Filed 10/6/26 P. v. Contreras CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086186
Plaintiff and Respondent, (Super. Ct. No. SCE413639)
v.
EDUARDO CONTRERAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal. Assistant Attorney General,
Collette C. Cavalier and Tami Falkenstein Hennick, Deputy Attorneys
General for Plaintiff and Respondent.
Eduardo Contreras appeals from a jury conviction for first-degree
murder (Pen. Code,1 § 187, subd. (a)), unlawful possession of a firearm by
a felon (§ 29800, subd. (a)(1)), unlawful possession of a firearm silencer
(§ 33410), and unlawful possession of ammunition by a prohibited person
(§ 30305, subd. (a)(1)).2 The jury also found true the alleged firearm
enhancement (§ 12022.53, subd. (d)).
Contreras asserts the trial court erred by admitting into evidence:
(1) incriminating statements Contreras made to an undercover operative
during a Perkins jail operation;3 (2) text messages the victim’s son,
Ramiro T., sent to Contreras; and (3) a detective’s testimony about an alleged
alibi witness who was not called to testify at trial. Related to the last
argument, Contreras contends the court also erred by limiting cross-
examination and impeachment regarding the detective’s testimony about this
alibi witness. To the extent any of these issues was not preserved by his trial
counsel, Contreras argues he received ineffective assistance of counsel. He
also contends that the cumulative effect of these errors violated his right to a
fair trial.
As an initial matter, the People do not dispute that the issues
Contreras raises on appeal were properly preserved, so we address the
merits. We conclude that the trial court did not err by admitting the
1 Undesignated statutory references are to the Penal Code.
2 Before trial, Contreras pled guilty to assault by means likely to produce
great bodily injury (§ 245, subd. (a)(4)) involving a separate incident with a
different victim.
3 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
2
statements from the Perkins operation. As for the text messages, we
conclude that all of Ramiro’s text messages were admissible to provide
context for Contreras’s own text messages in response. And assuming
without deciding that the court erred in admitting one of Ramiro’s text
messages about Contreras “bringing out guns” as an adoptive admission,
any such error would be harmless. Lastly, we conclude that the trial court
did not abuse its discretion in either admitting some testimony regarding
the alleged alibi witness or limiting cross-examination on that topic.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting and Investigation
In the evening on August 4, 2022, Jose Rojas and his wife were picking
fruit in their backyard in Ramona, California, when his wife heard a
“muffled” gunshot. Rojas said “ouch” and then fell to the ground. His wife
saw that Rojas was bleeding from a small hole behind his ear. She yelled for
one of her sons to call an ambulance. Rojas was transported to the hospital,
but he never regained consciousness and died from a gunshot wound to the
head.
Another son, Ramiro, was also in the house at the time of the shooting.
Law enforcement learned from Ramiro that he and Contreras had “issues”
with each other and that “threats had been made.” Ramiro was deceased at
the time of trial.
Officers arrested Contreras the morning after the shooting as he was
leaving his apartment building, which was located near Rojas’s residence.
At the time of his arrest, Contreras had a backpack in his car containing a
gun loaded with bullets of the same caliber that killed Rojas, an oil filter that
appeared to have been modified to be used as a “silencer” or sound
3
“suppressor,” drugs, and drug paraphernalia customarily used for selling
controlled substances. When officers searched Contreras’s apartment, they
found additional ammunition of the same caliber. They also observed that
Rojas’s residence was visible from Contreras’s bedroom window on the ground
floor, which did not have a screen on it.
A Sheriff’s Department criminalist used lasers and tripods to
determine possible shot trajectories based on where Rojas was standing.
The tests indicated the shot could have come from within Rojas’s backyard or
from Contreras’s bedroom window. A detective noted that the backyard had
a lot of brush and trees in it, making it a “very concealed area.” A worn path
crossed through a grass field between Contreras’s apartment building and
Rojas’s residence. Officers found a turned-over bucket near the path that
someone could have used to step over a deteriorated section of chain link
fence to access Rojas’s property. The distance between Contreras’s bedroom
window and where Rojas was shot was about 308 feet, and the distance from
Contreras’s apartment, up the path, and to Rojas’s backyard was 387 feet.
B. The Text Messages
Officers seized Contreras’s cell phone at the time of his arrest and
extracted its contents. On the morning of the August 4, 2022 shooting,
Ramiro texted Contreras the following:
[Ramiro at 11:17:43 a.m.:] “Hey wei so I may acted stupid yesterday my
bad I downed a bottle and acting retarded”4
4 A detective testified at trial that “wei” and “guey” are common slang
terms meaning “fool.”
