Filed 8/15/17 P. v. Delacruz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Law Offices of Russell S. Babcock, Russell S. Babcock, and Ryan Thomas Mardock for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland and Eric A. Swenson, Assistant Attorneys General, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General for Plaintiff and Respondent.

A jury convicted appellant Jesus Delacruz of seven counts of committing a lewd act upon a child (Pen. Code[1] § 288, subd. (a)) involving alleged offenses against his two step daughters, J. and M. The jury also found true the special allegations that, as to counts 1, 2, 3, 4, and 7, Delacruz had substantial sexual conduct with a child under the age of fourteen. (§ 1203.006, subd. (a)(8).) The jury also found true the special allegations appended to all counts; that he committed the crimes against more than one victim. (§§ 1203.066, subd. (a)(7), 667.61, subds. (b)(c) & (e).) Delacruz was sentenced to an indeterminate term of fifteen years to life on each count and the court ordered the sentences to run concurrently.

Delacruz contends on appeal certain statements he made to a social worker were erroneously admitted into evidence because those statements were obtained in violation of Miranda v. Arizona (l966) 384 U.S. 436 (Miranda) or were made involuntarily, and that such error was not harmless beyond a reasonable doubt. He also contends the court erred by allowing testimony from an expert witness about the contents of a study upon which the expert relied.

I

FACTS

A. Prosecution Case

1. The Family

M.R. (Mother) lived in El Salvador when her daughters, J. and M., were born in 2005 and 2002, respectively. Mother moved to the United States when J. was about seven months old, but the daughters remained in El Salvador in the care of their grandmother, S.M.

Mother met and married Delacruz in 2008. They were living together when J. and M., along with their grandmother, came to the United States in 2010 to live with them. Mother worked days as a housekeeper and Delacruz was a construction worker.

2. The First Reports of Molestation and the Investigation

On January 22, 2014, Vanessa Shaffer, a school counselor at the daughters' school, received a report of possible molestation of J.[2] Shaffer called J. into her office, and asked J. if there was anything happening at home which made her feel uncomfortable, and J. said there was. Shaffer asked J. how long it had been happening, and when it last happened. J. told her it had been going on for a year and that the last time was the previous Saturday. Shaffer contacted the child protective services department.

Maria Mosqueda, a child protective services worker employed with County of San Diego's Child Welfare Services (CWS), went to the school that same day to speak with J. After reassuring J. that she was not in trouble and was safe, Mosqueda showed J. a diagram of a woman's private areas and asked J. if anyone had touched her private parts. J. responded, "Yes, my stepfather," and said the incidents started when she was six years old, had occurred more than one time, and that the last time was about a week earlier. She described that Delacruz would ask her to sit on his lap, would start touching her legs and buttocks, and "went back and forth with his fingers" on her vagina, over her underwear. On one occasion, Delacruz kissed her on the mouth. Touching occurred when Mother was not home and J. did not feel safe when she was home alone with Delacruz. J. said the incidents sometimes occurred in the living room, but happened mainly in Delacruz's bedroom. Delacruz told J. that if she said anything to Mother, he and Mother would separate.[3]

J. indicated she eventually told her grandmother. J. and M. and Mother talked about it together, and Mother promised to protect them and it would never happen again. Mother talked to Delacruz and he did stop for a few months, but then resumed touching her. J. did not again talk to Mother about the abuse.

After interviewing J., Mosqueda contacted law enforcement. Mosqueda also did not feel safe sending J. home with Delacruz still in the house, so Mosqueda contacted Mother to meet with Mosqueda at the school. Mosqueda told Mother of J.'s allegations and explained they needed a plan to keep J. safe. Mother admitted she first learned of the abuse from her own mother in September or October of 2013 and confronted Delacruz about it. Mosqueda telephoned Delacruz that same day and asked if he was willing to move out of the house until the investigation was complete, and Delacruz agreed to move out.

