A “Witness or a Suspect;” Offers of Leniency

Robert C. Phillips
DDA (Ret.)
September, 2016

Fabian Florence Perez was in need of a little extra cash.  So when his friend, Christopher Jasso, suggested that they rob someone randomly off the street, Perez didn’t think it was such a bad idea.  On the evening of September 5, 2003, with Jasso armed with a 25 caliber pistol he got from his girlfriend’s brother, the two hapless thieves set out onto the streets of Indio, California, looking for a likely victim.

Unable to find anyone who didn’t pose an unreasonable challenge, Jasso decided it might be easier if they had the potential victim—someone they knew would be carrying cash—come to them.  Why not just call for a taxi and rob the driver?  Basking in their new-found brilliance, the two did just that.  The plan was for Perez to follow Jasso as he robbed a taxi driver and then whisk him to safety once Jasso had completed the dirty deed.  What could go wrong?

What, indeed?  A video surveillance camera from a nearby convenience store showing Jasso getting into Carlos Cuellar Cardona’s taxi van, for one thing.  Jasso leaving his fingerprints on a newspaper in the taxi, for another.  A witness observing Perez’s vehicle following the taxi for yet another.  And the gun’s original owner, Manual Rivera, later telling police that Perez admitted to him that he was Jasso’s getaway driver, for even another.  But we digress.

The robbery went off as expected, except for Jasso deciding to shoot Cardona twice in the head; an occurrence that Perez later claimed wasn’t part of the plan.  But Perez picked Jasso up after what by then was a homicide in addition to a robbery, with Carlos Cardona bleeding to death in the street, and the two fled the scene.  After splitting the cash, Perez was tasked with getting rid of the gun, which he later did.  Perez’s profit, at the cost of a human life, was a mere $100.

The subsequent investigation eventually led to Manuel Rivera, who admitted to police that he’d given the gun used in the robbery/murder to Perez’s girlfriend’s brother, who later gave it to Jasso.  Also, as alluded to earlier, Rivera told police that Fabian Perez had admitted to him that he’d been Jasso’s getaway driver.  So some three months after the crime, police contacted Perez at his apartment and asked him to voluntarily accompany them to the police station for an interview.  Perez complied. 

Upon waiving his Miranda[1] rights, and throughout approximately 25 minutes of questioning during, Perez denied any involvement in the robbery/murder despite being falsely told that they found his fingerprints in the victim’s taxi and that he was depicted on a nearby store’s security video, recorded shortly before the victim was killed.  The interrogation, despite the interrogators’ best efforts, was going nowhere.

Eventually, one of his interrogators tried a different tactic, telling Perez that if he “[told] the truth” and was “honest,” then, “we are not gonna charge you with anything.” The officer also told Perez, with the approval of a prosecutor, that he could be either a “suspect that we are gonna prosecute, (or a) witness,” adding that they knew Perez had “witnessed something terrible that somebody did.”  This was followed up by telling Perez that if he was honest and told the truth, “you’ll have your life, maybe you’ll go into the Marines . . . and you’ll chalk this up to a very scary time in your life.”  One of the officers added the reassurance that, “I don't want you to go to jail for murder. Okay. I don't want you to ruin your life.”

Immediately thereafter, with Perez obviously recognizing a way to avoid going to jail for the rest of his life, he weakened.  He told the investigators that he, in fact, had “some information.”  Shortly after that, although denying that he knew Jasso would shoot the victim, Perez confessed to being Jasso’s getaway driver.  Perez further cemented his guilt by going to the scene with the detectives, describing for them the events as they occurred.

Although released after this interview, Perez was arrested five months later and charged with first degree murder[2] with the special circumstance allegation that the murder had been committed in the course of a robbery.[3]   Prior to trial, Perez filed a motion to suppress his confession, arguing that he admitted his guilt only because he had been promised immunity, and that his confession was therefore inadmissible as a matter of law.  After the trial court denied his motion, and with his confession being used against him at trial, a jury found Perez guilty of first degree murder and found true the robbery/murder special-circumstance allegation. With the district attorney not seeking the death penalty, the trial court sentenced Perez to the statutorily mandated sentence of life in prison without the possibility of parole.  (Jasso was convicted in a separate trial and sentenced to death.)  Perez appealed.

Division One of the Fourth District Court of Appeal, in the published decision of People v. Perez,[4] reversed, holding that among other issues, Perez’s confession had in fact been the product of an offer of leniency.