4
[Ramiro at 11:20:13 a.m.:] “With that being said I still wanted to fight
you but u bringing out guns it ain’t worth[] it turning something small
into a tragedy so if you don’t wanna get down cool I won’t insist”
A few hours later, Contreras texted Ramiro and they had the following
exchange:
[Contreras at 2:33:24 p.m.:] “Come thru n u better have my money also
or it’s gonna get worser for u[] U got not palabra”5
[Contreras at 2:33:46 p.m.:] “Aj is waiting for you”
[Contreras at 2:33:53 p.m.:] “He right here with me”
[Ramiro at 2:35:07 p.m.:] “That’s why I gave you the torch and the
flashlight I thought we were squared”6
[Contreras at 2:35:45 p.m.:] “Fuck that I told u I didn’t want that shit n
that torch was less than halfway”
[Ramiro at 2:36:47 p.m.:] “The pedo wasn’t with him fool I don’t even
know that fool I got no beef with him I called you out and you don’t
want to get down so I’m good wei I’m squashing it”
[Ramiro at 2:37:54 p.m.:] “And alrite I’ll give you 20 bucks tomorrow
but let me get the nozzle for the torch back and the flashlight”
[Contreras at 2:40:01 p.m.:] “I threw that shit away I don’t need it n
loose my number n I better not here my name come out ur mouth fool
5 The detective also testified that “palabra” means “word,” and that the
phrase in the text “tends to suggest[] that he doesn’t trust him or believe that
he is going to pay him back.”
6 The detective testified that a “torch” likely references a “torch lighter,”
similar to a device that was found in Contreras’s backpack at the time of his
arrest.
5
on some serious shit n don’t come around here either I talked to
Douglas about that already”
[Ramiro at 2:42:43 p.m.:] “You started talking shit on my name fool and
alrite cool wei I won’t go over no more ill respect that and likewise I
don’t wanna hear shit being made on my name”
[Contreras at 2:43:06 p.m.:] “Si guey whatever u say smoker”7
C. The Perkins Operation
On August 11, 2022, officers placed a paid undercover operative in the
jail cell with Contreras and recorded their conversation, often referred to as
a Perkins operation.8 When asked by Contreras what he was “in” for, the
operative responded “for homicide,” and later told Contreras that he had
committed two double homicides. Contreras said he had been charged with
a drug offense but that he had also been questioned about a homicide.
Contreras said he told officers he had an alibi because he was getting his hair
braided when the shooting happened. He denied shooting anyone and said he
had a “strong alibi,” but he also recounted how officers had found his gun and
drugs in a backpack in his car.
The lead investigating detective entered the cell partway through the
conversation to tell Contreras that he was going to be booked for murder and
gun possession. The detective also told Contreras, falsely, that the gun from
his backpack was traced to the bullet found in Rojas’s head. The detective
said he and his partner would interview Contreras later and give him an
7 According to the detective, “smoker” typically means “a drug addict.”
8 An undercover detective also played a small role in the operation and
was not compensated.
6
opportunity to talk. After the detective left the jail cell, the operative said
“[t]hat’s bad homie” and told Contreras that matching the gun to the bullet
was “a nail in the coffin[.]”
When Contreras asked whether he should “fight it,” the operative told
him that Contreras was “the only one that would know” and advised him to
take the charge seriously and “[d]on’t take this shit’s a joke[.]” When the
operative asked if there were any casings, Contreras repeated twice that no
casing would be found and referenced the fact that he was getting his hair
braided in his room. He also said that he had no problems with Rojas, used
to work for him, and was always on good terms with him. Contreras asked
whether he would serve a life sentence, and what might happen if he pled.
The operative said Contreras could get 20 to 25 years in prison. The
operative told him it could take two or three years to fight the case, and
Contreras said “the homegirl” would get him a good lawyer. Contreras
repeated that he “didn’t do it,” “was inside getting [his] hair braided,” and
that his “homegirl will even come testify” that she was braiding his hair. At
one point Contreras also identified himself as a member of the Ramona Town
Locos gang.
When the operative told him, “This can all get worse for you, homie,
before it gets better,” Contreras insisted again that he “didn’t do shit” and if
he had, he would not have let himself get caught like that. Contreras then
later said that at least he would “get conjugal visits.”
Contreras said to the operative, “So, they got the bullet. They got the
gun. . . . Now they gotta prove it that that it was me though, right? . . .
[T]hey gotta prove that I’m the one who pulled the trigger. I-I can say that I
just found the gun. You know?”
7
Contreras asked what the operative’s “best advice” was, and the
operative responded, “I can’t tell you how to run your case. You know, it’s
up to you.”
Then Contreras asked, “What if it was an accident?” When the
operative expressed surprise and skepticism at the shooting being an
accident, they had the following exchange (in the intelligible portions of the
recording):
“CONTRERAS: [In Spanish] I put a, a, a (unintelligible) . . . that shit.
And I wanted to pull it. I was in the room but I wasn’t, wasn’t aiming
in a good direction.
“OP 1: Yeah but, was it meant to be him? You sure?
