Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA110719, Gary E. Daigh, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Jose Delacruz of four counts of lewd or lascivious acts on a child under the age of 14 years, continuous sexual abuse of a child, and forcible rape. Delacruz appeals, claiming his incriminating statements to police were involuntary and inadmissible. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2010, officers with the Los Angeles County Sheriff’s Department arrested Delacruz after his 16-year-old daughter reported that Delacruz had sexually abused her.
His daughter reported to social workers (and later testified at trial) that for three years, beginning when she was 12 years old, Delacruz would fondle her vagina and masturbate multiple times per week. Shortly after she turned 15, he began having sexual intercourse with her on a weekly, then daily basis. She estimated that her father had sexual intercourse with her 100 times. A physical examination revealed physical trauma consistent with her history.
Detective Marvin Jaramilla arrested and twice interviewed Delacruz, on the day of the arrest and two days later on February 6. Each taped interview lasted 45 minutes and was conducted in English. At the start of each interview, Jaramilla read Delacruz his Miranda rights. During the first session, Delacruz said he did not understand the right to remain silent or the right to have a court-appointed attorney; Jaramilla explained both rights to him, and he waived them.
Miranda v. Arizona (1966) 384 U.S. 436.
Throughout the first interview, Delacruz denied any physical or sexual abuse of his daughter. Jaramilla urged Delacruz to “tell the truth” and repeatedly stressed that it was important that Jaramilla could report to the district attorney that Delacruz “was a good person” and had “told the truth.” The district attorney could close the case, Jaramilla said, repeating five times that there were “no guarantees” and stating explicitly, “I can’t make any promises because I’m not the district attorney.” Delacruz acknowledged there had been no guarantees.
Jaramilla told Delacruz that his daughter had been given a sexual assault examination that showed she had been assaulted and had contracted a disease. In reality, the exam showed trauma and healing related to sexual activity, but did not show conclusively that she had been assaulted. Jaramilla then told Delacruz that DNA had been found during the exam that was most likely from saliva or fingernails, and asked if the DNA would match Delacruz’s. Delacruz denied the allegations. The last step of the investigation, Jaramilla said, was to take a DNA sample from Delacruz, who said he understood and would wait to see the results.
Delacruz’s initial responses to questions about whether his DNA would match the sample indicate he was confused about the test. He suggested that there may have been a match because “she’s my blood” and because he kissed both his children. Once Jaramilla made clear again the DNA was from saliva found in the vaginal area, Delacruz denied any abuse.
In the second interview, Jaramilla told Delacruz he had come back to share the results of Delacruz’s DNA test. Jaramilla showed Delacruz an image from his daughter’s physical examination and a DNA report supposedly from the Federal Bureau of Investigation crime lab that matched two DNA samples. Jaramilla said Delacruz would have to go to court. Noting the matter was for a judge to decide, Delacruz then told Jaramilla that they were “not gonna resolve that problem right now between you and me.... [¶]... [¶] You know I know that, I understand that.” He said he did not want to repeat himself again and asked for Jaramilla to leave the DNA report for him.
Jaramilla read the FBI report aloud to Delacruz, who said he could not read English.
When Jaramilla nonetheless pressed Delacruz that the evidence was positive, meaning Delacruz was guilty, Delacruz responded that “sometimes the youngers are guilty.” Jaramilla then told Delacruz that his daughter had passed a polygraph test that morning. Jaramilla once again exhorted Delacruz to tell the truth and said that, based on his experience, the district attorney could dismiss the case, bring it to trial, or bring Delacruz into the office for a conference. Jaramilla said, “I can’t guarantee anything, because I am not the district attorney. I’m just telling you my experience, okay.” The detective then told Delacruz that Delacruz’s daughter was a “good girl” concerned about her little brother and that she initially did not disclose the abuse to authorities.
Jaramilla said that he knew that “it happened” and could “see that’s it bothering you, man.” Delacruz then told Jaramilla that his daughter had seduced him, and it was the biggest mistake of his life. Jaramilla continued talking about Delacruz’s daughter, telling Delacruz that she cried during the polygraph and did not want to get her father in trouble. Jaramilla then began to read her allegations to Delacruz, who admitted fondling her while masturbating. Delacruz told Jaramilla that he had thought about the case at night and told himself, “Why do I have to lie. I’m not gonna lie.... I want to be clean in here.” He then admitting having sexual intercourse with his daughter 10 to 15 times, but said he never orally copulated her because she asked him to stop the one time that he tried. At the conclusion of the interview, Jaramilla asked Delacruz if his testimony was the result of promises or threats made to him, and Delacruz responded that he spoke “because I feel to do this.”
