearby house with an open garage and asked for help. E.M. was 

“terrified,” said that her boyfriend had been shot in a white van, and pointed toward the 

van. E.M. also said that the person who shot her boyfriend was chasing her. One of the 

people who lived in the house where E.M. went for help heard two gunshots. Another 

person who was in his car and leaving for work also heard two gunshots; he then saw two 

Hispanic males walking behind his car, but he did not see their faces. Several people 

called the police or 911.
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A Riverside County Sheriff’s deputy responded to the scene, went to the van, and 

found John Doe inside with no pulse. The van was still running and in the drive position, 

and John Doe’s foot was resting on the brake pedal. The passenger door was open, and 

no one was near the van.

An autopsy showed that John Doe died, within seconds or minutes, as a result of 

two gunshot wounds fired at close range in the right side of his neck. The gun used in the 

shooting was not found, and no shell casings or DNA were found inside the van. 

Defendant’s fingerprints were also not found inside or on the outside of the van. 

Deputies interviewed various witnesses, including M.S. and E.M., both of whom had 

prior felony convictions.

M.S. told the deputies that the two teenagers who got into John Doe’s van were 

known as “G” and “Little Crazy.” Also before trial, M.S.’s stepdaughter, A.N., identified 

a photograph of defendant as “Little Crazy.” E.M. told a detective that “G” was in the 

van and later identified defendant as the shooter; but E.M. initially identified a person 

other than defendant as the shooter. Both defendant and the person whom E.M. initially 

identified as the shooter had “Patricia” tattooed on their necks.

B. The “Perkins5 Operation”

On August 19, 2014, detectives conducted what they called “a Perkins operation,”

in which they had defendant placed in a jail holding cell with two other individuals who 

were working as law enforcement agents or confidential informants, and to whom 

5

 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
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defendant made incriminating statements about the September 20, 2011 shooting. The 

informants were Hispanic former gang members, who had shaved heads and a lot of 

tattoos. The conversation between defendant and the informants was video- and audiorecorded, and it was monitored “live” by law enforcement officers. The recording of the 

conversation was played for the jury.

When defendant first entered the holding cell, one of the informants asked whether 

he was a “homie” and “active,” and defendant said, “Yeah. I’m a homie—Crazy, from 

West Drive.” The informants introduced themselves as “Rino” and “Lonely” and stated 

their gang affiliations. The three men discussed life in the prisons from which they had 

each been transferred.

After defendant was placed in the holding cell with the two informants, 

investigator Campos (the lead investigator of the Sept. 20, 2011 shooting) entered the 

cell. Campos addressed defendant, asked defendant whether he remembered him, 

identified himself as “Campos—doing the investigation on the 2011 murder [in] DHS,”

and told defendant he wanted to talk to him.

Defendant said he remembered Campos. Defendant was then removed from the 

holding cell to participate in a “mock” lineup—during which he was asked to step 

forward and turn around, which was intended to suggest to him that he was being 

identified, but no one was “behind the glass” to identify him.

After he was returned to the holding cell following the lineup, defendant told the 

informants that law enforcement had been trying to “get” him for a 2011 murder. He 

indicated he believed that he had been placed in the lineup because there were witnesses. 
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He also told the informants that he had previously been brought to the jail for a DNA test, 

and he did not tell detectives anything at that time.

The informants then asked defendant whether anyone could “put” him “there” or 

implicate him in the murder, and defendant said he had a “crimee” or cohort in the 

shooting named, “Gangster”; but he did not think that Gangster would implicate him. He 

also said that the murder occurred during the daytime, and Gangster was the only witness.

Later during the conversation, when asked whether he stabbed or shot John Doe, 

defendant said he shot John Doe in the “dome” with a “357” revolver. Still later, 

defendant said he had to step forward and turn around during the lineup. Thereafter, 

defendant said, “They do got me, dog. They got me.” And, when asked whether he had 

gotten rid of the gun or “cuete” used in the shooting, defendant said, “they don’t got none 

of that,” but expressed concern that there was a witness to the shooting, whom he 

described as a “tweeker, heina, hooker bitch,” who might be able to identify him.

Defendant explained he was sitting in a van, behind the woman, with Gangster 

next to him, when he shot John Doe twice in the head. The van was stopped at the time 

of the shooting. John Doe was not in a gang but was from “Browns Town,” so defendant 

considered John Doe an “enemy” and the shooting “somewhat” gang-related. Defendant 

said, “It has to be that bitch” who was implicating him because he left no evidence 

behind. His gang had destroyed the revolver he used in the shooting, there were no 

cameras, and he had never talked about the shooting over the phone.

Before defendant spoke to the informants, the sheriff’s department publicly

released information about the shooting, but they had not publicly released any 
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information about where on his body the decedent was shot or that a female was in the 

van at the time of the shooting.

III. DISCUSSION

A. The Admission of Defendant’s Statements to the Informants Did Not Violate 

Defendant’s Miranda or Due Process Rights

For two reasons, defendant claims the court prejudicially erred in admitting his 

statements to the two informants who were acting as law enforcement agents: (1) the 

statements were obtained in violation of his Miranda rights, given that he invoked his 

Miranda rights to Campos shortly before he made the statements to the informants; and 

(2) his statements were coerced and involuntary, and for this reason their admission 

violated his due process rights.

We independently review the trial court’s legal determinations on these questions, 

and we uphold the court’s underlying factual findings if supported by substantial 

evidence. (Orozco, supra, 32 Cal.App.5th at p. 811.) As defendant concedes, the 

operative facts are undisputed. Based on the undisputed facts, we find no merit to 

defendant’s claims of Miranda and due process error.

1. Proceedings in Limine

Defendant moved in limine to exclude his recorded statements to the informants as 

violative of his Miranda rights and his due process rights. When he made the statements 

to the informants on August 19, 2014, defendant was serving a seven-year state prison 

sentence for robbery, but he had not been charged with any crime in connection with the 

September 20, 2011 shooting.
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On August 19, 2014, defendant was transported from state prison to local custody, 

where he was placed in a holding cell with the two informants, whom the People 

acknowledged were “paid operators” or agents of law enforcement. Defense counsel 

proffered, and the court accepted, that defendant invoked his Miranda rights by telling

Campos that he did not want to talk about the shooting and that he wanted an attorney, 

either before he was placed in the holding cell or when he was taken out of the cell to 

participate in the mock lineup.