On February 7 the girls were interviewed separately by Marison Olguin, a forensic interviewer with the Chadwick Center at Rady Children's Hospital.[4] In J.'s interview she told Olguin she lived with Mother and her sister and that Delacruz used to live with her but he left because "[h]e did stuff I didn't like" and, when asked to elaborate, J. said Delacruz would call her into his room and then touch her with his hand "where we go pee" and on her buttocks. This happened more than one time. Olguin asked J. when it started, and J. said she was six or seven years old and living in another house on 50th Street.[5] On that occasion, Mother was working (but M. was home) and Delacruz only touched J.'s buttocks.

When asked about the most recent event, J. said she did not remember that time very well, but on further probing by Olguin, said she was in the living room, M. was in the kitchen washing dishes, and Mother was at work. Delacruz was sitting on the large couch when he summoned her over. She complied and Delacruz started touching her.

Olguin asked whether, while they lived on 50th Street, Delacruz touched her one time or more than one time, and J. said he touched her more than one time. J. gave the same answer when asked about incidents occurring when they lived on 39th Street. Olguin also asked whether Delacruz ever touched her "not on top of your clothes?" and J. said that on one occasion Delacruz called her into his room, tried to pull her pants down, and started touching her. He touched both her buttocks and vaginal area. She grabbed her underwear to prevent him from pulling them down, told him to stop, and Delacruz did stop. J. said that, in each house, Delacruz touched her more than once under her clothing.

Olguin asked if Delacruz ever mention whether J. should tell anybody about what was happening. J. responded that Delacruz told her that, if J. did not want Mother and Delacruz to separate, J. should not tell Mother. J. added, "[W]ell they've now separated and I now feel more comfortable at the house that he now doesn't, he doesn't do that to me anymore." J. also indicated that at one point she did talk to Mother, who said she would speak to Delacruz. Thereafter, some months went by without any incidents, but then the touching resumed.

Olguin spoke to M. after interviewing J. M. said that when she was ten or eleven years old, Delacruz asked the girls if anyone had touched them, then put his hand "like that."[6] Mother learned about the touching and talked to Delacruz, and Delacruz apologized to the girls and said he did not mean to hurt them. This happened when they lived in another house.

3. The Challenged Admissions by Delacruz

On February 12 Mosqueda again phoned Delacruz and asked if he would come to her office to talk with her. Delacruz agreed and they made an appointment for the following day. Mosqueda then contacted Detective Maggie Gibbons, the lead investigator, to let her know the status of the CWS investigation. Detective Gibbons said she would be coming to the CWS office to arrest Delacruz, but would first give Mosqueda the opportunity to complete her interview.

When Delacruz arrived at the CWS office, he checked in at the reception desk.[7] Mosqueda greeted him and escorted him to a private conference room. She told Delacruz she was the social worker for his daughters, that Delacruz had the right not to talk to her, and could decline to answer any questions which made him feel uncomfortable. After asking for some general background information, Mosqueda asked if Delacruz knew why he was there, and Delacruz replied "Yes."

Mosqueda told Delacruz she wanted to talk to him about the allegations. Delacruz responded, "I know I did wrong. It was an error." When Mosqueda asked Delacruz what he meant, he replied "Because I touched [J.] . . . in her vagina." Delacruz said he touched J. about four or five times over her clothes, and about two or three times under her clothes, but then said he did not remember the number of times. The first time was when they lived on 50th Street, but most occasions were at their 39th Street residence. He said he was afraid that children at school might be touching J. Mosqueda asked whether Mother confronted him about the touching. Delacruz said Mother did but he explained to her it was "for educational purposes." He stopped touching J. after being confronted by Mother but then started up again.

After Mosqueda finished talking to Delacruz, she gave Detective Gibbons the statement she obtained from Delacruz, as well as other statements she obtained concerning the investigation. The CWS case remained open and Mosqueda continued to provide services to the girls.

