People v. Hernandez CA2/7 ( 2014 )

Filed 11/4/14 P. v. Hernandez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B249653
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA097343)
v.
JOEL RENTERIA HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F.
Marrs, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff
and Respondent.
_______________________
Joel Hernandez was convicted of several sexual offenses against his stepdaughter.
On appeal, he contends that the admissions he made during interrogation should have
been suppressed and that there was no substantial evidence to support one of the
convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hernandez was charged with four sexual crimes against Brenda Doe:1 (1)
continuous sexual abuse (Pen. Code,2 § 288.5, subd. (a)); (2) aggravated sexual assault on
a child (§ 269, subd. (a)(1)); (3) forcible lewd act on a child (§ 288, subd. (b)(1)); and (4)
lewd act on a child (§ 288, subd. (a)).) Prior to trial, Hernandez unsuccessfully moved to
suppress statements he made during interrogation on the grounds that the Miranda3
warning given to him was deficient and that his statements were involuntary.
Hernandez was convicted of continuous sexual abuse, a forcible lewd act on a
child, and a lewd act on a child. The jury deadlocked on the aggravated sexual assault
charge; the court declared a mistrial, then dismissed that count. Hernandez was
sentenced to 26 years in prison. He appeals.
DISCUSSION
I. Admissions to Police
On appeal, Hernandez contends that the statements he made during questioning
after his arrest should have been suppressed for two reasons: first, because Hernandez
did not knowingly and intelligently waive his rights; and second, because his statement
was not voluntary, having been induced by deceptive and coercive tactics. Hernandez
1 The trial court ordered that she be referred to as Brenda Doe to protect her privacy.
(Pen. Code, § 293.5.) We follow this convention.
2 Unless otherwise indicated, all further statutory references are to the Penal Code.
3 Miranda v. Arizona (1966) 384 U.S. 436.
2
did not argue in the trial court that he had not made an intelligent and knowing waiver of
his rights: instead, he argued that the statements should be ruled inadmissible because
the Miranda warning was improperly translated into Spanish and because the statement
was involuntary due to implied threats. “[U]nless a defendant asserts in the trial court a
specific ground for suppression of his or her statements to police under Miranda, that
ground is forfeited on appeal, even if the defendant asserted other arguments under the
same decision.” (People v. Polk (2010) 190 Cal. App. 4th 1183, 1194; see also People v.
Rundle (2008) 43 Cal. 4th 76, 120-121, overruled on other grounds in People v. Doolin
(2009) 45 Cal. 4th 390, 421, fn. 22.) Hernandez therefore failed to preserve for appeal the
question of whether he expressly or impliedly gave a knowing and intelligent waiver of
his rights when he failed to challenge the admission of his statements on this ground in
the trial court.
We therefore consider the argument that was raised in the trial court and preserved
for appeal: Hernandez’s contention that his statement was involuntary because it was
induced by deceptive and coercive law enforcement tactics. Due process “precludes the
admission of any involuntary statement obtained from a criminal suspect through state
compulsion.” (People v. DePriest (2007) 42 Cal. 4th 1, 34.) “‘A finding of coercive
police activity is a prerequisite to a finding that a confession was involuntary under the
federal and state Constitutions. [Citation.] A confession may be found involuntary if
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.” [Citation.] The statement and the
inducement must be causally linked. [Citation.]’ [Citation.]” (People v. McWhorter
(2009) 47 Cal. 4th 318, 347.)
In determining whether a confession was voluntary, the question is whether
defendant’s choice to confess was not essentially free because his or her will was
overborne. (People v. McCurdy (2014) 59 Cal. 4th 1063, 1086.) Whether the confession
was voluntary depends upon the totality of the circumstances. (Ibid.) On review of the
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denial of a suppression motion, “‘“‘we accept the trial court’s resolution of disputed facts
and inferences, and its evaluations of credibility, if supported by substantial evidence.
We independently determine from the undisputed facts and the facts properly found by
the trial court whether the challenged statement was illegally obtained.’”’ [Citations.]
Where, as was the case here, an interview is recorded, the facts surrounding the
admission or confession are undisputed and we may apply independent review.