As noted, the conversation between defendant and the informants was recorded 

and monitored “live” by Campos. The informants ultimately got defendant to admit to 

them that he shot John Doe twice in the head and to provide other details, not known to 

the public, concerning the shooting. The trial court ruled that, in light of Perkins, the 

admission of defendant’s statements to the informants would not violate defendant’s 

Miranda rights. The court also found that defendant’s statements to the informants were 

voluntary, noting that there was “a conversational tone throughout” defendant’s 

discussion with the informants, and “there did not appear to be any coercion” from 

defendant’s perspective.6

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 The court also found that the Perkins operation did not violate defendant’s Sixth 

Amendment right to counsel, given that defendant had not been charged with a crime in 

connection with the shooting of John Doe before he was placed in the holding cell with 

the informants. (Massiah v. United States (1964) 377 U.S. 201, 204-206 [After a suspect 

has been charged with a crime, the government’s use of an undercover agent to elicit 

incriminating statements from the suspect violates the suspect’s Sixth Amendment right 

to counsel.].)
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2. There Was No Miranda Violation

The Fifth Amendment, which applies to the states by virtue of the Fourteenth 

Amendment (Malloy v. Hogan (1964) 378 U.S. 1, 6), provides that “[n]o person . . . shall 

be compelled in any criminal case to be a witness against himself” (U.S. Const., 5th 

Amend). Miranda established the now familiar rule that any statements of a criminal 

suspect that stem from a custodial police interrogation are inadmissible against the 

suspect in the prosecution’s case-in-chief, unless the suspect has been advised of certain 

rights—including the right to remain silent and to the presence of an attorney—and the 

suspect has expressly or implicitly waived those rights. (Miranda, supra, 384 U.S. at 

pp. 444-445; see Dickerson v. United States (2000) 530 U.S. 428, 443 [“Miranda has 

become embedded in routine police practice to the point where the warnings have 

become part of our national culture.”]; Orozco, supra, 32 Cal.App.5th at p. 811 

[summarizing Miranda rule and required Miranda warnings].) “Miranda was designed 

to protect and preserve an accused’s Fifth Amendment privilege against selfincrimination during incommunicado interrogation of individuals in a police-dominated 

atmosphere.” (People v. Plyler (1993) 18 Cal.App.4th 535, 544 (Plyler).)

Perkins limited Miranda’s application by holding that a conversation between an 

incarcerated suspect and an undercover agent posing as a fellow inmate did not implicate 

the concerns underlying Miranda: “It is the premise of Miranda that the danger of 

coercion results from the interaction of custody and official interrogation. . . . When the 

suspect has no reason to think that the listeners have official power over him, it should 

not be assumed that his words are motivated by the reaction he expects from his 
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listeners.” (Perkins, supra, 496 U.S. at p. 297, italics added.) In other words, when a 

suspect is unaware that he is speaking with police or an agent of law enforcement, the 

coercive, police-dominated atmosphere of which Miranda was concerned is lacking, and 

Miranda advisements are not required. (Perkins, at p. 296.)

As defendant concedes, the operative facts are undisputed. Defendant was 

unaware that the two informants were acting as law enforcement agents when he 

confessed to them that he shot John Doe twice in the head and provided other details of 

the shooting. Thus, Miranda did not apply. That is, no Miranda warnings were required 

to be given to defendant before he was questioned by the informants, even if he was in 

custody for Miranda purposes at the time the informants questioned him. (Cf. People v. 

Moore (2011) 51 Cal.4th 386, 394-395 [“An interrogation is custodial, for purposes of 

requiring advisements under Miranda, when ‘a person has been taken into custody or 

otherwise deprived of his freedom of action in any significant way.’ ”]; with Maryland v. 

Shatzer (2010) 559 U.S. 98, 11-14 [A suspect who is currently incarcerated for other 

crimes is not necessarily in custody for Miranda purposes.].) “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 argues that Perkins does not govern his statements to the informants

because Perkins “did not address surreptitious questioning of a suspect after the suspect 

had invoked his or her Miranda rights.” Indeed, the defendant in Perkins did not invoke 

his Miranda rights, nor was he given any Miranda advisements, before he confessed to 

undercover agents that he had committed a murder. (Perkins, supra, 496 U.S. at p. 294-
15

295.) Defendant was also not advised of his Miranda rights before he was placed in the 

holding cell with the informants. But defendant invoked his Miranda rights to silence 

and to an attorney when he told Campos that he did not want to talk about the 2011 

shooting, and that he wanted an attorney—before he confessed to the informants that he 

had shot and killed John Doe.

In support of his claim that Perkins does not govern, defendant cites Edwards v. 

Arizona (1981) 451 U.S. 477 (Edwards), which held 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. (Edwards, at pp. 484-485.) Defendant also relies on a statement by Justice 

Brennan that appears in a footnote to the justice’s concurring opinion in Perkins: 

“Nothing in the Court’s opinion suggests that, had respondent previously invoked his 

Fifth Amendment right to counsel or right to silence, his statements would be admissible. 

If respondent had invoked either right, the inquiry would focus on whether he 

subsequently waived the particular right. (See Edwards v. Arizona (1981) 451 U.S. 477; 

Michigan v. Mosley (1975) 423 U.S. 96, 104.) As the Court made clear in Moran v. 

Burbine (1986) 475 U.S. 412, 421, the waiver of Miranda rights ‘must [be] voluntary in 

the sense that it [must be] the product of a free and deliberate choice rather than 

intimidation, coercion or deception.’ (Emphasis added.) Since respondent was in 

custody on an unrelated charge when he was questioned, he may be able to challenge the 

admission of these statements if he previously had invoked his Miranda rights with 
16

respect to that charge.” (Perkins, supra, 496 U.S. at pp. 300-301, fn.* (conc. opn. of 

Brennan, J.).)

Defendant argues that the situation described by Justice Brennan in his concurring 

opinion in Perkins is precisely what happened in his case and that Edwards, not Perkins, 

governs his case. Citing Edwards, he argues that “further custodial interrogation outside 

the presence of counsel was prohibited” after he invoked his Fifth Amendment rights to 

silence and to counsel, and that “the relevant question here is whether [he] validly waived 

his rights to silence or counsel.” This argument was thoroughly addressed and rejected in 

Orozco, where the court framed the question as follows: “When a suspect invokes his 

Miranda right to counsel [and silence] 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?” (Orozco, supra, 

32 Cal.App.5th at p. 812.)

The defendant in Orozco confessed to his girlfriend that he had killed their infant 

child—without knowing his girlfriend was acting as an agent of the police—while the 

defendant was in custody and after he had invoked his Miranda right to counsel. 

