B283588 Second Appellate District, Div. 8.
Petition
for review denied
Liu,
J., is of the opinion the petition should be granted.
DISSENTING
STATEMENT
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.
I.
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 ...