Opinion
A159587
03-30-2022
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. FRANCISCO NUNEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 19SF006591
PETROU, J.
A jury convicted appellant Francisco Nunez of oral copulation on a child under 11 years old (Pen. Code, § 288.7, subd. (b)), lewd and lascivious acts on a child under 14 years old (Pen. Code, § 288, subd. (a), and sexual acts with a child under 11 years old (Pen. Code, § 288.7, subd. (a)). On appeal, Nunez argues the court erred in admitting as evidence his videotaped confession to two sheriff's office detectives, which he argues was involuntary and the product of coercive police interrogation. We disagree and affirm.
Factual and Procedural Background
C.H. was born in 2005, and his younger brother J.V. was born in 2007. Their mother Y.H. and father H.A. divorced in 2011, about a year after the family moved into a house in Pescadero. After divorcing, Y.H. moved out of the house, and she and H.A. maintained split custody of the boys.
Nunez was H.A.'s best friend. They were from the same small town in Mexico. When Y.H. and H.A. immigrated to the United States, Nunez came too. H.A. and Nunez worked together and set up a recycling business. Nunez was around the family a lot and became friends with the boys, too. He ate with the family, drank at the house, and helped H.A. with various jobs there. A few years after Y.H. left, Nunez moved into a shed located to the side of the house. J.V. recalled that whenever their father wasn't around, Nunez would take care of them. C.H. could not remember a time in his life when Nunez wasn't around them.
In early May 2019, C.H.'s class was discussing rape. The teacher said that if a guy were raped and told the police, the police would probably congratulate him. C.H. and some friends laughed. Some girls in the class told them they shouldn't laugh because it could happen to them. At that point, C.H. stood up and told the class that he had been raped.
That day, C.H. had an appointment with his therapist, Jessica Jones, whom he had been seeing for several months. Months earlier, C.H. had told his mother that he wanted to talk to somebody. Since he had appeared sad and worried and his grades at school had dropped, Y.H. found him a therapist and took him to his sessions. As C.H. was finishing his early May session with Jones, he randomly asked her if she knew how long a rapist would be in jail. Jones observed C.H.'s demeanor change upon asking the question-he became sad, stopped making eye contact with her, and looked down. He also seemed agitated and nervous, and his eyes teared up. Since Jones thought the question came out of nowhere, she asked him why he wanted to know. C.H. told her he had been raped. He told her it was a friend of his father's named Francisco.
Jones immediately reported the abuse to C.H.'s mother but did not provide her any details, e.g., the specific acts. Up to that point, Y.H. had no knowledge C.H. had been harmed, and C.H. had never previously shared such information with her. Jones also called Child Protective Services.
After learning of C.H.'s abuse, Y.H. worried that J.V. had also been abused. On a ride from school when only the two of them were in the car, Y.H. told J.V. that his older brother had reported being abused and asked if he was too. Looking away from her, J.V. said yes. He became sad and said he felt guilty for the abuse he had suffered. He did not provide her any details of the abuse but said that Nunez "would touch him and stuff like that" and had hurt him. J.V. then got upset and stopped discussing it further. Y.H. had no knowledge of the specific abuse that occurred.
Each boy had a separate forensic interview. Following the forensic interviews, Nunez was arrested and taken to the Hall of Justice. There, he was interviewed and interrogated in Spanish by Detectives Jose Velasquez and Cristofer Serrano, both county-certified Spanish speakers who also testified at trial. The exchange, which will be described at length in our analysis below, lasted around 2 hours and 10 minutes with breaks in between, which meant there was about 90 minutes of active questions and answers. Based on their training and experience, the detectives employed various ruses aimed to "elicit the truth" from Nunez. When the detectives confronted Nunez with C.H. and J.V.'s claims, Nunez repeatedly denied engaging in sexual contact with either of them. However, as the interrogation went on, Detective Velasquez observed Nunez's denials got weaker and weaker. Detective Velasquez tried to have eye contact with him but Nunez would not engage and looked away. Eventually, Nunez admitted to incriminating acts with the boys. He confessed to anally penetrating both C.H. and J.V. and that C.H. had performed oral sex on him. After the interrogation, he recorded an apology to the boys in which he acknowledged that he had abused them and promised to never touch them in a sexual way again. A video recording of the interrogation and apology was played to the jury and admitted into evidence. A transcript of the recording and an English translation was also provided to the jury. Everything the detectives discussed with Nunez about the case was contained in the video shown to the jurors.