“CONTRERAS: [In Spanish] Because outside the window, is all vacant
lot.”
The operative said Contreras would be asked by “the homies” about why he
shot “an older fool,” implying that gang members “aren’t supposed to be out
there robbing these older fools, hurting these older fools intentionally[.]” The
following exchange ensued:
“CONTRERAS: No, it was nothing like that.
“OP 1: . . . You positive homie?
“CONTRERAS: I was in my room the whole time.
“OP 1: . . . How close is your room? How close was your room though?
“CONTRERAS: It’s like – like half a football field.
“OP 1: And it went from that far?
“CONTRERAS: Yeah. (Unintelligible).”
Contreras reiterated that he never robbed Rojas. He asked again for the
operative’s advice on what to “tell these fools,” and the operative said, “I can’t
tell you what to do in your case, homie. That’s you.” The operative told
8
Contreras he should “be honest with them” and that “if it is true, like you
said, that you did it by accident, let em know.” Contreras responded, “But
would it actually help me, though? That’s the question. I don’t think so.”
The operative responded that “the only bad part about it was that it was an
older man” and that “[t]he good thing about it though, at least you had that
thing on it. . . . At least you had that thing on it nobody could hear.”9
The operative asked Contreras whether there were any witnesses, and
Contreras said, “It’s too far, you couldn’t see.” Then in an exchange with
several unintelligible portions apparently referring to a casing, Contreras
said he “threw it away” and that “it got stuck.” Contreras explained that
when he “knocked it back, . . . [i]t didn’t come out it got stuck.” But he said
he “threw it away” on a freeway in “the Indian reservation” and that
“[t]here’s no way to get it back.”
Later in the conversation when the operative brought up Contreras’s
alibi, Contreras said his girlfriend “knows what she’s gotta say,” that “she’s
up to game,” he had “talked to her already,” and that they had discussed
“how long it took to walk to the pad, how long it took [her] to braid my hair[.]”
The operative said that “whatever story she goes with, you’re stuck with it
now” and Contreras responded, “But I mean if it’s the truth. You know what
I mean? I was braiding my hair the whole time.”
9 The operative seems to have been referring to a prior statement by
Contreras about using a silencer on the gun. Although the transcript of the
Perkins operation does not reflect any such statement, much of the recording
is unintelligible and the jury could reasonably infer that Contreras must have
said something about the silencer when he told the operative, “I put a, a, a
(unintelligible) . . . that shit.”
9
D. Additional Evidence at Trial
The People charged Contreras with Rojas’s murder (§ 187, subd. (a)),
unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1)), unlawful
possession of a firearm silencer (§ 33410), unlawful possession of ammunition
by a prohibited person (§ 30305, subd. (a)(1)), and assault by means likely to
produce great bodily injury (§ 245, subd. (a)(4)) for a separate incident. The
People also alleged, in connection with the murder charge, that Contreras
intentionally and personally discharged a firearm and proximately caused
great bodily injury and death to a person (§ 12022.53, subd. (d)).
At trial, the prosecution presented testimony from several witnesses
including the law enforcement officers who responded to and investigated
the shooting, the decedent’s wife and one of their sons, a forensic evidence
technician, criminalists, and a medical examiner. The lead detective
testified, among other things, that while the bullet that killed Rojas matched
the caliber of the gun and ammunition found in Contreras’s possession, the
criminalist was unable to confirm whether Contreras’s gun fired that bullet.
During cross-examination, defense counsel asked the lead detective whether
he spoke to any potential alibi witnesses—like Contreras’s girlfriend—who
could vouch for Contreras, and the detective said that members of his team
had interviewed some individuals. Defense counsel also questioned him
about whether he asked the people he interviewed what they were doing or
where they were at the time of the shooting. He responded that it was
possible those questions were asked, but he did not recall the answers.
On redirect, the prosecution followed up on defense counsel’s question
about Contreras’s girlfriend as a possible alibi witness. The prosecutor asked
the lead detective to characterize the girlfriend’s interviews with law
enforcement. After the trial court overruled the defense’s hearsay objection,
10
the detective responded that the girlfriend’s interviews were “erratic and
inconsistent” and that there was independent evidence that contradicted her
statement. On recross-examination, defense counsel asked the detective
whether Contreras’s girlfriend said she was braiding Contreras’s hair, and
the court sustained the prosecution’s hearsay objection to that question. The
defense then asked what evidence contradicted the girlfriend’s statement,
and the detective responded, “Her additional statements that she left.” When
defense counsel asked what those statements were, the court again sustained
the prosecution’s hearsay objection to that question.
The defense called three officers who spoke with the Decedent’s wife
after the shooting. She told one officer that the gunshot seemed to come from
a different apartment complex than Contreras’s and that her dogs usually
barked if there was someone nearby, but they did not bark that night. A
second officer testified that the Decedent’s wife said she heard a “soft” sound
when Rojas was shot, while a third officer said she reported hearing a “loud
bang” when he was shot.
