People v. Herrera-Castillo CA1/4 ( 2022 )

Filed 12/1/22 P. v. Herrera-Castillo CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A162125
v. (Contra Costa County Super. Ct.
SIMEON HERRERA-CASTILLO, No. 51909738)
Defendant and Appellant.
A jury convicted defendant Simeon Herrera-Castillo of committing a
lewd act upon a child under age 14. The trial court imposed a three-year
prison term. On appeal, Herrera-Castillo contends that his pretrial
statements to police were involuntary and that the court prejudicially erred
by admitting them into evidence. We conclude the statements were
voluntary and affirm the judgment.
I. BACKGROUND
A. The Evidence Presented at Trial
In early 2018, Jane Doe was 10 years old. She lived with her parents
and her brother, who was a few years older than Doe. One day in late
February or early March 2018, Doe’s father drove her and her brother to their
grandparents’ home and dropped them off.
1
Herrera-Castillo, who is Doe’s great-uncle, lived in the house with Doe’s
grandparents. Also living at the grandparents’ house were Doe’s aunt, uncle,
and male cousins. One cousin was around six years old and another was 11
or 12 years old. Doe believed her grandfather was not home that day (and
was unsure whether her aunt and uncle were home), but her grandmother
and two cousins were home.
When Doe and her brother arrived at their grandparents’ house, they
sat at a table in the living room to play Monopoly. The table had a large
tablecloth that hung one to two feet over the sides. Doe’s brother and older
cousin left the table and went into the older cousin’s room, leaving Doe and
her younger cousin at the table.
At some point, Herrera-Castillo came over to the table to join the game
and sat down next to Doe. Doe’s cousin moved to the other side of the table.
Doe felt a little uncomfortable when Herrera-Castillo joined them since he
had not interacted much with Doe during previous visits to her grandparents’
house or at family gatherings. Doe and her cousin explained the rules of the
game to Herrera-Castillo. No other adults were in that part of the house.
Under the tablecloth, Herrera-Castillo reached toward Doe’s pants and
touched her vagina. He first touched her over her clothing and then under
her pants and underwear. He rubbed her with his fingers. Herrera-Castillo
never penetrated Doe but, rather, pressed on the “sides” of or “outside” her
vagina as he moved his fingers back and forth. Herrera-Castillo pulled his
hand away. He then reached toward Doe’s buttocks, touching her back over
her clothing. Doe, who was sitting with her feet under her, used her feet to
move Herrera-Castillo’s hand away, and he did not reach her buttocks.
Herrera-Castillo then left the table. Doe’s father arrived to take her home a
short time later.
2
Doe did not immediately tell anyone about what Herrera-Castillo had
done. She tried not to think about the incident. About a month later, on
March 19, 2018, Doe’s mother noticed Doe’s eyes were red and teary, and she
went into Doe’s room and asked her what was wrong. Doe decided to tell her
mother about the incident. Doe said, “I just couldn’t really keep it in. I just
felt like I had to tell someone.” Doe’s mother called Doe’s father, and they
decided they would call the police.
On March 30, 2018, Doe described the incident during an interview at
the Children’s Interview Center. A video recording of the interview was
played for the jury at trial.
As we discuss further in part II.A., post, Sergeant Matt Millman and
Detective James Roberts with the Concord Police Department interviewed
Herrera-Castillo on February 28, 2019, after his arrest. Detective Roberts is
a fluent Spanish speaker and conducted most of the questioning. During the
interview, Herrera-Castillo made statements about how he touched Doe. The
video recording of the interview was admitted into evidence and played for
the jury.
During the interview, Detective Roberts asked Herrera-Castillo if he
wanted to write a note to Doe. Herrera-Castillo said he does not know how to
write. Herrera-Castillo dictated the note to Detective Roberts, who
translated it from Spanish to English. The note was admitted into evidence
at trial. The note stated: “Forgive me, your uncle, Simeon Herrera. I ask
you to forgive me or ask you for your forgiveness and to forgive me. If for one
day I arrived or I failed to respect you when we were playing with you—or
when you were playing with me and []. I ask your forgiveness that you—
sorry—I ask for your forgiveness and that it will not happen again. I ask you
please.”
3
B. Procedural Background: The Charges, Verdict, and Sentence
An information filed in May 2019 charged Herrera-Castillo with three
counts of committing a lewd act upon a child under 14 years of age. (Pen.
Code,1 § 288, subd. (a).) The information alleged the first count involved
substantial sexual conduct with Doe. (§ 1203.066, subd. (a)(8).)