Delacruz was charged with four counts: (1) a lewd or lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)); (2) continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)); (3) a lewd or lascivious act on a 14- or 15-year-old child who is at least 10 years younger than the defendant (§ 288, subd. (c)(1)); and (4) forcible rape (§ 261, subd. (a)(2)).
All statutory references are to the Penal Code unless otherwise noted.
The trial court denied Delacruz’s motion to suppress his statements to police, finding no unlawful tactics or coercion in the two interviews. The court rejected Delacruz’s contentions that the interviews contained unlawful promises of leniency, noting that Jaramilla repeatedly said there were “no guarantees” as to what would happen with Delacruz. The trial court also found that Delacruz’s responsiveness and lengthy answers to the detective’s questions showed he was not hampered by a lack of sophistication or language difficulties in speaking English.
At trial, Jaramilla said he used two ruses during the interviews: first in lying to Delacruz that DNA evidence had been collected from his daughter’s physical exam; and second by saying that she had passed a polygraph test after making the allegations against Delacruz. According to Jaramilla, Delacruz’s demeanor changed in the second interview, and he became upset and sad when the detective told him that his DNA matched the sample from his daughter’s exam.
Against the advice of his counsel, Delacruz testified at trial and stated that Jaramilla had lied to him multiple times to induce his confession. Specifically, Delacruz claimed that immediately after the first interview – as Jaramilla walked Delacruz to the detention center for booking – the detective offered Delacruz leniency in exchange for his confession, telling Delacruz he could be released within days if he confessed because Jaramilla would talk with the district attorney. While alleging this conversation occurred off-tape, Delacruz conceded that he understood that Jaramilla’s on-tape offers to talk to the district attorney on his behalf were given without any guarantees. Delacruz also testified that he understood Jaramilla’s questions during the interviews and answered them.
Jaramilla denied making promises to Delacruz or interviewing him between the two taped interviews.
The jury found Delacruz guilty on all four counts, and he was sentenced to 26 years and eight months in state prison.
STANDARD OF REVIEW
When a defendant challenges the voluntariness of a confession on appeal, we review independently the trial court’s legal determination of voluntariness. (People v. Williams (1997) 16 Cal.4th 635, 659.) We review for substantial evidence any factual findings regarding the surrounding circumstances of the confession. (Id. at p. 660.)
DISCUSSION
Delacruz contends that the introduction of his incriminating statements at trial violated his due process rights because the statements were induced by promises of leniency and “a panoply of coercive techniques” rendering them involuntary. We disagree.
A. Analytical Framework
The Constitution limits the prosecution’s use of a defendant’s involuntary confession. The burden rests with the prosecution to establish, by a preponderance of the evidence, that the confession was voluntary. (People v. Williams (2010) 49 Cal.4th 405, 436.)
The “question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” (People v. Hogan (1982) 31 Cal.3d 815, 841, disapproved on other grounds by People v. Cooper (1991) 53 Cal.3d 771, 836.) No single criterion is dispositive to prove voluntariness. (People v. Williams, supra, 49 Cal.4th at p. 436.) Rather, a court must closely examine the facts of the case and assess “the totality of all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation” – to determine if a suspect’s will was overborne. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.)
In considering the characteristics of the accused, the court may weigh his or her education, maturity, sophistication, prior experience with the criminal justice system, and emotional state. (People v. Williams, supra, 16 Cal.4th at p. 660; In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) Our Supreme Court has disapproved of police tactics specifically “calculated to exploit a particular psychological vulnerability of defendant” (People v. Kelly (1990) 51 Cal.3d 931, 953) or his emotional state (People v. Hogan, supra, 31 Cal.3d at pp. 841-843).
Police may use deceptive tactics, but a reviewing court will consider the impact of those tactics in determining the voluntariness of an ensuing confession. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1241.) “So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence.” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) The use of false forensic evidence as a subterfuge is permitted when such tactics are not likely to result in a false confession. (See People v. Farnam (2002) 28 Cal.4th 107, 182 [fabricated evidence of fingerprints on a wallet alone not of type reasonably likely to procure an untrue confession]; People v. Thompson (1990) 50 Cal.3d 134, 167 [false claims that police had found soil samples, car tracks and rope fibers connecting suspect to murder did not invalidate confession]; People v. Mays (2009) 174 Cal.App.4th 156, 166 [fake polygraph examination was not likely to produce false confession when the defendant asked for the exam].)