[Citation.]” (People v. Duff (2014) 58 Cal. 4th 527, 551.)
A. Interrogation
Hernandez was interviewed by Detective Jimmie Pitts after his arrest, with Officer
G. Cuevas serving as a Spanish translator. The interview took place late at night.
Repeatedly during the questioning, Pitts impressed upon Hernandez that it was his job to
find out the truth, that he wanted the truth, and that he would find out the truth. He began
the questioning with questions about Hernandez’s name, family, occupation, and a prior
court matter that resulted in an outstanding warrant, weaving in Miranda advisements
among the questions. Through Cuevas Pitts then told Hernandez that he had spoken to
his family and that he thought that “something happened” in 2008 but that “it wasn’t a
big deal.” He assured Hernandez that everyone makes mistakes, himself included, and
that “if you made a small mistake, you should pay for a small mistake. [¶] . . . [¶] You
should not pay for a big mistake if you only made a small one.” Cuevas translated Pitts’s
words as, “If you did [] a small mistake, you have to pay for a small mistake. [¶] . . . [¶]
You shouldn’t have to pay for a big mistake if you only . . . committed something
small.”
Pitts showed Hernandez a photo of Doe and asserted as translated by Cuevas,
“Something happened between you and Brenda.” Pitts continued that what happened
was “not that big of a deal. [¶] . . . [¶] Okay. But now’s the time we need to find the
truth and clear the air and get this over with.” Cuevas translated Pitts’s statement as, “It’s
not a big deal. [¶] . . . [¶] But now is the time, now is the time to tell the truth.”
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Pitts told Hernandez that Doe had said that Hernandez treated her family and
herself very well, but that a few years ago Hernandez touched her in an inappropriate
manner. Hernandez responded, “That’s not true.” Pitts told Hernandez that Doe said the
touching happened a few times. He told Hernandez he understood, and asked if Doe had
been flirting with him. He asked Hernandez to help him understand. Hernandez told
Pitts that he had once spanked Doe while they were playing. Pitts said that they already
knew about that, and it was not what they were talking about today. Pitts said that Doe
alleged that Hernandez had touched her buttocks on the outside of her clothes, and that
Hernandez’s wife had confirmed that Doe reported this to her. Hernandez denied
touching Doe.
Pitts talked with Hernandez about a 2008 police investigation into inappropriate
contact with Doe, telling Hernandez that his wife had now admitted that she was lying
when she said nothing had happened. Pitts told Hernandez that his wife was saying that
he had touched Doe two or three times but that she had told Doe to lie to the police and
social worker when they investigated. Pitts said, “Now, I understand and we all make
mistakes,” translated by Cuevas as, “He understands, comprehends. [¶] . . . [¶] And
understands that we all do[] mistakes.” Pitts asked if Doe had done something to provoke
Hernandez. Hernandez denied provocation and said that the only time he touched her
was when he spanked her buttocks. Pitts told Hernandez they were not talking about the
spanking, they were talking about the time when he touched Doe sexually in 2007 or
2008. Hernandez again denied touching Doe.
Pitts told Hernandez it was strange that Doe would tell her mother about this, that
her mother would confront him, that a second child in the house would report having
heard the confrontation, and that they all would have the same story. Pitts asked again
what happened. “Nothing. I have never touched her. It’s not like I’m going to say yes,
when I haven’t . . . touched her. Why would I blame myself?” responded Hernandez.
Pitts told Hernandez that he did not understand why everyone else would lie. Hernandez
asked Cuevas, “What is it that I . . . he wants me to tell him?” Cuevas answered, without
consulting Pitts, “The truth.” “That I touched her?” asked Hernandez. Cuevas translated
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to Pitts that Hernandez was asking “what do you want him to tell you,” and Pitts
responded, “Just the truth.”