In January 2020, the jury found Herrera-Castillo guilty on count 1 and
found the allegation of substantial sexual conduct true. The jury found
Herrera-Castillo not guilty as to counts 2 and 3; as to those counts, the jury
also found him not guilty of the lesser included offense of attempted
commission of a lewd act (§§ 664, 288, subd. (a)).2
In February 2021, the court sentenced Herrera-Castillo to the low term
of three years in prison and deemed his sentence served based on pretrial
custody credits.
Herrera-Castillo appealed.
II. DISCUSSION
Herrera-Castillo argues that, in light of his personal characteristics
and the interrogation techniques used by the investigating officers, his
statements during his police interview were involuntary. We uphold the trial
court’s conclusion that, considering the totality of the circumstances, the
statements were voluntary.
1 Undesignated statutory references are to the Penal Code.
2 In response to an earlier question from the jury as to the basis for
each count, the court and counsel agreed on the following response: “ ‘Count
One [the charge on which Herrera-Castillo was later convicted] refers to
alleged touching of the vagina under clothing. Count Two refers to alleged
touching of the vagina over clothing. Count Three refers to alleged touching
of the buttocks.’ ”
4
A. Additional Background
Detective Roberts and Sergeant Millman interviewed Herrera-Castillo
on February 28, 2019.3 Detective Roberts conducted the interview in Spanish
and, at times, interpreted questions posed by Sergeant Millman and
translated Herrera-Castillo’s responses. Before starting his substantive
questioning, Detective Roberts advised Herrera-Castillo of his Miranda4
rights in Spanish, and Herrera-Castillo agreed to speak with the officers.
The interview lasted for one hour eight minutes.
When asked if he knew why he was in custody, Herrera-Castillo said he
was told he had raped someone, but he denied having done so. Herrera-
Castillo stated that, if he wanted to have sex, he had a girlfriend.
About 30 minutes into the interview, Detective Roberts began asking
Herrera-Castillo specifically about the day of the crime. Detective Roberts
asked Herrera-Castillo if he remembered a day when two girls were at the
house playing a game and he asked permission to play with them. Herrera-
Castillo responded, “Like, yes. We were playing, but, well, their dad was
there with—with me. If it’s—we were simply drinking a beer.” Detective
Roberts stated that he knew what happened and wanted Herrera-Castillo to
help the officers understand why those things happened.
3 In connection with the hearing on Herrera-Castillo’s pretrial motion
to exclude the statements, the court reviewed the video recording of the
interview. Pursuant to the parties’ stipulation, the court also considered a
transcript translating the interview from Spanish to English (which had been
submitted with the defense motion). At trial, the video recording was
admitted into evidence and played for the jury, and a different transcript
translating the interview (this one prepared by the prosecution) was given to
the jurors as a guide to assist in understanding the video recording.
4 Miranda v. Arizona (1966) 384 U.S. 436.
5
Herrera-Castillo initially denied having touched Doe. Detective
Roberts moved around the table and sat down next to Herrera-Castillo.
Detective Roberts asked Herrera-Castillo whether he might have touched
Doe’s leg inadvertently under the table, and he demonstrated by touching
Herrera-Castillo’s leg under the table. Herrera-Castillo responded that he
was simply going to tell the truth, and he touched Detective Roberts to
demonstrate how he had pushed Doe away from him. In the course of their
discussion, Detective Roberts and Herrera-Castillo then touched each other
and themselves on multiple occasions to demonstrate how and where
Herrera-Castillo had touched Doe on that one occasion.5 At the end of the
interview, Detective Roberts put his hand on Herrera-Castillo’s shoulder,
thanking him for having shared the truth.
Before trial, Herrera-Castillo filed a motion to exclude the statements
he made during the police interview on the ground they were coerced and
involuntary. The prosecution opposed the motion. After hearing argument
and having reviewed the video recording of the interview, the court denied
the motion. Noting there was a proper Miranda warning and waiver of
rights, the court found that, based on the totality of the circumstances, the
interrogation was not coercive.
Addressing the portion of the interview where Detective Roberts moved
around the table to sit next to Herrera-Castillo, the court stated: “I will say
he didn’t appear to be looming over him the times that I saw him. He’s not a
small man, but he was seated the whole time. He never stood up and kind of
hovered over the defendant. He sat down in the chair. He did lean forward a
5 When Detective Roberts later testified at trial, he said that Herrera-
Castillo (although changing his account during the interview) ultimately
stated (and indicated with gestures) that he touched Doe inside her clothing
and to the side of her vagina but did not put his fingers inside her vagina.