(Orozco, supra, 32 Cal.App.5th at pp. 806-809.) For three reasons, Orozco concluded 

that Perkins, not Edwards, controls when a suspect makes statements to persons the 

suspect does not know are law enforcement agents after the suspect has invoked his 

Miranda rights.

Orozco first explained that language in Edwards and its progeny “dictate[d]” that 

Edwards did not apply. In sum, Edwards and its progeny applied Edwards’s prohibition 
17

on further questioning of the suspect to “interrogation” of the suspect. (Orozco, supra, 

32 Cal.App.5th at p. 813, citing Edwards, supra, 451 U.S. at pp. 478, 482, 484-486 and 

cases following Edwards.) “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.’ ” (Orozco, at p. 813, quoting 

R.I. v. Innis (1980) 446 U.S. 291, 300-301 (Innis).) “Whether the police action is 

‘reasonably likely to elicit an incriminating response’ is judged by what the suspect 

perceives, not what the police intend. [Citation.] 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.” (Orozco, at p. 813, and cases cited.) “Conversely, there is no 

‘interrogation’ when a suspect speaks with someone he does not know is an agent of the 

police.” (Id. at p. 814, and cases cited.) Orozco concluded that, “[b]ecause there is no 

‘interrogation’ in these circumstances, there is also no basis to apply Edwards’s

restrictions on further ‘interrogation.’ ” (Ibid.)

Second, Orozco explained that the rationale underlying Miranda dictated that 

Perkins, not Edwards, controlled. The court noted that Miranda rights were “designed to 

dispel the ‘compelling’ ‘psychological’ ‘pressures’ that are part and parcel of ‘in-custody 

interrogation.’ ” (Orozco, supra, 32 Cal.App.5th at p. 814, quoting Miranda, supra, 

384 U.S. at pp. 448-449, 467.) Because the Edwards rule is based on the same pressures, 

and because Edwards implements Miranda, “so should” Edwards “be limited to the evil 
18

Miranda was created to combat.” (Orozco, at p. 814.) Third, Orozco reasoned that 

California courts had “uniformly” and “not surprisingly” concluded that “Perkins

controls when a suspect invokes his Miranda right to counsel but later speaks with 

someone he does not know is an agent of the police.” (Id. at p. 815, citing People v. 

Guilmette (1991) 1 Cal.App.4th 1534, 1540-1541 (Guilmette) [First Dist., Div. Four]; 

Plyler, supra, 18 Cal.App.4th at pp. 544-545 [First Dist., Div. Two].)

Defendant counters that Miranda’s rationale “dictates” the conclusion that he was 

being subjected to police interrogation, in violation of Miranda and Edwards, when the 

informants questioned him about the shooting after he invoked his Miranda rights to 

silence and to counsel. He relies on Innis, supra, 446 U.S. 291, where the high court 

expanded the definition of “interrogation,” for Miranda purposes, to include “either 

express questioning or its functional equivalent. That is to say, the term ‘interrogation’ 

under Miranda refers not only to express questioning, but also to any words or actions on 

the part of the police . . . that the police should know are reasonably likely to elicit an 

incriminating response.” (Innis, at pp. 300-301, italics added.)

Based on Innis, defendant argues that “the officers’ scheme of having [him] 

participate in the fake line-up and then placing him in a cell with confidential informants 

were ‘actions on the part of the police.’ ” (Innis, supra, 446 U.S. at p. 301, italics added.) 

He also argues that law enforcement officers knew, or should have known, that their 

“ploy” of having him placed in the cell with the informants, whose job was to get him to 

talk about the shooting, was “ ‘reasonably likely to elicit an incriminating response.’ ” 

(Ibid., italics added.) These arguments are unavailing for two reasons: (1) none of the 
19

law enforcement officers involved in the “Perkins operation,” including Campos, 

questioned defendant about the shooting after he invoked his Miranda rights to counsel 

and silence; and (2) defendant was not “interrogated” by the informants because he did 

not know that the informants were acting as law enforcement agents when they 

questioned him about the shooting. (Orozco, supra, 32 Cal.App.5th at pp. 813-814; 

Perkins, supra, 496 U.S. at pp. 296-297.)

Defendant argues that Orozco, Plyler, and Guilmette were wrongly decided and 

should not be followed. He specifically questions Orozco’s interpretation of Miranda, 

and Orozco’s rationale that there is no “interrogation” unless the suspect knows he is 

speaking to agents of law enforcement. (Orozco, supra, 32 Cal.App.5th at p. 813.) He 

argues that Orozco’s interpretation of “interrogation” is “not what the high court meant”

when it “expounded upon” the definition of “ ‘interrogation’ ” in Innis as including

“words or actions on the part of the police officers that they should know are reasonably 

likely to elicit an incriminating response from the suspect.” (Innis, supra, 446 U.S. at 

pp. 300-301.) He argues that “plac[ing] a suspect in a cell with an undercover officer or 

informant for the purpose of eliciting incriminating statements from the suspect, as 

occurred here,” amounts to “ ‘actions’ that the officers at least ‘should know are 

reasonably likely to elicit an incriminating response.’ ” (Id. at p. 301.) Thus, he argues, 

Orozco’s conclusion that there is no interrogation unless the suspect knows he is 

speaking to a law enforcement agent is “incorrect.”

This argument misapplies Innis and disregards Perkins. Unlike Perkins, Innis did 

not involve an in-custody suspect’s incriminating statements to persons whom the suspect 
20

did not know were law enforcement agents. Rather, Innis involved police officers’ 

statements while transporting a suspect to a police station, after the suspect was arrested

for shooting a taxicab driver and invoked his Miranda rights to silence and counsel. 

(Innis, supra, 446 U.S. at p. 293-294.) At the time, the shotgun used in the shooting of 

the taxicab driver was missing. (Id. at p. 294.) On the way to the police station, two of 

the officers who were transporting the defendant began discussing between themselves 

that, because a school for handicapped children was nearby, one of the children might 

find the shotgun and hurt or kill themselves with it. (Id. at pp. 294-295.) The defendant 

then interrupted the officers’ conversation, told the officers to turn the police car around, 

and showed police where the shotgun was located. (Id. at p. 295.)7

In expanding the definition of interrogation beyond express questioning to include 

its functional equivalent—that is, “any words or actions on the part of the police . . . that 

the police should know are reasonably likely to elicit an incriminating response from the 

suspect”—Innis noted that “[t]he concern of the Court in Miranda was that the 

‘interrogation environment’ created by the interplay of interrogation and custody would 

‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege 

against compulsory self-incrimination.” (Innis, supra, 446 U.S. at pp. 299-301.)8

7

 Innis concluded that the officers’ discussion about the shotgun in the 

defendant’s presence did not amount to the “functional equivalent” of police questioning 

or interrogation. (Innis, supra, 446 U.S. at pp. 302-303.)

