Filed 3/7/19 (unmodified opn. attached)
            CERTIFIED FOR PARTIAL PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION TWO


THE PEOPLE,                                   B288942

       Plaintiff and Respondent,              (Los Angeles County
                                              Super. Ct. No. VA130104)
       v.
                                              ORDER MODIFYING OPINION
EDUARDO OROZCO,                               AND DENYING REHEARING

       Defendant and Appellant.               NO CHANGE IN JUDGMENT


THE COURT:*

It is ordered that the opinion filed herein on February 28, 2019,
be modified as follows:

1. On page 2, second paragraph, line 5, where it reads, “the day
before”, replace as follows:

       earlier the same day

2. On page 9, footnote 3, where it reads, “Because defendant
‘points to no evidence in the record supporting his inability to
pay’ (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence
no evidence that he would suffer any consequence for non-
payment, a remand would serve no purpose.” replace as follows:

      Because there is “no evidence in the record supporting his
      inability to pay” (People v. Gamache (2010) 48 Cal.4th 347,
      409), and hence no evidence that he would suffer any
      consequence for non-payment, a remand for further fact-
      finding would serve no purpose.”

There is no change in the judgment.

Appellant's petition for rehearing is denied.




____________________________________________________________
* LUI, P. J.,          CHAVEZ, J.,          HOFFSTADT, J.




                                 2
Filed 2/28/19 (unmodified version)
      CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION TWO


THE PEOPLE,                             B288942

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. VA130104)
       v.

EDUARDO OROZCO,

       Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County. John A. Torribio, Judge. Affirmed.

     Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Zee Rodriguez, Supervising Deputy Attorney
General, and Daniel C. Chang, Deputy Attorney General, for
Plaintiff and Respondent.


*      Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of footnote 3.
                              ******
       While watching his six-month-old daughter by himself one
evening, a man struck her so hard that he killed her. He
confessed to doing so while meeting privately with the child’s
mother in a police interview room, and the trial court admitted
the confession at trial. That meeting, however, was orchestrated
by police and occurred just hours after defendant had been
questioned by police, had proffered an innocent explanation for
the infant’s death, and had thereafter repeatedly asked for a
lawyer. This appeal presents three questions bearing on the
admissibility of confessions in criminal cases: (1) Does a suspect’s
invocation of his right to counsel under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda) preclude the admission of a
confession a suspect subsequently makes to a person he is
unaware is functioning as an agent of law enforcement, (2) Does
continued questioning of a suspect after invocation of the
Miranda right to counsel automatically taint any subsequent
confession, and (3) Does the above described law enforcement
conduct otherwise violate due process? We conclude that the
answer to all three questions is “no,” and affirm the trial court’s
ruling admitting his confession.
         FACTS AND PROCEDURAL BACKGROUND
I.     Facts
       A.    Underlying crime
       Mia was a little over six months old at the time of her
death. Mia died from blunt trauma. She had 29 bruises, seven
rib fractures, a punctured right lung, bruised lungs, and a
lacerated liver. Most of these injuries had been inflicted in the
hours prior to Mia’s death, as a pediatrician’s appointment the
day before revealed only a few bruises and no internal bleeding.




                                 2
       Just hours before her death, however, Mia was playing
with toys and “look[ing] fine.” That was how her mother Nathaly
Martinez (Martinez) last saw Mia, when she left the infant in the
sole custody of her boyfriend and Mia’s father, Edward Orozco
(defendant).
       A few hours later, defendant called Martinez to report that
Mia was not breathing. Martinez rushed back home, but Mia’s
body was cold to the touch and attempts at CPR by defendant,
Martinez, and Martinez’s relative did not resuscitate her.
Administering CPR did not inflict any of Mia’s injuries.
       Someone called 911, and emergency medical personnel
responded. A paramedic had to carry Mia out of the home while
defendant, Martinez and other family members quarreled among
themselves.
       Attempts to revive Mia failed.
       B.     Subsequent interviews
              1.    Law enforcement interrogates defendant (the
first interview)
       A little before dawn the day after Mia’s death, defendant
voluntarily accompanied police to the police station. He met with
three officers in an interview room, and they told him he was “not
in custody” and was “free to leave.” One of the officers
nevertheless read defendant his Miranda rights, and defendant
indicated that he understood them.
       Defendant then proffered his account of what happened.
He said he gave Mia some baby Motrin when she was crying; that
he put her in her crib; and that when he came back upstairs a
few hours later to check on her, her face was up against the side
of the crib and she was no longer breathing. Defendant had no
explanation for how Mia got so bruised up.




