Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Orange County Super. Ct. No. 04NF0546, Gregg L. Prickett, Judge.
Willam J. Kopeny 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 Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Oscar Bringas Garcia appeals his conviction on one count of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), with an additional finding that defendant had substantial sexual contact with the child. (§ 1203.066, subd. (a)(8).) Defendant claims that his statements to the police were involuntary and that an expert witness’s testimony should not have been permitted. We find that neither contention has merit and affirm.
Unless otherwise noted, subsequent statutory references are to the Penal Code.
I
FACTS
In December 2003, then seven-year-old Melissa and her family shared a house with her maternal aunt and her family, including defendant, Melissa’s uncle. Melissa reported to her mother that sometime during October, her uncle had touched her in inappropriate places. Her mother took her to the police department, and Melissa was interviewed by a detective. During the interview, Melissa described the incident in some detail, stating that defendant had touched and penetrated her both with his hand and his penis, and that she had touched him.
In February 2004, Buena Park Detective Jerry Von Gries went to defendant’s residence with a Spanish-speaking officer. Von Gries advised defendant he was conducting an investigation involving him and asked if defendant would come to the police station for an interview. Defendant agreed and appeared at the police station that afternoon. He was interviewed, again with the help of a Spanish-speaking officer. The interview lasted approximately two hours. Defendant initially denied molesting Melissa.
At trial, Von Gries described two techniques he used during the interview. Minimalizing involves using a hypothetical situation that could be based on what the officer actually believes occurred, but describes it as accidental or unintentional. The purpose of this technique is to make the subject feel more at ease in discussing the situation. Von Gries described the other technique as a ruse. After defendant allowed Von Gries to take DNA swabs, Von Gries suggested to defendant that those could be matched to skin flakes inside the victim’s body. Von Gries knew that no such DNA was available from Melissa.
Defendant eventually described the incident to Von Gries as accidental. He said that he accidentally touched Melissa’s vagina underneath her panties while they were playing and she was running towards him. She then grabbed his penis with her hand. Defendant was wearing thin shorts at the time, as he was changing his clothes. After it happened, defendant ejaculated on the floor and left quickly to clean up, and Melissa ran out of the room. Defendant indicated that he was sorry and that he knew his actions were wrong.
Von Gries further testified that he did not request a medical exam for Melissa because of the time lapse between the incident and the report to the police. In the interview that he had seen, Melissa had not mentioned penetration by a penis, and as a result Von Gries did not believe there would be physical evidence that would justify subjecting Melissa to a medical procedure.
Antonia Benitez, defendant’s wife, also testified. She stated that she had a dispute with her sister, Melissa’s mother, regarding the house they all lived in at the time of the alleged incident. A court case had resulted, and Benitez claimed that Melissa’s mother had threatened her, both with physical violence and the threat of a charge that defendant had raped Melissa. She said that Melissa’s mother had gone to the police station to report the abuse right after they had returned from court. Benitez, however, never told the police about these threats.
Over defendant’s objection, a pediatric nurse practitioner with the Child Abuse Services Team (CAST) also testified. She testified that the sooner a child is examined after a sexual assault, the more likely it is that unhealed bruising or tearing will be found. If there was digital or penile penetration of a child’s vagina in mid to late October, one would not expect to find any bruising or acute injuries if the child was examined on January 21 of the next year. Overall, only about 5 percent of child abuse cases are supported by such findings.
At the conclusion of trial, the jury found defendant guilty of one count of committing a lewd or lascivious act on a child under the age of 14. (§ 288, subd. (a).) The jury also found it true that defendant had substantial sexual contact with the child. (§ 1203.066, subd. (a)(8).) Defendant was sentenced to the midterm of six years in state prison.
II
DISCUSSION
A. Defendant’s Statements to Police
Defendant argues that his statements to the police should not have been admitted into evidence. His briefs combine the contention that his statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) with the separate issue of whether his statements were voluntary, which was the approach adopted by the trial court. While his main argument seems to focus on voluntariness rather than Miranda, in the interest of justice, we address each issue in turn.
1. Miranda
Miranda does not apply to every encounter between the police and a suspect; it comes into play only if custodial interrogation is involved. “Absent ‘custodial interrogation,’ Miranda simply does not come into play. [Citations.] Miranda does not ‘prohibit the police from merely listening to . . . volunteered statements’ uttered by a person, whether or not in custody, ‘and using them against him at the trial’ — nor does the Fifth or Fourteenth Amendment. [Citation.] Hence if ‘custodial interrogation’ is lacking, Miranda rights are not implicated . . . .’ [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 648.)
