Filed 11/13/13 P. v. Hernandez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A132652
v.
ROBERT VALENTINO HERNANDEZ,                                          (Contra Costa County
                                                                     Super. Ct. No. 05-080107-6)
         Defendant and Appellant.

         Defendant Robert Valentino Hernandez was found guilty of two counts of second
degree murder with associated firearms and gang enhancements. He contends the trial
court erred in admitting evidence of incriminating statements he made to his cellmate
because his cellmate was acting as an agent of the government at the time the statements
were made. According to defendant, this testimony should have been excluded under
Massiah v. United States (1964) 377 U.S. 201 (Massiah), which held an individual’s
Sixth Amendment right to counsel is violated by the use of evidence of incriminating
statements deliberately elicited from the individual by government agents after
indictment and in the absence of counsel. Finding no error, we affirm.
                                               I. BACKGROUND
         Defendant was charged by information on February 6, 2008, with two counts of
murder (Pen. Code,1 § 187), one count of shooting at an inhabited dwelling (§ 246), one
count of conspiracy (§ 182, subd. (a)(1)), and one count of participation in a criminal
street gang (§ 186.22, subd. (a)). The information also alleged the offenses were
         1
             All statutory references are to the Penal Code, unless otherwise specified.
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant
personally and intentionally discharged a firearm causing great bodily injury and death
(§ 12022.53, subds. (b), (c), (d) & (e)(1)).
       We only briefly summarize the underlying facts of the crime because they are not
pertinent to the appeal. On February 13, 2007, at approximately 11:00 p.m., a woman
and her 14-week-old fetus were killed when approximately 30 shots were fired into her
home during a drive-by shooting. No witness testified to seeing defendant fire the shots,
but several witnesses provided circumstantial evidence tying him to the shooting.
       Perhaps the strongest evidence connecting defendant to the killings were
incriminating statements made by him to Jason Treas. Treas had known defendant and
his parents since defendant was born and saw his relationship with the family as that of a
relative. Both Treas and defendant were members of the Norteño gang at the time of the
shooting. However, Treas was at the top of the gang’s chain of command, while
defendant was a younger member engaged in smaller local drug sales. Both were in the
Martinez Detention Facility in January 2009, Treas for a probation violation and
defendant awaiting trial in connection with the present offense. The two requested to be
roommates and were moved into the same cell on January 27, 2009.
       Treas testified that gang members were required to share each other’s
“paperwork,” all papers relevant to their custody, upon arriving in a new cell as a
clearance process. Treas reviewed defendant’s paperwork within two to three days of
their becoming cellmates. As part of this process, defendant brought up the details of the
shooting. Defendant explained to Treas he shot at the house because he believed one of
the occupants was a rival gang member.
        At the time he was placed in the cell with defendant, Treas had already begun
discussing cooperation with law enforcement officials. Treas first discussed providing
information regarding criminal activity in Contra Costa County after he was arrested in
September 2008 by San Pablo Police Officer Jeff Palmieri. After Treas was sentenced
but before surrendering himself to the Martinez Detention Facility, Palmieri contacted
him and they discussed whether Treas was tired of living a life of dealing drugs and


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wanted a way out. To prove Treas was a truthful source of useful information, Palmieri
asked Treas if he could “give [him] a couple things [he] could . . . look into or a couple
arrests.” In response, Treas voluntarily showed him some houses where criminal activity
was occurring, but he was not willing to commit to any future arrangement. Palmieri
suggested a point system where Treas would divulge information in order to gain his
trust, but Treas told him he was not sure he could do that. He did not talk to Palmieri
again until he was in custody.
       After surrendering himself to the jail on January 9, 2009, Treas met with FBI
Special Agent Gregory Eckhart and Palmieri. Treas contacted Palmieri in mid-January
before meeting with Eckhart and provided significant, specific information about crimes
occurring in San Pablo. Treas testified, “[T]here was so much information that I had,
they had to cut me short. . . . [T]he breadth of the information on the organized crime
activity I was involved in was such that there was no conversation about particular cases
at all.” Palmieri made no promises to Treas for volunteering information and Treas did
not ask for anything in return.
       Treas described his relationship with law enforcement at this point as “more of a
confession,” and said he was just seeking “personal salvation,” but did not feel under any
pressure to cooperate as he was happy with the deal he took and had already been
sentenced prior to contacting Palmieri. According to Treas, this was just the first time he
had an opportunity to come clean with law enforcement and it was a “very spiritual
experience” for him. Recognizing what he knew was “beyond the resources” of local law
enforcement, Treas encouraged Palmieri to contact the FBI and advise them he was
willing to cooperate.
       Eckhart first met with Treas on January 21, 2009, before Treas and defendant
became cellmates, and sought his cooperation in providing information.2 In an effort to



       2
        Treas testified the January meeting with Palmieri and Eckhart took place after he
was placed in a cell with defendant and had obtained the incriminating statements.
However, the facility log shows only two dates, January 12 and January 21, 2009, when