However, the police may not elicit a confession by an express or implied promise of leniency to the accused, if the promise is a motivating cause of the accused’s decision to confess. (People v. Williams, supra, 16 Cal.4th at pp. 660-661.) While “[t]he line between a threat (or a promise) and a statement of fact or intention can be a fine one” (People v. Thompson, supra, 50 Cal.3d at p. 169), mere advice or exhortation by the police that the accused would be better served to tell the truth is not alone a promise of leniency. (People v. Jimenez (1978) 21 Cal.3d 595, 611, superseded by constitutional amendment as stated in People v. Markham (1989) 49 Cal.3d 63, 65 and overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17.)
B. Delacruz’s Claim of Coercion
On appeal, Delacruz challenges the voluntariness of his statements on three grounds: his personal characteristics made him susceptible to police coercion; police used a “panoply” of fabricated and persuasive forensic evidence to coerce his statements; and Jaramilla’s exhortations to tell the truth amounted to unlawful promises of leniency.
The Attorney General contends that Delacruz forfeited his ability to bring the false evidence and “cultural misunderstanding” arguments because he did not raise these issues at trial. In People v. Rundle (2008) 43 Cal.4th 76, at pages 120 through 121, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22, the California Supreme Court held the defendant forfeited his right to challenge the voluntariness of statements made in an interview with a state-appointed psychiatrist, because he had raised at trial only the issue of whether he had invoked the rights to counsel and to silence. Similarly, in People v. Ray (1996) 13 Cal.4th 313, 339, the Court held that the defendant’s trial motion to suppress statements based on a delay in advising the defendant of his rights did not preserve a claim on appeal of improper promise of leniency.
Delacruz argues that his cultural misunderstanding and false evidence arguments do not constitute new issues on appeal, but rather support his continued promise of leniency and coercion allegations, which at trial focused on his lack of sophistication, his limited ability to speak English, and a promise of leniency. We agree that his claims relate sufficiently to his voluntariness claim and find no waiver. However, we do not find his arguments persuasive.
Reviewing the totality of the circumstances, we conclude Delacruz’s will was not overborne in the two interviews by Jaramilla’s tactics. On whole, the interviews were relatively brief and Jaramilla’s questioning non-threatening. The detective also used ruses similar to tactics approved by past courts. Apart from moments of sadness, Delacruz did not appear distressed or emotionally unable to respond to Jaramilla’s questions. At trial, he testified that he was not fearful of Jaramilla.
C. Substantial Evidence of Voluntariness
Sufficient evidence supports the trial court’s findings that Delacruz understood English and had the necessary education and sophistication to understand the interrogation. Throughout both interviews, Delacruz responded to Jaramilla’s questions at length or with short “yeahs” and “uh-huhs, ” signaling he understood. He used words such as seduce, saliva, penis and vagina that indicated a thorough, albeit grammatically imperfect, verbal command of English. When Delacruz initially did not understand his Miranda rights or the word DNA, he asked for and received clarification. At trial, he testified that he “understood what [Jaramilla] was asking [him]” and that there were no guarantees with the district attorney.
Further, Delacruz’s statements in the second interview signal that he did not succumb to undue coercion to fabricate a story, but that he felt responsible and wanted to correct the record. He repeatedly said he felt sorry for his daughter and his younger son, and that after his first interview he no longer wanted to “lie.... I want to be clean in here.” He reiterated this at the conclusion of the interview, saying he spoke frankly with Jaramilla “because I feel to do this.” Delacruz did not simply repeat and concede the evidence Jaramilla presented. After confessing to ejaculating on his daughter’s back, Delacruz nonetheless maintained that his daughter was not 12 years old when he began touching her, as her statements claimed, but was actually 15 years old at the time. And, despite Jaramilla’s persistent questioning about the presence of saliva, Delacruz insisted that he never orally copulated his daughter and that any saliva would have come from the single time he attempted to do so and she asked him to stop. (See People v. Williams, supra, 49 Cal.4th at p. 444 [defendant did not incriminate himself as a result of officers’ remarks, but continued to deny responsibility in the face of the officers’ assertions].)