4. Victims' Trial Testimony

At trial J. testified she loved Delacruz, and she and Mother were sad when he had to move out, and she wanted Mother and Delacruz to reunite. She testified Delacruz had touched her vagina and buttocks on more than one occasion in a way that made her uncomfortable, and had kissed her on her cheeks and lips. However, she denied that he touched her when the family lived at the 50th Street residence, and had only touched her when she was eight. She also denied Delacruz had touched her under her clothing or tried to pull her pants off, and denied Delacruz had warned her not to tell Mother. She also denied he kissed her while touching her, but only kissed her when dropping her off at school or to say good night. She also testified that, after she, M. and Mother had talked to Delacruz about the touching, he apologized and never resumed touching her.

M. testified that when the family was living at the 50th Street address, Delacruz asked M. and J. to come into his bedroom, and all three sat on the bed. Delacruz touched M.'s vagina under her clothing but over her underwear, and he also touched J. by putting his hand underneath her pants. Delacruz later apologized. M. did not recall Delacruz touching her underneath her underwear.

5. The Defense

Testifying at trial, Delacruz admitted he touched the girls' vaginas, but said he did so only one time. He denied telling Mosqueda that he touched them on multiple occasions. Moreover, he testified he touched them only in connection with his effort to find out if they were being sexually abused at school. He claimed to have heard a rumor that an employee at J.'s school had been acting inappropriately with the students. After he noticed a change in J.'s behavior and demeanor, he became concerned someone at the school might be sexually abusing her. Based on this concern, Delacruz called J. and M. into the living room and asked them "has someone ever touched you like this?" and then placed his hand on the girls' vaginas. Delacruz said he was not feeling sexual, did not have an erection, and was not trying to make the girls feel sexual.

The family later discussed what had occurred. Mother explained that in the future, she need to be present for these types of conversations. Delacruz agreed and apologized if he made the girls feel uncomfortable. Delacruz never touched them in the bedroom and never told J. not to discuss the incident with Mother.

The defense also offered evidence of Delacruz's good character and

lack of abnormal or sexual behavior toward children. Delacruz's two nephews and his two sisters testified he did not have a character that would have allowed him to harm children and they had never seen him act abnormally toward children.

DISCUSSION

A. Defendant's Statements to the Social Worker Were Properly Admitted

Delacruz contends the admissions he made during his February 13 interview with CWS worker Mosqueda were erroneously admitted into evidence because those statements were obtained in violation of Miranda or were made involuntarily.

1. Procedural Background

Delacruz moved in limine to exclude statements he made to Mosqueda on the grounds he was not given Miranda warnings before the interview began. He argued that Mosqueda was acting as an agent of the police and conducted a custodial interrogation while Delacruz was in constructive custody such that Miranda warnings were required. The prosecution opposed the motion, contending that social workers are not members of law enforcement and therefore need not provide Miranda warnings, and that Delacruz was not in custody but instead voluntarily attended the interview in Mosqueda's office. The court granted Delacruz's request for an Evidence Code section 402 hearing, stating that it needed to take testimony before it could rule on the issue.

At the evidentiary hearing, Mosqueda testified she is a Child Protective Services worker with CWS and does not work for the police department.

In 2014 she was assigned to follow up on J. and M.'s allegations of sexual abuse. Mosqueda first spoke to the girls. After they confirmed there was sexual abuse, she spoke to their mother and then to Delacruz. Her first contact with Delacruz was a telephone call in which she informed him about the investigation and asked if he was willing to leave the house. He agreed to leave.

The second call, the day before their interview, was to ask if he would agree to meet with her at her office to discuss the investigation. Delacruz agreed to this request as well. Mosqueda never told Delacruz the meeting was mandatory, or that he would be arrested or suffer other consequences if he refused to meet with her.[8] Mosqueda knew Detective Gibbons (with whom Mosqueda had previously spoken) intended to arrest Delacruz after the interview, but she did not share that information with Delacruz. After making the appointment with Delacruz, Mosqueda informed Gibbons by email that Delacruz was coming to her office. Gibbons's email reply indicated Mosqueda could conduct the interview but that, once the interview was over, Gibbons intended to arrest Delacruz.