                                3
       The interviewing officers expressed some skepticism,
pointing out that defendant was “the last one with her” and
pressing for an explanation of the numerous bruises on her body.
However, defendant stuck to his account of what happened and
said he “would never hurt [his] daughter.”
       An officer then asked if defendant would be “willing to sit
down and repeat the story on a polygraph machine.” Defendant
responded by asking, “Can I have an attorney?” The officer
responded, “Sure you can have an attorney,” but that officer and
another officer then proceeded to ask defendant at least four
times, “Why would you need an attorney”? In the midst of these
further questions, defendant requested an attorney four more
times, all the while maintaining that his account was truthful
and that he had no explanation for Mia’s injuries.
       At that point, one of the officers placed defendant under
arrest for Mia’s murder. Another officer told defendant, “[Y]ou
ask[] for your attorney . . . but we’re asking for your honesty.”
The officer then told defendant, “[i]f you’re willing to talk to us
right now” “[w]ithout your attorney present” “and [to] explain
what happened[,] I’m not going to take you to jail.” Defendant
repeated his request for an attorney and the officer said, “All
right. Go to jail. Done.”
       At that point, the interview ended. Defendant had not
made any incriminating statements.
             2.     The conversation between defendant and
Martinez
                    a.    Pre-conversation
       Several hours after the first interview, the police allowed
defendant and Martinez to meet in an interview room at the
police station. It is not clear who suggested the meeting. Before
placing Martinez in the interview room, one of the police officers




                                 4
told her that maybe “you can get the full explanation out of
[defendant].” The officer reminded her, “You are the mother of
Mia and that you ha[ve] a right to know, that you ha[ve] to know,
and that you ha[ve] to know everything.” The officer did not give
Martinez specific questions to ask or describe the particular
information to get from defendant, but Martinez felt like she had
to report back to the police.
                    b.     First portion of conversation
       The officer escorted Martinez into the interview room and
immediately left, leaving Martinez alone with defendant. Their
conversation was recorded.
       Martinez asked defendant what happened while he was
watching Mia. Defendant gave Martinez the same explanation
he had previously given the police. Defendant said he was
“scared,” but Martinez assured him that “[she] knew” he “didn’t
do anything.”
                    c.     Interruption regarding autopsy and
subsequent discussion
       One of the officers then entered the interview room. He
said he had received a call from the coroner’s office. The autopsy,
he reported, showed that Mia had “died at the hands of another,”
that Mia “didn’t suffocate,” and that her bruises were caused by
“a beating.” The officer then told defendant, “[Y]ou were the last
one with your daughter and there’s [no] doubt [about] it. She
suffered major injuries. This may be the last time you guys get to
talk to each other in person, okay?” He stated that “right now
both of you are looking at going to jail for child neglect; causing
the death of that baby.” He then asked, “Did either of you have
anything you want to say to me?” Martinez said, “No”; defendant
was silent.
       The officer left the interview room.




                                5
       Martinez again asked defendant, “What happened?”
Defendant said he “want[ed] [the police] to leave [her] alone” and
that he did not want “them to take” Martinez. Martinez again
reassured him, “We’re . . . going to get through this.”
                     d.  Officer momentarily pulls Martinez out of
the room
       The same officer who announced the autopsy results re-
entered the room and asked Martinez to step outside. He asked
if she would take a polygraph test, and informed her that
defendant had refused to do so. The officer then escorted
Martinez back to the interview room. The officer later admitted
that his purpose in doing this was to “stimulate conversation”
between Martinez and defendant.
                     e.  Resumption of conversation and
confession
       Once they were alone again, Martinez asked defendant,
“[W]hy don’t [you] want to take [the] polygraph?” Martinez
reminded defendant that she was “Mia’s mother,” that she
“need[ed] to know what happened to her,” and that, “If you love
me, you need to tell me the truth.”
       Defendant at first replied that he “didn’t do it,” but
moments later said he “did it.” While sobbing, he went on to
confess that he “hit her” “once” and that he “fucking killed Mia,”
their “little baby.”
       A few minutes later, the officer returned, said “Time’s up,”
and escorted Martinez from the interview room.




                                6
II.   Procedural Background
      A.     Charges
      The People charged defendant with (1) murder (Pen. Code,
§ 187, subd. (a)),1 and (2) assault on a child causing death
(§ 273ab, subd. (a)).2
      B.     Cross motions to suppress and admit
      Defendant filed a written motion to exclude his confession
as obtained in violation of Miranda. The People filed a cross-
motion to admit the confession.
      The trial court ruled that the confession was admissible.
The court found that Martinez was an agent of the police at the
time she spoke with defendant in the interview room, but ruled
that “the case law”—specifically, Illinois v. Perkins (1990) 496
U.S. 292 (Perkins), People v. Guilmette (1991) 1 Cal.App.4th 1534
(Guilmette) and People v. Plyler (1993) 18 Cal.App.4th 535
(Plyler)—foreclosed defendant’s argument that his prior
invocation of his Miranda right to counsel mandated suppression
because defendant had been unaware of Martinez’s role as a
police agent and thought he was talking to his girlfriend. The
court also rejected defendant’s argument that officer’s
intervention to announce the autopsy results changed the
analysis because the officer “just came in and then he left again.”




