Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR054596
Marchiano, P.J.
A jury convicted defendant Larry Clyde Davis of three counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court sentenced him to six years’ probation, subject to numerous conditions. Defendant contends that videotapes of his two interviews with a sheriff’s detective, in which he confessed to one lewd act, should not have been played for the jury because his statements were involuntary. We disagree because he met with the detective of his own free will and his statements were voluntary. Accordingly, we affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The victim, Amber M., was 15 years old at the time of defendant’s 2007 trial. She lived in Eureka until she was 12, when her family moved to Colorado. While she lived in Eureka, she frequently visited the house of her father’s mother, Donna M. At times, her great-aunt Linda and great-uncle Larry (defendant) lived in Donna M.’s house.
When she was eight years old and in the third grade—approximately seven years before trial—defendant touched her in a way she did not like while she was visiting Donna M.’s house. Defendant touched her on three or four occasions within a time span of a few weeks. Defendant would have been 56 or 57 at the time.
The information alleged that three separate lewd and lascivious acts occurred between September 28, 1999, and September 27, 2000. The probation report indicates defendant was born in December 1943.
Amber would go into defendant’s bedroom because she did not like what the other family members were watching on TV in the living room. Defendant would let her watch whatever she wanted on his bedroom TV. Defendant would tell her to close the bedroom door. He would sit on the edge of the bed with his feet on the floor, and she would sit on his lap, with her back to him, between his legs. He would rub her “private area” between her legs, first on the outside of her clothing, then between her pants and underwear, then beneath her underwear, rubbing her skin in a circular motion for several minutes.
These touchings changed Amber’s feelings toward defendant. She stopped going into his bedroom to watch TV with him, became very quiet and began avoiding him. She would only talk to defendant if it was absolutely necessary. Her grandmother, Donna M., noticed Amber was avoiding defendant and asked her about it. Amber at first denied that anything had happened, then told Donna M. about the touchings. Donna M. respected Amber’s wishes that no one know, but told Amber she would never allow Amber to be alone with defendant.
Donna M. testified that she saw a change in Amber’s attitude toward defendant. Amber became “real, real quiet” and would no longer run to defendant. This “scared” Donna M. She confirmed that Amber first denied that anything was wrong, but then became upset, started to cry, and told Donna M. that defendant had touched her between her legs under her panties.
Four years after the sex crimes, after Amber turned 12 and moved to Colorado to live with her mother, a family member called Amber’s mother and told her what had happened. When asked by her mother, Amber told her mother what defendant had done.
In the spring of 2005, Amber’s stepmother, Heidi M., learned of the touchings from a family member and asked Amber what had happened. Amber could not speak and her eyes filled with tears. She finally told Heidi M. what defendant had done. Heidi M. called the police.
As a courtesy to Humboldt County, Lake County Sheriff’s Detective Mike Curran contacted defendant at a Lake County campground where he was staying with his family. Curran interviewed defendant on August 11, 2005. Curran conducted a first interview of defendant, spoke to defendant’s wife, and then conducted a second interview of defendant. The interviews took place in a police department interview room.
At the outset of defendant’s first interview, Curran told defendant he was not under arrest, was under no obligation to talk to him, and was free to leave at any time of his own choosing. He also told defendant, “[I]f you get up right now and walk out that door and say you want to head home, I’m not gonna stop you.”
Curran told defendant what Amber had said defendant did to her. Curran described the touchings in detail and told defendant they had happened several times. Defendant denied touching Amber. He said he had merely held her around her stomach, from behind, while they watched TV. Defendant suggested if his hand had slipped down between her legs it was an accident. Curran expressed disbelief that defendant’s hand could have slipped beneath Amber’s underwear without him knowing. Curran asked defendant if he knew his hand had slipped to “down there”; defendant replied, “Yeah I knew that but hey, you know what I mean? [Y]ou know what I mean?”