On the day of the interview, after Delacruz checked in with the CWS receptionist, Mosqueda came out to greet him and led him to a conference room.[9] Following standard practice for privacy reasons and Delacruz's protection, Mosqueda closed the door and locked it. She introduced herself, told Delacruz she worked for CWS, and explained he had the right not to answer a question if it made him feel uncomfortable. She also told him that if he did not want to continue with the investigation, he should say so and she would end the interview. Before starting the interview, Mosqueda also provided Delacruz with a pamphlet informing him of his rights as an alleged perpetrator in a CWS investigation. The conversation was conducted in Spanish and was casual and open-ended. During their discussion, Delacruz said he knew he was there because of J.'s allegation of sexual abuse.

Mosqueda's practice was that she sometimes notifies law enforcement when she interviews a child or a nonoffending parent, and always does so when she interviews the alleged perpetrator. If a detective is assigned to the case, she tries to make contact with the detective and, if she does not know who the detective is, she contacts the child abuse unit within the San Diego Police Department. This was the first time in Mosqueda's experience that a police officer ever came to her office and waited for the completion of an interview with a suspect to make an arrest.

When the interview was over, Mosqueda told Delacruz that law enforcement was in the other room and he needed to come with her. Mosqueda and a coworker then walked with Delacruz to the location where Gibbons was waiting. Delacruz and Gibbons then left the CWS offices.

Mosqueda subsequently typed out Delacruz's statement from notes she took during the interview and faxed it to Gibbons. Mosqueda had not agreed in advance to give Gibbons the statement. Gibbons either asked for it when she arrested Delacruz, or called Mosqueda later and asked for it. Mosqueda also provided Gibbons with the statements she took from the J., M., and Mother.

After noting it found Mosqueda's testimony credible, the court concluded she was acting in her capacity as a social worker and not as an agent of the police when she conducted the interview. It further determined that Delacruz was not in custody when he was interviewed, and that the surrounding circumstances showed there was no coercion in connection with the interview. Accordingly, the court ruled that Miranda warnings were not required and the statements were admissible.

2. Analysis of the Miranda Claim

Under Miranda, "[b]efore being subjected to 'custodial interrogation,' a suspect 'must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' [Citation.] Statements elicited in violation of this rule are generally inadmissible in a criminal trial. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 732.) The procedural safeguards of Miranda " . . . come into play only where 'custodial interrogation' is involved, and by 'custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " (People v. Fiorrito (1968) 68 Cal.2d 718, 718 [quoting Miranda, supra, 384 U.S. at p. 444].) The raison d'etre of Miranda is to "preserve the [Fifth Amendment] privilege during 'incommunicado interrogation of individuals in a police-dominated atmosphere' [(Miranda, at p. 445)] [because] [t]hat atmosphere is said to generate 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' [(Id. at p. 467.)]" (Illinois v. Perkins (1990) 496 U.S. 292, 296 (Perkins).) Indeed, because "t is the premise of [i]Miranda that the danger of coercion results from the interaction of custody and official interrogation" (id. at p. 297, emphasis added), and " '[f]idelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated' " (id. at p. 296, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 437), the doctrine has not been applied when one or the other components is absent. (Perkins, at pp. 297-300 [defendant in custody was questioned by person who lacked indicia of law enforcement authority; held "an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response"].)

Thus, statements obtained as the result of questions posed by non-law enforcement officers (even to persons clearly "in custody") are admissible notwithstanding the absence of Miranda warnings. (See, e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1401-1402 [defendant was in police custody but voluntarily spoke to father; no Miranda violation because "[a] defendant's 'conversations with his own visitors are not the constitutional equivalent of police interrogation' "]; People v. Guilmette (1991) 1 Cal.App.4th 1534, 1539-1540 [defendant in police custody but defendant voluntarily spoke to civilian who was secretly cooperating with police]; People v. Davis (2005) 36 Cal.4th 510, 555 [defendant in police custody but voluntarily spoke to cellmates; held: no Miranda violation because "[v]iewing the situation from defendant's perspective, [] when he made these statements to his cellmates there was no longer a coercive, police-dominated atmosphere, and no official compulsion for him to speak"].) Conversely, questions posed to persons who are not "in custody," even if posed by law enforcement officers, likewise need not be preceded by Miranda warnings. (People v. Thomas (2011) 51 Cal.4th 449, 475-478; People v. Stansbury (1995) 9 Cal.4th 824, 830-834 [also noting an officer's subjective views or beliefs not germane to issue of custody unless " 'manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave' "].)