1     All further statutory references are to the Penal Code
unless otherwise indicated.

2     The People also alleged that defendant personally inflicted
great bodily injury (§ 12022.7) regarding the murder, but later
dismissed that allegation.




                                 7
        C.    Verdicts, sentencing and appeal
        The matter proceeded to a jury trial. The jury convicted
defendant of second degree murder and assault on a child causing
death.
        The trial court sentenced defendant to prison for 25 years
to life on the assault count. The court imposed, but stayed under
section 654, a sentence of 15 years to life on the murder count.
The court also imposed $60 in court operations assessments, $80
in criminal conviction assessments, and the minimum $300
restitution fine, and imposed but suspended a $300 parole
revocation fine.
        Defendant filed a timely notice of appeal.
                            DISCUSSION
        Defendant argues that the trial court erred in not
suppressing his confession to Martinez under (1) Miranda and (2)
due process.3 We independently review the trial court’s legal

3       In supplemental briefing, defendant also seeks a
sentencing remand pursuant to People v. Duenas (2019) 30
Cal.App.5th 1157 (Duenas). Based on the constitutional
guarantees of due process and excessive fines, Duenas held that
trial courts may not impose three of the standard criminal
assessments and fines—namely, the $30 court operations
assessment (§ 1465.8), the $40 criminal conviction assessment
(Gov. Code, § 70373), and the $300 restitution fine (Pen. Code,
§ 1202.4)—without first ascertaining the “defendant’s present
ability to pay.” (Duenas, at pp. 1164, 1172, fn. 10.) We need not
decide whether we agree with Duenas because defendant is not
entitled to a remand even if we accept Duenas. That is because
the record in this case, unlike the record in Duenas, indicates the




                                 8
determinations on these issues but review its underlying factual

defendant has the ability to pay the $440 in assessments and
fines that should have been imposed in this case (that is, $300
restitution fine and two sets of assessments, one for each of his
two convictions). (Cf. People v. Bennett (1981) 128 Cal.App.3d
354, 359-360 [remand for resentencing unnecessary where “the
result is a foregone conclusion”].) A defendant’s ability to pay
includes “the defendant’s ability to obtain prison wages and to
earn money after his release from custody.” (People v. Hennessey
(1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28
Cal.App.4th 1374, 1376-1377.) Prisoners earn wages ranging
from $12 per month (for the lowest skilled jobs) to $72 per month
(for the highest). (Dept. of Corrections, Operations Manual,
§§ 51120.6, 51121.10 (2019).) At these rates, defendant will have
enough to pay the $440 in assessments and fines between 7 to 37
months, which is long before his 25 year sentence would end. He
would also be able to save up enough to pay the $300 parole
revocation fine (which is only due if he violates parole) should he
end up being paroled and violating parole. Even if defendant
does not voluntarily use his wages to pay the amounts due, the
state may garnish between 20 and 50 percent of those wages to
pay the restitution fine. (§ 2085.5, subds. (a) & (c); People v. Ellis
(2019) __ Cal.App.5th __ [2019 Cal.App. LEXIS 90, *5].) The
record also contains evidence that defendant, at the time of his
crime, was employed and going to college. Because defendant
“points to no evidence in the record supporting his inability to
pay” (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence
no evidence that he would suffer any consequence for non-
payment, a remand would serve no purpose.




                                  9
findings for substantial evidence. (People v. Williams (2010) 49
Cal.4th 405, 425 [Miranda determination]; People v. Carrington
(2009) 47 Cal.4th 145, 169 [due process determination]; People v.
Tate (2010) 49 Cal.4th 635, 686 [factual findings].)
I.    Miranda
      Miranda established the now-familiar rule that prosecutors
may not admit a suspect’s statements in their case-in-chief
against the suspect-defendant unless (1) the defendant was
advised that (a) “he has a right to remain silent,” (b) anything he
says “may be used as evidence against him,” (c) “he has the right
to the presence of an attorney,” and (d) the defendant will be
provided an attorney if he cannot afford one; (2) the defendant
waived those rights, either expressly (by affirmatively indicating
a waiver) or implicitly (by answering questions); and (3) prior to
making the statements to be admitted, the defendant did not
invoke either his right to remain silent or his Miranda right to an
attorney. (Miranda, supra, 384 U.S. at pp. 444-445, 473-474,
476; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.)
      Critically, however, Miranda’s rule has a limit: It only
applies when the suspect-defendant was the subject of “custodial
interrogation.” (Miranda, supra, 384 U.S. at p. 444.) This
limitation is a function of Miranda’s underlying rationale—
namely, as a “constitutional rule” implementing the Fifth
Amendment’s privilege against self-incrimination. (Dickerson v.
U.S. (2000) 530 U.S. 428, 440-444 (Dickerson).) The Fifth
Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” (U.S. Const.,
5th amend., italics added.) Miranda was the first case to
acknowledge that “in-custody interrogation of persons suspected
or accused of crime contains inherently compelling pressures