E. Verdict and Sentencing
The jury found Contreras guilty of first-degree murder and unlawful
possession of a firearm, ammunition, and a silencer. The jury also found true
the alleged firearm enhancement (§ 12022.53, subd. (d)). The trial court
sentenced Contreras to 50 years to life in prison.
DISCUSSION
I
We begin by addressing Contreras’s argument that the trial court erred
by admitting statements from the Perkins operation. Specifically, Contreras
contends that (1) his statements were the result of a coercive environment in
violation of his Fifth Amendment rights and (2) he had been arrested on
11
related charges, so the operation violated his Sixth Amendment right to
counsel. We disagree.
A. Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment of the United States Constitution provides a
criminal defendant with a privilege against self-incrimination. (U.S. Const.,
5th Amend. [“nor shall [any person] be compelled in any criminal case to
be a witness against himself”].) Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) and its progeny “protect the privilege against self-incrimination by
precluding suspects from being subjected to custodial interrogation unless
and until they have knowingly and voluntarily waived their rights to remain
silent, to have an attorney present, and, if indigent, to have counsel
appointed.” (People v. Gamache (2010) 48 Cal.4th 347, 384.) In Rhode Island
v. Innis (1980) 446 U.S. 291, 301 (Innis), the United States Supreme Court
defined interrogation for purposes of Miranda as “not only . . . express
questioning, but also . . . any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the
suspect.” (Fn. omitted.)
In Perkins, the United States Supreme Court addressed the scenario
that has now become known as a Perkins operation. There, an undercover
officer and a cooperating former inmate entered a defendant’s jail cell and,
without first giving Miranda warnings, asked the suspect about the crime the
officer was investigating. (Perkins, supra, 496 U.S. at pp. 294–295.) The
Supreme Court held “that an undercover law enforcement officer posing as a
fellow inmate need not give Miranda warnings to an incarcerated suspect
before asking questions that may elicit an incriminating response[]” because
“[c]onversations between suspects and undercover agents do not implicate the
12
concerns underlying Miranda. The essential ingredients of a ‘police-
dominated atmosphere’ and compulsion are not present when an incarcerated
person speaks freely to someone whom he believes to be a fellow inmate.
Coercion is determined from the perspective of the suspect. [Citations.]
When a suspect considers himself in the company of cellmates and not
officers, the coercive atmosphere is lacking.” (Perkins, at pp. 296, 300.)
In Perkins, the defendant had not invoked his right to remain silent or to an
attorney before he spoke with the undercover agent.
In applying Perkins, the California Supreme Court has repeatedly held
that a defendant’s voluntary statements to an undercover operative may be
admissible even when no Miranda warnings were given. (See, e.g., People v.
Fayed (2020) 9 Cal.5th 147, 165 (Fayed); People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 284 [stating that although defendant “misplaced his trust in
confiding in [an operative], [defendant’s] tape-recorded statements were
voluntary and free of compulsion” and noting that “the United States
Supreme Court has rejected ‘ “the argument that Miranda warnings are
required whenever a suspect is in custody in a technical sense and converses
with someone who happens to be a government agent” ’ ”; People v. Tate
(2010) 49 Cal.4th 635, 686 [“Both ‘custody’ and ‘police questioning’ are
necessary to invoke Miranda, and both concepts are viewed from the
suspect’s perspective. [Citation.] Even when the suspect is in the process of
a custodial interrogation, voluntary statements to someone the suspect does
not believe is a police officer or agent, in a conversation the suspect assumes
is private, simply does not involve one of these two critical concerns”].)
As for voluntariness, while an undercover operative may engage in
coercive threats that vitiate the voluntariness of a confession (see Arizona v.
Fulminante (1991) 499 U.S. 279, 287 [undercover informant coerced
13
confession from defendant by making “credible threat of physical violence”]),
a person secretly acting as a government agent does not engage in coercive or
improper tactics merely by “coax[ing] and prodd[ing],” a defendant to speak
(Fayed, supra, 9 Cal.5th at p. 166). It is only when the agent uses improper
tactics that overcome a defendant’s will that it may be said that a defendant’s
confession is involuntary. (Id. at pp. 165–166 [although informant was
“much more than a passive listener,” confession was voluntary since
“defendant was neither compelled into revealing his role in [victim’s] murder,
nor was he coerced into hiring a hitman to kill [second victim]”].)
The question of whether a defendant’s incriminating statements were
voluntary or coerced is a mixed question of law and fact; we accept the trial
court’s findings as to the circumstances of the statements but independently
determine whether those circumstances constituted coercive police activity.