The basic rule is simple:  A defendant’s confession is admissible in evidence only if obtained voluntarily.[5]  In order for a confession to be considered voluntary, it must be the accused’s decision to speak.  In the words of the California Supreme Court, a confession must be entirely “self-motivated.”[6]  In other words, he must freely and voluntarily choose to speak “without any form of compulsion or promise of rewards.” “(W)here a person in authority (such as a police interrogator) 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 will be held to be involuntary and inadmissible as a matter of law.”[7] 

A court, when evaluating an “offer of leniency” issue, has to consider two questions:  “Was a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak?”[8]   All the surrounding circumstances, including the characteristics of the accused and the details of the interrogation, must be examined in determining this issue.[9] 

In this case, Perez was told that he had the option of being treated either as a witness—in which case he would not be charged—or as a suspect.  While being falsely told that they already had evidence tying him to the crime, his interrogators also told Perez such things as, “I don't want you to go to jail for murder. Okay. I don't want you to ruin your life.”[10]  Also, “You be honest, you tell the truth, you tell us—the way it’s supposed to be, as far as I can see, you’re gonna go home at the end of the day. You’ll, you’ll have your life, maybe you’ll go into the Marines like you will, and you’ll chalk this up to a very scary time in your life.”[11]

There was nothing implied here.   The investigator’s promise was clear that all Perez had to do was open up and tell them what he knew about the robbery and murder of Carlos Cardona, and he would avoid being prosecuted.   

The trial court had found that these promises were not the motivating cause of Perez’s confession.[12]  Absent a “causal connection” between the alleged offer of leniency and the later confession, that confession is not subject to suppression.[13]  The Appellate Court disagreed with the trial court’s conclusions, finding that such a blatant offer of leniency required that Perez’s confession be suppressed.  Under the circumstances of this case, and contrary to the trial court’s ruling, this promise of not being charged motivated Perez to confess to his involvement as a co-principal in the crime, albeit only as the getaway driver.[14] 

In so finding, the Court rejected the People’s argument that it was made clear to Perez that whether or not he was prosecuted was actually up to the District Attorney.  The transcripts of the interrogation showed that the detective did not tell Perez this until after he had succumbed to the offer of leniency and confessed.  “Statements made to Perez after he confesses cannot be causally related to his decision to confess.”[15] 

The Court further rejected the People’s argument that because Perez, who was not an unintelligent person (i.e., had a high school degree), and had not been deprived of food or sleep, he should have known that he was not being offered immunity.  The Court ruled that falsely promising a criminal suspect that he will not be charged with a crime in order to elicit a confession renders that confession involuntary even when that suspect is well educated, rested, and fed.[16]  Perez is no exception.

Lastly, the Court also rejected the argument that the detectives only promised Perez that they, the officers, would not recommend prosecution if he cooperated, with no guarantee that a prosecutor would not decide otherwise. To the contrary, Perez was told several times, in several ways, that if he cooperated, he would be able to “have (his) life,” be able to join the Marines, and “chalk this up to a very scary time in your life.”[17]  The Court found it clear that the officers were talking about more than a mere recommendation to the district attorney, but an actual offer of leniency.[18]

After rejecting various other arguments to the effect that Perez’s confession was triggered by causes other than the detectives’ offer of leniency, the Court ruled that his confession should have been suppressed. And because Perez’s confession constituted the bulk of the evidence against him, the error in admitting it into evidence was not harmless, requiring reversal of his conviction.[19]

The primary importance of this case is to reemphasize to police interrogators that they do not have the authority to plea bargain with criminal suspects, let alone offer them immunity.  In defense of the officers involved here, there was some indication that they had a prosecutor’s prior approval to treat Perez as a witness rather than a suspect[20] (which, in itself, raised another issue; i.e., whether there was a “cooperation agreement” authorized by a prosecutor.  This issue, which if found to apply, might have provided Perez with an enforceable plea bargain and require the suppression on his statements on this basis alone, if not dismissal of the entire case, was decided in the People’s favor.[21])  But such an offer—i.e., to be treated as a witness rather than a suspect—inherently carries with it, no matter who the source, the implication that a suspect will be immune from prosecution in exchange for his cooperation.  That such a comment should probably never be used as a part of an interrogation needs to be communicated by prosecutors to law enforcement.
 

[1]              Miranda v. Arizona (1966) 384 U.S. 436

[2]              Pen. Code § 187(a)

[3]              Pen. Code § 190.2(a)(17); later stricken by the Appellate Court as a violation of the rule of People v. Banks (2015) 61 Cal.4th 788, making this special circumstance legally inapplicable in a felony-murder situation to a getaway driver.

[4]              (Jan. 8, 2016) 243 Cal.App.4th 863

[5]              People v. Linton (2013) 56 Cal.4th 1146, 1176

[6]              People v. Tully (2012) 54 Cal.4th 952, 985

[7]              Ibid.

[8]              People v. Perez, supra, at p. 871; quoting People v. Tully, supra, at pp. 985-986

[9]              Ibid.

[10]             People v. Perez, supra, at p. 872

[11]             Id., at p. 874

[12]             Id., at p. 875

[13]             People v. Scott (2011) 52 Cal.4th 452, 478-480

[14]             People v. Perez, supra, at p. 877

[15]             Id., at pp. 874-875, 877; Italics in original

[16]             Id., at p. 878

[17]             Id., at pp. 878-879

[18]             Ibid.

[19]             Id., at p. 879

[20]             Id., at p. 881

[21]             Id., at p. 879