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get more information than Treas had already volunteered, Eckhart told Treas if he did not
cooperate Eckhart would “pursue charges against him for a methamphetamine case.”
Treas testified he was not threatened because Eckhart told him about the possibility of his
indictment in an advisory manner. He also testified he was anticipating a federal
indictment, but, of course, expressed to Eckhart he did not want to be indicted. Treas got
upset with Eckhart’s aggressive approach and explained to Eckhart he was coming
forward with information and was not looking for anything other than “some light at the
end of this tunnel,” which Treas testified meant “salvation.” He did not agree to be more
forthcoming in the future in response to Eckhart’s probing nor offer his services to avoid
indictment at this time. Defendant’s case was not mentioned at this meeting, and because
of Treas’s negative reaction Eckhart did not think he would ever speak to him again.
This was the extent of Treas’ discussions with law enforcement at the time of his
conversations with defendant.
       No law enforcement officer had knowledge of or inquired into defendant’s case
until Treas came forward with information in February seeking an immunity agreement
for his drug involvement. In February, Treas also expressed concerns to Palmieri about
early release from the facility for safety reasons. However, it was not until March 23,
2009, following his early release upon law enforcement’s recommendation, that Treas
reached an agreement and provided details of defendant’s involvement in the shooting for
the first time. Treas agreed to participate in controlled buys of narcotics and firearms
with the Norteño gang, provide information to law enforcement, and testify if necessary.
Eckhart told Treas he could not promise him anything, but if he remained truthful, there
was a possibility of certain benefits, such as relocation, witness security, and
recommendation against indictment. Treas was ultimately not indicted and upon
testifying against the Norteño gang, he received approximately $30,000 for living
expenses associated with relocating for his protection.


Treas checked out of the module. When shown these logs, Eckhart testified, assuming
the logs were correct, he must have met with Treas on the latter date, January 21, 2009.


                                              4
         Defendant unsuccessfully moved to exclude Treas’s testimony, but the trial court
found the evidence admissible because Treas had no agreement with law enforcement
prior to the time defendant discussed the crime with Treas. On April 29, 2011, a jury
found defendant guilty, and defendant was sentenced to two consecutive 15-years-to-life
terms.
                                      II. DISCUSSION
         Defendant contends the trial court erred in admitting his statements to Treas
because Treas was acting as an agent of law enforcement and deliberately elicited
incriminating statements from him in violation of Massiah, supra, 377 U.S. 201.
         “In Massiah, supra, 377 U.S. 201, the United States Supreme Court held that once
an adversarial criminal proceeding has been initiated against the accused, and the
constitutional right to the assistance of counsel has attached, any incriminating statement
the government deliberately elicits from the accused in the absence of counsel is
inadmissible at trial against the defendant. [Citations.] In order to prevail on a Massiah
claim involving use of a government informant, the defendant must demonstrate that both
the government and the informant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks. [Citation.] Specifically, the
evidence must establish that the informant (1) was acting as a government agent, i.e.,
under the direction of the government pursuant to a preexisting arrangement, with the
expectation of some resulting benefit or advantage, and (2) deliberately elicited
incriminating statements. [Citations.]
         “Where the informant is a jailhouse inmate, the first prong of the foregoing test is
not met where law enforcement officials merely accept information elicited by the
informant-inmate on his or her own initiative, with no official promises, encouragement,
or guidance. [Citation.] In order for there to be a preexisting arrangement, however, it
need not be explicit or formal, but may be ‘inferred from evidence that the parties
behaved as though there were an agreement between them, following a particular course
of conduct’ over a period of time. [Citation.] Circumstances probative of an agency
relationship include the government’s having directed the informant to focus upon a


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specific person, such as a cellmate, or having instructed the informant as to the specific
type of information sought by the government.” (In re Neely (1993) 6 Cal.4th 901, 915.)
       In Randolph v. California (9th Cir. 2004) 380 F.3d 1133 (Randolph), the
informant sent a letter to law enforcement requesting leniency and indicating he was a
cellmate of the defendant. (Id. at p. 1139.) Understanding this to be an offer to testify,
law enforcement met with the informant several times to discuss his possible testimony,
as well as a plea deal relating to the crime for which he was being held. (Ibid.) The
informant was returned to his cell with the defendant after his initial meeting with law
enforcement.3 (Randolph, at p. 1144.) Despite being told not to expect a deal, he
received a sentence of probation instead of a prison term upon testifying. (Ibid.) In
finding the informant to be a government agent, the court recognized agreed-upon
compensation is often relevant, but held it is the relationship between the informant and
the state that is central and determinative. (Ibid.) Under the circumstances, an explicit
agreement to compensate the informant was not necessary because the state made a
conscious decision to obtain the informant’s cooperation and the informant consciously
decided to provide that cooperation. (Ibid.) The informant obtained information because
he wanted leniency, and law enforcement knew or should have known this. (Ibid.) On
the other hand, the court held any statements obtained before the informant met with and
indicated his willingness to cooperate with the prosecution team could not be the basis of
a Massiah violation. (Randolph, at p. 1144.)
       The trial court’s determination Treas was not acting as a government agent at the
time defendant gave his incriminating statements is a factual determination. If supported
by substantial evidence it is binding on appeal. (Cf. People v. Mickey (1991) 54 Cal.3d




       3
        While the court did not make a factual determination as to whether information
was elicited from the defendant after the informant’s first meeting with law enforcement,
the court held any information that was, in fact, elicited after this meeting was
inadmissible because the informant was a government agent at that time. (Randolph,
supra, 380 F.3d at p. 1144.)