(People v. Jones (1998) 17 Cal.4th 279, 296; accord, People v. Cromer (2001)
24 Cal.4th 889, 901.)
Contreras asserts that because the operative purported to be an elder
gang member who had committed double homicides, Contreras was coerced
into making incriminating statements. But the fact that the operative was
posing as an elder gang member is not enough on its own to render the
operation coercive. Here, the record does not support a factual finding that
Contreras was so coerced that his will was overcome. (See Perkins, supra,
496 U.S. at p. 296 [“Coercion is determined from the perspective of the
suspect”]; People v. Rodriguez (2019) 40 Cal.App.5th 194, 199 [acknowledging
deference to a senior gang member could be a factor in some cases, but
finding no factual support where the record disclosed only that the defendant
believed the operative was a gang member who was nine years older than
him].) Contreras initiated the conversation with the operative and then
14
volunteered details about his questioning by law enforcement without being
asked. He also discussed his alibi and what he knew about the evidence
without being prompted. Although the operative made statements about the
severe consequences attendant to a murder charge, Contreras was 29 years
old at the time of the operation and the record does not suggest he was
especially vulnerable to intimidation. In fact, Contreras consistently denied
leaving his room, even when the operative expressed skepticism about his
version of events.
At various points Contreras also sought the operative’s advice on what
to do. Rather than pressure him to make admissions, the operative said that
Contreras was “the only one that would know” and advised him to take the
charge seriously. The operative told Contreras, “I can’t tell you how to run
your case. You know, it’s up to you.” On another occasion, the operative told
Contreras, “I can’t tell you what to do in your case, homie. That’s you.” The
operative also advised Contreras to “be honest” and that “if it is true, like you
said, that you did it by accident, let em know.” It thus appears that
Contreras voluntarily continued to engage in the conversation to get the
operative’s advice on how to proceed, and at no point did it appear that the
operative made Contreras feel fearful or obligated to respond.
Even when the operative suggested that senior gang members might
take offense to Contreras targeting “an older fool,” Contreras maintained that
“it was nothing like that” and that he “was in [his] room the whole time.” In
that sense Contreras was not cowed into admitting that he targeted or robbed
Rojas, but instead continued to insist that the shooting was at most an
accident. We have also listened to the audiotape of the Perkins operation,
which reflects that the entire conversation was conducted in a calm and
affable tone without threats or intimidation.
15
The only aspect of the Perkins operation that gives us pause is the fact
that a detective interrupted the conversation to tell Contreras he was going
to be booked for murder and falsely claimed that the recovered bullet
matched the gun found in Contreras’s possession. After the detective left, the
operative promptly seized on this false information by telling Contreras
“[t]hat’s bad homie” and “[t]hat’s almost nailing you a nail in the coffin, you
know what I mean?” It was only after this occurred that Contreras began to
make incriminating statements.
As we noted in People v. Zapata (2026) 118 Cal.App.5th 529 (Zapata),
“interacting with a suspect during the Perkins operation allows known
officers to apply more overt pressure meant to assist the questioning done by
the Perkins operatives. This technique is known as ‘stimulat[ing]’ a
conversation. [Citation.] These stimulations, provided by known police
officers, are by design intended to increase a suspect’s anxiety so the suspect
will make incriminating statements to the undercover operatives.” (Id. at
p. 540.)
We have no doubt that the detective engaged in custodial interrogation
within the meaning of Innis by confronting Contreras with false evidence
about the bullet matching the firearm. (See, e.g., People v. Davis (2005) 36
Cal.4th 510, 555 (Davis) [detective engaged in interrogation by falsely
implying that law enforcement had fingerprint evidence linking defendant to
gun involved in shooting]; People v. Sims (1993) 5 Cal.4th 405, 442–444
[officer engaged in functional equivalent of interrogation by confronting
defendant with evidence linking him to the crimes]; see also Innis, supra, 446
U.S. at p. 299 [“psychological ploys” such as positing the guilt of the suspect
may be the functional equivalent of interrogation].) These were “words or
actions on the part of the police (other than those normally attendant to
16
arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” (Innis, at p. 301.) Working
together with the undercover operative, the police successfully used this false
evidence to elicit incriminating statements from Contreras in his subsequent
conversation with the operative—without a Miranda waiver.
Even so, Contreras made no incriminating statements to the detective
in response to this false evidence. We therefore conclude that his subsequent
statements to the undercover Perkins operative were admissible under the
holding of Davis. (Davis, supra, 36 Cal.4th at p. 555.) In Davis, a detective
came to the defendant’s cell and recounted inculpatory evidence against him,
falsely suggesting that the defendant’s fingerprint had been found on a
weapon. (Id. at p. 553.) After the detective left, the defendant made
incriminating statements to his cellmates, which were recorded. (Ibid.)
While concluding that the detective had engaged in the functional equivalent
of interrogation by recounting the evidence against the defendant to him (id.
at p. 555), our Supreme Court concluded that the admission of the
defendant’s subsequent statements made to his cellmates did not violate
Miranda because once the detective left the cell, “there was no longer a
coercive, police-dominated atmosphere, and no official compulsion for him to
speak.” (Ibid.)