C.H. was 14 years old when he testified at trial. He described three separate incidents with Nunez:
The first occurred when he was between 5 and 8 years old, when he was in the second grade. It was a cold evening but not yet dark. He and Nunez were in the backyard of the Pescadero house near the chicken coop. His clothes were off. Nunez was behind him, and his penis was touching C.H.'s butt and specifically his rectum. C.H. found the whole experience difficult to discuss. He did not remember whether Nunez penetrated his anus with his penis, stating that he could not remember because he was "trying to block it, the feeling." The experience was traumatic, since he did not know what was happening. Afterwards, Nunez told him to be quiet and to not talk about it. He followed the instructions and never told anyone, including his brother, because he was scared and felt threatened. He believed what occurred had been his fault since he let it happen.
A second incident occurred months later inside the house. C.H., J.V., and Nunez were watching a movie together in one of the rooms. There was a bunk bed in the room, and J.V. was on the top bunk. C.H. and Nunez were lying down on the floor under a blanket. While they watched the movie, C.H. sucked Nunez's penis. Nunez's penis was erect in C.H.'s mouth, and C.H. found it weird that it kept going in and out. It also "felt weird." It stopped once C.H. had liquid in his mouth, which C.H. did not know was semen or urine. C.H. did not know what to do, so he ran outside of the room. Near the kitchen, he saw his mother's friend and other people near the kitchen, so he just swallowed the liquid. He did not tell anyone, including J.V., what happened, and Nunez did not say anything to him after it happened. He did not think his brother noticed because he was focused on the movie.
A third incident occurred when C.H. was in third grade. C.H., J.V, and Nunez were in H.A.'s room. The three were playing around in the room. At one point, Nunez told J.V. who was on the bed to look towards the wall away from him. Meanwhile, C.H. and Nunez were on the floor. C.H.'s pants were undone, and he was behind Nunez, whose pants were also off. C.H. did not know how he came to be positioned behind Nunez with his pants off and Nunez's exposed butt in front of him, but it was not his idea. Asked what he was trying to do, C.H. stated, "I guess rape him. Or I don't know." When asked to clarify, he said he meant he was trying to have sex with Nunez "[j]ust me to him" and that he was trying to use his penis to penetrate Nunez's butt. However, he was unable to but did not know why, nor did he know how the touching stopped. The room was well lit, and his brother remained there confused. C.H. never saw J.V. turn around to look at him but recalled that his brother asked if he could look. Nunez said no.
J.V. was 12 years old when he testified at trial. When he was between 4 and 5 years old, he and his brother were in his sister's room at the Pescadero house playing with Nunez. The boys were taking turns riding on Nunez's back as if he were a bull, competing to see who could stay on the longest. The lights had been on, but Nunez turned them off. He invited them to play a different game. J.V. had a difficult time explaining what happened next, and asked if he could do so later. After some time, J.V. stated that Nunez told him to lay down on the bed and pulled down J.V's pants. J.V. then felt something on his butt. Again, J.V. did not want to say what he felt but soon explained he felt Nunez's tongue on and outside his butt. Nunez's licking tickled him and made him laugh. He then felt something on the inside part of his butt, which hurt. When asked to explain what was touching him, he replied he knew what it was but again asked to answer the question later. Soon after, J.V. stated, "Okay. He put his penis in my butt, and it hurt." Because it was painful, J.V. pulled up his pants, turned on the lights, and ran outside the room. Crying, he found his father and told him Nunez had hurt him. H.A., who J.V. recalled was either watching television or talking to others, did not do anything.
Miriam Wolf, an expert in Child Sexual Abuse Accommodation Syndrome, also testified at trial. Nunez did not testify or present any affirmative evidence.
Following the jury's guilty verdicts, Nunez was sentenced to 31 years in state prison. This appeal followed.