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612, 649.) We find such substantial evidence to support the trial court’s finding the
evidence was admissible.
       At the time the incriminating statements were made, Treas had no express
preexisting arrangement with law enforcement creating an expectation of benefit or
advantage. Rather, the information was obtained on Treas’s own initiative, with no
official promises, encouragement or guidance. Palmieri and Eckhart both testified there
was no agreement in place until mid-March. Neither law enforcement officer knew of
defendant’s case at the time the incriminating statements were made, nor did they ask
Treas to seek out information regarding the shooting. Treas and defendant both requested
to be placed in a cell together without encouragement from or the knowledge of law
enforcement.
       Palmieri’s interactions with Treas prior to Treas’s discussions with defendant did
not establish an explicit arrangement. Palmieri did ask Treas whether he wanted a way
out of his life of dealing drugs, and suggested a point system in order for Treas to gain his
trust. There was, however, no promise or even discussion of monetary compensation or
leniency in exchange for cooperation, Treas was never directed to get information from
or about defendant, and he did not agree to provide Palmieri with any information
whatsoever going forward. When Treas later initiated contact with Palmieri he
spontaneously divulged significant amounts of information without requesting anything
in return. He provided law enforcement with information he already knew, but testified
he did not feel pressure to cooperate as he had already been sentenced.
       At the conclusion of the January 21, 2009 meeting, Treas’s first and only meeting
with Eckhart before obtaining the incriminating statements, an explicit agreement had not
been reached between Treas and Eckhart. During this meeting Eckhart, hoping to elicit
more information, told Treas he would pursue a methamphetamine case if he did not fully
cooperate. Treas became unhappy with the nature of his relationship with Eckhart, and
did not agree to be more forthcoming in the future. Eckhart testified he believed he
might never speak to Treas again because of his negative reaction. At this time, Eckhart



                                             7
had not offered Treas any promises in exchange for information, and Treas had not
requested anything from Eckhart.
       Moreover, no implicit arrangement existed at the time the incriminating statements
were made because there was no evidence the parties behaved as though there was an
agreement between them, following a particular course of conduct over a period of time.
Law enforcement did not direct Treas in any capacity. He was not told to focus upon a
specific person or a specific type of information. Treas’s discussions with defendant did
not occur because he was seeking out information to report to law enforcement, but
because of their gang affiliation requiring them to share paperwork. Also, there was no
evidence Treas sought out or obtained information from any other inmate.
       Defendant suggests Treas had a change of heart once he spent some time in
custody and was no longer content with his sentence, which is why he reached out to
Palmieri once in custody. Treas did not, however, bring up the possibility of early release
due to concerns for his safety, or request any assistance from law enforcement until
February. Defendant further argues the monetary benefits and recommendation against
indictment, all of which Treas eventually received, cannot be ignored. Nonetheless, each
of these benefits was the result of agreements made after the incriminating statements had
been made to Treas. While Treas expressed to Eckhart he, of course, did not want to be
indicted, no agreement was made to avoid indictment at the January 21 meeting.
       Defendant relies heavily on Randolph, arguing despite the absence of an explicit
agreement for compensation or promises of lenient treatment, Treas’s interactions with
law enforcement were sufficient to establish he obtained the defendant’s statements on
behalf of the government. The Randolph court focused on the timeline of events and
made clear only the incriminating statements the informant elicited after cooperating with
law enforcement were inadmissible as Sixth Amendment violations. It was under the
specific circumstances of Randolph, where it was evident the informant was motivated by
his hope for a benefit, law enforcement had discussed a plea deal with him, he had agreed
to continue cooperating by testifying against the defendant, and was subsequently placed



                                            8
back in the cell with the defendant that the court reasoned an agency relationship was
established without an explicit compensation agreement.
       Treas did not agree to cooperate with law enforcement until after defendant
revealed his involvement in the shooting. Neither law enforcement officer nor Treas
believed Treas to be cooperating with law enforcement at the time the statements were
made. Though Treas had provided law enforcement with information unrelated to the
defendant’s case, it was not clear he was motivated by hope of gaining a benefit and he
did not agree to continue assisting law enforcement in the future. In fact, Treas testified
his relationship with law enforcement at the time was more of a confession. This is
supported by the fact that he had not requested leniency or any other benefit from law
enforcement at the time.
                                      Harmless Error
       Because we find the trial court did not err in admitting defendant’s incriminating
statements into evidence, it is unnecessary to address the issue of harmless error.
                                   III. DISPOSITION
The judgment of the trial court is affirmed.




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                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Sepulveda, J.*




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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