1

Filed 3/24/16 P. v. Cooper CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY L. COOPER,

Defendant and Appellant.

C076449

(Super. Ct. No. 13F03230)

When asked for his plea in a prison disciplinary hearing charging possession of 

marijuana in prison, defendant Anthony L. Cooper said “I take full responsibility. I have 

it -- I did have it.” Later, in the instant criminal proceeding charging defendant with 

possession of marijuana in prison, defendant moved to suppress his prior statement in the 

disciplinary hearing, arguing the statement was inadmissible because he had not been 

given a Miranda1 warning prior to the hearing. The trial court denied the motion and a 

jury convicted defendant for possession of marijuana in prison. The trial court found that 

defendant had a prior strike conviction and sentenced him to six years in prison.

 

1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
2

Defendant now contends (1) the trial court erred in denying his motion to suppress 

the statement because he had not been given a Miranda warning, (2) his Fifth 

Amendment rights were violated, and (3) the trial court erred in imposing a $50 

laboratory fee and the abstract of judgment must be corrected to omit a $150 drug 

program fee. We will modify the judgment to strike the $50 laboratory fee, affirm the 

judgment as modified, and direct the trial court to amend and correct the abstract of 

judgment.

BACKGROUND

On the morning of January 8, 2013, Folsom State Prison Correctional Officer 

Carlos Sanchez and his partner were conducting random inmate searches as inmates 

entered a prison exercise yard. Sanchez randomly selected defendant for a search. 

During the patdown search, Sanchez noticed a bulged area by defendant’s ankle above 

his shoe. The bulged area was a “bindle” that smelled strongly of marijuana.

The bindle was about the size of a golf ball, contained tobacco, and was wrapped 

in clear plastic cellophane. Sanchez immediately opened the bindle. Inside the tobacco 

he found two bindles of marijuana. Sanchez conducted a more thorough search of 

defendant in a holding cell but found no further contraband. Defendant’s cell was also 

searched but no further contraband was found there either. Defendant submitted a urine 

sample which later tested positive for marijuana.

Lieutenant Salvador Quirarte subsequently conducted what is commonly referred 

to as a “115 hearing” with defendant. A 115 hearing is a disciplinary hearing; it is the 

prison’s internal administrative adjudication of inmate infractions or rule violations. The 

only disciplinary charge pending against defendant was for possession of marijuana.

The day before the 115 hearing defendant was sent a “ducat,” which Quirarte 

described as a permission slip, giving defendant notice that he had a 115 hearing the 

following morning in Quirarte’s office. According to Quirarte’s testimony, a disciplinary 

officer would have retrieved defendant from his cell and taken him to the hallway outside 
3

Quirarte’s office. That same disciplinary officer would also be responsible for giving 

defendant a Miranda warning, but the officer did not.

Defendant’s 115 hearing took place in Quirarte’s office, in the same building in 

which defendant was housed. Quirarte described his office as “probably 10 by 20, has a 

desk, a couple of chairs and a computer. Nothing fancy.” The office has overhead lights 

and a couple of windows. The door is a manual door, locked with a key, and there is no 

dead bolt.

Defendant arrived at Quirarte’s office by himself and without handcuffs. Quirarte 

could not recall whether the door was closed after defendant came in, but if it was, it was 

not locked. During a 115 hearing, Quirarte sometimes closed the door halfway for an 

inmate’s privacy but he always left the door unlocked. The only two people present at 

the 115 hearing were Quirarte and defendant. Quirarte sat behind his desk; defendant sat 

in the chair in front of Quirarte’s desk. The hearing was not recorded. Quirarte asked 

defendant if he wanted to proceed with the hearing; defendant “had no objections.” 

Quirarte did not remember reading defendant the pending charge for possession of 

marijuana, but asked defendant if he understood the charge against him; defendant said 

that he did. Quirarte then asked defendant for his plea and defendant said, “I take full 

responsibility. I have it -- I did have it.” Defendant remained unrestrained.

Quirarte found defendant guilty of possessing marijuana and assessed the 

following penalties against him: (1) 121 days of custody credit lost, (2) 90 days of visits 

lost, (3) 90 days of no-contact visits after visits are reinstated, and (4) 30 days of yard, 

canteen, phone and quarterly packages lost. Quirarte had the discretion to take as many 

as 180 days of custody credit away from defendant as a result of the rules violation, but 

because defendant exhibited a remorseful demeanor Quirarte took the lesser amount.

Quirarte described his own demeanor during the 115 hearing as “pretty neutral, 

matter of fact, accommodating.” He did not raise his voice or pound on the desk. 