Pitts asked a series of questions tending to paint Doe as having been sexually
attracted to Hernandez or attempting to seduce him. Pitts said, “[M]an to man,” and
“She’s not your daughter. [¶] . . . [¶] She’s your stepdaughter.” He observed that Doe
was pretty. Pitts suggested that perhaps Hernandez had been drinking or that he and his
wife might have been arguing or not having sexual relations, and observed that there
were many reasons that could have led Hernandez to do something like this. He
suggested that Doe might have been attracted to him (although this was mistranslated by
Cuevas as Hernandez being attracted to Doe), and that perhaps Doe thought of him in a
way other than as a father. Pitts lied that when he talked to Doe, she said that she would
deliberately walk through the house in a towel after she showered so that he would see
her.4 Pitts said he was curious and wanted to know if she had done something or if
Hernandez was drinking. Hernandez again denied that he had ever touched Doe.
Pitts told Hernandez that he thought he knew the truth but that they were going to
find out the truth, sentences translated by Cuevas as, “He says that he already knows the
truth.” Pitts told Hernandez that it would be better for him and his family if he was
honest. Pitts said that if Hernandez did not touch Doe then when he (Pitts) finished his
investigation he would know that and could prove that he did not touch her. But if
Hernandez did touch Doe, Pitts would find out because his investigation would be
thorough. Pitts said, “If something happened, I would rather hear the truth from you
now, so I get your side of what happened, than for you to lie and me to find out the other
way.” Cuevas translated this as, “If something happened, he prefers to get the truth from
4 Pitts made clear in his trial testimony that Doe never said she had worn a towel so
that Hernandez would see her. Pitts explained that “it’s common in a child molestation
case, when a person is accused of similar crimes, that we try and minimize it or try and
shift blame to the victim, which I know is hard to understand[,] to think that I would sit
there and say that this seven-, eight-, or nine-year-old girl wanted something bad to
happen to her. But this is the world that I live in and have to deal with to try to get
people to tell the truth.”
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you rather than when he gets other people’s story. So it’s best that you tell the truth,
instead of other people. To get the side of, the side of the story that you have to tell.”
Pitts reminded Hernandez again that everyone makes mistakes, and asked him
how people recover from mistakes. Pitts said, “By admitting that we’ve done wrong,”
but before Cuevas translated this sentence, Hernandez said, “Actually, one day I was
drunk. And I mean, I did, I did try to touch her, but I didn’t touch her. I did try. And
yes, that time I was drunk.” Hernandez continued, “But I didn’t, didn’t touch her, but I
did try, yes . . . .” Hernandez then told the police that he had been drinking and that he
had gone into Doe’s bedroom to look at her while she was sleeping. She awoke.
Hernandez denied touching Doe but admitted that he was thinking about her. When
asked if those thoughts were sexual, Hernandez first said that he was drunk and then that
he did not know what he was thinking. Pitts asked if it was possible that he touched Doe
when he was drunk, and Hernandez said that he had not touched her.
Pitts tried a new tack, telling Hernandez that if he did touch Doe sexually a few
times, “It happened, it’s not good, but it’s not a big deal. It’s a mistake.” Cuevas
translated this statement as, “[I]t happened, it’s not good that it happened [¶] . . . [¶] but
it’s not a big thing either.” “If that’s all,” Pitts continued, “then fine and we close this
out,” which Cuevas translated as, “it’s fine and the case can be closed.” Pitts told
Hernandez that he might get in a little bit of trouble, but he was not a bad person; he just
made a mistake. Pitts cautioned Hernandez that if he did not get the truth from
Hernandez, he would have to continue investigating until he found the truth. “It’s better
for you, if you made a little mistake, tell me now,” said Pitts; Cuevas translated this as
“It’s better for you, that you did a small mistake, to say it.” Telling them would be better
for Hernandez’s family as well, Pitts told him. Pitts told Hernandez that if he did make a
mistake he would feel better if he told the officers. “What happened?” Pitts asked again.
Hernandez said, “I don’t know. I don’t know what, what you’re asking me about.”
Pitts told Hernandez that Doe was very clear that Hernandez had touched her two
or three times. “Her private part?” asked Hernandez. Cuevas responded affirmatively.
Hernandez had touched Doe’s private parts in 2007 or 2008, Pitts told Hernandez.
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Hernandez said, “No.” Pitts asked when it was that Hernandez had gone into a sleeping
Doe’s bedroom, and Hernandez said it was around 2008. Pitts asked if Hernandez
thought that this was what Doe was talking about. Hernandez said yes.