Discussion
Nunez contends the trial court violated his Fourteenth Amendment due process rights by erroneously admitting into evidence his videotaped statement to detectives since it was involuntary and the product of improper police coercion. We disagree.
A. Relevant Proceedings
The videotaped interrogation and the corresponding transcription and translation of the interrogation show the following:
Around 7:00 p.m., Nunez was taken to a small interview room where his handcuffs were temporarily removed. Nunez asked to use the bathroom, so they went. When they returned, Nunez's right arm was handcuffed to the table. After leaving the room for a few minutes, Detective Velazquez brought him water and chocolate candy. A little while later, Detective Velazquez brought in dinner-hamburgers and fries-which they ate together.
Nunez had no idea why he had been arrested. When he asked why they had grabbed him and commented that he did not have problems with anyone, Detective Velazquez told him they would talk more.
Detective Velazquez asked him some basic questions. Nunez said he was born in 1972 and was 48 years old. He was renting a room from H.A. Nunez reported he could read but not write beyond his name.
Detective Velazquez then read Nunez his Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) rights. Nunez acknowledged that he understood those rights.
For the following 30 minutes approximately, Nunez answered questions about his background, his current living situation, his past alcohol use, and his relationship with H.A. and his sons. He was from a small town in Mexico. He had little schooling there. He had been married but left his wife when he caught her cheating on him. For the last 11 years, he had been living in the United States. When he first arrived, he was living on the streets. He worked picking up cans and bottles from the trash and recycling them. He did not have a steady job but continued to make his living recycling metals with H.A. He and H.A. were from the same town and raised like brothers. Nunez never used drugs and quit drinking five years earlier. He had known H.A.'s sons, C.H. and J.V., since they were very young. Every Wednesday, H.A. picked the boys up so that they could spend time with their father.
As the questions turned to more intimate matters, Detective Velazquez, who had been joined by Detective Serrano, told Nunez he did not want him to get offended because they were "friends right now, for the moment." When asked about his relationship with the boys, Nunez stated that the boys were good with him. Asked if they had ever offended or been rude to him, he said no. Asked if they had ever enticed him or touched him in a way he didn't like, he said no. He confirmed that such things never happened and that they behaved "the right way." When asked if he had ever touched C.H. specifically, he responded, "No. No." He repeated that C.H. had never touched him. The detectives left the room, with Detective Velazquez noting they would soon return and repeating that they were "talking as friends."
Minutes later, the detectives returned, and Detective Velasquez told Nunez they had a problem because he hadn't been honest. The detectives then began presenting a series of ruses to Nunez. After observing there was a lot of available technology, Detective Velasquez told Nunez that C.H. and J.V. had seen a doctor who was able to get his DNA and fingerprints from an examination of the boys. The detective said Nunez's DNA was found inside the boys, and he needed Nunez to tell him the truth and explain why. Joined by Detective Serrano, they told Nunez that DNA lasts for years and could remain on a surface from a touch. Repeatedly, Nunez responded, "No, no, no, no, no." He swore to God that he never fooled around with anyone in his life and emphasized that he liked to show respect.
Faced with these denials, Detective Velazquez presented another ruse and suggested that an incident with J.V. inside the house was recorded. Nunez continued to respond, "No, no, no." He repeated that he never fooled around with anyone and that he liked to show respect. The detective explained there was a hidden camera in the house he never saw and that he had seen the video of the incident in the room showing him playing around with the little boy and then turning down the lights, pulling down the little boy's pants, kissing him on the buttocks, and placing his penis inside him. At one point, Detective Velasquez brought a small box in the interview room and took out what appeared to be a small camera as he explained to Nunez his acts had been recorded by a hidden camera. At another point, he waved in front of Nunez a CD from a file in the interview room, appearing to suggest it was the video recording. Nunez continued to deny the event occurred, stating, "No, no, I swear to God . . ." The detectives repeated, "[I]t was all recorded." Nunez continued to deny the allegation, stating, "No, I never, I'm telling you . . ." He insisted he was telling the truth that he had never been with anyone.
