P. v. King

Filed 10/13/06 P. v. King CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lance Winters, Supervising Deputy Attorney General, and Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Scott Kahala King was charged with one count of lewd acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).)^[1] He moved to suppress statements that he made during a police interview because they were involuntary. (Evid. Code, § 402.) The trial court denied the motion. A jury then convicted defendant as charged. In a bifurcated proceeding, the jury found true the allegation that defendant had a prior strike conviction for attempted murder. (§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i), and 664/187.) The trial court sentenced him to 12 years in state prison.

On appeal, defendant contends that the trial court should not have admitted his statements made to the police because they were not voluntary, but rather, were obtained through psychological coercion and deception. We disagree and affirm.

FACTUAL BACKGROUND

In August 2004, Jane Doe was eight years old and lived with her mother in an apartment near defendant’s house. Defendant was approximately 42 years old. Jane and her friends would go to defendant’s house, and he would let them borrow video games and give them CDs and movies.

At trial, Jane testified that defendant touched her inappropriately twice. The first time, defendant and Jane were at his house alone, and defendant got her in bed and took her clothes off. Then defendant took off his clothes, positioned himself behind Jane, and touched her anal area with his penis. Jane said defendant’s penis felt wet. When defendant saw his parents coming home, he told Jane to get dressed and go to the backyard.

The second time, Jane was in defendant’s bedroom with her friends. Defendant touched her feet with his feet. At some point, Jane and her friends got up to leave and defendant called Jane back. He told her he was going to give her something. As she was waiting, he grabbed her and threw her on the bed. Then he took off her clothes and his clothes. Jane tried to put her clothes back on, but defendant would not let her. He then touched her anal area with his penis. Jane cried and told him to leave her alone. When defendant saw his family returning, he told her to get dressed and leave.

After these incidents, defendant gave Jane $200 and took her to K-Mart to buy clothing and accessories. Jane’s mother was concerned about Jane and talked to the police.

On August 27, 2004, a police SWAT team executed a search warrant of defendant’s house. In his bedroom closet, the police found approximately 10 pornographic magazines entitled, “Live Young Girls,” “The Youngest Girls Allowed by Law,” “Finally Legal,” “Double XX Teens,” and “Pure 18.” The police arrested defendant.

About five hours later, Detective Gary Naranjo interviewed defendant at the police headquarters. At trial, Detective Naranjo testified concerning the interview as follows: Detective Naranjo told defendant he had been arrested for rape, sodomy, and lewd acts. He showed defendant a picture of Jane, and defendant said he knew Jane because she and a little boy (Poncho) came to his house, went to his bedroom, and borrowed 50 CDs. Defendant said that, the next day, Jane came back to his house and asked him if he would take her to K-Mart. He admitted taking Jane and Poncho to K-Mart but denied buying Jane anything. Defendant described another day, when his parents were not home, that Jane and Poncho came to his house and played video games in his bedroom. Detective Naranjo testified that defendant seemed to understand the questions he asked him and that he gave responsive answers.

After about one and one-half hours into the interview, Detective Naranjo used one of his common interview interrogation techniques of placing some blame on the victim. Detective Naranjo referred to Jane as a “slut,” and defendant agreed and said, “Yeah, she’s a whore.” Detective Naranjo told defendant that Jane was alleging she was raped and orally copulated. Then, as a ruse, Detective Naranjo stated he thought maybe Jane had taken advantage of defendant because he was on medication and got confused easily. Detective Naranjo also suggested that Jane wore a skimpy top and shorts and exposed her breasts by leaning forward. Defendant nodded in agreement and said she did lean forward, and he became excited. Nonetheless, defendant adamantly and repeatedly denied touching Jane.

Detective Naranjo then used another common interview technique called a fictional fantasy. He made up a fantasy about what he would like to do with a nine-year-old girl to see if defendant would agree with him. He then asked defendant to share a fantasy, and defendant said he would first have to get authorization from the girl’s parents. Then he would take her to the beach, buy her a couple of drinks to loosen her up at dinner, take her to a motel to watch pornographic movies, and then have sex with her. Detective Naranjo said defendant understood that he was just asking for a fictional story.