8

 Innis also pointed out that the “practices” that evoked this concern of Miranda

included “several that did not involve express questioning” of the suspect by police. 

(Innis, supra, 446 U.S. at p. 299.) These included subjecting suspects to faux lineups, in 

[footnote continued on next page]
21

Perkins similarly construed Miranda as “protect[ing] the Fifth Amendment rights 

of a suspect faced with the coercive combination of custodial status and an interrogation 

the suspect understands as official. On the other hand, even if a suspect happens to be in 

custody, ‘[t]here is no empirical basis for the assumption that [when] speaking to those 

whom he assumes are not officers, [he] will feel compelled to speak by the fear of 

reprisal for remaining silent or in the hope of more lenient treatment should he confess.’ ” 

(People v. Tate (2010) 49 Cal.4th 635, 685, quoting Perkins, supra, 496 U.S. at pp. 296-

297.) Thus, defendant’s reliance on Innis is misplaced. Orozco correctly concluded that

Perkins, not Edwards, governs, and that no interrogation occurs when an in-custody 

suspect is questioned by and confesses to persons whom the suspect does not know are 

law enforcement agents. (Orozco, supra, 32 Cal.App.5th at pp. 813-815.)

Defendant correctly points out that courts “do not tolerate similar forms of 

deception” as was used to obtain his confession here, “when it comes to obtaining 

consent to police searches and seizures.” (See, e.g., Pagán-González v. Moreno (1st Cir. 

2019) 919 F.3d 582, 597 [FBI agents unlawfully gained access to the defendant’s 

dwelling and computer by falsely telling him that the computer was sending viruses to 

government computers.]; People v. Reyes (2000) 83 Cal.App.4th 7, 9, 13 [The defendant 

was unlawfully searched, without a warrant or probable cause, after police lured him out 

of his home by falsely telling him they had accidentally hit his car.]; People v. Reeves

which the suspects were falsely identified in order to induce them to confess. (Ibid.) “It 

is clear that these techniques of persuasion, no less than express questioning, were 

thought, in a custodial setting, to amount to interrogation.” (Ibid.)
22

(1964) 61 Cal.2d 268, 271 [Police unlawfully gained access to the defendant’s hotel room 

by having a hotel manager falsely tell the defendant there was a letter for him at the front 

desk.].) Indeed, the high court has said that the Fifth Amendment right against selfincrimination and the Fourth Amendment right against unreasonable searches and 

seizures “enjoy an ‘intimate relation’ in their perpetuation of ‘principles of humanity and 

civil liberty . . . .’ [Citation.] They express ‘supplementing phases of the same 

constitutional purpose—to maintain inviolate large areas of personal privacy.’ ” (Mapp 

v. Ohio (1961) 367 U.S. 643, 657, fn. omitted.) But Perkins held that Miranda warnings 

need not be given before an in-custody suspect is questioned by, and makes incriminating 

statements to, a person the suspect does not know is operating as a law enforcement 

agent. (Perkins, supra, 496 U.S. at p. 300.) We are not at liberty to adopt a rule that is

inconsistent with Perkins.

3. Defendant’s Statements Were Voluntary

Apart from his Miranda claim, defendant claims the admission of his statements to 

the informants violated his due process rights under the Fifth and Fourteenth 

Amendments because his statements were involuntary.

“Independent of whether a defendant’s rights under Miranda were observed, his or 

her statements may not be admitted unless they were voluntary. ‘The court in making a 

voluntariness determination “examines ‘whether a defendant’s will was overborne’ by the 

circumstances surrounding the giving of a confession.” ’ ” (People v. Krebs (2019) 

8 Cal.5th 265, 299.) “ ‘ A statement is involuntary if it is not the product of “ ‘a rational 

intellect and free will.’ ” [Citation.] The test for determining whether a confession is 
23

voluntary is whether the defendant’s “will was overborne at the time he confessed.” ’ ” 

(People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) Whether a confession is 

voluntary depends upon the totality of the circumstances surrounding the confession. 

(People v. Carrington (2009) 47 Cal.4th 145, 169.)

“ ‘On appeal, the trial court’s findings as to the circumstances surrounding the 

confession are upheld if supported by substantial evidence, but the trial court’s finding as 

to the voluntariness of the confession is subject to independent review.’ ” (People v. 

Holloway (2004) 33 Cal.4th 96, 114.) As we have noted, the operative facts concerning 

the voluntariness of defendant’s confession and other statements to the informants are 

undisputed. The trial court found that defendant’s confession and statements were 

voluntary. On independent review, we agree.

As the trial court noted, there was a “conversational tone” throughout the 

discussion between defendant and the informants in the holding cell. From defendant’s 

perspective, the informants did not appear to be coercing or pressuring defendant to 

confess to the shooting or to make any other statements. (Innis, supra, 446 U.S. at p. 301 

[Coercion is determined from the defendant’s perspective.].)

Indeed, the informants only sporadically asked defendant about the shooting.

They also talked to defendant, and between themselves, about things other than the 

shooting, including food, gang life, prison life, music, and sex in prison. The informants 

often laughed with defendant.

Defendant argues that the law enforcement officers overseeing the Perkins

operation used “deception and manipulation” to get him to confess to the shooting
24

because they falsely led him to believe that he had been identified in the mock lineup 

before he confessed to the informants that he had shot John Doe. He notes that “[l]ies 

told by the police to a suspect under questioning can affect the voluntariness of an 

ensuing confession” if there is “a proximate causal connection between the deception or 

subterfuge and the confession.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) 

But such lies or deception “are not per se sufficient to make [a confession] involuntary.” 

(Ibid.) Rather, the lies or deception must be “ ‘likely to procure an untrue statement.’ ” 

(People v. Fayed (2020) 9 Cal.5th 147, 165; People v. Thompson (1990) 50 Cal.3d 134, 

167 [discussing cases].)