The officers took a break and brought Hernandez water. Afterwards, Pitts told
Hernandez that he only wanted the truth, that everyone makes mistakes, and that “it’s
gonna be a lot easier for you and your family [¶] . . . [¶] if you just come forward with the
truth.” Cuevas translated this as, “[I]t’s going to be much easier for you and for your
family [¶] . . . [¶] if you just tell the truth.” Pitts reminded Hernandez that he first denied
anything ever happened with Doe, but that he had now told them about a time when he
was drunk and went into her room to look at her. “You’re starting to be honest,” Pitts
told him. “And that’s all we want.”
Pitts asked where Doe was when Hernandez touched her, and Hernandez
responded that he had not touched her. Pitts asked how Doe could have known he was
looking at her if she was asleep. Hernandez said she awoke but nothing happened. Pitts
suggested that maybe Doe had misinterpreted Hernandez’s actions, but Hernandez said
that while he did make a mistake by going into her room to look at her, he did not touch
her.
Pitts then told Hernandez that Doe had responded in the negative to the officers’
questions about whether Hernandez had raped her, forced her to have oral sex, and other
specific sexual acts. He said that Doe said only that two or three times Hernandez had
grabbed her and rubbed her, making her feel strange, and reminded Hernandez that this
was what had been reported to the police in 2008. The case would have been over, Pitts
told Hernandez, if it were not for Hernandez’s wife having told Doe at that time to lie to
the police.
Pitts asked Hernandez if he understood the difference between a felony and a
misdemeanor, which Cuevas translated as a “big crime” and a “small crime.” Hernandez
said he did not. Pitts said that rape and child molestation were felonies, and Cuevas told
Hernandez that a felony was “like a rape.” Pitts said that the touching Doe alleged was a
misdemeanor. Hernandez said, “I’m very regretful about that.” Without translating
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Hernandez’s words into English for Pitts, Cuevas asked Hernandez what he regretted.
Hernandez said he regretted going in to Doe’s room to look at her. Hernandez again
maintained that he had never touched her private parts or her body without clothes, and
that the only time he had touched her with clothes was the spanking he had told them
about. He related that the spanking had caused his wife to be very upset and that they
had a big argument.
Pitts told Hernandez that he was going to get to the truth. He told Pitts to come
with him, and took him out of the interview room. Pitts told Hernandez to look at a
machine in a nearby room. The men returned to the interview room, and Pitts told
Hernandez that what he had just seen was the room where they did lie detector tests, or,
as Cuevas translated it, “There where that machine is, we use it to connect you to the
machine, and the machine detects when you’re lying.” The polygraph operator, Pitts told
Hernandez, would be there in the morning, and tomorrow they could hook him up to the
machine. “And there we’ll see if you’re lying or not,” Cuevas translated for Pitts. “But if
they get to that extreme,” Cuevas translated, “there are going to be more problems for
you if you’re lying.” Pitts said he would bring Doe in the following day as well to test
her.
Pitts asked Hernandez whether they needed to do all that, or whether he would tell
them what really happened. Hernandez protested that he did not rape Doe, nor did he
touch her private parts. Pitts told him that they knew he did not rape her. “You had some
thoughts,” Pitts said through Cuevas. “You touched her. [¶] . . . [¶] It was wrong.
[¶] . . . [¶] You know it was wrong. [¶] . . . [¶] That’s all you did.” “I think this is the
truth,” Pitts said. “I hope we don’t find out more tomorrow,” said Pitts; Cuevas
translated this as, “He says he hopes that when, when you’re hooked up to the machine,
other things won’t come up, while you’re connected to the machine.”