6
lot on his forearms when he was talking with the defendant, and the
defendant also appeared to be on his forearms a lot as he spoke as well.”
The court stated the physical contact between Detective Roberts and
Herrera-Castillo appeared to be either “demonstrative” or “reassuring.” The
court stated: “There was, I agree, a lot of touching that went on during the
course of this interrogation that lasted slightly over an hour, but it seemed
demonstrative. And the detective touched the defendant, and the defendant
touched the detective. At no time did I see the detective touch Mr. Herrera-
Castillo in any sort of personal area of his body such as his crotch. When the
detective did get to a personal area, he actually used his own crotch to
demonstrate. [¶] A couple of times he touched the defendant on the back and
also on the forearm. Given the tone and kind of the atmosphere of what was
going on at times, it actually seemed as if he was being reassuring. At one
point, he interrupted the defendant and that’s when he reached forward and
touched the defendant’s forearm.”
The court noted there was some repetition in the questioning but no
promises of leniency, although the officers urged Herrera-Castillo to tell the
truth. The officers did not raise their voices. The court agreed with defense
counsel that Herrera-Castillo is “not sophisticated,” but noted he was “very
conversational” and his answers to questions were “responsive.” He did not
appear to be confused by the questions. Finally, the court stated that, in its
view, it was not clear whether “there really was a confession,” although there
were “some statements of sorts,” noting it would be for the jury to determine
the meaning and import of Herrera-Castillo’s statements.
B. Standard of Review
“Both the federal and state Constitutions bar prosecutors from
introducing into evidence a defendant’s involuntary statement to government
officials.” (People v. Battle (2021) 11 Cal.5th 749, 790.) “In determining
7
whether a statement is involuntary, ‘we consider the totality of the
circumstances to see if a defendant’s choice to confess was not “ ‘ “ ‘essentially
free’ ” ’ ” because his will was overborne by the coercive practices of his
interrogator.’ [Citation.] Coercive police conduct includes physical violence,
threats, direct or implied promises, or any other exertion of improper
influence by officers to extract a statement. [Citation.] The presence of
coercion is a necessary, but not always sufficient, predicate to finding a
confession was involuntary. [Citation.] We also consider other surrounding
circumstances apparent from the record, including both the details of the
interrogation and the characteristics of the accused.” (Ibid.; see People v.
Johnson (2022) 12 Cal.5th 544, 584 [defendant’s renewal of contact with
police is only valid if it is not the product of the authorities’ coercion].)
The prosecution has the burden to prove by a preponderance of the
evidence that a defendant’s statement was voluntary. (People v. Linton
(2013) 56 Cal.4th 1146, 1176.) On appeal, we accept the trial court’s factual
findings if they are supported by substantial evidence, and “we review de
novo the ultimate legal question of voluntariness.” (People v. Battle, supra,
11 Cal.5th at p. 790.) “The facts surrounding an admission or confession are
undisputed to the extent the interview is tape-recorded, making the issue
subject to our independent review.” (People v. Linton, supra, 56 Cal.4th at
p. 1177.)
C. Analysis
Herrera-Castillo contends the officers used coercive interrogation
techniques that overbore his will and caused him to make involuntary
statements. In particular, he challenges as coercive Detective Roberts’s
change of position in the interview room and his touching of Herrera-Castillo,
the officers’ use of “maximization/minimization and false choice strategies”
(including by stating they knew what happened and suggesting alternative
8
explanations for why Herrera-Castillo touched Doe), and Detective Roberts’s
invocation of religion in urging Herrera-Castillo to tell the truth. Relying in
part on the decision by Division Two of this District in In re Elias V. (2015)
237 Cal.App.4th 568 (Elias V.), Herrera-Castillo asserts he was vulnerable
and susceptible to the officers’ interrogation techniques because he is
illiterate, indicating he has little or no education; he speaks little or no
English; and he is not sophisticated or familiar with the criminal justice
system.6
Based on our review of the record, including the video recording of the
interview, we conclude Herrera-Castillo’s statements were voluntary. We
agree with the Attorney General that Elias V., which involved the
interrogation of a 13-year-old boy (a “young adolescent”) (Elias V., supra,
237 Cal.App.4th at p. 591) and focused on the vulnerabilities of juveniles who
are questioned by the police (id. at pp. 587–588), is not directly applicable to
Herrera-Castillo, who was 45 years old at the time of the police interview at
issue here.7 And while there is evidence Herrera-Castillo has received
limited education, does not speak English, and appears to be “not
sophisticated” (as the trial court stated), we also agree with the trial court
6Herrera-Castillo also suggests that, although he has been in the
United States for 20 years, he was “likely undocumented.” But as the
Attorney General notes, there is no evidence in the record on this point.