                                10
which work to undermine the individual’s will to resist and to
compel him to speak where he would not otherwise do so.”
(Miranda, at p. 467.) Although the “informal,” “psychological”
pressures inherent in “incommunicado interrogation” do not
themselves render a statement involuntary (id. at pp. 445, 449,
461; Dickerson, at p. 444), Miranda reasoned that those
pressures nonetheless necessitate a “protective device”—namely,
Miranda’s rule—to ensure that suspects do not make the type of
compelled statements at the core of the Fifth Amendment’s
privilege (Miranda, at pp. 458, 465).
       Defendant asserts that his confession to Martinez should
have been suppressed for two independent reasons: (1) he
invoked his Miranda right to counsel during the first interview
and the police officers violated Miranda by subsequently sending
Martinez to speak with him, and (2) the officers violated Miranda
during the first interview, and that his subsequent confession to
Martinez was the “tainted fruit” of that earlier violation.
       A.   Does defendant’s prior invocation of his
Miranda right to counsel require suppression of his
statements to Martinez?
       Defendant argues that his repeated invocation of his
Miranda right to counsel during the first interview precluded the
court from admitting the confession obtained during his
subsequent, arranged meeting with Martinez. For support, he
cites Edwards v. Arizona (1981) 451 U.S. 477 (Edwards), which
holds 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. (Id. at pp. 484-485.) The People
respond that defendant’s confession to Martinez does not run
afoul of Miranda because (1) Martinez was not an agent of the




                                11
police, and (2) defendant did not know Martinez was working
with the police. For support of their second argument, the People
cite Perkins, supra, 496 U.S. 292, which holds that “Miranda
warnings are not required when the suspect is unaware that he is
speaking to a law enforcement officer and gives a voluntary
statement.” (Id. at p. 294; accord People v. Williams (1988) 44
Cal.3d 1127, 1141-1142 [same].) Substantial evidence supports
the trial court’s findings that Martinez was an agent of the police
when she met with defendant (because the officers implored her
to “get an explanation” from defendant) and that defendant did
not know Martinez was such an agent (because there is no
evidence defendant knew of any of the conversations between
Martinez and the officers). Accordingly, this case squarely
presents the question: When a suspect invokes his Miranda right
to counsel 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?
       We conclude that Perkins controls, and we do so for three
reasons.
       First, the language in Edwards itself dictates that Edwards
is inapplicable. Edwards fleshed out what Miranda meant when
it said that “[i]f the individual states that he wants an attorney,
the interrogation must cease until an attorney is present.”
(Miranda, supra, 384 U.S. at p. 474.) Specifically, Edwards held
that a suspect who has invoked his Miranda right to counsel may
not be “subject[ed] to further interrogation by the authorities” on
any crime at all unless (1) counsel is present “at the time of [any
further] questioning,” or (2) the suspect “himself initiates further
communication, exchanges or conversations with the police.”




                                12
(Edwards, supra, 451 U.S. at pp. 484-485, italics added; Arizona
v. Roberson (1988) 486 U.S. 675, 677 (Roberson); Minnick v.
Minnesota (1990) 498 U.S. 146, 147, 153 (Minnick).) By their
terms, Edwards and its progeny have applied these restrictions
only to further “interrogation” of the suspect. (Edwards, at pp.
478, 482, 484-486; Roberson, at pp. 677, 680, 687; Minnick, at p.
157.) Indeed, Edwards specifically noted “[a]bsent . . .
interrogation, there would be no infringement of the [Miranda]
right [to counsel] that Edwards invoked.” (Id. at p. 486, italics
added; cf. id. at p. 485 [“nothing . . . would prohibit the police
from merely listening to [a suspect’s] voluntary, volunteered
statements and using them against him at the trial.”].)
       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.” (Rhode Island v. Innis (1980) 446 U.S.
291, 300-301 (Innis).) Because interrogation “reflect[s] a measure
of compulsion above and beyond that inherent in custody itself”
(id. at p. 300), not all statements a defendant makes while in
custody are “the product of interrogation” (id. at p. 299).
Whether the police action is “reasonably likely to elicit an
incriminating response” is judged by what the suspect perceives,
not what the police intend. (Id. at p. 301.) 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. (Id. at p. 295 [speaking
with police]; In re I.F. (2018) 20 Cal.App.5th 735, 773 [same]; In
Interest of D.W. (Ill. App. Ct. 1982) 108 Ill. App. 3d 1109, 1110-




