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People v. Valencia

Supreme Court of California

December 11, 2019


          B283588 Second Appellate District, Div. 8.

         Petition for review denied

         Liu, J., is of the opinion the petition should be granted.


          LIU, J.

         Among the individual rights guaranteed by the United States Constitution, perhaps none is more familiar than the Fifth Amendment right of a criminal suspect to remain silent in the face of police questioning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); 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.”].) As the high court explained half a century ago, the Miranda warnings set the ground rules for interactions between citizens and the police: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. . . . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” (Miranda, at pp. 473-474, fn. omitted.)

         As it turns out, however, courts have understood this clear procedure to contain a caveat: Although a suspect's invocation of the right to silence or right to counsel cuts off questioning by the police in uniform, it does not stop the police from going undercover to continue questioning the suspect until he confesses. That is what happened in this case, and the Court of Appeal found “no Miranda problem” on the ground that “Miranda forbids coercion, not strategic deception that tricks suspects into trusting someone” whom they do not know is a government agent. (People v.Valencia (Aug. 5, 2019, B283588) 2019 WL 3542872, p. *2 [nonpub. opn.] (Valencia).)

         The use of deceptive schemes to continue questioning a suspect who has invoked Miranda rights appears to be a common police practice throughout California. How is it possible, one might ask, that the protections of Miranda are so easily evaded? I wonder the same thing. I would grant review to decide whether this practice - what one court recently called a “deplorable” and “deliberate circumvention of Miranda'sprotections” (People v. Orozco (2019) 32 Cal.App.5th 802, 816, 819 (Orozco)) - is lawful under the Fifth Amendment. But because this court has declined several opportunities to address the issue, I urge the Legislature to examine whether additional safeguards are necessary to restore Miranda's core purpose of ensuring that any statement made by a suspect to the police is “truly . . . the product of his free choice.” (Miranda, supra, 384 U.S. at p. 458.) Compliance with Miranda is not a game, and the Legislature, if not this court, should make that clear.


         In this case, the police arrested defendant Manuel de Jesus Valencia for murder. Valencia, then 18 years old, was taken to the police station, where an officer advised him of his Miranda rights and began interrogating him. After answering some questions, Valencia said he did not want to talk anymore and requested counsel. No one disputes that Valencia validly invoked his Mirandarights.

         The next day, in the face of Valencia's invocation of his Miranda rights, the police devised a scheme to extract a confession from him. First, the police placed Valencia in the same holding cell as undercover Deputy Sheriff Anthony Castro, who wore a recording device. Posing as a gang affiliate, Officer Castro sought to gain Valencia's trust. After he noticed that Valencia was shaking, Officer Castro told Valencia that he remembered what it was like to be 18, “scared, ” and “nervous.” He told Valencia to “try not to let [his] voice crack” when he talked and to alter the way he walked and talked so it would be more difficult for a witness to identify him in a lineup.

         In accordance with the plan, a uniformed officer then came to the holding cell to take Valencia to a lineup. Although the witness did not identify Valencia as the perpetrator in the lineup, the uniformed officer lied to Valencia and told him that “[he] did get picked.”

         After Valencia returned to his cell, Officer Castro, still undercover, told him that he did not have to tell the detectives anything. Officer Castro said: “Sit there and just no matter what they tell you, you don't have to open your mouth. . . . Just because they ask a question don't mean you gotta answer it right?” Valencia replied: “Yeah. I have the right to remain silent.” Officer Castro then advised Valencia that he should “start playing back everything now” because the police probably had other incriminating evidence. At that point, Valencia said, “They got me, ” and divulged his involvement in the crime. His statements were admitted at trial, comprising pivotal evidence in the prosecution's case. Valencia was convicted of murder and sentenced to 50 years to life in prison.

         If Officer Castro had worn his uniform while eliciting Valencia's confession, this scheme would have clearly violated Miranda. Valencia invoked his right to silence and right to counsel, and any further questioning by police outside the presence of counsel was unlawful. (See Edwards v.Arizona (1981) 451 U.S. 477, 485 (Edwards); Miranda, supra, 384 U.S. at pp. 473-474.) But the Court of Appeal held that because Officer Castro impersonated an inmate, the protections of Miranda did not apply to his jail cell conversation with Valencia. (Valencia, supra, 2019 WL 3542872 at pp. *2-*3.)