Quirarte advised defendant of his right to appeal and gave defendant options for how 
4

to make the situation better for himself. Defendant then walked out of the office on his 

own.

The People subsequently charged defendant in a criminal proceeding with 

possession of marijuana while in custody (Pen. Code, § 4573.6)2 and further alleged that 

defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) Defendant 

pleaded not guilty and the matter was set for jury trial.

Prior to trial, the People moved to introduce evidence of defendant’s statement at 

the 115 hearing. Defendant moved to suppress his statement, arguing it was inadmissible 

because he was not given a Miranda warning prior to the 115 hearing. The trial court 

held an Evidence Code section 402 hearing to determine the statement’s admissibility.

The sole witness at the 402 hearing was Lieutenant Quirarte. Among other things, 

Quirarte described generally his process for finding an inmate guilty of a rules violation. 

Prior to a 115 hearing, Quirarte is given a report regarding the charge or charges pending 

against an inmate. Quirarte does not “get too much into the report” until he is in the 

hearing, however, because he wants to make an “unbiased decision.” During the hearing, 

he will refer to the report if an inmate has questions. If an inmate disagrees with the 

content of the report, and the inmate’s point is valid, Quirarte will take that into 

consideration in determining guilt. If another person’s name is mentioned, Quirarte will 

contact that person and ask them for their input. That person could be another officer, a 

staff member, a teacher, or another inmate. Quirarte will take that information into 

consideration as well.

In response to the trial court’s questions, Quirarte testified that if defendant had 

objected to proceeding with the hearing, Quirarte would have inquired about the reason 

for the objection. If defendant’s objection was relevant, Quirarte or prison officials 

 

2 Undesignated statutory references are to the Penal Code.
5

would “fix the problem.” If there was no relevant objections to proceeding, Quirarte 

would have proceeded without defendant’s input and advised him of his right to appeal. 

Quirarte also explained that defendant was free to get up and walk out at any time during 

the 115 hearing, though he never expressly said that to defendant. Had defendant walked 

out, Quirarte would have documented his absence, noted defendant was uncooperative, 

and found him guilty or not guilty based on the information he had.

By the time of defendant’s 115 hearing, Folsom prison officials had already 

referred defendant’s case to the Sacramento County District Attorney’s Office. 

Nevertheless, at the time of the hearing, Quirarte did not know whether the People would 

prosecute the case.

Following argument, the trial court ruled defendant’s statement admissible. 

The jury later convicted defendant for possession of marijuana in prison. (§ 4573.6.) 

The trial court found that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 

1170.12), denied his Romero3 motion, and sentenced him to six years in state prison. 

The trial court imposed various fines and fees including a $50 laboratory fee pursuant 

to Health and Safety Code section 11372.5, but it declined to impose a $150 drug 

program fee.

DISCUSSION

I

Defendant contends the trial court erred in denying his motion to suppress the 

statement because he had not been given a Miranda warning before Quirarte began the 

115 hearing.

“Before a suspect may be subjected to a custodial interrogation, he must be 

advised that he has the right to remain silent, that his statements can be used against him 

 

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
6

and that he has a right to consult with or have an attorney present. (Miranda v. Arizona, 

supra, 384 U.S. at pp. 467-471 [16 L.Ed.2d at pp. 719-722].) In Mathis v. United States

(1968) 391 U.S. 1, 4-5 [20 L.Ed.2d 381, 385] [(Mathis)], the federal high court extended 

these safeguards to prison inmates.” (People v. Fradiue (2000) 80 Cal.App.4th 15, 19, 

fn. omitted (Fradiue).)

Defendant contends Mathis is controlling here and that subsequent decisions by 

the federal courts and this court are wrongly decided. This court, however, has already 

reviewed those later federal court decisions and recognized an “exception to Mathis

where the interrogation is conducted under circumstances where no restraint is placed 

upon the inmate over and above that associated with his prisoner status.” (Fradiue, 

supra, 80 Cal.App.4th at pp. 19, citing Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 

426-427 (Cervantes).)

As this court noted in Fradiue, an inmate obviously is not free to leave. (Fradiue, 

supra, 80 Cal.App.4th at p. 20.) “The question must therefore shift to whether some 

extra degree of restraint was imposed upon the inmate to force him to participate in the 

interrogation. Four factors are significant in this inquiry: (1) the language used to 

summon the inmate for questioning, (2) the physical surroundings of the interrogation, 

(3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the 

additional pressure exerted to detain him.” (Ibid.)