The mock lineup, in which defendant was asked to step forward and turn around, 

was a deception, intended to make defendant believe he had been identified by a witness 

to the shooting and to prompt him to talk to the informants about the shooting. But the 

mock lineup, including the part in which defendant was asked to step forward and turn 

around in order to make him think he had been identified, was not likely to induce 

defendant to falsely confess to the informants that he shot John Doe, or to make any other 

false statements about the shooting.

Defendant further argues that the informants appeared to be “bigger, older gang 

members”; that the informants “barraged” him with questions about the shooting; and 

that his confession to the informants amounted to “jailhouse bravado.” Again relying on 

Justice Brennan’s concurring opinion in Perkins, he notes that “the pressures of custody 

make a suspect more likely to confide in others and to engage in ‘jailhouse bravado.’ . . . 

The State is in a unique position to exploit this vulnerability because it has virtually 
25

complete control over the suspect’s environment. Thus, the State can ensure that a 

suspect is barraged with questions from an undercover agent until the suspect confesses.” 

(Perkins, supra, 496 U.S. at pp. 302-303 [conc. opn. of Brennan, J.).)

But, as noted, the informants did not “barrage” defendant with questions about the 

shooting. Rather, they intermittently asked defendant about the shooting while talking to

him, and between themselves, about various things other than the shooting. When they 

talked to defendant about the shooting, the informants appeared to be trying to help 

defendant determine who might be able to identify him, and what other evidence the law 

enforcement officers may have had that would implicate defendant in the shooting. The 

informants were friendly and familiar with defendant and did not appear to be 

intimidating him. Under the totality of the circumstances, defendant’s confession and 

other statements to the informants were voluntary, and not the product of coercion or an 

overborne will.

B. The Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to Withdraw 

his Admission to the Gang Enhancement

Defendant claims the court prejudicially erred and violated his due process rights 

in denying his motion to withdraw his admission of the gang allegation.9 He claims his 

prior counsel rendered ineffective assistance of counsel in failing to advise him that his 

“appellate chances on the underlying jury verdict” would be “impaired” if he admitted 

the gang allegation. We find no error in the court’s denial of the motion.

9

 Defendant obtained a certificate of probable cause. (§ 1237.5.)
26

1. Background

Before the jury was empaneled, defendant waived his right to a jury trial on the 

gang allegation, and the court bifurcated the bench trial on the gang allegation from the 

jury trial on all other charges and allegations. After the jury returned its guilty verdict on 

the murder charge and found the firearm and special circumstance allegations true, 

defendant admitted the gang allegation as part of his guilty plea in another criminal case

(Super. Ct., Riverside, No. RIF1704088).

Before sentencing, and after new counsel was appointed to represent him, 

defendant filed a motion to withdraw his admission of the gang allegation on the ground 

his prior counsel had misadvised him of a direct consequence of the admission—namely, 

that the admission would “impair” his “appellate chances on the underlying jury verdict.” 

The People filed an opposition to the motion. The court denied the motion following a 

brief hearing, at which the parties submitted on the motion and opposition papers. In 

denying the motion, the court noted, “it appears to the court that all of the proceedings 

[concerning the admission] were proper and appropriate.”

2. Analysis

As relevant here, section 1018 provides that a court “may” permit a guilty plea to 

be withdrawn, and a plea of not guilty entered, “for a good cause shown,” “any time 

before judgment.” Section 1018 provides that it “shall be liberally construed” to effect its 

“objects and to promote justice.” We review the denial of a motion to withdraw a plea 

for an abuse of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894.)
27

For purposes of section 1018, “ ‘ “[g]ood cause” [to withdraw a plea] means 

mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free 

judgment and must be shown by clear and convincing evidence.’ [Citation.] A defendant 

seeking to withdraw a plea based on the failure to advise on the direct consequences of a 

conviction must show actual ignorance of those consequences.” (People v. Dillard

(2017) 8 Cal.App.5th 657, 665 (Dillard).) Generally, “ ‘[a] consequence is deemed to be 

“direct” if it has a “ ‘ “definite, immediate, and largely automatic effect on the range of 

the defendant’s punishment.” ’ ” ’ ” (Id. at p. 664.) “The defendant also must show 

prejudice in the form of a reasonable probability that he or she would not have entered 

the plea had a proper advisement been given. [Citations.] A plea may not be withdrawn 

simply because a defendant has changed his or her mind.” (Id. at p. 665.)

Here, the trial court did not abuse its discretion in denying defendant’s motion to 

withdraw his admission of the gang enhancement allegation. Defendant’s motion did not 

demonstrate good cause to withdraw the admission, actual ignorance of the consequences 

of the admission, or prejudice. In support of the motion, defendant adduced his own 

declaration, claiming only that his prior counsel failed to advise him that a “direct 

consequence” of his admission of the gang allegation would be “an impairment” of his 

“appellate chances on the underlying jury verdict.” This statement was entirely too vague 

to constitute good cause for withdrawing the admission.

Indeed, defendant’s declaration did not specify how his admission of the gang 

allegation would “impair” his “appellate chances on the underlying jury verdict.” He also 

failed to show prejudice, or “a reasonable probability,” that he would not have made the
28

admission had he been advised of these unspecified direct consequences of the 

admission. (Dillard, supra, 8 Cal.App.5th at p. 665.) Notably absent from defendant’s 

motion was a declaration from his prior counsel regarding what advisements prior 

counsel gave defendant before defendant made the admission. And, although defendant’s 

motion stated that he was not advised that he would be unable to appeal the gang 

enhancement, this assertion was not included in his declaration, and he does not assert 

this claim on appeal. As the People point out, defendant “fail[ed] to identify any direct 

consequences of which counsel failed to advise him, and therefore he cannot show the 

trial court abused its discretion or violated his rights to due process” in denying the 

motion to withdraw the admission.

Defendant claims that the withdrawal of his admission would not prejudice the 

People and suggests that the admission “only involved the gang enhancement.” This is 

not the case. Defendant admitted the gang allegation as part of his plea in another 

pending criminal case after the jury returned its guilty verdict on the murder charge and 

its true findings on the firearm and special circumstance allegations in this case. 

Specifically, defendant agreed to admit the gang allegation, pled guilty to one count of 

assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) in the 

other criminal case, and admitted a great bodily injury enhancement (§ 12022.7) in that 

other case in exchange for a seven-year sentence to run concurrently to his sentence in 

this case. In exchange, the People agreed to dismiss two other charges in the other 

criminal case along with prior conviction allegations. Thus, on this record, defendant has 

not shown that his admission of the gang enhancement was not voluntary, intelligent, and 
29

made with full advisement of his constitutional rights and of direct consequences of the 

admission. (Dillard, supra, 8 Cal.App.5th at p. 664 [“A change of plea must be 

voluntary and intelligent, with a defendant being advised of his or her constitutional 

rights, and of the direct consequences of the conviction [or admission].”)

