Use of undercover informants in jail cell amounted to a custodial interrogation and violated Miranda

People v. Zapata (Cal. Ct. App., Feb. 10, 2026, No. D084024) 2026 WL 366837, at *1

Summary: A “Perkins operation” is when an undercover operative is placed in a cell with the suspect to obtain information from the suspect. The term derives its name from Illinois v. Perkins (1990) 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (Perkins).

During a Perkins operation, Zapata admitted to two undercover officers that he murdered Justin Triplett. A jury who heard a recording of Zapata’s confession convicted Zapata of second degree murder. On appeal, Zapata argues the trial court’s admission of his statements violated Miranda because he had invoked his right to an attorney, he did not waive that right when he spoke with the undercover agents, and the involvement of a known law enforcement officer transformed the operation into a custodial interrogation. The Court of Appeal agreed.

When a suspect invokes and does not waive the right to counsel, and a known law enforcement officer continues to conduct a Perkins operation in a manner that amounts to a custodial interrogation, the suspect’s resulting incriminating statements are inadmissible. Admission of Zapata’s statements was prejudicial, and the judgment was reverse and remanded for further proceedings.

Perkins Operation

Triplett was killed on September 22, 2014. Suspecting Zapata as the perpetrator, a Riverside County Sherriff’s deputy conducted a Perkins operation one year later while Zapata was in custody for charges unrelated to Triplett’s killing. The deputy placed Zapata in a holding cell for over three hours with two law enforcement agents posing as inmates. The deputy recorded the operation and monitored it from nearby, contacting Zapata approximately three times in order to “stimulat[e]” conversation between Zapata and the agents.

When undercover agents questioned Zapata about Triplett’s murder, he first denied being involved. Midway through the operation, the deputy removed Zapata from the cell for a fake lineup, falsely telling Zapata that a witness identified him as Triplett’s killer. During that process, the deputy asked Zapata if he wanted to discuss the murder, and Zapata invoked his right to counsel, stating he wanted a lawyer before any further questioning occurred.

After the lineup, the deputy did not provide Zapata with a lawyer. Zapata was returned to the holding cell, and a deputy announced that he was charging Zapata with murder. The two undercover agents heard the deputy mention the murder charge, and they  began asking Zapata about it after the deputy left. Zapata ultimately admitted killing Triplett after the agents continued to press him about the killing. A few months later, the Riverside District Attorney’s office charged Zapata with Triplett’s murder (Pen. Code,3 § 187, subd. (a)), alleging that he personally used a firearm causing great bodily injury or death (§ 12022.53, subd. (d)).

The jury found Zapata not guilty of first degree murder, but guilty of second degree murder. The jury was unable to reach a verdict on the personal firearm enhancement under section 12022.53, subdivision (d). After the trial court declared a mistrial on that allegation, Zapata admitted the lesser enhancement under section 12022.53, subdivision (b) (i.e., firearm use without causing great bodily injury or death) pursuant to a plea agreement with the People. The trial court sentenced Zapata to prison for 15 years to life for the murder, plus 10 years for the firearm use. Zapata appealed.

Standard of Review

“ ‘In reviewing the trial court’s denial of a suppression motion on Miranda and involuntariness grounds, “ ‘ “we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.” ’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 339, 205 Cal.Rptr.3d 386, 376 P.3d 528.)

Zapata’s Statements to the Undercover Agents Were Inadmissible

Some Perkins operations use only undercover officers, while others — like that in Perkins itself — employ undercover officers and inmates.

Here, known law enforcement personnel interacted with the Zapata during the conversation with the Perkins questioners. The purpose is to remind the suspect of law enforcement’s presence, “it can be as simple as us just walking by and the target of the operation seeing us so they would know we’re there.” This is meant to increase pressure on the suspect while he or she is talking with the Perkins operatives.

Second, 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. (Orozco, supra, 32 Cal.App.5th at p. 809, 244 Cal.Rptr.3d 337.) These stimulations, provided by known police officers, are intended to increase a suspect’s anxiety so the suspect will make incriminating statements to the undercover operatives. As the deputy in this case explained to the court, “[The line up stratagem] caused [Zapata] to want to talk to, he thought, [ ] other inmates about how to prepare for this.”

“Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concern.” (Perkins, supra, 496 U.S. at p. 297, 110 S.Ct. 2394.) Obtaining a confession by “trickery,” including false lineups, was among the police tactics criticized in Miranda. (Miranda, supra, 384 U.S. at p. 453, 86 S.Ct. 1602.) “It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation.” (Innis, supra, 446 U.S. at p. 299, 100 S.Ct. 1682.)

Here, the deputy contacted Zapata as stimulations both to remind Zapata law enforcement was there and to get him to talk. After an hour the cooperating inmates were not getting information about the murder. At that point, having monitored the jail cell conversation remotely, a known law enforcement agent entered the cell, brought Zapata out, and began the lineup ruse. The point of this more elaborate ploy was to increase the “level of compulsion” (Perkins, supra, 496 U.S. at p. 297, 110 S.Ct. 2394) on Zapata and to coerce him to speak about the killing, when he got back to his cell. Even after Zapata expressly requested an attorney, the deputy increased pressure on Zapata by not only putting him back into the cell, but also simultaneously stating that he would be charged with murder. This prompted the Perkins operatives to ask Zapata about that crime.

The way this Perkins operation was designed relied on significant participation of a person known by Zapata to be law enforcement while Zapata was in police custody. This situation cannot be fairly characterized as an environment free of a “ ‘police-dominated atmosphere.’ ” (Perkins, at p. 296, 110 S.Ct. 2394.) Law enforcement’s recurring presence, along with an elaborate lineup ruse, was intended to place significant pressure on Zapata. More importantly, conducting a fake lineup and announcing the murder charge in the presence of the undercover operatives was “reasonably likely to elicit an incriminating response from” Zapata. (Innis, supra, 446 U.S. at p. 301, 100 S.Ct. 1682.) That was the deputy’s stated purpose, and Zapata had no “impartial observers to guard against intimidation or trickery” (Miranda, supra, 384 U.S. at p. 461, 86 S.Ct. 1602) when he subsequently incriminated himself. The deputy’s actions raised the Perkins operation to a custodial interrogation, implicating Zapata’s rights under Miranda and Edwards.

The Admission of Zapata’s Statements Prejudiced Him

“The erroneous admission of statements obtained in violation of the Fifth Amendment is reviewed under the Chapman standard [citations]…. The standard is satisfied only if ‘[t]here is no reasonable possibility that the verdict would have been more favorable to defendant had [the] statements not been admitted.’ [Citation.] Because confessions ‘ “[a]lmost invariably” will provide persuasive evidence of a defendant’s guilt …, the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard.’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1029, 266 Cal.Rptr.3d 365, 470 P.3d 71.)

“[T]he erroneous admission of any given confession ‘might be found harmless, for example, (1) when the defendant was apprehended by the police in the course of committing the crime, (2) when there are numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence, or (3) in a case in which the prosecution introduced, in addition to the confession, a videotape of the commission of the crime.’ ” (People v. Neal (2003) 31 Cal.4th 63, 86, 1 Cal.Rptr.3d 650, 72 P.3d 280.)

None of the examples of harmlessness cited in Neal are present here. Acknowledging that confessions “ ‘often operate “as a kind of evidentiary bombshell which shatters the defense” ’ ” (People v. Roberts (2017) 13 Cal.App.5th 565, 577, 220 Cal.Rptr.3d 703), we cannot say the erroneous admission of Zapata’s statements from the Perkins operation was harmless beyond a reasonable doubt. Accordingly, reversal is required.

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