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People v. Rodriguez

California Court of Appeals, Second District, Eighth Division

September 23, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
GIOVANNY RODRIGUEZ, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Los Angeles County No. BA441320, Mark S. Arnold, Judge. Affirmed.

          Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie C. Brenan, Supervising Deputy Attorney General, Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.

          WILEY, J.

         Giovanny Rodriguez shot a man. A jury convicted Rodriguez of attempted murder and other crimes. On appeal, Rodriguez argues (1) the trial court should not have admitted his jailhouse confession, (2) the court should not have instructed the jury that eyewitness certainty should be considered when evaluating eyewitness reliability, (3) there was cumulative error, (4) his sentence is unconstitutional, and (5) we should vacate court fees and stay his restitution fine. We affirm. Code references are to the Penal Code.

         I

         The facts are these.

         Rodriguez was in a gang. He and a fellow gang member followed a man to Monterey Park, where Rodriguez shot and wounded the man. Eight months later, Rodriguez was in jail on an unrelated matter. Police put an informant in his holding cell. The informant dressed and acted like an inmate. Rodriguez was not Mirandized. (Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).) The informant struck up a conversation with Rodriguez: “What’s up, homie? Player from Harbor City.” Rodriguez told the informant that Rodriguez and his “crime partner” “did a shooting... [a]ttempted murder.” At one point, without exposing the undercover operation, a detective entered the cell to tell Rodriguez he would be charged with attempted murder. That triggered more discussion between Rodriguez and the informant about the shooting. Police secretly recorded all this.

         After Rodriguez spoke to the informant for an hour and forty minutes, police removed Rodriguez from the holding cell. The detective Mirandized Rodriguez and, after recounting facts about the attempted murder, interrogated him. (Miranda, supra, 384 U.S. at p. 444.) Then police returned Rodriguez to the holding cell.

         The informant asked Rodriguez, “What happened fool?” Rodriguez replied, “Fuckin, uh, they know everything fool.” After talking some more, Rodriguez said to the informant, “Look, here’s what happened. I can have a little bit of trust in you.” Rodriguez proceeded to tell the informant the details of the shooting. This second conversation - after Rodriguez returned from speaking with the detective - lasted 20 minutes.

         The trial court denied Rodriguez’s motion to exclude his conversations with the undercover informant. The prosecution played the recording for the jury.

         Two eyewitnesses identified Rodriguez at trial. The trial court instructed the jury with CALCRIM No. 315, which tells jurors to consider a series of questions when evaluating an eyewitness’s identification, including “How certain was the witness when he or she made an identification?” (CALCRIM No. 315.) Rodriguez’s counsel did not object.

         The jury convicted Rodriguez of attempted murder and other crimes. The jury could not reach a unanimous verdict on whether the attempted murder was premeditated, and the trial court granted the prosecution’s motion to dismiss this charge. The trial court sentenced Rodriguez to 45 years and four months to life. It imposed a $300 victim restitution fine, a $90 criminal conviction assessment fine, and a $120 court operations assessment fine.

         II

         The trial court properly admitted Rodriguez’s conversation with the informant.

         Rodriguez argues admission of the conversation violated (1) his Fifth Amendment rights because police failed to Mirandize him before the conversation, and (2) his due process rights because police coerced him to confess. We address each erroneous argument in turn. We review the trial court’s findings of fact for substantial supporting evidence but independently review the trial court’s legal determinations. (People v. Orozco (2019) 32 Cal.App.5th 802, 811.)

         A

         The government was not required to Mirandize Rodriguez before his conversation with the informant.

         Miranda, supra, 384 U.S. at page 444, held that, under the Fifth Amendment, courts may admit statements made by suspects during a custodial interrogation only if police first warn suspects of their rights. But Miranda warnings are not required when suspects give voluntary statements to a person they do not know is a police officer. (Illinois v. Perkins (1990) 496 U.S. 292, 294.)

         Rodriguez did not know he was speaking to the police when he talked to the undercover informant, so no Miranda warningwas required. Rodriguez claims he “felt coerced” because the informant posed as “an older, well-connected gang member.” Rodriguez says that coercion was especially strong because he was confined to the same cell as the informant for around two hours.

         The coercion identified by Rodriguez is not the sort that concerned the Miranda court. Miranda does not protect suspects when they describe criminal activities to people they think are cellmates. (Illinois v. Perkins, supra, 496 U.S. at p. 298.) Rather, Miranda addressed concerns that a “police-dominated atmosphere” generates “inherently compelling pressures” that “undermine the individual’s will to resist” questioning. (Id. at p. 296 [quoting Miranda, supra, 334 U.S. at pp. 445, 467.].) Those concerns evaporate when, as here, an inmate speaks freely to someone he believes is a fellow inmate. (Illinois v. Perkins, supra, 496 U.S. at p. 296.)

         Rodriguez cites no case holding Miranda warnings are required before an undercover informant speaks to an inmate. We know of none. During Rodriguez’s conversation with the informant, the government did not brandish its authority or intimidate him into speaking. Like the defendant in Perkins, Rodriguez spoke freely and at his own peril. (Illinois v. Perkins, supra, 496 U.S. at p. 298.)

         B

         The government did not coerce Rodriguez into confessing involuntarily.

         The due process clauses of the federal and California constitutions bar courts from admitting involuntary confessions. (Withrow v. Williams (1993) 507 U.S. 680, 688–689; People v. Boyette (2002) 29 Cal.4th 381, 411.) To determine whether Rodriguez’s confession was involuntary, we assess the circumstances to see if his will was overborne. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225–226; People v. Boyette, supra, 29 Cal.4th at p. 411.)

         Rodriguez argues the government coerced him into confessing because he was “put in a locked cell with an older gang member” to whom Rodriguez was required to “show respect to, gain respect from, and gain protection ...


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