Detective Naranjo then started talking about DNA evidence. He asked defendant if there would be any reason why the police would find Jane’s vaginal fluid on his bedding. Defendant said no because his mother had washed the bedding two days earlier. All of a sudden, defendant asked Detective Naranjo if he would still be able to find saliva and semen in Jane’s vagina, since she was claiming they had sex. Detective Naranjo said it was possible, if it had been within the last few weeks. He immediately replied, “Oh, it’s been more than the last few weeks. In fact . . . she called me the other day.” Then defendant appeared confused and asked himself, “Well, what’s today?” Detective Naranjo responded that it was Friday, and then said, “Since you’ve had sexual intercourse with her?” Defendant said, “We didn’t have sexual intercourse.”

ANALYSIS

The Trial Court Properly Admitted Defendant’s Statements

Defendant argues that the court should not have admitted his statements to the police because they were obtained involuntarily through exploitation of his mental illness, through the use of coercive tactics, and through deception. He asserts that the admission of an involuntary confession violates the Fifth Amendment privilege against self-incrimination and the Fourteenth Amendment due process clause. At the outset, we note that defendant never actually confessed. To the contrary, he consistently denied having any sexual contact with Jane. In any case, we conclude that defendant’s statements were voluntary.

A. Standard of Review

“A defendant's admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial court's determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘”the characteristics of the accused and the details of the interrogation” [citation]’ are subject to review under the deferential substantial evidence standard. [Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 659-660.)

B. Procedural Background

Prior to trial, defendant sought to suppress his statements made during his interview with Detective Naranjo, pursuant to Evidence Code section 402. The trial court heard testimony from Detective Naranjo and defendant’s father.

Defendant’s father testified that defendant has suffered from a mental illness, schizophrenia, since he was 15 years old, and that he has been on medication since then. However, he was not on medication at the time he was arrested. Defendant’s father described defendant’s activities as going to the mall, spending money he received from the government, and essentially doing whatever he wanted.

Detective Naranjo testified that he asked defendant if he knew why he was being interviewed, and defendant said he did not know if he should have a lawyer present before he talked to him. Detective Naranjo advised defendant of his Miranda^[2] rights, and defendant said he understood his rights and agreed to talk. Defendant then asked if it would help him if he gave a statement. Detective Naranjo told defendant he was going to jail either way but that that was defendant’s only chance to tell him his side of the story. The detective said he was going to present the case to the district attorney’s office, and the district attorney would decide whether or not to file charges.

Detective Naranjo then proceeded to describe his interview with defendant. (See Factual Background ante). Detective Naranjo further testified that he was aware that defendant had previously been in Atascadero, the prison for people with mental illnesses. However, he assumed that since defendant was out of Atascadero, he had been successfully treated. Detective Naranjo testified that defendant appeared to be normal.

After hearing the testimonies, the court concluded that there was nothing to indicate that defendant had a mental infirmity at the time of the interview or that Detective Naranjo took advantage of defendant’s mental illness. The court noted defendant’s father’s testimony that defendant’s activities were those of a normal adult. The court did not feel that the interview was coercive in any way. Defendant understood everything that was going on during the interview and gave appropriate responses. The court noted that most of defendant’s responses were self-serving, as he continually denied having sex with Jane. The court found Detective Naranjo to be a very credible witness. The court ultimately found that defendant’s statements were voluntary and denied defendant’s motion to suppress them.

C. The Court Properly Determined That Defendant’s Statements Were Voluntary

“A determination of the voluntariness of a defendant’s statements must be based upon the totality of the circumstances, including whether defendant was read and understood his Miranda^[[3]] rights, defendant’s maturity, education and mental health, and any elements of coercion in the interrogation, the length of the interrogation, and its location. [Citation.]” (People v. Jenkins (2004) 122 Cal.App.4th 1160, 1171.) “‘Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust. . . .‘ [Citation.]” (People v. Guilmette (1991) 1 Cal.App.4th 1534, 1541.)

1. Detective Naranjo Did Not Exploit Defendant’s Mental Illness

Defendant first contends that Detective Naranjo exploited his mental illness when he suggested that Jane took advantage of defendant because he was on medication and was easily confused. We disagree. Detective Naranjo was aware of defendant’s past commitment to Atascadero. However, he specifically testified that he assumed defendant had been successfully treated, since he was released from Atascadero. Moreover, after observing defendant, Detective Naranjo felt that he was normal and understood his questions.

Furthermore, none of the detective’s comments appear to have been calculated to exploit defendant’s mental infirmity. Rather, Detective Naranjo used common interview interrogation techniques that he was trained to use on any suspect.

We note defendant’s assertion that the record shows that, after Detective Naranjo used the ruse fantasy fiction technique, defendant became confused. However, the record shows that defendant appeared confused as he was trying to recall what day it was. He was not confused because of any tactic Detective Naranjo used to exploit his mental infirmity.