As these ruses were presented, the detectives expressed the importance of Nunez telling the truth because they could convey Nunez's honesty to the district attorney and explain that Nunez had made a mistake. On several occasions, the district attorney was invoked. Detective Velazquez explained and repeated to Nunez that he could talk to the district attorney, tell him Nunez's story and that it was a drunken mistake.
The detectives wondered whether Nunez had engaged in these acts with the boys while he was drunk. They questioned aloud whether alcohol caused his conduct.
Even after being presented with these ruses and the detectives' speculation Nunez committed such acts while drunk, Nunez maintained he did not do any of the things the detectives claimed he did. Nunez continued to deny he ever had any relations with either boy even while drunk. He did not know why his DNA was on C.H.'s penis. He insisted that he had never touched a little boy or girl in his life. In response, the detectives told Nunez he was not being honest, instructed him to stop lying, and repeated that his denials did not reflect the evidence they had.
Detective Velazquez reported that the boys were really traumatized and wanted him to convey to Nunez he was a good person but could no longer touch them. Detective Serrano commented on the affection the boys had for him, as well. They informed Nunez one of the boys even felt bad telling them what happened, and both boys wanted him to get help. Nunez said he had a lot of affection for the boys, too, but never fooled around with them and continued to deny the claims.
About 90 minutes into the recording of the interrogation, the detectives reminded Nunez of the video evidence, the boys' affection, and their own view that he was a good person who had gone through many things. When they again pressed Nunez for his story so they could tell the district attorney whom they noted was "going to appreciate the truth very, very much," Nunez stated, "I'm going to tell you the truth, well, but just, don't kill me for being bad." Asked what happened, Nunez replied, "Forgive me, I mean, I didn't give it a second thought because I was drunk." In response, Detective Velazquez explained they were going to speak about specific incidents, while reaffirming that the boys still had affection for Nunez and the detectives' own view that Nunez was a good person for whom they wanted to get help.
Nunez explained, "Well, I was in bad shape, drunk." Asked about the "first time," he initially said he did not remember because he was drunk. He only remembered grabbing C.H. but not doing anything to him beyond hugging him. He repeated that he had been drunk. Asked if C.H. enticed or touched him, Nunez said he did. He explained C.H. approached him and forced himself on him, despite his rebuffs. They hugged while still clothed. Nunez added that C.H. wanted to kiss him, but he rejected the boy's advances. He eventually acknowledged kissing C.H. but said he was really drunk and did not know what he was doing. He believed C.H. was around 10 years old when this occurred.
Next, Detective Velasquez asked about the incident where Nunez put his penis inside the little boy's butt and inquired how many times that happened. Nunez replied, "Only one (1) time." It took place inside the Pescadero house. Asked if he used protection, he said no. C.H. pulled Nunez's pants down and put his penis on him. C.H. also pulled his own pants down. Nunez told him no, but he was stubborn and cussed at him. Asked if he put his penis inside C.H.'s butt, he replied, "Yeah." He said it was a long time ago, when C.H. was about 11 or 12 years old and then changed his answer to 9 or 10 years old but could not remember exactly. He confirmed that he put his penis in C.H.'s butt only the one time.
Next, Detective Serrano asked Nunez if he ever performed oral sex on C.H. Nunez said no. When the detective asked if there was an incident where C.H. performed oral sex on him, Nunez replied, "No, not him." At this point, Detective Serrano told Nunez a childhood story where his grandfather saw him steal a toy and then forced him to return the toy and tell the shopkeeper he had stolen it. He shared that he was scared of telling the truth, but when he did, the shopkeeper allowed him to keep the toy. He noted that they wanted to believe Nunez but knew something else happened. At this point, Nunez maintained that C.H. only kissed him on the cheek, nowhere else on his body. Detective Velazquez then asked if they would find DNA from C.H.'s lips on Nunez's penis if they were to take a sample and send it to the laboratory. Nunez responded, "Well, I don't, I don't remember. I was really drunk, right?" Moments later, he said, "Yes, it did happen, I didn't give it a second thought, forgive me. . . . [¶] . . . It will never happen again." When they asked for details, Nunez explained he was in the little room in the Pescadero house. Later, he said he did not remember the room they were in because he was really drunk but agreed it was in a room in the house. He did not remember if he finished in the boy's mouth because he was really drunk. When asked how many times it happened, Nunez responded, "Well, uh, only one (1) time, that's all."