Defendant contends that even if Fradiue and Cervantes are “deemed persuasive,”

the exception to Mathis that was carved out in Cervantes was limited to the facts of 

Cervantes and the facts here are distinguishable. Specifically, he argues that, unlike the 

defendant in Cervantes who was participating in an investigation, he was participating in 

an administrative hearing. We do not read Cervantes or Fradiue that narrowly and find 

the analysis applicable here.
7

Defendant received a permission slip and notice of hearing the day before the 

hearing. The language used to summon defendant was neutral and not in the nature of a 

subpoena or an order to appear. (Fradiue, supra, 80 Cal.App.4th at p. 20.) 

The physical surroundings of the 115 hearing also were neutral and no additional 

pressure was exerted to detain defendant. The hearing was conducted in Quirarte’s office 

where there was a desk, windows, and chairs. Although a disciplinary officer retrieved 

defendant from his cell, defendant arrived at Quirarte’s office on his own and unshackled. 

Defendant entered Quirarte’s office and sat in a chair across from Quirarte’s desk. The 

office door remained unlocked and defendant was unrestrained throughout the hearing. 

No one was present at the hearing other than Quirarte and defendant, and the hearing was 

not recorded. Quirarte asked defendant if he was prepared to proceed with the hearing; 

defendant had no objections. Defendant was free to leave the office at any time. Had 

defendant left, Quirarte would have completed the hearing in his absence. There was no 

extra degree of restraint forcing defendant to participate in the hearing. (Fradiue, supra, 

80 Cal.App.4th at p. 20.) 

During the hearing, Quirarte was “neutral, matter of fact, [and] accommodating.” 

He asked defendant if he understood the charge against him and defendant indicated that 

he did. Quirarte then asked defendant for his plea and defendant pleaded guilty. 

Defendant was never “confronted with any evidence of his guilt.” (Fradiue, supra, 

80 Cal.App.4th at p. 21.) When the hearing was over, Quirarte gave defendant advice on 

making better choices and defendant left Quirarte’s office on his own.

Based on the totality of these circumstances, we conclude that “no restraints were 

placed upon defendant to coerce him into participating in the interrogation over and 

above those normally associated with his inmate status. Hence, Miranda warnings were 

not required, and the trial court correctly rejected defendant’s motion to suppress his 

confession.” (Fradiue, supra, 80 Cal.App.4th at p. 21.)
8

II

Defendant also contends his Fifth Amendment right to remain silent was violated 

because he was forced to confess during the 115 hearing but was not given immunity 

from subsequent criminal prosecution. Defendant failed to raise this objection in the trial 

court. We will not consider defendant’s claim for the first time on appeal. (People v. 

Combs (2004) 34 Cal.4th 821, 846.)

Anticipating his claim may be forfeited, defendant alternately argues trial counsel 

was ineffective for failing to raise the objection.

“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears 

the burden of demonstrating, first, that counsel’s performance was deficient because it 

“fell below an objective standard of reasonableness [¶] . . . under prevailing professional 

norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that 

“counsel’s performance fell within the wide range of professional competence and that 

counsel’s actions and inactions can be explained as a matter of sound trial strategy.”

[Citation.] If the record “sheds no light on why counsel acted or failed to act in the 

manner challenged,” an appellate claim of ineffective assistance of counsel must be 

rejected “unless counsel was asked for an explanation and failed to provide one, or unless 

there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the 

burden of establishing that counsel’s performance was deficient, he or she also must 

show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)

Here, trial counsel had no reason to object to defendant’s admission of guilt as 

coerced because the confession, in fact, was not coerced. Defendant argues that because 

Quirarte would have taken the maximum number of custody credits away had he not 

pleaded guilty to the charges, his admission of guilt was coerced. Defendant relies upon 

the United States Supreme Court decision, McKune v. Lile (2002) 536 U.S. 24 
9

[153 L.Ed.2d 47] (McKune), to support his argument. The circumstances of defendant’s 

115 hearing, however, were different than those experienced by the defendant in 

McKune.