Curran told defendant that Amber had said defendant would tell the truth if confronted. Defendant said that “[If] she says I did that maybe I did” [while he was holding her and watching TV] it’s [a] mistake.” Shortly thereafter defendant said, “[I]f it happened, it happened,” and admitted he “might be” in denial. He also said, “I can’t believe I did it, but if I did, I didn’t mean to, you know?”
The first interview concluded. Defendant left the interview room. Curran then spoke to defendant’s wife, Linda. Curran asked Linda: “[L]et me ask you a question. If I told you that Larry had told me that his hands accidentally slipped down underneath [Amber’s] pants, what would you say?” Linda replied that she did not want to believe that defendant did that intentionally.
Later in the interview, Curran told Linda: “[N]ow Larry showed some level of responsibility regarding what Amber told us. He didn’t show full—he didn’t take full responsibility. He wasn’t completely honest with me. He knows what happened. He’s in some level of denial.” Curran also told Linda that he needed to talk to defendant again when he was ready to take full responsibility. Defendant “has to want to do the right thing.”
Linda left the interview room and spoke to defendant for about 20-30 minutes in his son’s pickup truck parked outside. What she said to defendant caused him to go back inside for his second interview.
The second interview took place 45 minutes to an hour after the first interview concluded and 20-30 minutes after Linda left the interview room. Curran again told defendant he was not under arrest and did not have to talk to the detective. Curran told defendant he thought defendant was ready to make the right decision and take responsibility for his actions. Defendant said, “So if I did it, I did it. I mean I—I shouldn’t have done it.” He admitted he touched Amber’s vagina “one time,” but repeatedly denied touching Amber more than once. He emphasized, “I only [did] it that one time.”
The videotapes of both of defendant’s interviews were played for the jury.
Defendant testified at trial that he touched Amber once while he was changing her diaper when she was an infant. He denied touching her inappropriately when she was eight years old. He admitted that it was possible he had touched her inappropriately, but he did not recall doing so and didn’t believe he had done so. He denied he was sexually attracted to Amber.
Defendant acknowledged that he drove to the police department for the interviews with Curran, that he freely and voluntarily talked to him, and that he knew he was free to leave at any time. He had a clear mind, understood Curran’s questions, and had not been drinking or taking drugs.
Dr. Otto Vanoni, a clinical psychologist, testified for the defense. Dr. Vanoni had previously found defendant incompetent to stand trial. He had given defendant an IQ test. Defendant was of low average intelligence on the performance quotient, and borderline retarded on the verbal quotient. He is able to think logically and coherently and follow reasonable conclusions about relationships between events. Dr. Vanoni did not think defendant would be sexually interested in an eight-year-old female.
Various family members testified that defendant was of average intelligence and was not sexually interested in young children.
Donna M. testified in rebuttal that she believed Amber was very credible, but that defendant’s credibility was not very good.
II. DISCUSSION
Defendant filed a motion in limine to exclude his statements to Detective Curran on the ground that they were involuntary due to coercion and deception. After holding a hearing and reviewing the videotapes, the trial court denied the motion. The court found that “from the totality of the circumstances . . . there was [no] coercion or duress such that would overbear or overcome [defendant’s] will to speak,” and that defendant’s statements are “frankly, quite voluntarily [sic].”
In reviewing a trial court’s determination that a confession is voluntary “we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 921 (Weaver).) We have reviewed the videotapes of the two interviews with defendant and the interview with his wife.
An involuntary confession is inadmissible as a violation of the due process clauses of the federal and state Constitutions. (Weaver, supra, 26 Cal.4th at p. 920; In re Shawn D. (1993) 20 Cal.App.4th 200, 208 (Shawn D.).) We apply a totality of the circumstances test to determine whether the defendant’s will was overborne. (Weaver, supra, at p. 920; Shawn D., supra, at p. 208.) The surrounding circumstances include the characteristics of the accused and the details of the interrogation. (Shawn D., supra, at pp. 208-209.)