Detective Serrano asked Nunez about another incident where C.H. approached him and tried to do something to him from behind. Nunez did not remember any such incident.
The detectives then discussed J.V. They described a time when Nunez was in the room playing with J.V., pretending to be a bull while J.V. tried to ride him. They explained that Nunez turned off the light, kissed J.V.'s butt with his tongue, and placed his penis inside J.V.'s butt. After, J.V. got up, turned on the lights, and left the room. Initially, Nunez said he did not remember the incident but when asked if he stayed in the room with C.H. after J.V. left, he said he had. When asked when the incident happened, he said it was a really long time now. He did not remember whether it occurred before or after the ones with C.H., but agreed it had happened. When asked how long he had relations with the boy, he responded, "It wasn't, it wasn't very long." He added that he did not remember any more because he was drunk. He further explained that J.V. grabbed him and forced him to do it. Asked how he felt about the boys' father being in the house, Nunez replied, "Well I, I screwed up, well, uh, uh forgive me." He regretted it and promised he would never do such things again.
When Nunez was asked whether he liked little boys, he responded he did not. He explained these situations with C.H. and J.V. occurred because "the fuckin' Devil got into [him]."
Detective Velasquez proposed Nunez write a letter to the boys expressing his regret and seeking their forgiveness. When Nunez reminded him he could not write, the detective got his camera to video record him. Prior to recording, Nunez stated, "Yeah, forgive me. I'll never do this again. Never in my life. I'm going to behave now as God commands, everything right." Detective Velasquez began the recording by introducing Nunez and explaining he had a message for C.H. and J.V. Nunez asked for their forgiveness, committed himself to behaving correctly and to "never again do . . . anything." When Detective Velasquez asked him what he did with the boys, Nunez responded, "Well, the Devil got into me. . . I abused them and everything." Detective Velasquez inserted that Nunez would never touch them again in a sexual manner. Nunez repeated that he would never touch the boys again in a sexual manner and repeated his request for forgiveness.
Before trial, Nunez moved to exclude any admissions he made to police during his videotaped interrogation because they were obtained in violation of Miranda, supra, 384 U.S. 436, and because his statements were involuntary in violation of the United States Constitution and California Constitution. At the outset of the argument, the trial court noted it had reviewed the recording of Nunez's interview as well as the accompanying transcript. Following argument, the court denied the motion.
B. Applicable Law
"Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).) "The question is whether the statement is the product of an '" 'essentially free and unconstrained choice'"' or whether the defendant's '" 'will has been overborne and his capacity for self-determination critically impaired'"' by coercion." (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).)
"In evaluating the voluntariness of a statement, no single factor is dispositive." (Williams, supra, 49 Cal.4th at p. 436; People v. Suarez (2020) 10 Cal.5th 116, 157-158 ["' "Voluntariness does not turn on any one fact, no matter how apparently significant."' "].) Instead, "courts apply a 'totality of the circumstances' test, looking at the nature of the interrogation and the circumstances relating to the particular defendant. [Citation.] With respect to the interrogation, 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....'"' [Citation.] With respect to the defendant, the relevant factors are '" 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.'" '" (People v. Dykes (2009) 46 Cal.4th 731, 752.)
A confession may be found involuntary if, among other things, it was"' "extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.'" '" (Linton, supra, 56 Cal.4th at p. 1176.) "In assessing allegedly coercive police tactics, '[t]he 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.'" (People v. Smith (2007) 40 Cal.4th 483, 501 (Smith).) "A confession is not involuntary unless the coercive police conduct and the defendant's statement are causally related." (Williams, supra, 49 Cal.4th at p. 437.) In other words, "[a] confession is not rendered involuntary by coercive police activity that is not the 'motivating cause' of the defendant's confession." (Linton, supra, 56 Cal.4th at p. 1176.)
