Confession was involuntary where officer told suspect “we are not gonna charge you with anything” if the he told the truth and suspect immediately confessed. Perez was a suspect in a robbery turned murder. When interrogated, Perez denied any knowledge of the murder until the detective told him that if he were to “tell the truth and be honest” then “we are not gonna charge you with anything.” Immediately after the detective made these statements, Perez stated that he did have some information and admitted to being the getaway driver. He was charged with first degree special circumstance murder. Before trial he moved to suppress his confession as involuntary, but the trial court denied his motion. The jury convicted him and he appealed. Held: Reversed. “[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.” (People v. Tully (2012) 54 Cal.4th 952, 985.) The promise must motivate the subject to speak. Under the facts of this case, “there can be no doubt that [the detective] made an express promise of leniency that was a motivating cause of Perez’s confession.” Although the detective later told Perez that the district attorney would make the ultimate decision with respect to whether he was charged, these statements were made after Perez confessed based on the promise he would not be charged. The confession was still involuntary even though Perez was “well-educated, rested, and fed.” The People conceded that Perez’s involuntary confession was prejudicial.

Defendant cannot specifically enforce a cooperation agreement that was not authorized by the prosecutor. Perez also argued that the trial court should have granted a dismissal on the ground that the prosecutor authorized a cooperation agreement providing that law enforcement officials would not prosecute him in exchange for his truthful statements about the events surrounding the robbery and murder. The Court of Appeal disagreed. “A defendant who seeks specifically to enforce a promise, whether contained in a plea agreement or a freestanding cooperation agreement, must show . . . that the promisor had actual authority to make the particular promise . . . .” (People v. C.S.A. (2010) 181 Cal.App.4th 773, 778.) State and local law enforcement officers have no independent authority to make promises about the filing and prosecution of state criminal charges. The defendant must show that a state or local prosecutor authorized the agreement. Here, Perez argued that a deputy district attorney told officers that Perez should be treated as a witness instead of as a suspect, and that he should be provided with Miranda warnings. The Court of Appeal concluded that this evidence “falls far short” of demonstrating that the prosecutor authorized officers to promise Perez that he would not be charged with any crime in exchange for truthful statements concerning the robbery turned murder. The trial court did not err in denying Perez’s motion to dismiss. [Editor’s Note: The court did not consider whether there was a breach of an unauthorized cooperation agreement with Perez because exclusion of the evidence would have been the proper remedy in this situation and the court already concluded that Perez’s confession must be suppressed as involuntary.]

Evidence that defendant acted as the getaway driver in a robbery turned murder was insufficient to sustain a robbery-murder special-circumstance finding (Pen. Code, § 190.2). Perez also argued that there was insufficient evidence to support the robbery-murder special-circumstance finding. In light of People v. Banks (2015) 61 Cal.4th 788, the People conceded the issue and the Court of Appeal agreed. Under Banks, evidence that a defendant acted as a getaway driver for an armed robbery during which the defendant’s accomplice shot and killed a victim was insufficient as a matter of law to support a robbery-murder special circumstance. Evidence that a defendant acted as a getaway driver in these circumstances does not establish the requirement that the defendant had acted with reckless indifference to human life and as a major participant in the felony resulting in death (See Pen. Code, § 190.2, subd. (d)).

Defendant’s confrontation rights were violated when the trial court permitted a prosecutor to ask a witness, who refused to answer questions, a series of leading questions regarding his out-of-court statements. Rivera was called as a witness by the prosecution and he refused to answer any questions, except his name. Over defense objections, the trial court permitted the prosecutor to ask Rivera a number of leading questions concerning out-of-court statements he made to police. On appeal, Perez argued that this was error. The Court of Appeal addressed the issue because, in light of the court’s reversal, it may recur on remand. In Douglas v. Alabama (1965) 380 U.S. 415, the United States Supreme Court held that such questioning denied a defendant his constitutional right to confrontation. California courts, relying on Douglas, have concluded that a defendant’s right to confrontation is violated where, in examining a recalcitrant witness, the prosecutor poses leading questions that provide the details of the prior statements the witness made to police regarding a defendant’s commission of a crime. (E.g., People v. Murillo (2014) 231 Cal.App.4th 448, 456.) Here, the trial court committed the same error condemned in Douglas and its progeny, and the questioning clearly violated Perez’s right to confrontation. The court distinguished People v. Lopez (1999) 71 Cal.App.4th 1550, 1554, People v. Sisneros (2009) 174 Cal.App.4th 142, 151, People v. Morgain (2009) 177 Cal.App.4th 454, 466. On remand, “if Rivera refuses to answer the prosecutor’s questions at a retrial, the trial court shall not permit the prosecutor to pose questions to Rivera in front of the jury pertaining to River’s prior statements to police.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068690.PDF