Police deception to obtain a confession is not per se sufficient to render the confession involuntary. (People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam); Shawn D., supra, 20 Cal.App.4th at p. 209.) “Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. [Citation.]” (Farnam, supra, at p. 182.)
Defendant claims his statements were involuntary because (1) he was 62 years old, with no prior experience in the criminal justice system, limited ability to read and write, impaired hearing and a brain dysfunction; and (2) Detective Curran used deception towards him and his wife.
(1) There is no dispute regarding defendant’s age, lack of experience in the criminal justice system, limited ability to read and write, and low average intelligence. There is a dispute about his ability to hear Curran. Linda testified defendant is deaf in his left ear, and the record shows that defendant uses a hearing aid. He did not have it with him at the time of the interviews, because he only wore it while he was driving. He told Curran he had no trouble hearing him, and in any case could read lips. At trial, defendant testified both that he understood Curran’s questions, and that he could not understand some of Curran’s words because Curran kept moving his head and defendant could not read his lips.
At a pretrial Evidence Code section 402 hearing, Dr. Vanoni testified that defendant suffered from organic brain dysfunction and was significantly clinically impaired. Linda testified defendant had limited ability to read and write.
It is undisputed that defendant was not under formal interrogation when he spoke to Detective Curran; defendant conceded this point below. Defendant drove himself to the interviews, was told he was not under arrest and was free to leave at any time, and by his own testimony was of a clear mind. Our review of the videotapes shows that defendant understood Curran’s questions and by and large gave responsive answers. We see no indication that defendant had trouble understanding Curran. Apart from showing some frustration at the second interview in the face of defendant’s denials of multiple molestations, Curran remained calm with a professional demeanor. The videotapes do not show a coercive setting.
(2) Defendant claims Curran used deception by “convey[ing] the false information to [Linda] that [defendant] had admitted inappropriately touching Amber . . . .” This was not deception. Curran told Linda that defendant had admitted that his hand accidentally slipped under Amber’s pants. That description is a fair characterization of defendant’s statements at the first interview. Even if it was a slight embellishment, any deception was far below the level of magnitude courts have found acceptable. (See, e.g., Farnam, supra, 28 Cal.4th at p. 182 [falsely telling defendant his fingerprints are on stolen wallet]; People v. Thompson (1990) 50 Cal.3d 134, 166-167 [false claim that incriminating evidence had been found]; In re Walker (1974) 10 Cal.3d 764, 777 [defendant was told, perhaps deceptively, that he might die in ambulance on the way to hospital and should talk to close the record].)
Defendant’s reliance on People v. Hogan (1982) 31 Cal.3d 815 (Hogan), disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836, is misplaced. Hogan is distinguishable. It involved false statements to the defendant’s wife that made him doubt his own sanity, thus making him more susceptible to an impermissible offer of leniency, i.e., help with his mental problems. (Hogan, supra, at pp. 840-841.) This was recognized in Farnam, supra, 28 Cal.4th at p. 182.) Furthermore, the Hogan opinion represented the view of only two Justices, Chief Justice Bird and Justice Broussard. (Hogan, supra, at pp. 816, 820, 855.)
Defendant also notes, correctly, that Curran used deception by repeatedly telling him that Amber had spoken to “us” and to Curran personally, when in fact Curran had not personally spoken with Amber and by “us” Curran was referring to law enforcement in general. Under the above authorities, this does not rise to the level of deception that would, under the totality of the circumstances, render defendant’s statements involuntary.
We agree with the trial court that defendant’s statements were voluntary and were properly admitted.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant also suggests it was impermissible for Curran to imply that Linda should tell defendant to speak the truth. Advising a defendant to speak the truth is permissible, and does not by itself render a statement involuntary. (See People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on unrelated ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Higareda (1994) 24 Cal.App.4th 1399, 1409.)