In McKune, the defendant was a convicted sex offender who was scheduled for 

release in a few years when prison officials ordered him to participate in a sexual abuse 

treatment program. (McKune, supra, 563 U.S. at p. 30 (plur. opn. of Kennedy, J.).) The 

first step in that program was for the defendant to admit he committed the crime for 

which he was serving his sentence along with any other prior sex crimes for which he 

may or may not have previously been charged. (Ibid.) Defendant was told that if he 

refused to participate, his privilege status would be reduced from Level III to Level I, and 

he would be moved to a maximum security unit within the prison. (Id. at pp. 30-31.) The 

defendant refused to participate in the program “on the ground that the required 

disclosures of his criminal history would violate his Fifth Amendment privilege against 

self-incrimination.” (McKune, at p. 31.) The United States Supreme Court held the 

defendant’s Fifth Amendment privilege was not violated. (McKune, at p. 29 (plur. opn. 

of Kennedy, J.); id. at pp. 48-49 (conc. opn. of O’Connor, J.).)

Justice O’Connor’s narrow concurrence in McKune represented the holding of the

court. (McKune, supra, 563 U.S. at pp. 48-49 (conc. opn. of O’Connor, J.).) Justice 

O’Connor wrote that “[n]ot all pressure necessarily ‘compels’ incriminating statements.” 

(Id. at p. 49.) Like the plurality, she “did not believe the alterations in respondent’s 

prison conditions as a result of his failure to participate in the Sexual Abuse Treatment 

Program . . . were so great as to constitute compulsion for the purposes of the Fifth 

Amendment privilege against self-incrimination.” (McKune, at pp. 48-49.) But Justice 

O’Connor believed the plurality opinion went too far and that a penalty for refusing to 

incriminate oneself that resulted in longer incarceration or execution “would surely 

implicate a ‘liberty interest.’ ” (Id. at p. 52.) Plea bargains, however, which generally 

include a promise for a reduced penalty if a defendant were to admit his or her guilt, do 
10

not violate the Fifth Amendment. (Brady v. United States (1970) 397 U.S. 742, 751 

[25 L.Ed.2d 747, 758].)

Here, defendant was subject to a disciplinary hearing in prison. He was advised of 

the charges and then asked whether he pleaded guilty or not guilty. With no further 

discussion, defendant admitted his guilt. Defendant was never told that if he refused to 

admit his guilt Quirarte would take away the maximum number of custody credits, 

thereby increasing his time in prison. Had defendant not admitted his guilt, either by 

remaining silent or affirmatively denying his guilt, Quirarte would still be required to find 

him guilty before he could impose any consequences.

Unlike the defendant in McKune who was told he had to admit his guilt or he 

would be moved and his privileges reduced, defendant here confronted the same choice 

any defendant confronts in a plea situation. Defendant received a reduced penalty after 

admitting his guilt because his demeanor appeared remorseful. His admission was not 

coerced. (See Brady v. United States, supra, 397 U.S. at p. 751 [25 L.Ed.2d at p. 758].) 

Defendant argues that the “degree of coercion involved [was] further aggravated 

by the fact that [he] was faced with this choice without being informed that criminal 

proceedings were underway.” But he cites no authority to support that proposition.

We conclude defendant’s claim of ineffective assistance lacks merit.

III

Defendant contends, and the People agree, that the $50 laboratory fee imposed by 

the trial court pursuant to Health and Safety Code section 11372.5 should be stricken. 

 Health and Safety Code section 11372.5 requires trial courts to impose a $50 

laboratory fee if a defendant is convicted of violating one of the statutes enumerated in 

Health and Safety Code section 11372.5, subdivision (a). Defendant was convicted of 

violating Penal Code section 4573.6, which is not one of the enumerated statutes. 

Accordingly, we will modify the judgment to strike the $50 laboratory fee. (People v. 

Turner (2002) 96 Cal.App.4th 1409, 1413-1415 [an unauthorized sentence may be 
11

corrected by an appellate court even in the absence of an objection or argument in the 

trial court].)

Defendant further contends, and again the People agree, that the abstract of 

judgment must be corrected to omit a $150 drug program fee because the trial court 

specifically said on the record that it was not imposing the drug program fee. “Where 

there is a discrepancy between the oral pronouncement of judgment and the minute order 

or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 

147 Cal.App.4th 380, 385; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.) We will 

order the abstract of judgment corrected to accurately reflect the court’s oral 

pronouncement not to impose the $150 drug program fee. 

DISPOSITION

The judgment is modified to strike the $50 laboratory fee and the judgment is 

affirmed as modified. The trial court is directed to amend and correct the abstract of 

judgment to reflect the judgment as modified and the trial court’s oral pronouncement not 

to impose the $150 drug program fee. The trial court shall forward a certified copy of the 

amended and corrected abstract of judgment to the Department of Corrections and 

Rehabilitation.

 /S/

Mauro, J.

We concur:

 /S/

Nicholson, Acting P. J.

 /S/

Robie, J.