“What happened?” Pitts asked again. Hernandez repeated that he had spanked
Doe on the buttocks once and that he had gone into her bedroom to look at her. Pitts
questioned Hernandez about his thoughts while watching her, and Hernandez denied that
he had ever thought about raping her. Hernandez said he knew that it was wrong to have
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gone to look at her, and Pitts asked why it was wrong. Pitts pointed out that there’s
nothing wrong when he (Pitts) checked on his son at night. “But that’s not, that’s not
what you did,” Cuevas translated for Pitts. “Is it?” asked Pitts, which Cuevas translated
as, “Right?” “No,” said Hernandez. Pitts asked why Hernandez looked at her, and
Cuevas then added, “With what intention did you look at her?” After a few more
questions, Hernandez said yes to Cuevas’s statement, “But you went to look at her with
not very proper intentions.” He said he went into Doe’s room to look at her because she
was pretty, but that it never crossed his mind to do her any harm. Pitts assured him that
he had not done her any harm and that he had not hurt her.
Pitts then said, “Do you understand that if you did something wrong, it’s better to
tell me now, than to get caught lying tomorrow?” Cuevas translated this as, “He wants
you to understand that it’s much better for you . . . [¶] . . . [¶] . . . to tell the truth right
now, than it will be tomorrow when you’re hooked up to the machine and are caught
lying. It will be worse for you. He wants, he wants you to understand that.” Hernandez
confirmed he understood. Pitts then said he would ask him the questions that would be
asked by the detective the following day during the lie detector test. Pitts said that he had
hoped they would not have to use the machine. Pitts asked a series of questions about
whether Hernandez had sexually abused Doe in a number of very specific ways.
Pitts then asked if there was anything else Hernandez wanted to tell them.
Hernandez said no. “If anything else happened, different from the answers you just gave
me to those questions, now is the time to tell me,” Pitts told him. “What did he say?”
Hernandez asked Cuevas. Cuevas responded, “If any of the questions you were asked
right now, the answers you gave, are different from the ones you gave. Right now is the
time to change your answers.” “Right now,” Cuevas continued, “is the time to tell the
truth.”
After a pause, Hernandez said, “Did she say that I touched her?” “Yes,” Cuevas
said, Doe said he had done so two or three times. “I don’t understand why,” Hernandez
said. Pitts told Hernandez he would schedule Doe on the polygraph machine in the
morning, that he would speak to a few more people after that exam, and that then it
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would be “time for your exam,” which Cuevas translated as, “And then it’ll be
you . . . you’ll go and get connected to the machine.”
Pitts told Hernandez that there would be “no problem” if he was telling the truth
but that if he was lying, that it would be very bad for him. There was a pause, then Pitts
asked if there was anything else he wanted to say before they finished. Cuevas translated
Pitts’s statement and then added, “Last chance. There won’t always be an officer here
that can speak Spanish.” Hernandez asked, “Is that it?” Cuevas answered, “The machine
will tell us the truth any[]way. But it’s much better for you . . . to not go that far. You do
understand what I’m trying to tell you?” “I know,” Hernandez answered. “Because once
you’re on the machine,” Cuevas continued, “other things can come up.” “They’re asking
you about one thing right now, but once you’re over there, other things can come up
that . . . can cause you even more problems.” Hernandez said, “I know.” Cuevas said,
“So, this is why he wants . . . to ask you about the touching, that’s it. Do you want to talk
about that? It’s the last—Because he’s finishing up.” “Okay, I tried touching her once,”
Hernandez said. Hernandez then related an incident in which Doe was in the bathtub and
he attempted to touch her vagina.
After further questioning about this incident, Pitts told Hernandez, “We’re doing
good,” which Cuevas translated as, “He says you’re, you’re doing good.” Cuevas added,
“You’re doing the right thing.” Pitts told Hernandez he was going to tell him something
in a moment would make him relieved, although Cuevas translated it as something that
would make him relax. But first, Pitts said, he knew that Hernandez was “down-playing”
what had happened, which Cuevas translated as “you’re saying it in a way that didn’t
happen much.” Pitts ran through the events as Hernandez had described them, and then
said that he (Pitts) thought Hernandez probably had touched Doe’s private parts.
Hernandez denied touching her vagina but admitted looking at it.
Pitts then explained that Hernandez would not be released that night because of an
outstanding warrant but that he would sleep better that night than he had in years because
he had gotten this off his chest. Hernandez said that at times he had considered turning
himself in because he felt so bad about what he had done. Pitts asked if he felt better
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now, and he responded, “Well, yes. It’s years of feeling like I was choking
and . . . sometimes I just wanted to disappear from here and never see them . . . but my
children would hold me back.”