                                 13
1111 [same]; People v. Ghent (1987) 43 Cal.3d 739, 750-751
[speaking with psychiatrist retrained by the police]; People v.
Sanchez (1983) 148 Cal.App.3d 62, 69-70 [speaking with doctor
working with police in presence of police]; see also Estelle v.
Smith (1981) 451 U.S. 454, 467-468 [speaking with prison
psychiatrist pursuant to court order].)
      Conversely, there is no “interrogation” when a suspect
speaks with someone he does not know is an agent of the police.
(Arizona v. Mauro (1987) 481 U.S. 520, 521, 526-529 [spouse];
People v. Tate (2010) 49 Cal.4th 635, 685-686 [possible
accomplice/accessory]; People v. Mayfield (1997) 14 Cal.4th 668,
758 [father]; People v. Leonard (2007) 40 Cal.4th 1370, 1398-1402
[father]; People v. Webb (1993) 6 Cal.4th 494, 526 [“friend and
lover”]; People v. Thornton (2007) 41 Cal.4th 391, 429-430, 432
[grandmother]; People v. Jefferson (2008) 158 Cal.App.4th 830,
840-841 [“friend[]” and “neighbor[]”].) Because there is no
“interrogation” in these circumstances, there is also no basis to
apply Edwards’s restrictions on further “interrogation.”
      Second, the rationale underlying Miranda dictates that
Perkins, not Edwards, should control. As described above,
Miranda’s rule requiring a warning, a waiver and the cessation of
questioning if a suspect invokes his Miranda rights is designed to
dispel the “compelling” “psychological” “pressures” that are part
and parcel of “in-custody interrogation.” (Miranda, supra, 384
U.S. at pp. 448-449, 461, 467.) Edwards’s rule is based on those
same pressures: A suspect’s invocation of his Miranda right to
counsel means “he is not capable of undergoing such questioning
without advice of counsel,” and “any subsequent waiver [by the
suspect of his Miranda rights] . . . has come at the authorities’
behest, and not at the suspect’s own instigation. [Citation.]”




                               14
(Roberson, supra, 486 U.S. at p. 681.) Edwards’s rule is
accordingly “justified only in circumstances where th[ose]
coercive pressures” exist. (Maryland v. Shatzer (2010) 559 U.S.
98, 115-116 (Shatzer).) This makes sense: Edwards implements
Miranda, so should be limited to the evil Miranda was created to
combat.
       Because “[t]he essential ingredients of a ‘police-dominated
atmosphere’ and compulsion are not present when an
incarcerated person speaks freely to someone” that he thinks is a
lover, a family member, a friend or even a fellow criminal
(Perkins, supra, 496 U.S. at p. 296; People v. Terrell (2006) 141
Cal.App.4th 1371, 1386 [“there can be no coercion for Miranda
purposes when the defendant is subjectively unaware of any
police involvement in eliciting or recording his statements”]),
Miranda’s (and, by extension, Edwards’s) purpose in combating
that atmosphere and compulsion is simply not implicated in such
situations. To apply Edwards here is to require police to provide
counsel while a suspect is speaking with a lover, family member
or friend in what he (mistakenly) thought was a private
conversation. This would undoubtedly discourage suspects from
speaking to anyone and thus effectively convert Edwards into a
rule automatically excluding all post-invocation statements, a
result that Edwards itself acknowledged swept far beyond
Miranda’s reach. (Edwards, supra, 451 U.S. at p. 486; see also
Shatzer, supra, 559 U.S. at pp. 110-111 [post-invocation
statements made after sufficient break in custody may be
admitted].)
       Third, and not surprisingly, California courts have
uniformly come to the conclusion that Perkins controls when a
suspect invokes his Miranda right to counsel but later speaks




                                15
with someone he does not know is an agent of the police. That
was the holding of Guilmette, supra, 1 Cal.App.4th at pp. 1540-
1541, and Plyler, supra, 18 Cal.App.4th at pp. 544-545.
       Defendant resists this conclusion with what boil down to
five categories of arguments.
       First, defendant contends that Perkins should not control
because Perkins did not involve a suspect who had previously
invoked his Miranda right to counsel; Edwards, he urges, should
control where there is such an invocation. For support, he cites
two sources. He cites a footnote from Justice Brennan’s
concurrence in Perkins, where Justice Brennan opined that “[i]f
[Perkins] had invoked either [his Miranda right to remain silent
or his Miranda right to counsel], the inquiry would focus on
whether he subsequently waived the particular right” and then
proceeded to cite Edwards. (Perkins, supra, 496 U.S. at p. 300,
fn. * (conc. opn. of Brennan, J.).) Perkins had a seven-Justice
majority, however, so Brennan’s concurrence was not the critical
fifth vote; as a consequence, the concurrence is dicta. (E.g.,
Maryland v. Wilson (1997) 519 U.S. 408, 412-413.) Justice
Brennan also makes no attempt to reconcile Edwards’s limitation
to post-invocation “interrogations” with his concession elsewhere
in his concurrence that the “questioning” of Perkins in that case
“does not amount to ‘interrogation.’” (Perkins, at p. 300.)
Defendant also cites the state appellate decision on remand from
Perkins, where the court held that Perkins’s conversation with
the undercover agent constituted “interrogation.” (People v.
Perkins (Ill. App. Ct. 1993) 248 Ill. App. 3d 762, 771.) Curiously,
however, that decision nowhere addressed the Supreme Court’s
prior decision in Perkins and, as a result, is simply incorrect in
holding that the conversation constituted “interrogation.”