2. The Use of the Interrogation Technique of Disparaging the Victim Did Not Render Defendant’s Statements Involuntary

Defendant next asserts that Detective Naranjo used the tactic of disparaging the victim, by referring to Jane as a slut and suggesting that she leaned forward to purposely expose her breasts. This technique of allowing a defendant to share the blame with the victim has been upheld as acceptable. (See People v. Simpson (1991) 2 Cal.App.4th 228, pp. 232-233.) In any case, the technique was unproductive here, as defendant still adamantly denied touching Jane.

Defendant mistakenly relies upon People v. Honeycutt (1977) 20 Cal.3d 150. There, the police deliberately engaged the suspect in a pre-Miranda conversation, which included a discussion unrelated to past events, as well as comments disparaging the victim. (Id. at pp. 158-160.) Defendant then waived his Miranda rights and confessed. On appeal, the defendant claimed his waiver was involuntary. (Id. at p. 159.) The Supreme Court found that defendant’s waiver of his Miranda rights resulted from “a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation.” (Id. at p. 160.) Here, unlike Honeycutt, defendant is not challenging the voluntariness of the waiver of his Miranda rights. Furthermore, defendant made the challenged statements after he waived his Miranda rights.

3. The Use of the Fictional Fantasy Technique Did Not Render Defendant’s Statements Involuntary

Defendant next argues that Detective Naranjo’s use of the deceptive fictional fantasy ruse, combined with his other interrogation tactics, rendered his statements involuntary. Defendant’s claim is meritless.

Police officers are “at liberty to utilize deceptive stratagems to trick a guilty person into confessing.” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) “So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.]” (Ibid., italics in original.) Furthermore, “unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made. [Citations.]” (Ibid.) Here, Detective Naranjo’s ruse fantasy about what he would like to do with a nine-year-old girl did not coerce defendant into confessing. Defendant told Detective Naranjo his fantasy, with the understanding that Detective Naranjo was just asking for a fictional story. Moreover, rather than confessing, defendant subsequently denied having sex with Jane.

4. Detective Naranjo Did Not Lie to Defendant

Defendant claims that Detective Naranjo lied when he told defendant that the interview would be his only chance to tell his side of the story. Defendant contends it was a lie since he had a fundamental right to testify on his own behalf at trial. He also argues that this lie put psychological pressure on him since he was schizophrenic. The record does not support defendant’s claim.

Defendant initially asked Detective Naranjo if it would help if he gave a statement. Detective Naranjo told him he was going to jail either way but that the interview was defendant’s only chance to tell him his side of the story. Contrary to defendant’s claim, Detective Naranjo did not say that that interview was defendant’s only chance to ever tell his story (i.e., he would not have a chance to testify at trial). Detective Naranjo only stated that the interview was defendant’s only chance to tell him his side of the story. Detective Naranjo did not lie to defendant.

5. There Was No Cumulative Error

Defendant finally argues that the cumulative effect of the foregoing factors formed a totality of circumstances that “must have been overbearing to the will of a schizophrenic person.” To the extent that we have rejected each and every claim individually, we find no cumulative error sufficient to have rendered defendant’s statements involuntary.

D. Any Error in Admitting the Statements Was Harmless

Assuming arguendo that the trial court erred in admitting defendant’s statements

made to Detective Naranjo, the error was harmless beyond a reasonable doubt. (People v. Neal (2003) 31 Cal.4th 63, 86.) As previously noted, most of defendant’s statements to Detective Naranjo were self-serving, in that he consistently and adamantly denied having any sexual contact with Jane. Furthermore, there was ample other evidence to support defendant’s conviction. Jane testified at trial explicitly concerning the two times defendant molested her. Moreover, the evidence showed that defendant gave Jane $200 and took her to K-Mart to buy clothing and accessories. In addition, defendant’s sexual affinity for young girls was established by the pornographic magazines that the police recovered from his bedroom.

Defendant attempts to discredit Jane’s testimony by pointing out its inconsistencies. However, “it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) The jury here believed Jane’s testimony, despite any inconsistencies.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Hollenhorst

J.

We concur:

/s/ Ramirez

P.J.

/s/ McKinster

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise noted.

^[2] Miranda v. Arizona (1966) 384 U.S. 436.

^[[3]] Miranda v. Arizona, supra, 384 U.S. 436.