         What happened in Valencia's case is not an isolated incident. The use of deceptive schemes to elicit confessions from suspects who have invoked their Miranda rights appears to be a pervasive police practice in California. This year alone, there were five other cases in the courts of appeal presenting this issue. (See People v. Bolivar (Sept. 24, 2019, B284882) 2019 WL 4638899, p. *4 [nonpub. opn.] (Bolivar); People v. Robbins (July 31, 2019, B283582) 2019 WL 3451312, p. *3 [nonpub. opn.] (Robbins), review den. Nov. 20, 2019; People v. Herrera (July 15, 2019, B286907) 2019 WL 3071747, p. *2 [nonpub. opn.] (Herrera), review den. Nov. 20, 2019; Orozco, supra, 32 Cal.App.5th at pp. 807-809, review den. June 12, 2019; People v. Arzate (Feb. 27, 2019, B286532) 2019 WL 948963, p. *3 [nonpub. opn.] (Arzate), review den. June 12, 2019.) And there have been many cases beyond those. (See People v. Tauch (Sept. 16, 2015, B257033) 2015 WL 5445202, p. *2 [nonpub. opn.] (Tauch), review den. Dec. 16, 2015; People v. Olivares (Nov. 20, 2014, B248543) 2014 WL 6480341, p. *3 [nonpub. opn.] (Olivares), review den. Mar. 11, 2015; People v. Jackson (June 28, 2005, B169059) 2005 WL 1515390, p. *6 [nonpub. opn.] (Jackson), review den. Oct. 12, 2005; People v. Schinkel (Aug. 27, 2002, C036877) 2002 WL 1970197, p. *4 [nonpub. opn.] (Schinkel), review den. Nov. 20, 2002; People v. Lolohea (Mar. 22, 2002, A091821) 2002 WL 443398, p. *6 [nonpub. opn.] (Lolohea), review den. June 19, 2002; People v. Plyler (1993) 18 Cal.App.4th 535, 544 (Plyler), review den. Nov. 23, 1993; People v.Guilmette (1991) 1 Cal.App.4th 1534, 1538-1539 (Guilmette), review den. Mar. 19, 1992.) These cases, which come from multiple counties up and down the state, are just the tip of the iceberg. Because courts have consistently rejected challenges to such practices, and because this court has declined multiple opportunities to take up the issue, it is likely that many defendants do not raise this issue on appeal. And such practices go unchallenged when applied to suspects who provide no self-incriminating statements or turn out to be wrongly detained, never charged, or eventually acquitted.

         The police tactics used to circumvent a clear Mirandainvocation are varied. There are many cases like Valencia's, where officers disguised as inmates continue questioning a suspect in the holding cell after he has invoked his rights. (See Valencia, supra, 2019 WL 3542872 at pp. *1-*2; Bolivar, supra, 2019 WL 4638899 at p. *4; Robbins, supra, 2019 WL 3451312 at p. *3; Tauch, supra, 2015 WL 5445202 at p. *2; Olivares, supra, 2014 WL 6480341 at p. *3.) In one scheme called “stimulation, ” officers in a custodial interrogation deceitfully tell the suspect that they have enough evidence to convict him in order “ ‘to get him wound up when he [is] placed back in the cell with . . . undercover deputies.' ” (Olivares, supra, 2014 WL 6480341 at p. *4; see also Valencia, supra, 2019 WL 3542872 at p. *1; Orozco, supra, 32 Cal.App.5th at p. 809.) This tactic integrates official questioning and surreptitious questioning into a single coordinated scheme to exhaust defendants into confessing, extending the coercive effects of official interrogation beyond the interrogation room. After Salvador Olivares stated five times during an interrogation that he had nothing to say and that he wanted a lawyer (Olivares, at p. *3, fn. 6), officers followed him back to his holding cell and “yelled” that they had witnesses and DNA evidence tying him to murder. Two undercover deputies continued questioning him in his cell for two and a half hours, pretending to commiserate with him and to offer advice about his case in order to coax incriminating statements out of him. (Id. at p. *4.) At one point during the questioning, when Olivares expressed concern that the conversation might be recorded - indeed, it was - the officers “dismissed the idea.” (Ibid.)

         In other scenarios, the police have enlisted other agents to conduct the questioning, including inmate informants (Herrera, supra, 2019 WL 3071747 at p. *2; Arzate, supra, 2019 WL 948963 at p. *3; Schinkel, supra, 2002 WL 1970197, p. *4), family members of the defendant (Orozco, supra, 32 Cal.App.5th at p. 809), coconspirators (Jackson, supra, 2005 WL 1515390 at p. *6; Lolohea, supra, 2002 WL 443398 at p. *6), and victims (Plyler, supra, 18 Cal.App.4th at p. 544; Guilmette, supra, 1 Cal.App.4th at p. 1538-1539).

         Twenty-four hours after Arturo Herrera refused to speak with interrogators, the police recruited another inmate by promising him leniency and placed the inmate in Herrera's cell. At the police's direction, the inmate questioned Herrera for one and a half hours, during which Herrera gave self-incriminating statements. (Herrer ...

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