                                16
       Second, defendant asserts that the law otherwise dictates
that conversations between a suspect and people he does not
know are agents of the police constitute “interrogation,” such that
Guilmette and Plyler were wrongly decided. For support, he
again cites two sources. He cites Justice Marshall’s dissent in
Perkins, where he opines that “[t]he Court does not dispute that
the police officer here conducted a custodial interrogation of a
criminal suspect.” (Perkins, supra, 496 U.S. at p. 304 (dis. opn. of
Marshall, J.).) Beyond the obvious facts that what is said in a
dissenting opinion is usually the opposite of the court’s holding
and is in any event dicta, Justice Marshall’s characterization of
the Perkins’s majority decision is at odds with both the majority
opinion itself and, as noted above, with Justice Brennan’s
concurrence. Defendant also cites language in a footnote in
Patterson v. Illinois (1988) 487 U.S. 285, stating that “a
surreptitious conversation between an undercover police officer
and an unindicted suspect would not give rise to any Miranda
violation as long as the ‘interrogation’ was not in a custodial
setting.” (Id. at p. 296, fn. 9.) Patterson made this statement in
the context of distinguishing the protections afforded by Miranda
from those afforded by the Sixth Amendment under Massiah v.
U.S. (1964) 377 U.S. 201. Patterson was not attempting to define
the meaning of “interrogation” and, more importantly, Patterson
came before Perkins. As the latter decided case that squarely
addresses the issue, Perkins controls.
       Third, defendant posits that even if Guilmette and Plyler
are not wrongly decided, they are distinguishable. In each case,
he points out, the suspect had been the one to initiate the post-
invocation conversation that resulted in a confession. (Guilmette,
supra, 1 Cal.App.4th at p. 1538; Plyler, supra, 18 Cal.App.4th at




                                17
p. 541.) In this case, the evidence is conflicting over whether
defendant was the one to suggest speaking with Martinez. But
even if we assume that the police orchestrated the conversation,
what makes Edwards apply rather than Perkins is whether the
suspect knew he was talking to a police agent, not who initiated
that talk in the first place.
       Fourth, defendant urges that even if his conversation with
Martinez did not start out as an interrogation, it became one once
the officer returned with a summary of the autopsy findings and
asked if either parent had “anything [they] want[ed] to say.” Had
defendant answered the officer’s question with an incriminating
statement, he would have been interrogated. But he did not.
Instead, defendant said nothing, and the officer left. At that
point, defendant resumed his one-on-one conversation with
Martinez, completely unaware she was an agent of the police.
His subsequent confession to her was accordingly not the product
of an interrogation.
       Lastly, defendant argues that the police engaged in a
“persistent, underhanded attempt . . . to obtain a confession” by
blatantly disregarding his repeated requests for counsel and then
orchestrating a tearful confrontation with his girlfriend and the
mother of his now-dead infant. The police conduct in this case
was deplorable. (Accord, Missouri v. Seibert (2004) 542 U.S. 600,
616 (plurality) [decrying “police strategy adapted to undermine
the Miranda warnings”].) But the question we must decide is
whether it is unconstitutional.4 Miranda is not a free-floating


4    Orchestrating the conversation between defendant and
Martinez clearly constitutes “deliberate elicitation” within the
meaning of the Sixth Amendment. (Kuhlmann v. Wilson (1986)




                               18
bulwark against unfair police tactics. Constitutional rules are
anchored to their rationales (Shatzer, supra, 559 U.S. at p. 106
[“A judicially crafted rule is ‘justified only by reference to its
prophylactic purpose . . .’ [Citation]”]), and Miranda’s rule is
moored to its purpose of “preventing government officials from
using the coercive nature of confinement to extract confessions”
(Mauro, supra, 481 U.S. at pp. 529-530; Oregon v. Elstad (1985)
470 U.S. 298, 304-305 (Elstad) [Miranda is designed to combat
the “psychological pressures to confess emanating from . . .
official coercion”]). “Miranda forbids coercion,” the Supreme
Court has said, “not mere strategic deception by taking
advantage of a suspect’s misplaced trust in one he supposes to be”
someone he can trust. (Perkins, supra, 496 U.S. at p. 297.) To
construe Miranda to reach the non-coercive police conduct in this
case is to untether Miranda from its purpose and, in so doing,
undermine its legitimacy as one of the many bulwarks protecting
the constitutional rights of criminal defendants. We decline to
sully Miranda in this fashion.