Whether a defendant is in custody, and therefore subject to Miranda’s protections, is a mixed question of fact and law. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) The trial court’s findings of fact are entitled to great weight when supported by substantial evidence, but its conclusions of law — in this case, whether defendant was in custody — are reviewed independently. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
“The test for whether an individual is in custody is ‘objective . . .: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”’ [Citations.]” (People v. Ochoa, supra, 19 Cal.4th at p. 401.) If a reasonable person would have felt free to leave, given the circumstances, the suspect is not in custody under Miranda. (Id. at p. 402.)
No single factor is determinative in deciding whether a suspect was in custody, and we consider them as a whole. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) “Courts have identified a variety of relevant circumstances. Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.]” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Defendant voluntarily came to the police station after Von Gries asked him for an interview. He arrived as agreed on his bicycle, and was not transported by the police. The interview took place in an interview room at the police station, but defendant was not handcuffed or otherwise restrained. Indeed, before the interview began, Von Gries told him, through the Spanish-speaking officer: “I want to let him know that he is not under arrest. [¶] . . . [¶] [H]e is free to leave at any time. [¶] . . . [¶] All he needs to do is stand up [and] walk right back out the hallway.” Defendant was reminded of this again later in the interview. He was specifically told he was not being threatened. “No one is threatening you, you are free to leave at any moment.” At the end of the interview, when the detective informed defendant he was being placed under arrest, defendant appeared surprised, asking “Right now[?]”
The interview lasted approximately two hours. During that time, Von Gries indicated his belief in defendant’s culpability repeatedly, and suggested there was evidence to prove defendant’s guilt.
Taken as a whole, we do not find that the police interrogation of defendant was custodial. The interrogation took place at the police station at Von Gries’s instigation, and defendant was arrested at its conclusion. Yet defendant agreed to the interview, arrived on his own, and was specifically informed more than once that he was free to leave if he wished to do so. Von Gries indicated he believed defendant was guilty, yet at the same time, he suggested there might have been an accident or a misunderstanding, a technique intended to make defendant feel more at ease, not intimidated or pressured. The interrogation was not lengthy.
Similar cases in which the suspect was explicitly informed that he could leave at any time have concluded there was no custody for Miranda purposes. In People v. Ochoa, supra, 19 Cal.4th at p. 402, the defendant had signed a statement informing him that the interview was voluntary. He was not in custody because a reasonable person in his position would have realized he could end questioning and leave. In People v. Chutan (1999) 72 Cal.App.4th 1276, 1282, the defendant was invited to the police station, expressly told that he was not under arrest, and driven home as promised. The court again found no custody. In In re Kenneth S. (2005) 133 Cal.App.4th 54, 63, the court found a juvenile was not in custody after he appeared voluntarily at a police station, was questioned for 15 to 20 minutes, and was specifically advised that he was not under arrest and could leave at any time.
While not determinative, the express statement to a suspect that he can leave at any time is important in concluding that a reasonable person would not have felt compelled to stay. This is a major factor in our conclusion there was not a “‘“‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”’ [Citations.]” (People v. Ochoa, supra, 19 Cal.4th at p. 401.) Therefore, Miranda is not implicated.
2. Voluntary Nature of Statements
Defendant further claims that his statements were the subject of coercion and not voluntary. The state must demonstrate the defendant’s confession was voluntary by a preponderance of the evidence. (People v. Weaver (2001) 26 Cal.4th 876, 920.) “On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
“Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’” (People v. Neal (2003) 31 Cal.4th 63, 79.) “Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (People v. Massie, supra, 19 Cal.4th at p. 576.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (Ibid.)
There is no dispute that in this case, defendant’s statements were not made as a result of any physical coercion or the threat thereof. He was not subjected to prolonged interrogation, physical discomfort, or to extreme psychological techniques.
Defendant relies on the fact that the detective made false statements to him, including the use of a “voice stress analyzer,” to support his claim that his confession was involuntary. Deception alone, however, does not render the confession involuntary, unless the representations or omissions are likely to produce a false confession. (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) Defendant fails to show how the detective’s deceptions did so in this instance. Deceptions regarding the evidence alone are not considered likely to produce a false confession. (People v. Thompson (1990) 50 Cal.3d 134, 167.) As such, the deceptions do not render defendant’s statements involuntary.