Similarly, at the time Contreras made incriminating statements, he
believed he was no longer in the presence of any law enforcement officers.
The only material difference between this case and Davis is that Contreras
was speaking to an undercover operative rather than a real cellmate. Viewed
from Contreras’s perspective, however, he believed the operative was just
a cellmate. As noted, under Perkins, “[c]oercion is determined from the
perspective of the suspect.” (Perkins, supra, 496 U.S. at p. 296.) As a result,
17
unless and until our Supreme Court provides different guidance on law
enforcement stimulation of a Perkins operation, we conclude that Contreras’s
statements to the undercover operative were voluntary because “there was no
longer a coercive, police-dominated atmosphere, and no official compulsion for
him to speak.” (Davis, supra, 36 Cal.4th at p. 555.)
Our holding is consistent with this court’s decision in Zapata, supra,
118 Cal.App.5th 529. Although we expressed concern about police
stimulation tactics in Zapata (id. at p. 540), we made clear that our “holding
[was] limited to a post-Miranda invocation Perkins operation where
stimulations from a known police officer amount to custodial interrogation.”
(Id. at p. 539, fn. 7; see also People v. Ramadhan (2026) 120 Cal.App.5th 906,
913 [distinguishing Zapata because in Ramadhan “the detective announced
the murder charge and the alleged evidence supporting it in front of the law
enforcement agent before [defendant] invoked his right to counsel” (Italics
omitted.)].) We confirmed in Ramadhan that “the focus [under Zapata] is on
what the known law enforcement officer did to stimulate further conversation
after a defendant invoked the Miranda right to counsel.” (Ramadhan, at
p. 913.) Here, the holding of Zapata does not apply because Contreras had
not invoked his Miranda rights before the police stimulation.10
For these reasons, we conclude that the record before us does not
demonstrate that Contreras was coerced into giving incriminating statements
in violation of the Fifth Amendment.
10 The California Supreme Court has granted review in People v. Allen
(July 22, 2024, B328333) [nonpub. opn.], review granted Nov. 20, 2024,
S286520, which involves the admissibility of statements made in a Perkins
operation after the defendant invoked his right to remain silent during
custodial interrogation by a law enforcement officer.
18
B. Sixth Amendment Right to Counsel
Contreras also argues that the Perkins operation violated his Sixth
Amendment right to counsel. “The Sixth Amendment provides that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defense.’ ” (Fayed, supra, 9 Cal.5th at p. 161.)
“In Massiah v. United States (1964) 377 U.S. 201 [(Massiah)] and its
progeny, the United States Supreme Court held that the government—
whether federal or state—may not use an undercover agent to circumvent
the Sixth Amendment right to counsel once that right has attached. After
attachment, the Sixth Amendment prevents the government from interfering
with the accused’s right to counsel. Before attachment, by contrast, the
constitutional provision is not implicated.” (People v. Clair (1992) 2 Cal.4th
629, 657 (Clair) [cleaned up].) “The Sixth Amendment right to counsel does
not attach until a prosecution is commenced, that is, at or after the initiation
of adversary judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment. It is not
enough, for example, that the defendant has become the focus of the
underlying criminal investigation.” (Ibid. [cleaned up].)
Contreras relies on Massiah and People v. Boyd (1978) 86 Cal.App.3d
54 (Boyd) to argue that his Sixth Amendment right to counsel was triggered,
even though he had not been charged with murder at the time of the Perkins
operation, because he had been arrested and booked on “closely related” drug
possession charges and was told that murder charges were forthcoming. But
since Massiah was decided, the United States Supreme Court has declared
that the Sixth Amendment right to counsel is “offense-specific” and only
attaches to offenses as to which adversary judicial criminal proceedings have
been initiated. (Clair, supra, 2 Cal.4th at p. 657; see McNeil v. Wisconsin
19
(1991) 501 U.S. 171, 178–181.) The “closely related” doctrine articulated in
Boyd “has been thoroughly undermined by the ‘offense-specific’ doctrine
enunciated by the United States Supreme Court.” (People v. Plyler (1993) 18
Cal.App.4th 535, 547.) Contreras cites no case law to support his argument
that the right to counsel attaches when a law enforcement officer merely tells
a defendant that charges will be filed in the future. We therefore reject
Contreras’s argument that the Perkins operation violated his Sixth
Amendment right to counsel.
II
We turn next to Contreras’s argument that the trial court erred in
admitting into evidence certain text messages Ramiro sent to Contreras.