With those precepts in mind, we conclude the trial court correctly rejected Delacruz's claim that his statements were obtained in violation of Miranda.[10] First, the questions were not posed to Delacruz by a law enforcement officer. Mosqueda's testimony supports the conclusion that her interview was in proper discharge of her duties as a protection services worker for CWS, there is no evidence she interviewed Delacruz at the direction of any police officer, and there is no basis to conclude Delacruz would have perceived Mosqueda's interview of him at the CWS offices as a fulfillment of Mosqueda's law enforcement role. Indeed, courts in other jurisdictions "have consistently held an alleged child abuser is not entitled to Miranda warnings from a social worker in a non-custodial setting." (United States v. Robles (U.S.A.F. Ct. of Crim. Apps. 2000) 53 M.J. 783, 790 [citing numerous cases].)

California cases have similarly concluded that investigatorial questions by persons whose primary duties fall outside law enforcement are not required to be preceded by Miranda warnings. Thus, in People v. Salinas (1982) 131 Cal.App.3d 925 (Salinas), a mother was arrested for child abuse while she was visiting a hospital, and a doctor requested to interview her. (Id. at p. 937.) The interview was conducted in a small private room, with police officers present and the mother then in custody. The doctor sought a medical history of the child's injuries, which elicited statements subsequently admitted against her at trial. (Id. at pp. 936-938, 941.) The Salinas court held the statements were properly admitted notwithstanding the absence of Miranda warnings, concluding the doctor was not an agent of law enforcement (even though he was under a statutory duty to report evidence of child abuse to the police) because his medical interview was part of regular hospital procedure and was intended to obtain information to allow him to fulfill his medical duties. (Id. at pp. 938-943.)

Moreover, even where the questions are posed by governmental employees, the courts have concluded such questioning need not be preceded by Miranda warnings when the primary duties of the governmental employee fall outside law enforcement. For example, in People v. Wright (1967) 249 Cal.App.2d 692, a parking lot security guard employed by a county hospital detained the defendant, who had burglarized a car in the parking lot, and questioned him without first giving Miranda warnings. The Wright court held the defendant's statements to the security guard were admissible because the security guard was not employed by a governmental agency whose primary mission was to enforce the law. (Id. at pp. 693-695.)

Here, Mosqueda was not a member of law enforcement. Instead, from Delacruz's perspective (Perkins, supra, 496 U.S. at p. 296 [Miranda is concerned with coercive impacts and "[c]oercion is determined from the perspective of the suspect"]), Mosqueda's primary purpose as a CWS worker was (as in Salinas) to gather information to fulfill her non-law enforcement purposes rather than to further a criminal prosecution.[11] Although Mosqueda ultimately provided Delacruz's statement to police, that fact does not implicate the concerns of Miranda of the coercive impact created by the confluence of official interrogation while in a custodial setting. (Perkins, at p. 297 ["We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent . . . . [W]here a suspect does not know that he is conversing with a government agent, these pressures do not exist"].)

Moreover, we are also satisfied Mosqueda's questions were posed in a noncustodial setting. Delacruz was not arrested until after he had completed his interview, and "[w]hen there has been no formal arrest, the custody issue turns on 'how a reasonable person in the suspect's position would perceive his circumstances.' " (People v. Macklem (2007) 149 Cal.App.4th 674, 689.) When assessing whether a reasonable person would have perceived him or herself to have been in custody, courts consider such factors as who initiated the contact and (if initiated by law enforcement) whether the person voluntarily agreed to the interview; where the interview took place; whether the person was informed he or she was under arrest or whether they informed the person that he or she was free to terminate the interview and leave at any time; whether the person's freedom of movement during the interview was restricted; how long the interrogation lasted; how many interrogators participated; whether interrogators were aggressive, confrontational, and/or accusatory; and whether the person was arrested at the end of the interrogation. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) "No one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (Ibid.)