C. Defendant Has Not Established Grounds to Vacate His Admission to the Gang 

Enhancement Allegation

Defendant claims his waiver of his right to a jury trial, against self-incrimination, 

and to confront witnesses on the gang enhancement allegation, and his later admission of 

the allegation in connection with his guilty plea in his other criminal case, are “no longer 

valid”—that is, they can no longer be considered knowingly and voluntarily made, in 

light of the retroactive changes that Assembly Bill 333 made to section 186.22 and the 

facts or elements necessary to prove a gang enhancement allegation. (Stats. 2021, ch. 

699, § 3, eff. Jan. 1, 2022.) Thus, he argues, the judgment must be reversed and the 

matter remanded to the superior court to allow him the opportunity to withdraw his 

admission to the gang enhancement along with his guilty plea in his other criminal case.

The People disagree. They point out that a defendant is deemed to be aware that 

the Legislature may change the law underlying an offense that is the subject of the 

defendant’s plea bargain. Thus, in order to withdraw his admission or plea, defendant 

has to show more than that the law underlying his admission or plea changed; he has to 

show that the changes would have affected his decision to make the admission or enter 

into the plea, and defendant has not made this showing. We agree with the People.
30

1. Assembly Bill 333, Retroactivity

Assembly Bill 333 amended section 186.22 and added section 1109 to the Penal 

Code, effective January 1, 2022. (Stats. 2021, ch. 699, §§ 3-5.) The parties agree, and so 

do we, that Assembly Bill 333’s ameliorative changes to section 186.22 apply 

retroactively to judgments not final on appeal on the bill’s January 1, 2022 effective date. 

(People v. Lopez (2021) 73 Cal.App.5th 327, 343-344 [Substantive changes in Assembly 

Bill 333 apply retroactively because they “increase[] the threshold for conviction of the 

section 186.22 offense and the imposition of the enhancement . . . .”]; People v. E.H.

(2022) 75 Cal.App.5th 467, 478 [same].) Because the November 1, 2019 judgment is not 

final (People v. Vieira (2005) 35 Cal.4th 264, 306), the bill’s amendments to section 

186.22 retroactively apply to the judgment.

2. Assembly Bill 333’s Amendments to Section 186.22

Section 186.22 provides for enhanced punishment (gang enhancements) when an 

enumerated felony, including murder, was committed “for the benefit of , at the direction 

of, or in association with” a “criminal street gang. . . .” (§ 186.22, subd. (b).) Thus, the 

gang enhancement statute (§ 186.22, subd. (b)) cannot be violated unless the crime 

involved a “criminal street gang.”

Assembly Bill 333 amended section 186.22 to change the definition of “criminal 

street gang.” (Stats. 2021, ch. 699, § 3.) Section 186.22 formerly defined “criminal 

street gang” as “any ongoing organization, association, or group of three or more persons

. . . whose members individually or collectively engage in, or have engaged in, a pattern 

of criminal gang activity.” (Former § 186.22, subd. (f), italics added; Stats. 2017, 
31

ch. 561, § 178.) The bill narrowed this definition to, “an ongoing, organized association 

or group of three or more persons . . . whose members collectively engage in, or have 

engaged in, a pattern of criminal gang activity.” (Assem. Bill 333, § 3, revised § 186.22, 

subd. (f), italics added.)

The bill also changed the requirements for proving the “ ‘pattern of criminal gang 

activity’ ” necessary to establish the existence of a criminal street gang. Formerly, 

“ ‘pattern of criminal gang activity’ ” meant “the commission of, attempted commission 

of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction 

of two or more of [predicate] offenses, provided at least one of these offenses occurred 

after the effective date of this chapter and the last of those offenses occurred within three 

years after a prior offense, and the offenses were committed on separate occasions, or by 

two or more [persons].” (Former § 186.22, subd. (e); Stats. 2017, ch. 561, § 178.)

Now, however, a “ ‘pattern of criminal gang activity’ ” requires proof of 

additional elements with respect to predicate offenses. (§ 186.22, subds. (e), (g).) The 

predicate offenses must have “commonly benefited a criminal street gang” and the 

common benefit must be “more than reputational.” (§ 186.22, subds. (e)(1).) Examples 

of a common benefit that are “more than reputational” include but are not limited to 

“financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous witness or informant.” 

(§ 186.22, subd. (g), enacted by Stats. 2021, ch. 699, § 3.) In addition, the most recent 

predicate offense must have occurred within three years of a charged offense, and the 

predicate offenses must have been committed on separate occasions or by two or more 
32

gang members, as opposed to persons. (§ 186.22, subd. (e)(1).) The list of qualifying 

predicate offenses has also been reduced (ibid.), and the charged offense can no longer be 

used as a predicate offense (id. at subd. (e)(2)).

3. Analysis

Defendant claims it is “impossible to know” whether he “would still have admitted 

the gang enhancement” in February 2019, had he known that Assembly Bill 333 would 

make the retroactive changes that it made to section 186.22. As noted, he also claims his 

waiver of his constitutional rights to a jury trial, against self-incrimination, and to 

confront witnesses, which he made in connection with his admission, can no longer be 

considered knowing and intelligent. (See Boykin v. Alabama (1969) 395 U.S. 238, 243-

244; In re Tahl (1969) 1 Cal.3d 122, 130-133.)

These arguments are unavailing. As the People point out, when a defendant 

admits a charge or enhancement in entering into a plea agreement, the defendant is 

deemed to know that the Legislature may change the definition of the offense or 

enhancement in the future. “[T]he general rule in California is that the plea agreement 

will be ‘ “deemed to incorporate and contemplate not only the existing law but the 

reserve power of the state to amend the law or enact additional laws for the public good 

and in pursuance of public policy . . . .” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 66, 70.) 

Defendant has not shown that his plea agreement is an exception to this general rule. 

That is, he has not shown that the facts and circumstances of his plea agreement give rise 

to an implicit promise that the plea agreement would be unaffected by changes in the law, 
33

including changes in the elements necessary to establish a gang enhancement. (Id. at 

pp. 71-72.)