Pitts told Hernandez he appreciated his honesty. He said that now Hernandez had
told them about one of the two times that Doe had told them about, and asked what the
other time was so that they could finish this. Hernandez said that the spank to Doe’s
buttocks was the only other incident. “That’s not the second incident,” Pitts told him
through Cuevas. Maybe the other time Doe was talking about was when he went into her
bedroom, Hernandez suggested; although he had not touched her that time perhaps she
thought he had done so, he told the officers. Pitts asked a series of questions about the
bedroom visit, but Hernandez maintained that he had not touched her.
Pitts then asked when was the second time that Hernandez touched Doe.
Hernandez paused and said, “No.” Cuevas said, “There were two, three incidents . . . that
she was touched. You’re telling us two. There’s one left.” Hernandez said, “That’s
it . . . it’s what I’ve told you, that’s it.” “That’s it?” asked Cuevas. “Yes,” said
Hernandez, and several times more denied any further incidents. Hernandez said, “That’s
it. Honestly, yes. That’s it, because, no, no . . . . That’s it. And yes, I feel much better
because yes . . . I mean, that’s what had me . . . .” Hernandez continued, “But if she said
two or three . . . that I’ve touched her three times, that’s . . . I don’t know. I
honestly . . . really . . . .”
The officers again ran through the bathtub incident, the night he went in and
looked at Doe, and the time he spanked her. Pitts asked Hernandez whether he felt better,
and he said he did. Pitts told him he would sleep better that night. Hernandez expressed
concern for his children and how his family would manage because they depended on his
income. Cuevas reassured Hernandez that the crime he described was a minor crime.
Pitts asked if there was anything else he would like to tell them, and Hernandez said that
was all. Hernandez said he knew it was not right and that it was wrong. Cuevas told
him, “It’s not good but it’s not like . . . a big crime.” Pitts agreed in Spanish, saying
“That’s true.” They spoke some more, and Pitts told Hernandez he was very happy that
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Hernandez told the truth. He told Hernandez it would be better for him, that he made a
small mistake, he would pay in a small way, and that he and his family could then move
forward. The officers left Hernandez with paper and pen to write a note to his family if
he so desired, and then ended the questioning.
B. Trial Court Ruling on the Motion to Suppress
After hearing argument on the motion to suppress, the trial court said, “No big
deal. Small crime. Lie detector. Problems if the machine shows other things can come
out[,] which, of course, is totally true. Defendant wasn’t told of his right of refusal. I
don’t believe that’s constitutionally required, or even case law required during an
investigation and the interview. [¶] I love the fact that you folks brought in the [People
v.] Mays case at [(2009)] 174 Cal. App. 4th 156. The Mays case runs through a huge
litany of various cases where officers had misrepresented or made omissions with various
defendants that were upheld. Police officers are at liberty to utilize deceptive strategies
to trick a guilty person into confessing, such as accomplice has been captured and
confessed. Officer implied he could prove more than he really could. Officers lied,
insisting they had evidence linking the suspect to a homicide. Told wounded suspect he
might die before he reached the hospital so he should talk while he still had the chance.
Gun residue test producing positive result. Fingerprints in the car, although no
fingerprints had been obtained. The one I particularly love was People versus Smith at
[(2007)] 40 Cal.4[th] 483. ‘It was not impermissibly coercive for a police officer to tell
the defendant that a “neutron/proton negligence intelligence test,” indicated he had
recently fired a gun. Additionally, the sham did not elicit a full confession, but only
incriminating statements,’ much analogous to what we had here. [¶] The key test is
whether or not the will of the defendant was overborne and that it was, in fact, voluntary,
that is, a free and deliberate choice; was not so coercive as to be unconstitutional and
under circumstances that a false confession would be likely. [¶] Since we didn’t get a
full confession in this particular case—we got statements that may or may not be
admissions depending on whether the jury believes them or not—I don’t think that we
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have a situation where the extent of big deal versus small crime is so inherently coercive
as to require suppression of the entire statement. [¶] Motion to suppress on that
[involuntariness due to coercion] ground will also be denied.”