" 'In order to introduce defendant's statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] When, as here, the interview was [video]tape-recorded, the facts surrounding the giving of the statement are undisputed, '" and we may" 'independently review the trial court's determination of voluntariness.'" (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).)
C. Analysis
We have reviewed the video recording of Nunez's interrogation shown the jury and the transcript and translation that were part of the record, and based on the totality of the circumstances, we conclude Nunez's incriminating statements to police were voluntary. The interrogation took place in small room with Nunez seated at a table with one arm handcuffed to the table, nothing overly or physically harsh. Nunez was there for a little over two hours, with active questioning for about three-quarters of that time, or approximately 90 minutes, which was not unusually lengthy. Before the interview began, he was allowed to use the bathroom uncuffed when he told the detectives he needed to go. He was fed dinner and given drink and candy, and he could feed himself with his free hand. (See People v. Peoples (2016) 62 Cal.4th 718, 739-741 [affirming voluntariness of confession obtained after 12hour interrogation where "defendant was provided with food, drinks, and breaks upon request"]; People v. DePriest (2007) 42 Cal.4th 1, 35 [rejecting claim of involuntariness where the defendant "was not worn down by a lengthy interrogation or deprived of human comforts or necessities"].) Before the interrogation began, the detectives advised Nunez of his Miranda rights and secured Nunez's waiver of those rights. Having secured the waiver, the detectives were free to question him. Their questioning was not inherently coercive; they did not threaten harm or falsely promise Nunez any benefits. (See People v. Carrington (2009) 47 Cal.4th 145, 170 (Carrington) ["' "Once a suspect has been properly advised of his [or her] rights, he [or she] may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits."' "].) Rather, they confronted Nunez with the boys' claims, suggested possible explanation for events, and offered Nunez the opportunity to provide explanations of what happened. Neither detective appeared overly aggressive with Nunez, and Nunez never appeared afraid while answering the detectives' questions. In the video, Nunez appeared rational, physically coordinated, and sufficiently mentally alert to understand and answer questions in a coherent manner. (See People v. Mendez (2019) 7 Cal.5th 680, 699 [favorably observing that police officers "had not yelled at, disrespected, or been mean" to the defendant during his three-hour interrogation]; People v. Jones (2017) 7 Cal.App.5th 787, 812-815 [rejecting claim of involuntariness where detectives did not show aggression and defendant did not exhibit fear while responding to questions].) In short, the circumstances surrounding Nunez's interrogation do not reflect the kind of continuous, prolonged interrogation that has been found to render a resulting confession involuntary.
Nunez contends the detectives employed several coercive tactics that rendered his statements involuntary. We reject each one.
First, Nunez asserts that in order to induce a confession, the detectives improperly utilized the" 'false friend'" technique to" 'provide[] an environment in which other interrogation tactics may become coercive.'" As one with "little education and sophistication," he says he was particularly susceptible to the false friend method of interrogation and the detective took full advantage of his vulnerability. This is not a basis to invalidate Nunez's confession. Nunez recognizes that the "false friend" technique is "neither improper, nor inherently coercive in and of itself." Deceiving a suspect does not render a confession involuntary. (Maury, supra, 30 Cal.4th at p. 411.) Thus, the detectives' feigning friendship did not make Nunez's confession coerced.
We also reject Nunez's argument that his lack of schooling or sophistication made him more vulnerable to coercion. (See Linton, supra, 56 Cal.4th at p. 1179 [personal characteristics of defendant who was 20 years old, unemployed, living with parents, learning disabled, and lacked prior experience with criminal justice system did not make him more vulnerable to coercion].) Even though he lacked formal schooling and could not write, Nunez was a 48-year-old man who was able to engage with and respond to the detectives over the course of 90 minutes of difficult questioning. He appeared rational and mentally sound sufficient to understand and answer the detectives' questions coherently. Based on our viewing of the video recording, it does not appear the detectives unfairly exploited any personal characteristics of Nunez to obtain his incriminating statements.