As the People argue, implicit in defendant’s argument is the assertion that his plea 

agreement can only be considered knowing and intelligent if he knew, when he entered 

into the plea agreement, about the future changes and retroactive changes that Assembly 

Bill 333 would make to section 186.22. This assertion is both incorrect as a general 

proposition and is unsupported. (Doe v. Harris, supra, 57 Cal.4th at pp. 66, 71-72.) 

Although Assembly Bill 333 changed the elements necessary to prove a gang 

enhancement, defendant has not explained how these changes affected his admission of 

the gang enhancement or his willingness to enter into the plea agreement.

Thus, as the People argue, defendant’s statement that “it is impossible to know” 

whether he would have entered into his plea agreement had he known that Assembly Bill 

333 would retroactively change the elements of the gang enhancement does not help 

defendant’s claim that the judgment must be reversed and his plea agreement vacated. It 

is actually fatal to the claim. It means he has not shown, and cannot show, that Assembly 

Bill 333 undermined either his knowing and intelligent Boykin/Tahl waivers or his 

willingness to enter into the plea agreement.

Relying on People v. Eagle (2016) 246 Cal.App.4th 275, defendant argues, “in 

these kinds of situations,” where a new law was enacted while a case was pending, which 

changes the requirements for a charge or enhancement that the defendant previously pled 

guilty to or admitted, the defendant must be given the opportunity to withdraw the 

admission or plea. Eagle does not stand for this proposition. In Eagle, the defendant 
34

pled no contest to transporting methamphetamine in violation of Health & Safety Code 

section 11379 along with another charge, admitted an enhancement allegation, and 

entered into a plea agreement. (Eagle, at p. 278.) Pursuant to the plea agreement, the 

trial court suspended the imposition of sentence and placed the defendant on three years’ 

formal probation. (Ibid.) The Legislature later changed the definition of “transports” for 

purposes of Health and Safety Code section 11379, and the voters enacted Proposition 

47. (Id. at p. 278.) The defendant then moved to vacate his felony conviction for 

transporting methamphetamine and to replace it with a misdemeanor conviction for 

possession of methamphetamine. (Ibid.)

The People and the Eagle court agreed that, because the defendant’s judgment was 

not final, the defendant was entitled “to benefit retroactively” from the ameliorative 

changes to Health and Safety Code section 11379. (Eagle, supra, 246 Cal.App.4th at 

p. 279.) The court rejected the defendant’s claim that his transportation conviction 

should be reduced to simple possession, given that simple possession was not a lesser 

included offense of transportation. (Ibid.) The court also ruled that, even if simple 

possession were a lesser included offense, the court could not simply reduce the 

transportation conviction to simple possession because, “[w]hen a statutory amendment 

adds an additional element to an offense, the prosecution must be afforded the 

opportunity to establish the additional element upon remand.” (Id. at p. 280, citing 

People v. Figueroa (1993) 20 Cal.Ap.4th 65, 71-72 & fn. 2 (Figueroa), italics added.) 

Such a retrial of the transportation charge, based on the new law, was not barred by 

double jeopardy clause or ex post facto principles. (Eagle, at p. 280.)
35

Defendant relies on the above-quoted, italicized language from Eagle in arguing

the judgment must be reversed and his admission of the gang enhancement vacated in 

light of the retroactive changes Assembly Bill 333 made to section 186.22 and the 

elements necessary to prove a gang enhancement. Eagle is distinguishable, however, 

because it arose in the context of Proposition 47, which allows defendants to alter their 

plea agreements based on retroactive changes to the elements of various crimes. (People 

v. Stamps (2020) 9 Cal.5th 685, 702-703.) In Eagle, the People did not argue that the 

defendant was not entitled to the benefits of Proposition 47. Instead, the People argued, 

and the court agreed, that (1) simple possession was not a lesser included offense of 

transportation, and (2) although the transportation charge had to be vacated, the People 

were entitled to retry the transportation charge based on the new law.

As the People here point out, “the trouble with the Eagle decision lies in the 

unexamined conclusion (as a result of the People’s concession) that Eagle should be 

allowed to withdraw his plea based on the definitional changes” in the transportation 

statute, Health and Safety Code section 11379. Proposition 47 does not apply here, and 

defendant has not established grounds to set aside his plea. As the People argue, “in 

cases such as the present where a subsequent change in the law does not necessarily or 

clearly impact plea considerations that would have been made prior to the amendments, 

the defendant must show not only that he did not anticipate such changes, but that also he 

would not have pleaded guilty [or there is a reasonable probability he would not have 

pleaded guilty] had the changes been in effect at the time.” (See People v. Dillard (2017) 

8 Cal.App.5th 657, 665.) Defendant has not made these showings here.
36

D. Remand for Resentencing Is Warranted in Light of Tirado

Defendant claims the matter must be remanded for resentencing so the sentencing 

court may consider, for the first time, whether to exercise its discretion to impose a lesser

term on a lesser firearm enhancement under section 12022.53, subdivisions (b) (10 years) 

or (c) (20 years) in lieu of the 25-year-to-life term the court imposed for the greater 

firearm enhancement under section 12022.53, subdivisions (d) and (e). (Tirado, supra, 

12 Cal.5th 688.) We agree that the matter must be remanded for resentencing.

We first address the People’s claim that defendant forfeited his right to ask the 

court to impose a lesser firearm enhancement. We find no forfeiture.

The People argue defendant forfeited his right to ask the court to impose a 10- or 

20-year lesser firearm enhancement because his counsel did not ask the court to impose a 

lesser enhancement; counsel only asked the court to strike the existing enhancement. 

(People v. Scott (1994) 9 Cal.4th 331, 351-356 [“Although the court is required to impose

sentence in a lawful manner, counsel is charged with understanding, advocating, and 

clarifying permissible sentencing choices at the hearing.”].)

At sentencing on November 1, 2019, defense counsel asked the court to exercise 

its discretion pursuant to section 12022.53, subdivision (h) to strike the section 12022.53, 

subdivisions (d) and (e) firearm enhancement and impose “the minimum time allowed 

under the law.” The minimum time allowed under the law would have been 25 years to 

life for the murder and no additional term for any firearm enhancement. The court 

declined to strike the firearm enhancement. It imposed sentence on the murder 

conviction, then said, “The Court will decline to exercise discretion pursuant to 
37

12022.53(h) and impose an additional and consecutive term of imprisonment pursuant to 

12022.53(d) and (e) of 25 years to life.” Defense counsel did not ask the court to impose 

a 10- or 20-year term on a lesser enhancement. (§ 12022.53, subds. (b), (c).)