C. Arguments on Appeal
Hernandez argues that he ultimately made admissions “only after the coercive
tactics by Pitts and Cuevas convinced [him] that a confession represented his only hope
for leniency.” Leading a defendant to believe that he or she might reasonably expect
lenient treatment by the police, prosecutor, or court if he makes a statement renders that
statement involuntary and inadmissible. (People v. McClary (1977) 20 Cal. 3d 218, 228,
overruled on other grounds in People v. Cahill (1993) 5 Cal. 4th 478, 510, fn. 17.)
Hernandez, however, does not identify any specific statements during the questioning
that purportedly communicated to Hernandez that he would receive leniency in exchange
for a confession, nor did we identify in our review of the interrogation footage or in the
nearly 200-page-long transcript any express or implied promises of leniency in exchange
for a confession. While the officers pressured Hernandez to tell them the truth and told
him that lying would make the situation worse, at no time did they promise him anything,
expressly or impliedly, other than the relief that comes from telling the truth and
addressing any crimes he had committed. “Absent improper threats or promises, law
enforcement officers are permitted to urge that it would be better to tell the truth.”
(People v. Williams (2010) 49 Cal. 4th 405, 444 (Williams); see also People v. Carrington
(2009) 47 Cal. 4th 145, 172 [“when law enforcement officers describe the moral or
psychological advantages to the accused of telling the truth, no implication of leniency or
favorable treatment at the hands of the authorities arises”]; People v. Green (1987) 189
Cal. App. 3d 685, 694 [telling defendant that interview was a way of “getting this thing
straightened out” was no more than an exhortation to tell the truth].) Hernandez,
moreover, demonstrated that his will was not overborne by the officers’ tactics: he never
confessed to sexually touching Doe despite the officers’ extensive efforts to get him to
admit that he had. He admitted to once spanking her over her clothes, to once attempting
14
to touch her vagina but not succeeding, and to watching her with improper thoughts once
while she slept; presumably if he had believed that he needed to confess to obtain
leniency he would have agreed with the officers’ repeated assertions that he touched her
sexually.
Next, Hernandez charges that the officers improperly “cozied up” to him as in
People v. Flores (1983) 144 Cal. App. 3d 459, 466. Not only is it not “inherently coercive
for an interrogator to attempt to form a rapport with the suspect” (Williams, supra, 49
Cal.4th at p. 447), but the conviction in Flores was ruled inadmissible not because the
officers acted sympathetic to the defendant and suggested that the victim of the crime was
a bad person, but because they threatened the defendant with the death penalty combined
with the implicit promises that only by confessing to involvement in the victim’s death
could he avoid the death penalty and that he might be released from custody until trial if
he confessed. (Flores, at pp. 471-472.) Hernandez argues that the interrogation here was
similar to that in Flores because “Pitts told appellant that he was only being accused of a
misdemeanor, it was no ‘big deal,’ and that admitting everything would be a lot less
serious than if the lie detector established he wasn’t telling the truth.” Although
Hernandez did not discuss the cases further, it appears that he equates this case with
Flores by suggesting that the officers’ minimization of the offenses constituted an
implicit promise of leniency as in Flores and the threat that things could go worse after a
lie detector test was a threat akin to that in Flores, but neither characterization is
supported by the record here. While Pitts and Cuevas dramatically minimized
Hernandez’s conduct, they never suggested that there was any leniency available: they
repeatedly discussed that punishments would be commensurate with the crimes, so that if
Hernandez committed a small crime he would pay in a small way, while if he committed
a greater crime the consequence would be greater. As we discussed above, the officers’
exhortations to tell the truth and to tell them what happened were not accompanied by
any promises of leniency. With respect to lie detector test, Hernandez was told that it
would be worse for him if the lie detector test established that he was not telling the truth
because “other things” could come up during such an examination. Moreover, it is not
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improper to point out that demonstrably false denials will not benefit a defendant.