7 In a passage cited by Herrera-Castillo, the Elias V. court referred at
one point to racial minorities as well as juveniles, but the court’s focus was on
police interrogation of juveniles. (Elias V., supra, 237 Cal.App.4th at
pp. 595–596 [“ ‘Social expectations of obedience to authority and children’s
lower social status make them more vulnerable than adults during
interrogation. Less powerful people, such as juveniles or racial minorities,
often speak indirectly with authority figures to avoid provoking conflict.
Juveniles may acquiesce more readily to police suggestions during
questioning.’ ”].)
9
that, on the video recording, he does not appear to be confused or unable to
converse with the officers or answer their questions. The officers do not raise
their voices or make threats. Herrera-Castillo is in civilian clothing and is
not handcuffed. The interview, at just over one hour, was not prolonged.
And as noted, Herrera-Castillo was given Miranda warnings in Spanish. In
our view, the events shown on the video recording weigh against a conclusion
that Herrera-Castillo was exceptionally vulnerable or that his will was
overborne.
Turning to the specific interrogation techniques identified by Herrera-
Castillo, we similarly do not find a basis for concluding his statements were
involuntary. While Detective Roberts’s changing his position in the room to
sit next to Herrera-Castillo is a relevant consideration in assessing
voluntariness, we agree with the trial court that the detective’s movements
were not likely to be intimidating or threatening. As the court noted,
although Detective Roberts is “not a small man,” he did not stand and
“loom[]” or “hover[]” over Herrera-Castillo. He sat down in a chair and
remained seated. We also agree his touching of Herrera-Castillo appeared to
be “demonstrative” or “reassuring” rather than threatening. Herrera-Castillo
does not appear to have reacted in a fearful way to Detective Roberts’s
movements or touching; instead, he engaged in a dialogue that involved
touching by both participants.
As to some of the other interrogation techniques mentioned by Herrera-
Castillo, the officers did display an air of confidence, including by stating they
knew what had happened, and they suggested possible explanations for why
Herrera-Castillo touched Doe, such as that it was inadvertent, that it gave
him sexual pleasure, or that his consumption of alcohol had affected his
behavior. These statements by the officers do not persuade us Herrera-
10
Castillo’s statements were involuntary. Even assuming the officers
exaggerated the progress of their investigation (and they may not have been
exaggerating, since Doe had already provided her account of the incident at
the Children’s Interview Center), their statements do not persuade us there
was anything in the questioning that was tantamount to coercion. We also
disagree with Herrera-Castillo’s suggestion that the officers, by positing
alternative explanations of his conduct, made an implied promise of leniency.
Merely suggesting possible explanations of events is not improper or coercive.
(People v. Williams (2010) 49 Cal.4th 405, 444.)
Finally, Herrera-Castillo argues that a reference to religion by
Detective Roberts was coercive. Partway through the interview, Detective
Roberts made a statement to the effect that “[w]hen we arrive before God . . .
we have to tell him everything,” even if it is “difficult to say.” In our view,
these remarks do not support a finding that Herrera-Castillo’s statements
were involuntary. Detective Roberts talked about the need to be honest
before God, but there is no evidence his statements were “calculated to
exploit a particular psychological vulnerability” on the part of Herrera-
Castillo, and “no acute religious anxiety or sense of guilt was apparent from
prior questioning.” (People v. Kelly (1990) 51 Cal.3d 931, 953; see People v.
Case (2018) 5 Cal.5th 1, 25 [discussing alleged psychological coercion
tactics].) We also note Detective Roberts’s reference to religion did not
prompt Herrera-Castillo to provide an unqualified confession, a fact that
“tends to undercut the notion that his free will was overborne by the
detective’s remarks.” (Case, supra, 5 Cal.5th at p. 26.) Instead, immediately
after Detective Roberts made the challenged remarks, Herrera-Castillo
continued to deny he had touched Doe’s vagina. Considering the
11
interrogation as a whole and the totality of the circumstances, we do not find
Herrera-Castillo’s statements were involuntary.8
III. DISPOSITION
The judgment is affirmed.
STREETER, Acting P. J.
WE CONCUR:
BROWN, J.
GOLDMAN, J.
8 Because we conclude the court did not err by admitting Herrera-
Castillo’s statements, we need not address the parties’ arguments as to
whether the asserted error was prejudicial.
12