Second, Nunez argues the detectives' false representations that DNA, fingerprint, and video evidence irrefutably proved his guilt grossly overstated the evidence against him and resulted in a coerced confession. Not so." 'While the use of deception or communication of false information to a suspect does not render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness.'" (People v. Hoyt (2020) 8 Cal.5th 892, 934.) As Nunez acknowledges," '[l]ies told by the police to a suspect under questioning . . . are not per se sufficient to make it involuntary.'" (People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam).) "Police officers are . . . at liberty to utilize deceptive stratagems to trick a guilty person into confessing." (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 .) Cases finding deceptive tactics proper interrogation "are legion." (Ibid.; see People v. Thompson (1990) 50 Cal.3d 134, 166-170 [officers lied repeatedly by telling suspect they had evidence linking him to a homicide]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [officer told suspect his fingerprints had been found on the getaway car although no such prints had been obtained]; Farnam, supra, 28 Cal.4th at pp. 181-183 [police falsely informed defendant his fingerprints were found on victim's wallet]; Smith, supra, 40 Cal.4th at pp. 505-506 [police told defendant that sham "neutron negligence intelligence test" indicated defendant had recently fired a gun].) The detectives' false representations to Nunez were no more remarkable than the tactics validated and approved in numerous other cases.
Third, Nunez claims the detectives employed a "minimization technique" by which they downplayed the moral reprehensibility of the claimed offenses and presented Nunez with a mitigating narrative to explain or offer excuses for his actions. In his view, this strategy tricked him into making a full confession under the false pretense that he would be less culpable if the boys enticed him or if he were drunk. In addition, he argues the detectives' repeated references to the district attorney implied the prosecutor would credit him for his truthfulness or go lighter on him if he was drunk. He contends the detectives drew a sharp contrast between the positive nature of their future communication to the district attorney if he confessed versus having nothing to tell the district attorney if he continued to deny culpability. According to Nunez, these strategies implied promises of leniency and left him with no doubt that if he expected favorable treatment from the prosecutor or judge, he had to confess or adopt the version of events put forward by the detectives.
We are not persuaded the detectives employed any "minimization techniques" that rendered Nunez's statements involuntary. Suggesting possible explanations of events and offering a defendant an opportunity to provide the details of the crime is a permissible tactic. (Cf. Carrington, supra, 47 Cal.4th at p. 171 [detective's suggestions to defendant that homicide might have been an accident, a self-defensive reaction, or the product of fear reflected permissible tactics].) Thus, the detectives' suggestions that Nunez's conduct stemmed from drinking too much or provocation from the boys was allowable.
Also, it is true that" 'a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.'" (People v. Holloway (2004) 33 Cal.4th 96, 115-116 [detectives' statement that defendant would benefit from "giving a truthful, mitigated version of the crimes" was not improper].) Here, the detectives conveyed no express promise of leniency to Nunez in exchange for his confession, nor did they threaten him if he did not. They pressed Nunez for the honest story they would convey to the district attorney, but neither detective stated that a confession would result in more favorable treatment or continuous denials would yield harsher penalties. They never discussed or suggested punishment with Nunez let alone a shorter sentence in exchange for an admission.
Moreover, even if a police technique implies a promise of leniency, a subsequent admission by a suspect is not involuntary unless the promise was the" 'motivating cause' of the defendant's confession." (Linton, supra, 56 Cal.4th at p. 1176; see also People v. Tully (2012) 54 Cal.4th 952, 986 [promise of leniency renders a resulting statement involuntary" 'if and only if inducement and statement are linked . . . by "proximate" causation' "].) Even if we assume that the detectives' repeated district attorney references implied a promise that Nunez would receive a more beneficial sentence if he confessed, we cannot conclude Nunez's confession was motivated by any such promise. When he decided he was "going to tell [the detectives] the truth" after sitting in the interview room for nearly 90 minutes, he did not condition it on securing a lighter punishment or because he feared retribution from the detectives. Rather, he repeatedly requested forgiveness from the detectives and the boys, which is a motivation quite different from avoiding a lengthy sentence.