Specifically, Contreras contends the following text messages from Ramiro
should have been excluded as inadmissible hearsay: (1) the text stating that
Ramiro had “acted stupid yesterday”; (2) the text referring to Contreras
“bringing out guns”; (3) the text commenting that “[t]he pedo wasn’t with
him,” that he had “no beef with him,” and that Ramiro “called [Contreras]
out”; and (4) the text accusing Contreras of “talking shit” on his name and
telling Contreras he did not “wanna hear shit being made on my name.”
Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted within the statement. (Evid. Code, § 1200,
subd. (a).) Hearsay is inadmissible unless an exception applies, and out-of-
court statements that are not offered to prove the matter asserted in them
are not hearsay. (Id., subd. (b); Jazayeri v. Mao (2009) 174 Cal.App.4th 301,
316.)
We apply “ ‘the abuse of discretion standard of review to any ruling by
a trial court on the admissibility of evidence, including one that turns on the
hearsay nature of the evidence in question.’ ” (People v. Zavala (2013) 216
20
Cal.App.4th 242, 249.) “ ‘ “[A] trial court’s ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (Id. at p. 249, citing People v.
Hovarter (2008) 44 Cal.4th 983, 1004.)
We conclude that the trial court did not abuse its discretion in
admitting the text messages from Ramiro identified above for the non-
hearsay purpose of providing context for Contreras’s own text messages about
their ongoing dispute. All but one of these messages from Ramiro were not
admitted for their truth, and the court expressly instructed the jury not to
consider them for that purpose.11 The trial court did not abuse its discretion
by admitting these statements for “the nonhearsay purpose of giving context
to defendant’s responses.” (People v. Maciel (2013) 57 Cal.4th 482, 524.)
The text referring to Contreras “bringing out guns” presents a closer
question because the trial court admitted this text for its truth as an adoptive
admission. “Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if the statement is one of which the party,
with knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.)
Thus, “ ‘ “[w]hen a person makes a statement in the presence of a party to an
action under circumstances that would normally call for a response if the
statement were untrue, the statement is admissible for the limited purpose of
11 The court instructed the jury as follows: “The evidence you’re going to
hear regarding these text messages from Ramiro or to or from him, those are
not offered for the truth of the matter asserted except for one exception. The
Court is allowing Ramiro’s texts to provide context with respect to any
statements made by Mr. Contreras.”
21
showing the party’s reaction to it. [Citations.] His silence, evasion, or
equivocation may be considered as a tacit admission of the statements made
in his presence.” ’ ” (People v. Jennings (2010) 50 Cal.4th 616, 661.) “ ‘To
warrant admissibility, it is sufficient that the evidence supports a reasonable
inference that an accusatory statement was made under circumstances
affording a fair opportunity to deny the accusation; whether defendant’s
conduct actually constituted an adoptive admission becomes a question for
the jury to decide.’ ” (People v. Geier (2007) 41 Cal.4th 555, 590.)
Here, the trial court reasoned that Ramiro’s text message was
admissible as an adoptive admission because after Ramiro sent the text,
Contreras responded—albeit hours later—without addressing the “bringing
out guns” comment and told Ramiro that he “better have [Contreras’s] money
also” or the situation would “get worser” for him. As one court has cautioned,
however, the “distinctive” nature of text messaging raises concerns about
applying the doctrine of adoptive admissions in such a context. (People v.
McDaniel (2019) 38 Cal.App.5th 986, 999.) “[T]ext messages may not be read
immediately upon receipt and the recipient may not timely respond to a text
message for any number of reasons, such as distraction, interruption, or the
press of business. Furthermore, people exchanging text messages can
typically switch, relatively quickly and seamlessly, to other forms of
communication, such as a phone call, social-media messaging, or an in-person
discussion, depending on the circumstances. In short, in light of the
distinctive nature of text messaging, the receipt of a text message does not
automatically signify prompt knowledge of its contents by the recipient, and
furthermore, the lack of a text response by the recipient does not preclude the
possibility that the recipient responded by other means, such as a phone call.”
(Ibid. [holding trial court erred by admitting defendant’s failure to respond to
22
his mother’s text messages accusing him of robbery as an adoptive
admission].)
We need not resolve this evidentiary question, however, because we
conclude that any error in admitting this one text as an adoptive admission
would not have been prejudicial. We apply the standard set forth in People v.
Watson (1956) 46 Cal.2d 818 (Watson) when considering whether a state law
error in admitting hearsay evidence was harmless. Under Watson, we
determine whether it is reasonably probable that, but for the error, the jury
would have reached a result more favorable to defendant. (Id. at pp. 835–
836.) “[T]he Watson test for harmless error ‘focuses not on what a reasonable
jury could do, but what such a jury is likely to have done in the absence of the
error under consideration.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.)
We conclude that any error would be harmless for several reasons.