477 U.S. 436, 473 (plurality opinion).) But this is doubly
irrelevant: Not only is the Sixth Amendment’s “primary concern”
with stopping “secret interrogation” different from Miranda’s
concern with stopping the coercion inherent in incommunicado
interrogation (id. at p. 459; Roberson, supra, 486 U.S. 675, 685),
but the Sixth Amendment is also inapplicable here because
defendant was not yet formally charged with any crime at the
time of his confession (Moran v. Burbine (1986) 475 U.S. 412, 428
(Moran)).




                                19
       B.     Is defendant’s confession to Martinez the tainted
fruit of his first interview?
       Defendant alternatively argues that, even if his confession
to Martinez was not the product of an interrogation barred by
Edwards, supra, 451 U.S. 477, the confession must nevertheless
be suppressed because it is the fruit of the first interview during
which the police violated his Miranda rights by continuing to
interrogate him despite his repeated invocation of his Miranda
right to counsel. For support, defendant cites People v. Montano
(1991) 226 Cal.App.3d 914 (Montano).
       When the police violate a suspect’s Miranda rights, the
statement immediately resulting from that violation is
inadmissible in the prosecution’s case-in-chief. (Miranda, supra,
384 U.S. at pp. 444-445.) That violation may also warrant
suppression of subsequent statements obtained as a result of the
initial violation. (People v. Storm (2002) 28 Cal.4th 1007, 1027.)
However, because a violation of Miranda does not necessarily
result in a confession that is “compelled” within the meaning of
the Fifth Amendment (Dickerson, supra, 530 U.S. at 444; Elstad,
supra, 470 U.S. at p. 310), an initial Miranda violation does not
“inherently taint[]”—and thus warrant suppression of—all
subsequent statements (Elstad, at p. 307). Instead, a defendant
seeking to suppress a statement as the tainted fruit of a Miranda
violation must establish that any subsequent confession was
involuntary. (Storm, at pp. 1029-1030; People v. Case (2018) 5
Cal.5th 1, 23-26 (Case); People v. Bradford (1997) 14 Cal.4th
1005, 1039-1041 (Bradford).) We adjudge whether a confession
was voluntary by looking to the totality of the circumstances.
(Moran, supra, 475 U.S. at p. 421.)
       Applying these standards, defendant’s confession to
Martinez was not the suppressible fruit of an earlier Miranda




                                20
violation. Significantly, the officers’ initial Miranda violation in
questioning defendant despite his repeated request for counsel
did not produce any confession. Instead, defendant steadfastly
maintained his innocence. This is accordingly not a case where
the initial Miranda violation produced a confession that, once
made, put pressure on a suspect to reaffirm that prior confession;
in this case, the proverbial “cat” never got out of the “bag.”
Further, and for the reasons outlined in detail above, defendant’s
statements to Martinez were voluntary because he (mistakenly)
believed he was having a private conversation with his girlfriend;
he had no idea that police were exerting any pressure on him at
all.
       Montano does not dictate a different result. Montano held
that a police officer’s repeated refusal to honor a suspect’s
invocation of his right to remain silent under Miranda by itself
constituted “coercion” that automatically rendered any
subsequent confession the tainted “fruit” of that earlier violation.
(Montano, supra, 226 Cal.App.3d at pp. 933-934.) Our Supreme
Court subsequently rejected Montano’s holding when it ruled that
“continued interrogation after a defendant has invoked his”
Miranda “right[s]” does not “inherently constitute coercion.”
(Bradford, supra, 14 Cal.4th at p. 1039; Storm, supra, 28 Cal.4th
at pp. 1031-1033.) Indeed, Storm went so far as to declare
Montano to be “not” “persuasive” on this precise point. (Storm, at
p. 1037, fn. 13.)
II.    Due Process
       Defendant argues that his confession should have been
suppressed as obtained in violation of due process because the
police officers (1) deliberately ignored his repeated requests for
counsel during the first interview and thereafter sent Martinez in