At the time of sentencing on November 1, 2019, there was a split of authority as to 

whether trial courts had discretion to impose sentences on lesser firearm enhancements 

that were neither charged nor specifically proved. In April 2019, the court in People v. 

Morrison (2019) 34 Cal.App.5th 217 (Morrison) held that trial courts have this 

discretion, but in August 2019 another court disagreed with Morrison and held that trial 

courts did not have that discretion. (People v. Tirado (2019) 38 Cal.App.5th 637, 644, 

judg. vacated and cause remanded (2022) 12 Cal.5th 688.)

In addition to counsel’s failure to ask the court to impose a lesser term on a lesser 

firearm enhancement, the People argue “the most” defendant can show is that “the law 

was unsettled” at the time of sentencing as to whether the court was authorized to impose 

a lesser term. The People argue, “it is reasonable to assume that defense counsel was 

well aware of the issue, yet he still declined to invoke the court’s discretion” to impose a 

lesser firearm enhancement. We disagree that defense counsel forfeited the issue.

Although defense counsel could have asked the court to impose a lesser firearm 

enhancement under Morrison, one other court had expressly disagreed with Morrison. 

(People v. Tirado, supra, 38 Cal.App.5th at p. 644.) Thus, defense counsel may have 

reasonably believed that Morrison would not be followed. (See People v. Gallardo

(2017) 4 Cal.5th 120, 128 [questioning whether defense counsel forfeited argument

supported by United States Supreme Court precedent that did not “squarely overrule
38

existing California law”].) Indeed, by January 2021, more than one year after

defendant’s November 1, 2019 sentencing, several additional courts, including this one,

had issued published decisions disagreeing with Morrison. (See People v. Delavega

(2021) 59 Cal.App.5th 1074, 1084 [citing cases], judg. vacated (2022)

___Cal.5th___[2022 Cal.Lexis 2306].)

Further, even if the counsel forfeited the issue for defendant, that does not absolve

this court of its discretion to consider it. (People v. Williams (1998) 17 Cal.4th 148, 161, 

fn. 6.) We exercise our discretion to consider the issue because it potentially affects 

defendant’s substantial rights (§ 1259), namely, his now firmly established right, under 

California Supreme Court precedent, to ask the court exercise its discretion to impose a 

lesser term on a lesser firearm enhancement. (Tirado, supra, 12 Cal.5th at p. 700.)

The record shows that remand for resentencing will not necessarily be futile. 

(People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [“[I]f the ‘ “record shows that the 

court would not have exercised its discretion even if it believed it could do so, then 

remand would be an idle act and is not required.” ’ ”].) To be sure, before it imposed 

sentence, the court recounted defendant’s lengthy criminal history, the “large number” of 

factors in aggravation relating to both the murder and defendant, and the absence of any 

factors in mitigation relating to either the murder or defendant. Among other things, the 

court observed that defendant had been sentenced to state prison with a gang 

enhancement before he committed the murder and that he committed the murder only 

four months after he graduated from a youthful offender program. The court also noted 

that “many programs and activities designed” for defendant’s rehabilitation had been 
39

“ineffective in curbing his criminality.” The court imposed maximum $10,000 restitution 

and parole revocation fines. (§§ 1202.4, 1202.45.)

The People agree, however, that to the extent this court determines that defendant 

adequately preserved his claim, and we have determined that the claim was not forfeited, 

the matter must be remanded to allow the court to exercise its discretion to impose a 

lesser term on lesser firearm enhancements. As the People point out, “[g]iven the many 

factors in aggravation, and the lack of any factors in mitigation, the court may well 

decide to reimpose the original [25-year-to-life] term.” Nevertheless, as the People and 

we also agree, “that is a decision for the trial court to make in the first instance on these 

facts.”

E. Defendant Is Entitled to 196 Additional Days of Presentence Custody Credits

The parties and we agree that defendant is entitled to a total of 503 days of custody 

credits for the time he spent in local custody in this case, rather than the 307 days that he 

was awarded, or 196 days of additional custody credits. (§ 2900.5.)

A defendant is entitled to credit against a term of imprisonment for all days the 

defendant spent in local custody in the case for which he is sentenced, through the date of 

sentencing. (§ 2900.5; People v. Denman (2013) 218 Cal.App.4th 800, 814.)

At sentencing on November 1, 2019, defendant was awarded 307 total days of 

presentence custody credits under section 2900.5. The 307 days was ostensibly based on 

the probation report, which stated that defendant was entitled to custody credits under 

section 2900.5 from June 17, 2018, the date he was released on parole in an earlier case, 

through April 19, 2019, the original date he was to be sentenced in this case. (People v. 
40

Ayon (1987) 196 Cal.App.3d 1114, 1117-1118 [defendant not entitled to custody credits 

under section 2900.5 for time the defendant was serving a sentence in another case, even 

though the defendant was concurrently under arrest for an unsentenced crime].) But the 

April 19, 2019 sentencing date was continued, and defendant was ultimately sentenced on 

November 1, 2019. Thus, defendants should have been awarded 507 days of presentence 

custody credits, from June 17, 2018 through November 1, 2019. (§ 2900.5.) We amend 

the judgment accordingly. (People v. Jones (2000) 82 Cal.App.4th 485, 493.)

IV. DISPOSITION

The November 1, 2019 judgment is modified to award defendant a total of 503 

days of presentence custody credits, 196 more than the 307 days he was awarded at 

sentencing on November 1, 2019. (§ 2900.5) The matter is remanded for resentencing, 

so the court may exercise its discretion whether to strike the 25-year-to-life term on 

defendant’s firearm enhancement (§ 12022.53, subds. (d), (e), (h)) and impose a lesser 

term on a lesser firearm enhancement (§ 12022.53, subds. (b), (c), (j)) under Tirado,

supra, 12 Cal.5th 688. We remand for full resentencing so as not to preclude the court 

from exercising its sentencing discretion in light of changed circumstances. (People v. 

Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on 

remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial 

court can exercise its sentencing discretion in light of the changed circumstances.’ ”]; 

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“[T]he full resentencing rule allows 

a court to revisit all prior sentencing decisions when resentencing a defendant.”].)

Following resentencing, the court is further directed to prepare a supplemental sentencing 
41

minute order, and an amended abstract of judgment, reflecting this court’s and the trial 

court’s modifications, if any, to the November 1, 2019 judgment. In all other respects, 

the November 1, 2019 judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

Acting P.J.

We concur:

RAPHAEL

J.

MENETREZ

J.