First, even if the “bringing out guns” text was not admissible as an adoptive
admission, it still would have been admissible to give context to Contreras’s
response, just like all of Ramiro’s other texts in this same exchange. In
response to Ramiro’s text saying, “I still wanted to fight you but u bringing
out guns it ain’t worth[] it turning something small into a tragedy,”
Contreras replied that “u better have my money also or it’s gonna get worser
for u.” The jury could reasonably infer from this exchange that Contreras
was threatening Ramiro with something “worser” than just “bringing out
guns” in a fight if he did not pay his debt. Even if the adoptive admission
theory did not apply, therefore, the text would still have come into evidence
for the nonhearsay purpose of giving meaning to Contreras’s threatening
response.
Second, in light of the other evidence admitted at trial, there is no
reasonable probability the result would have been different if the text had
23
been admitted just for context rather than the truth of the matter asserted.
Contreras’s own text messages contained threats against Ramiro; the other
admissible texts by both of them demonstrated the existence of a dispute over
a debt Ramiro owed to Contreras; Contreras made incriminating statements
in the Perkins operation about firing the gun accidentally from his window,
discarding the casing, and having his girlfriend provide an alibi; Contreras
was found with a loaded gun with bullets of the same caliber that killed Rojas
in his possession at the time of his arrest; and the lead detective testified
without objection that his investigation revealed Ramiro and Contreras “had
issues with each other and threats had been made.” In light of this other
evidence, we conclude any error in admitting this one text message as an
adoptive admission rather than just for context would be harmless under
Watson.
III
Contreras next argues that the court abused its discretion by admitting
testimony from the case’s lead detective about Contreras’s purported alibi,
but then prohibiting certain questions on cross-examination regarding that
testimony on hearsay grounds. We disagree.
The detective was first prompted to address Contreras’s potential alibi
witnesses on cross-examination when defense counsel asked him whether he
had interviewed any of them, including Contreras’s girlfriend. He responded,
without elaborating, that members of his team had interviewed some
individuals. Later in the cross-examination, defense counsel also questioned
the detective about whether he had asked the people he interviewed “what
they were doing, or where they were at the time of the shooting[.]” He
responded that it was possible those questions were asked, but that he did
not recall the answers.
24
With the defense having opened the door to the subject of the
detective’s diligence in investigating Contreras’s alibi, on redirect, the
prosecution asked the detective to characterize the girlfriend’s interviews
with law enforcement. The trial court did not abuse its discretion in
overruling the defense’s hearsay objection to the detective’s generic
characterization of the girlfriend’s interviews as “erratic and inconsistent”
because it did not elicit the substance of any statement by Contreras’s
girlfriend for the truth of the matter asserted and, as the court explained, the
purpose of the testimony was “to show what [the detective] did or did not do
as a result of receiving the information” from Contreras’s girlfriend. Put
another way, the detective was providing his description or assessment of the
girlfriend’s statements to explain why he did not investigate Contreras’s alibi
further. (See People v. Riccardi (2012) 54 Cal.4th 758, 823 [statements
containing “descriptions or assessments of defendant’s conduct” that altered
the victim’s conduct were not hearsay “to the extent they were admitted to
prove circumstantially” the victim’s “state of mind or conduct, and not to
prove the truth of matters asserted regarding defendant’s conduct”].)
Similarly, when the detective stated that there was independent evidence
contradicting the girlfriend’s statements, the court did not abuse its
discretion in determining at that time that the detective was explaining his
investigative process and not relaying the substance of any out-of-court
statement made by her.
In contrast, when on recross-examination defense counsel sought to
elicit testimony about the substance of the girlfriend’s statements—i.e.,
whether she said that she was braiding Contreras’s hair and what she said
that the detective deemed contradictory—the trial court again did not abuse
its discretion in sustaining the prosecution’s hearsay objection to those
25
questions. At that point, defense counsel was attempting to elicit the alibi
evidence through hearsay evidence without calling the alibi witness herself.
Although defense counsel asserted that the girlfriend’s statements were not
being offered for their truth, they had no other relevance. As the court
explained, the substance of her alibi evidence could be admitted “when and if
[she] should testify[.]” “Control of cross-examination is within the discretion
of the trial court, and only a manifest abuse of discretion will warrant a
reversal.” (People v. Stuller (1970) 10 Cal.App.3d 582, 598.) Here, we
conclude the court acted within its discretion in allowing limited testimony
about the detective’s interview of the girlfriend in response to defense
counsel’s cross-examination on this subject, while still precluding the defense
from introducing the substance of the girlfriend’s hearsay statements without
calling her as a witness.
IV
Contreras asserts that the cumulative effect of the trial court’s errors
violated his due process right to a fair trial. The premise behind the
cumulative error doctrine is that while errors may be harmless taken
individually, their cumulative effect could require reversal. (People v.
Bunyard (1988) 45 Cal.3d 1189, 1236–1237.) But having found either no
error or no prejudice when considering Contreras’s claims separately, we
similarly conclude when viewing them cumulatively that Contreras was not
deprived of a fair trial.
26
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
27