(Williams, supra, 49 Cal.4th at p. 444 [“there is nothing improper in pointing out that a
jury probably will be more favorably impressed by a confession and a show of remorse
than by demonstrably false denials. ‘No constitutional principle forbids the suggestion
by authorities that it is worse for a defendant to lie in light of overwhelming
incriminating evidence.’ [Citation]”].) The record here simply does not support a
comparison to the involuntary confession in Flores.
Hernandez next argues that deception by Pitts and Cuevas proximately caused him
to confess. He asserts that the officers’ behavior led directly to his incriminating
statements, because “he was told he would be facing far more serious charges the
following day if the lie detector test established he was being untruthful. He was not
informed that he had the right to refuse to even participate in the lie detector test, but
simply that things would go much worse for him after the test if he was not truthful
during the initial interrogation. He was flatly told that the current allegations were minor,
but could be elevated to felonies if he was not truthful.” Hernandez does not identify any
pages in the nearly 200 pages of transcript to support these factual allegations, and we
found no such threats in the record. It was clear from the context of the lie detector
discussion that the officers had advised Hernandez that if they performed a lie detector
test, other conduct could come to light that would result in more serious problems for
him. As the trial court noted, the assertion that Hernandez’s problems could become
more severe if other information came to light was completely accurate. Hernandez was
not informed he could refuse a polygraph, but he has not identified any legal requirement
that the police advise him of his right to refusal of a future polygraph exam in this
context. We found no statement or suggestion by the officers in the record that his
charges would be elevated to felonies if he lied to the police, and Hernandez does not
identify any passage in the very long transcript that would support this claim. Finally, the
record does not support Hernandez’s contention that the officers’ conduct proximately
caused him to confess, for although he made incriminating statements, he steadfastly
refused to admit to sexually touching Doe.
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Based on our review of the filmed interrogation, we conclude that Hernandez’s
will was not overborne, that the incriminating statements he made were voluntary and the
result of a free and deliberate choice, and that the police tactics here were not so coercive
as to be unconstitutional or to create circumstances in which a false confession would be
likely. The motion to suppress was properly denied on this ground.
II. Sufficiency of the Evidence on Count Four
In the second amended information, count four alleged that Hernandez committed
a lewd act on Doe during a time span that corresponded with the year that Doe was seven
years old. Hernandez contends that no reasonable jury could have concluded beyond a
reasonable doubt that any touching occurred while Doe was seven years old.
At the 2013 trial Doe, then 16 years old, gave somewhat conflicting statements
about when the sexual abuse began. Initially, she related that she was not “exactly really
sure when it started,” and that she was “like 8” years old when the touching began. She
reported that she was “not sure . . . when the first time was,” but that he would touch her
buttocks as he walked past him in the hallway or approach her from behind in the
kitchen. “Did this happen to you when you were as young as 7?” the prosecutor asked.
“No,” said Doe. “I didn’t live with him at that age.” Doe stated the touching had begun
“roughly about a month after” her family and Hernandez began living together.
Later in Doe’s testimony the prosecutor questioned her about information she had
told the police in 2012. When the prosecutor asked her what she had told the police at
that time, she testified that she had described the abuse as starting when she was seven or
eight years old. The prosecutor asked her if this information was correct. Doe responded
that this information was correct, because the touching “started when I had moved in with
my stepfather, which is when I was 7 about to be 8.” The touching, she testified, started
“right away.”
While the evidence was in conflict, it was sufficient to support the verdict on
count 4. “When a jury’s verdict is attacked on the ground that there is no substantial
evidence to sustain it, the power of an appellate court begins and ends with the
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determination as to whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted, which will support it, and when two or more inferences
can reasonably be deduced from the facts, a reviewing court is without power to
substitute its deductions for those of the jury. It is of no consequence that the jury
believing other evidence, or drawing different inferences, might have reached a contrary
conclusion.” (People v. Brown (1984) 150 Cal. App. 3d 968, 970.) On this evidence, if
the jury believed that Hernandez abused Doe, the jury could have concluded that the
abuse began when Doe was seven, or it could have determined that it began when she
was eight. The jury concluded that the abuse began when she was seven years old, and
substantial evidence supports that determination.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
WOODS, Acting P. J.
SEGAL, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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