Defendant also argues that he was induced to confess by a promise that he would not be prosecuted if he committed the act by accident. He combines this with facts about the defendant’s continued denials that he had done anything wrong, but this does not bolster his argument. Moreover, the record does not demonstrate any express or implied promise of leniency. The detective’s statement that his honesty would be reported to the district attorney is not impermissible. “[T]he detective’s offers of intercession with the district attorney amounted to truthful implications that his cooperation might be useful in later plea bargain negotiations. [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 298.)
Indeed, “investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 340.) We do not find any of the techniques complained of by defendant, taken separately or together, to meet this criteria.
In sum, nothing about the physical circumstances or psychological techniques used during the interrogation indicates defendant’s statements were not “‘essentially free’” or that his “will was overborne.” (People v. Memro (1995) 11 Cal.4th 786, 827.) We therefore find defendant’s statements were properly admitted.
B. Witness Testimony
According to defendant, the trial court erred in permitting prosecution witness Jeanie Ming to testify, primarily on the subject of whether a medical exam might have revealed evidence of penetration. Ming had not been listed on the prosecution’s witness list, but the prosecutor wished to call her because defendant, while cross-examining Von Gries, had implied the police had failed to do a proper investigation. Thus, he wanted Ming to be permitted to testify as to the likelihood of medical findings when a lengthy gap existed between the assault and the examination.
The court permitted Ming to testify, even though she had not been disclosed to the defense as a trial witness, based on the prosecution’s representation that it did not expect the lack of a medical examination in this case to be pertinent. The court offered defense counsel a short continuance of a day or two to locate its own witness on this topic, but counsel stated that would be impossible.
We review the trial court’s decision to admit or exclude evidence for abuse of discretion. The ruling “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We reject defendant’s argument that the trial court’s exercise of its discretion was based on an “error of law.” Contrary to defendant’s argument, it is clear from the record that the trial court did not confuse the issue of relevance with that of disclosure.
The prosecution’s duty to disclose information to the defense is governed by section 1054.1, which requires the prosecution to provide the names of all witnesses the prosecutor intends to call at trial. Courts have interpreted this to mean all witnesses the party “reasonably anticipates” calling to testify. (In re Littlefield (1993) 5 Cal.4th 122, 130.)
Defendant would have us skip directly to an analysis of the appropriate sanction for violating discovery obligations, without considering whether the trial court — under the abuse of discretion standard — could have found no discovery violation had occurred. The court could make such a finding if it believed the prosecutor did not “reasonably anticipate” calling Ming as a witness. “A trial is not a scripted proceeding. . . . [D]uring the trial process, things change and the best laid strategies and expectations may quickly become inappropriate: witnesses who have been interviewed vacillate or change their statements; events that did not loom large prospectively may become a focal point in reality. Thus, there must be some flexibility. After all, the ‘“true purpose of a criminal trial”’ is ‘“the ascertainment of the facts.”’ [Citation.] After hearing a witness, the necessity of a rebuttal witness may become more important.” (People v. Hammond (1994) 22 Cal.App.4th 1611, 1624.)
Ming was indeed a rebuttal witness, called to testify to rebut the defense’s implications regarding the conduct of the investigation. The trial court might have found the prosecution did not violate its discovery obligations because (as we will discuss further below) a medical exam was not necessary to prove the charge against defendant, or the related sentencing enhancement. It was a tangential issue, and it was not arbitrary, capricious, or absurd for the court to find that prior to the defense’s cross-examination of Von Gries, the prosecutor did not believe Ming’s testimony was necessary, or even appropriate. Thus, we find no error.
Even if there was error, we find no prejudice. The test for prejudice in cases of discovery violations is People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn.13) Thus, even if the court did admit Ming’s testimony in error, the judgment is not subject to reversal unless it is reasonably probable that the error affected the result. We find no such probability.
The question of whether there should have been a medical exam was not directly pertinent to an element of the charged crime, which was committing a lewd or lascivious act on a child under the age of 14. No contact at all between the victim and the assailant need be proved to establish each element of the crime. (§ 288, subd. (a); Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 1110.) Nor was any contact necessary to prove the enhancement of substantial sexual contact, which could involve either penetration or masturbation of either the child or the perpetrator. (§ 1203.066, subd. (a)(8), (b).)
Because the testimony did not concern an essential element of the crime or enhancement, and because there was ample evidence from which the jury could find the defendant guilty regardless of the testimony about the medical exam, we do not find there was a reasonable likelihood of a different outcome absent the error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.