Delacruz asserts he was in custody when he entered the room with Mosqueda

because "it had already been decided . . . he was going to be arrested at the end of the interview . . . ." However, there was no evidence Delacruz was aware law enforcement was present, much less that he was aware of their intent to arrest him. As the court in People v. Stansbury, supra, 9 Cal.4th 824 explained, " '[a]n officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned.' [Quoting Stansbury v. California (1994) 511 U.S. 318, 325, italics added.] Thus, evidence of the officer's subjective suspicions or beliefs is relevant only 'if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave' . . . ." (People v. Stansbury, supra, 9 Cal.4th at p. 830.) The determination of whether a reasonable person in defendant's position would have felt he or she was in custody is assessed by "[d]isregarding the uncommunicated subjective impressions of the police regarding defendant's custodial status as irrelevant" (ibid.) because "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442.) Accordingly, Delacruz's custodial status during the interview must be assessed without regard to any uncommunicated intent to arrest Delacruz after his interview.

We thus focus on the circumstances of which Delacruz was aware. While Mosqueda initiated the contact, Delacruz voluntarily agreed to the interview and made his own way to the CWS offices. After he checked in with the receptionist, Mosqueda greeted him and led him to a conference room. Although Mosqueda closed the door and locked it, she testified it was locked for privacy reasons and Delacruz's protection, and was apparently locked from the inside to keep people out rather than to keep Delacruz in. She then told him he had the right not to answer a question if it made him feel uncomfortable and, if he did not want to continue, he should say so and she would end the interview and he could leave. She was the lone questioner, and possessed neither handcuffs nor a weapon, and she never told him he could not leave. She described the conversation as "casual" and "open-ended," and there is no suggestion the interview was lengthy.[12] Finally, while law enforcement did intend to arrest Delacruz after the interview, a reasonable person in Delacruz's position would not have known during the interview that he or she was not free to leave after the interview, because it was only after Mosqueda finished interviewing Delacruz that she revealed law enforcement was waiting for him.

Under analogous circumstances, courts have concluded the defendant was not in custody during questioning. For example, in Green v. Superior Court (1985) 40 Cal.3d 126, the defendant voluntarily accompanied officers to the station for an interview. The defendant was not told he was under arrest, but was instead told he could leave if he wanted to. The officers questioned him in a locked room at the police station, although there was no evidence the defendant knew it was locked, and the interview was lengthy (more than two hours) and detailed but not accusatory in nature. The Supreme Court concluded that under these circumstances a reasonable person would not have felt in custody during the interview. (Id. at pp. 131-135.) Here, there was even less indicia from which a reasonable person would have perceived he was in custody. The lone questioner was not law enforcement, and it took place at a more benign location than a police station. (See People v. Morris (1991) 53 Cal.3d 152, 198 (disapproved on other grounds in People v. Stansbury, supra, 9 Cal.4th 824, 830, fn. 1) [Miranda warnings not required where police questioning was brief and nonaccusatorial; inquiry did not take place in jail or on police premises and was unaccompanied by traditional indicia of arrest].) In light of all the circumstances of which Delacruz was aware, we conclude a reasonable person would not have perceived they were in custody at the time of the interview. Accordingly, there was no need to provide Miranda warnings because the interview did not constitute "questioning initiated by law enforcement officers after a person has been taken into custody." (Miranda, supra, 384 U.S. at p. 444.)