Nunez relied upon People v. Esqueda (1993) 17 Cal.App.4th 1450 (Esqueda), and People v. Brommel (1961) 56 Cal.2d 629 (Brommel), but both are readily distinguishable. In Esqueda, supra, 17 Cal.App.4th 1450, the police "clearly advised" the defendant that "his refusal to talk would be interpreted as evidence of premeditation," so his "[f]ailure to tell them what they wanted to hear would result in greater charges." (Id. at p. 1486.) In Brommel, supra, 56 Cal.2d 629, the detectives made an explicit "threat" that "they would write 'Liar' on the statement that the defendant could then expect no leniency from the court." (Id. at p. 634.) In both cases, law enforcement conveyed clear threats of negative consequences and harsher treatment absent a confession. In their interrogation of Nunez, Detectives Velasquez and Serrano did no such thing.
In Campos v. Stone (N.D. Cal. 2016) 201 F.Supp.3d 1083 (Campos), which Nunez also relies upon, the defendant was a Mexican immigrant with a third-grade education who was accused of molesting a child at a day care facility run by his wife. (Id. at p. 1087.) During interrogation, the defendant insisted he was innocent, which the officers refused to accept based on fake DNA and fingerprint tests which they falsely claimed proved the defendant's guilt. (Id. at pp. 1087-1089.) Eventually, the defendant began to struggle with the purported scientific evidence and with his insistence that he did not molest the child. (Id. at p. 1090.) In response to the officers' continued demands that he must tell a "truth" consistent with the evidence, the defendant appeared to allow for the possibility that he could have accidentally touched the child's genitals under her clothes. (Ibid.) When the officers asked whether it was possible that he improperly touched the child when he pushed her, the defendant responded," 'Maybe.'" (Ibid.) When they asked whether it was an accident, the defendant responded," 'Maybe yes.'" (Ibid.) The district court found these statements to be involuntary. (Id. at p. 1098.) It concluded that the officers' interrogation improperly implied a promise of leniency. (Id. at p. 1096.) The court observed that "[t]he officers did not merely urge [the defendant] to tell the truth but also conveyed "that the district attorney would be unhappy with him if he continued to give an account contrary to their supposedly incontrovertible scientific evidence." (Id. at pp. 1096-1097 ["Insisting a suspect will be in trouble with the prosecutor unless he makes a statement consistent with fake scientific evidence, which the officers repeatedly characterize as the objective 'truth,' is vastly and categorically different from merely urging a suspect to tell the truth in a vacuum."].) Further, the court found the interrogation "chaotic and confusing, with the officers frequently talking over [the defendant] and each other. (Id. at p. 1098.) The officers spoke to the defendant "quickly and loudly," often over each other, one in English and one in Spanish, with some statements translated and others not. (Id. at pp. 1089-1090.) These circumstances, combined with the manner in which the officers implied the defendant risked harsh consequences before the district attorney, weighed against finding the defendant's statements voluntary. (Id. at pp. 1098-1099.)
Not only is Campos not controlling on this court (see People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296 [decisions of the lower federal courts are not binding on this court]), the case is also distinguishable regardless of some similar facts. Here, in contrast to the officers in Campos, Detectives Velasquez and Serrano never threatened Nunez with the district attorney's displeasure if he did not adopt their statements, but only repeated their desire to tell the district attorney that Nunez was honest and that such honesty would be appreciated. They did not convey to Nunez he would be treated more harshly if he did not admit to the improper conduct with the boys. Further, the circumstances surrounding Nunez's interrogation lacked the confusion and hostility in Campos. Nunez was interrogated by both Detectives Velasquez and Serrano entirely in Spanish. Unlike the officers in Campos, they did not create an atmosphere of confusion or hostility that rendered his admissions unreliable or involuntary.
In sum, based on our independent review of Nunez's interrogation, we conclude that under the totality of the circumstances, Detectives Velasquez and Serrano did not use unlawful coercive tactics during the interrogation which rendered Nunez's confession involuntary. We reject Nunez's arguments that his confession was neither free or voluntary under the totality of the circumstances. Because we conclude there was no error in admitting Nunez's videotaped confession, we do not address his arguments that its admission was prejudicial.
Disposition
The judgment is affirmed.
WE CONCUR: Tucher, P.J., Fujisaki, J.