Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FWV801883, Jon Ferguson, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P.J.
Defendant Ruben Castellanoz appeals after a jury found him guilty of murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code) and concluded he personally discharged a firearm causing great bodily harm (§ 12022.53, subds. (b), (c), (d)) and personally used a handgun (§ 12022.5, subd. (a)). The trial court sentenced him to 50 years to life, consisting of 25 years for the murder and an additional 25 for his personal use of a gun causing death. Sentences for the other enhancements were stayed.
Defendant raises two issues in his appeal. He contends the police obtained incriminating statements he made under circumstances constituting “outrageous conduct, ” violating his constitutional rights. He also maintains the trial court erred by failing to state its reasons for imposing the upper term under section 12022.5, subdivision (a). We disagree with the first of these contentions, conclude defendant waived his right to have the court state reasons for the sentencing choice, and affirm the judgment.
FACTS
In the early morning hours defendant and five companions, including Cecilia Campos, were “hanging out” in an alley, drinking beer, and smoking. At some point two other persons who were strangers to them, joined the group. After some conversation a fight erupted behind a dumpster between one of defendant’s companions, Merk, and one of the newcomers. The fight was soon over and Merk emerged with a bleeding nose. The strangers left.
About 30 minutes later, Lotu Palei approached the group keeping one hand in his pocket under his sweater; it looked as if he might be holding a gun. Palei identified himself as being a member of the Fourth Street Crips gang and stated that defendant and his companions were too loud. There was conversation between Palei and members of the group and, at some point, Palei removed his hand from his pocket; there was no weapon in his hand. Instead, he pulled out a cell phone and took a call, after which he went over to a truck were he seemed to engage in a drug deal. He then returned to the group and conversation, which was friendly, resumed. After some time, defendant left, stating he had to use the bathroom and went to his nearby house. Approximately five minutes after defendant returned there was the sound of a gunshot and defendant was standing over Palei with a revolver in his hand. Defendant fired two more shots.
About five months later, Joshua Gill was arrested for robbery. Palei had been his friend. Gill told the police he had information about Palei’s murder and agreed to wear a recording device and speak with defendant. The meeting was arranged to take place at the Ontario Inn Motel. Gill induced defendant to meet him at the motel by telling him he needed a gun because someone had robbed his girlfriend. He also told defendant “that we were going to have some girls there to kick it.” The Ontario Inn Motel was selected at Gill’s suggestion because he was familiar with it, having been there before. The police rented a room at the motel and furnished Gill with a 12-pack of beer. In the course of a lengthy conversation, defendant acknowledged he had killed Palei. The tape and transcript of the conversation were presented to the jury.
The parties provided a stipulation concerning circumstances under which the recordings were obtained: “Montclair Police Officers enlisted the assistance of two confidential informants[, ] Joshua Gill and Denise Talamontes[, ] to entice [defendant] to meet them at a motel party a[t] the Ontario Inn.... Police instructed... Joshua Gill to get [defendant] to talk about the... shooting of Lotu Palei. Police rented two adjacent motel rooms and provided Joshua Gill with 2 hidden microphones. Police furnished a [12-]pack of beer and instructed the CI’s to invite [defendant] over for a few beers and a night out with Denise Talamontes’ girlfriends. [Defendant] arrived [and] drank several beers... while watching [a] pornographic movie, and made various statements the prosecution wishes to use as evidence. The pornographic movie was free and included among all the other cable channels at the Ontario Inn, but the room was supplied by law enforcement. The defendant was inside the room with the informants for approximately one hour. Five beer cans remained after the defendant’s statements.”
DISCUSSION
1. There was no police misconduct.
Defendant argues the arrangement for Gill to have a recorded conversation with him constitutes police misconduct and that his statement should therefore have been excluded. The police paid for the motel room and for a 12-pack of beer. Gill told defendant, as an inducement to have the latter join him, that they “were going to have some girls there to kick it.” No girls were supplied either by Gill or by the police. Pornographic movies are so ubiquitous in hotel and motel rooms that one would probably have to go to great lengths to find lodging where such material is not available. There is nothing in the record to suggest that the police had a hand in providing it. The worst that can be said about the police conduct is that law enforcement arranged for a ruse to get defendant to talk about the murder.
Citing United States v. Russell (1973) 411 U.S. 423, 432 [93 S.Ct. 1637, 36 L.Ed.2d 366], defendant notes that “due process is violated when police conduct violates ‘fundamental fairness, [or is] shocking to the universal sense of justice[.]’” We find nothing here that passes this test. Russell held that law enforcement furnishing defendant with ingredients for the manufacture of illicit drugs did not constitute such a violation of fundamental fairness. (Id. at pp. 431-432.) “‘So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion. [Citations.]’” (People v. Mays (2009) 174 Cal.App.4th 156, 165, italics omitted.) Thus, even if we treat Gill as an agent of law enforcement, the misrepresentations he made concerning the purpose of the meeting do not require defendant’s incriminating statements be excluded.
Defendant argues that the circumstances here were “likely to produce an unreliable and untrue statement.” In this connection, he notes he was not provided with a warning under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. But, as the Attorney General points out, there is not a single case applying Miranda where a private citizen acts in cooperation with the police. And there is no more reason to question the reliability of defendant’s statements here than in the other cases where statements were obtained as a result of a ruse. People v. Mays, supra, 174 Cal.App.4th at p. 165 cites a number of these examples: “‘Frazier v. Cupp (1969) 394 U.S. 731, 739 [89 S.Ct. 1420, 22 L.Ed.2d 684] [officer falsely told the suspect his accomplice had been captured and confessed]; People v. Jones [(1998)] 17 Cal.4th [279, ] 299... [officer implied he could prove more than he actually could]; People v. Thompson [(1990)] 50 Cal.3d [134, ] 167... [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; In re Walker (1974) 10 Cal.3d 764, 777... [wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance]; People v. Parrison [(1982)] 137 Cal.App.3d [529, ] 537... [police falsely told suspect a gun residue test produced a positive result]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125... [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; and Amaya–Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495 [suspect falsely told he had been identified by an eyewitness].)’ [Citations.]”
Nor is there any evidence to suggest that defendant was so intoxicated as to raise questions about validity of the confession. The trial court relied on People v. Hendricks (1987) 43 Cal.3d 584 where officers supplied the defendant with whiskey upon his request. In holding that this did not make his subsequent confession involuntary (id. at p. 591), the court quoted from People v. Dacy (1970) 5 Cal.App.3d 216, 220 that “[t]he mere fact of ministration of drugs does not establish an impairment of capacity so as to render a confession inadmissible [citation].”
Finally, we reject defendant’s contention that the incriminating statement was “central to the prosecution case.” (Bold and capitalization omitted.) Campos, who was present during the entire evening that culminated in the shooting, testified in detail about defendant’s conduct. The fact she testified as part of a plea agreement does not disqualify her testimony. The testimony of one witness is sufficient. (People v. Miranda (2011) 192 Cal.App.4th 398, 407.)
2. Defendant’s failure to object to the sentence imposed waived the issue.
Defendant contends the trial court erred by failing to state its reasons for imposing the upper term for the enhancement under section 12022.5, subdivision (a). But no objection to the sentence was made and, as a result, the issue is waived. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant argues we should find his counsel to have been ineffective for failing to object. But ineffective assistance of counsel should be raised by way of a petition for habeas corpus rather than by appeal, so that the court can consider counsel’s reasons for engaging in a particular tactic. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., FYBEL, J.