3. Analysis of the Voluntariness Claim

Delacruz alternatively contends his admissions to Mosqueda were erroneously admitted into evidence because those statements were made involuntarily. Even assuming this issue is preserved,[13] we conclude the statements were not involuntary. A prerequisite to finding a confession was involuntary under the federal and state Constitutions is that it was the product of some level of coercive activity by law enforcement or some other state actor (Colorado v. Connelly (1986) 479 U.S. 157, 166-167), such as a confession extracted by threats or violence, or obtained by direct or implied promises, or secured by the exertion of improper influence. (People v. Benson (1990) 52 Cal.3d 754, 778.) Although coercive activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." (People v. Bradford (1997) 14 Cal.4th 1005, 1041), because "[t]he statement and the inducement must be causally linked." (People v. Maury (2003) 30 Cal.4th 342, 404-405.) Thus, whether a defendant's out-of-court statement resulted from coercive state conduct involves two issues: (1) Did the state actor threaten, promise, or otherwise improperly influence the defendant? (2) If so, did that coercive conduct motivate the defendant to speak? (People v. Tully (2012) 54 Cal.4th 952, 986.)

When evaluating whether a confession was involuntary, a court must take into account the " 'totality of the circumstances' " surrounding an interrogation, with no single

factor being determinative. (People v. Neal (2003) 31 Cal.4th 63, 79.) The factors to be

considered include " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " (People v. Williams (1997) 16 Cal.4th 635, 660, quoting Withrow v. Williams (1993) 507 U.S. 680, 693-694.)

Delacruz does not contend there was any evidence that his personal characteristics—his maturity, education, physical condition or mental health—made him susceptible to having his "will . . . overborne" by the circumstances of the interview. (People v. Memro (1995) 11 Cal.4th 786, 827.) Nor was there any evidence the length, location, character or tone of Mosqueda's interview tended to overcome his free will: the interview was relatively short; it was conducted in a benign setting with Delacruz unrestrained; it involved a "casual" and "open-ended" conversation; and it was preceded by assurances he had the right not to answer a question if it made him feel uncomfortable and she would end the interview if he wanted it ended. The sole basis for Delacruz's claim of involuntariness is his assertion that he made the statements to Mosqueda because he hoped doing so would enable him to remain in contact with the family and to move back into the family home. However, there was no evidence Mosqueda made any statements containing an express or implied promised that his cooperation would produce benefits for him.[14] While Delacruz may have given his statements in the hope he might receive more lenient treatment, that is not without more sufficient to find the statements were involuntary. (See, e.g., People v. Holloway (2004) 33 Cal.4th 96, 115 [" '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 . . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made' "].)

Because there is no evidence Mosqueda made any statements promising that lenient treatment or other benefits would accrue to Delacruz if he confessed, and because none of the other environmental or character factors are present, we reject his claim that his statements to Mosqueda were involuntarily given.

B. The Expert Testimony Was Permissible

Delacruz contends the court erred under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) when it allowed testimony from an expert witness about the contents of a study on which the expert relied to explain the frequency of (and causal forces connected to) recantation by children of accusations of molestation.

1. Procedural Background

Catherine McLennan testified as an expert about, among other topics, the myths and misconceptions regarding the disclosure and non-disclosure of child abuse. McLennan testified people are surprised to learn that, most often, victims fail to disclose but if they do disclose its often delayed, and she described studies addressing this phenomenon. Disclosure is more likely if the perpetrator is a stranger to the victim. If the two have a close relationship, immediate disclosure is rare. McLennan also explained how an unsupportive parent can hinder disclosure from the child. McLennan also explained why apparently inconsistent versions of events given by a child can be attributable to their age and other factors.[15]

McLennan also testified about recantation (meaning the child takes back the disclosure) and minimization (where the child withdraws a portion of the allegation). The latter occurs by the child admitting something happened but not as much or as frequently as previously asserted. McLennan stated literature and research make clear that, once they disclose sexual abuse, most children do not recant their allegations. However, McLennan described, over defense objection, a recent study by Dr. Tom Lyon[16] of children in Los Angeles County dependency hearings which indicated 23 percent of children did recant. The most common reason was internal pressure from family members or from other adults.

2. Reference to the Lyon Study Was Not Improper

In Sanchez, the California Supreme Court addressed two issues regarding the extent to which an expert could consider and rely on hearsay in his testimony to a jury. First, it grappled with the interplay between the traditional rules permitting experts to rely on hearsay in forming their opinions (Sanchez, supra, 63 Cal.4th at pp. 675-676) and the limitations placed on hearsay evidence in criminal trials by the Confrontation Clause as construed by Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny. (Sanchez, at pp. 679-684.) Second, the court's opinion sought to "clarify the proper application of Evidence Code sections 801 and 802 relating to the scope of expert testimony." (Id. at 670.)