1. Personal characteristics
Delacruz contends his limited schooling and inexperience with the criminal system evinced a lack of sophistication, and that he lacked a “‘cultural understanding’ of the judicial process” that made him more susceptible to coercive police tactics. Delacruz argues that “the role of confessions in Mexico is vastly different than the role of confessions in the United States, ” and Jaramilla used strategies that “maximally exploited” Delacruz’s “subjective characteristics.”
As a general matter, it does not suffice to allege that a Mexican national is susceptible to coercion simply because the United States justice system differs procedurally from the Mexican system. The Supreme Court has rejected a similar attempt by a Guatemalan national who claimed his statements to police were involuntary because brutal interrogation tactics in Guatemala led him to believe he could not refuse to cooperate with police in Los Angeles. (People v. Guerra (2006) 37 Cal.4th 1067, 1097 [defendant’s proffered testimony would have established only that the pressure sprang from himself, and not from police actions].) Here, Delacruz has not presented any evidence that he had an actual misunderstanding of the legal system based on his background, nor has he shown why his case is distinguishable from Guerra.
2. Deception
Next, Delacruz insists that three pieces of fabricated evidence used against him – a fake polygraph exam, falsified results of the sexual assault exam, and a nonexistent DNA sample from the daughter’s vagina that supposedly matched his DNA – amounted to unlawful coercion. Delacruz argues that the scientific nature and “apparent infallibility” of this evidence made it particularly persuasive, especially when taken cumulatively.
While scientific evidence can be persuasive, Delacruz failed to demonstrate that the deceptions employed here were “of a type reasonably likely to procure an untrue statement.” (People v. Farnam, supra, 28 Cal.4th at p. 182.) We see no substantive difference in coerciveness between the DNA or polygraph evidence at issue here, and falsified fingerprints and forensic evidence that other courts have found unlikely to prompt a false confession. (See ibid. [fabricated fingerprints on a wallet]; People v. Musselwhite, supra, 17 Cal.4th at p. 1241 [fingerprints falsely said to have been lifted from victim’s neck]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [lie that fingerprints were recovered from the getaway car]; People v. Mays, supra, 174 Cal.App.4th at pp. 164-167 [fake polygraph test and results].) Delacruz characterizes Jaramilla’s tactics as “lies on top of lies” that distinguish his claim from cases of “isolated incidents or selective use of fabricated evidence.” The fact that there were three deceptions, rather than only one, does not change the nature of the evidence or whether under these circumstances it was likely to lead to a false confession. (See People v. Thompson, supra, 50 Cal.3d at pp. 166-167 [several types of falsified forensic evidence used and lies repeated multiple times throughout the interrogation].)
3. Promise of leniency
As a final matter, Delacruz restates his objection from trial that Jaramilla’s qualified remarks about talking to the district attorney on Delacruz’s behalf amounted to a promise of leniency. Asserting that “there is no requirement that a promise of leniency be either ironclad or absolute for it to be improper, ” Delacruz dismisses Jaramilla’s “no guarantees” statements.
In drawing the line between exhortations to tell the truth and promises of leniency, however, the courts have recognized the importance of such express disavowals of any guarantee of leniency. In People v. Jones (1998) 17 Cal.4th 279, for instance, the Court found no promise of leniency when a police officer offered to tell the district attorney that the defendant had been honest because the officer said he could make no promises regarding the district attorney’s decisions. (Id. at p. 297.) The officer made clear that he was promising no benefit; his statement merely “amounted to truthful implications that his cooperation might be useful in later plea bargain negotiations.” (Id. at p. 298.) Similarly, in People v. Higareda (1994) 24 Cal.App.4th 1399, 1409, this court recognized that a promise to speak to the district attorney if the suspect “spoke the truth” did not constitute a promise when the officer made clear “‘it would be up to the District Attorney upon [sic] any other further action of the case.’”
Here, Jaramilla’s statements track the offers in Jones and Higareda. Jaramilla told Delacruz he wanted to tell the district attorney Delacruz was “a good man” who had “told the truth.” As the trial court noted approvingly, Jaramilla laid out three true options for action in Delacruz’s case and made explicit that the district attorney would make the decision whether to drop the charges, bring the suit, or ask Delacruz into an office conference. He coupled every suggestion that the truth might benefit Delacruz with the warning that there were “no guarantees.” Delacruz acknowledged not only during the interviews that there were no guarantees, but also conceded this at trial.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.