                                21
to “get the full explanation” from him; and (2) highlighted the
seriousness of the crime, threatened to arrest him and put him in
jail if he did not “explain what happened” and stated that he and
Martinez were “looking at going to jail for child neglect.” The
People respond that defendant cannot raise a due process-based
objection now because he did not do so before the trial court.
        A.    Forfeiture
        Defendant has forfeited any due process challenge to his
confession. His motion to suppress was based solely on Miranda,
and our Supreme Court has held that a Miranda-based objection
to a confession is legally distinct from a due process-based
objection; one objection does not preserve the other for appellate
review. (People v. Ray (1996) 13 Cal.4th 313, 339.) However,
because defendant responds that his counsel was constitutionally
ineffective for not making a due process-based objection, we elect
to exercise our discretion to reach the merits of his due process
claim.
        B.    Merits
        The constitutional right to due process secured by the
federal and California Constitutions mandates the suppression of
an involuntary confession. (People v. Linton (2013) 56 Cal.4th
1146, 1176 (Linton).) For these purposes, a confession is
involuntary if official coercion caused the defendant’s will to be
overborn, such that the resulting statement is not the product of
“‘“‘“a rational intellect and free will”’ [citation].’”” (Ibid.; People v.
Guerra (2006) 37 Cal.4th 1067, 1093 (Guerra), overruled on other
grounds by People v. Rundle (2008) 43 Cal.4th 76.) We judge
whether a confession was involuntary by examining the totality
of circumstances surrounding the confession. (Linton, at p. 1176;
Guerra, at p. 1093.)




                                   22
                     1.    Officers’ circumvention of Miranda
      The officers’ deliberate circumvention of Miranda’s
protections by disregarding defendant’s requests for counsel and
orchestrating the monitored conversation between defendant and
Martinez did not violate due process.
      Due process requires coercion and, for the reasons set forth
above, defendant’s statements to Martinez were not coerced
because, as far as he knew, he was talking to his girlfriend.
(Accord, Webb, supra, 6 Cal.4th at p. 526 [finding no coercion
under Miranda because “[f]rom defendant’s perspective, he was
talking with a friend and lover”].) The officers’ behind-the-scenes
manipulation is, at most, a form of deception, but “‘[p]olice
trickery . . . does not, by itself, render a confession involuntary.’”
(People v. Mays (2009) 174 Cal.App.4th 156, 164-165.) The
trickery here consisted of placing defendant in a room with
someone he trusted to see if he would talk. Because the
“proximate caus[e]” of his ensuing confession was the
conversation—and not the deceptive act of orchestrating its
occurrence—the requisite proximate causal link between the
police stratagem and defendant’s confession is missing. (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1240.)
      Absent a showing that the police conduct in this case
independently violates due process, defendant is effectively
asking us to expand Miranda under the aegis of due process.
This we may not do: “Where,” as here, “a particular Amendment
‘provides an explicit textual source of constitutional protection’
against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of “‘“substantive [or
procedural] due process,” must be the guide for analyzing these
claims.’” (Albright v. Oliver (1994) 510 U.S. 266, 273, quoting




                                 23
Graham v. Connor (1989) 490 U.S. 386, 395; see also Portuondo v.
Agard (2000) 529 U.S. 61, 74; cf. Doyle v. Ohio (1976) 426 U.S.
610, 617-618 [due process prohibits use of a defendant’s silence
after receiving Miranda warnings because such use
independently violates due process, as it is “fundamentally
unfair” to use a suspect’s post-warning silence after implicitly
promising not to do so].)
              2.     Warnings about severity of penalty and threats
of jail
        The officers’ reminders to defendant that the penalty for
causing Mia’s death was severe, their threat to arrest him
immediately if he did not “explain what happened” (by promising
not to immediately arrest him if he did), and their reminder that
he (and Martinez) were “looking at going to jail” for Mia’s death
did not violate due process. Law enforcement does not violate
due process by informing a suspect of the likely consequences of
the suspected crimes or of pointing out the benefits that are likely
to flow from cooperating with an investigation. (People v.
Holloway (2004) 33 Cal.4th 96, 115-116 [recounting
consequences]; People v. Williams (2010) 49 Cal.4th 405, 442-443
[same]; People v. Spears (1991) 228 Cal.App.3d 1, 27-28 [benefits
that flow from cooperation].) The officers’ conduct in
emphasizing the severity of the crime at issue and telling
defendant that he was “looking at going to jail” for that crime did
not transgress these limits. The officers’ promise not to arrest
defendant immediately if he confessed presents a closer question,
but there is no causal link between that promise to give
defendant a temporary reprieve from custody if he confessed for
the simple reason that that promise did not produce any
confession. To the contrary, defendant steadfastly stuck to his
initial story and continued to request an attorney. As our




                                24
Supreme Court recently observed, a defendant’s “steadfast[]
mainten[ance]” of his “innocen[ce]” “tends to undercut the notion
that his free will was overborne by the [officer’s] remarks.” (Case,
supra, 5 Cal.5th at p. 26.)
                          DISPOSITION
      The judgment is affirmed.
         CERTIFIED FOR PARTIAL PUBLICATION.



                                     ______________________, J.
                                     HOFFSTADT
We concur:


_________________________, P. J.
LUI


_________________________, J.
CHAVEZ




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