Sanchez recognized that under Crawford, absent an exception recognized at the time of the Sixth Amendment's adoption (see Crawford, supra, 541 U.S. at p. 56, fn. 6), admission of what Crawford labeled as "testimonial hearsay" against a criminal defendant will violate the confrontation clause "unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 680.) However, Sanchez also acknowledged that admission of hearsay violates the Confrontation Clause only if "the statement is testimonial hearsay, as the high court defines that term." (Ibid.)

While the precise parameters of what types of hearsay will constitute impermissible "testimonial" hearsay may be imprecise (see Crawford, supra, 541 U.S. at p. 68 ["We leave for another day any effort to spell out a comprehensive definition of 'testimonial' "]; People v. Dungo (2012) 55 Cal.4th 608, 619 [noting "the high court has not agreed on a definition of 'testimonial' "]), it appears that "testimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (Ibid.) In Ohio v. Clark (2105) ___ U.S. ___ [135 S.Ct. 2173] (Clark), the Court explained its decisions had "never suggested . . . that the Confrontation Clause bars the introduction of all out-of-court statements that support the prosecution's case. Instead, we ask whether a statement was given with the 'primary purpose of creating an out-of-court substitute for trial testimony.' " (Id. at p. 2183.)

Sanchez recognized that some types of hearsay upon which an expert might rely do trigger Confrontation Clause concerns under Crawford and extensively examined what types of hearsay may transgress Crawford and its progeny. (Sanchez, supra, 63 Cal.4th at pp. 680-684.) But Sanchez also cautioned it was not "call[ing] into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Id. at p. 685.)

Indeed, Sanchez specifically noted an expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests. A jury may repose greater confidence in an expert who relies upon well-established scientific principles. It may accord less weight to the views of an expert who relies on a single article from an obscure journal or on a lone experiment whose results cannot be replicated. There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Sanchez, supra, at pp. 685-686.)

We are convinced the trial court correctly overruled Delacruz's objections because the objected-to statements of the expert here did not relate testimonial case-specific hearsay within the rationales of governing jurisprudence. Sanchez presupposes that an expert can refer generally to studies in the relevant field that provide background support for an opinion being offered because such studies are neither case specific nor testimonial. Here, for example, there is no indication that Dr. Lyon's research was performed in anticipation of any prosecution, much less the present prosecution, nor is there any suggestion the study was intended as a substitute for trial testimony.[17] To the contrary, on this record it appears the study was done purely for research purposes. Accordingly, the results of the study do not qualify as testimonial hearsay within the rationale of Crawford and it progeny.[18]

We are equally convinced the objected-to statements of the expert here did not relate case-specific hearsay within the ambit of Sanchez. Sanchez described "case-specific facts" as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Sanchez, illustrating the distinction between case-specific facts and background information, noted for example that ". . . 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement and the fact that a given equation can be used to estimate speed based on those marks would be background information an expert could provide." (Id. at p. 677.)

Applying the Sanchez approach here, we are convinced the expert's discussion about Dr. Lyon's study did not transgress traditional hearsay limitations on an expert's testimony. Although Dr. Lyon's results may have been premised on his interviews with the subjects of his study, those interviews were unrelated to Delacruz's case and did not concern a fact or circumstance underlying Delacruz's crimes. Instead, the Lyon study was merely part of the general body of knowledge which contributed to McLennan's area of expertise. (See Sanchez, supra, 63 Cal.4th at p. 676 ["[A]n expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds."].) Indeed, McLennan's testimony specifically eschewed any claim she was relating case-specific knowledge, because she testified she knew nothing about Delacruz's case.[19]

Accordingly, we conclude the trial court correctly overruled Delacruz's hearsay objection to McLennan's testimony concerning the Lyon study.

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.