Filed 8/27/18 In re R.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Donna L. Crandall, Judge. Affirmed.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

Evidence showed that, when R.M. (minor) was eleven years old, he made a seven-year-old male relative orally copulate him. As a result, the trial court found true an allegation of unlawful oral copulation by force or fear (Pen. Code, § 288a, subd. (c)(2)(B)) and placed the minor on probation in the custody of his mother.

The minor now contends:

1. There was insufficient evidence that, when the minor committed the charged act, he knew it was wrong.

2. The trial court erred by admitting statements by the minor regarding his knowledge of right and wrong that were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and that were factually involuntary.

3. The trial court erred by excluding expert testimony that the minor lacked any “deviant sexual interests.”

4. The trial court erred by using matters in the probation report as part of the factual basis for its adjudication.

We will hold that the minor’s statements were obtained in violation of Miranda; however, the erroneous admission of these statements was not prejudicial. In addition, the trial court erred by excluding the proffered expert testimony, but this error, too, was not prejudicial. Otherwise, we find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

As of July and August 2015, the minor was 11 years old.

On July 13, 2015, the minor’s female cousin, A.L., who was three years old, told her parents that the minor had touched her “colita” (meaning “vagina area”).[1]

Previously, the minor and his female cousin saw each other “all the time” — sometimes daily. Afterwards, however, she visited him only once, under adult supervision, and they had no contact thereafter.

On August 9, 2015, there was a family barbecue at the minor’s house. Among those in attendance were D.M. (victim) — the minor’s male cousin once removed,[2] who was seven years old — and his parents.

At one point, the victim’s father became concerned because he had not seen the victim for about 20 minutes. He went to the minor’s bedroom to look for the victim, but the door was closed and locked. He called the victim’s name; the victim opened the door. The minor was sitting on the bed. The victim’s father asked both boys what they had been doing; they did not respond. The victim then “left running.”

Later that night, the victim told his mother that the minor “made [me] suck his penis.” He added that he had wanted to play a video game. The minor told him “he would have to suck [the minor’s] penis in order to play the video game[.]” The minor said “if [the victim] said anything, he would take it [out] on his brothers.”

On December 1, 2016, there was a forensic interview of the victim. The victim said the minor “made me suck his penis” in return for playing with his Xbox. The victim did not want to do it. However, the minor “made [him] do it.” The minor locked the door, stood behind it, and would not let him leave. The minor said, “[Y]ou’re not gonna go outside[] and tell your mom.”

At trial, the victim testified that, when he was in the minor’s room, playing with the Xbox, the minor made him do a bad thing that he did not want to do. He did not remember what the bad thing was. The minor told him to open his mouth but did not put anything in his mouth. His father did not come to the door. He did not tell anyone about what happened.

On September 10, 2015, Detective Melissa Brazil interviewed the minor. In the interview, he admitted that he knew the difference between right and wrong and the difference between the truth and a lie.

The minor’s mother testified that, in her experience, the minor was “a good boy.” As of July and August 2015, he had not reached puberty and he had not received any sex education either from her or at school.

The minor took the stand and denied committing the charged act. He testified that he was not alone with the victim and the door was not closed. He admitted that, if the allegation was true, the conduct would be wrong.

II

THE SUFFICIENCY OF THE EVIDENCE

OF KNOWLEDGE THAT THE CHARGED ACT WAS WRONG

The minor contends that there was insufficient evidence that he knew the charged act was wrong.

“On appeal, we must review the whole record in the light most favorable to the judgment and affirm the trial court’s findings that the minor understood the wrongfulness of his conduct if they are supported by ‘substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citations.]’ [Citations.] . . . [I]f the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]” (In re James B. (2003) 109 Cal.App.4th 862, 872.)

A child under 14 is presumed to be incapable of committing a crime. (Pen. Code, § 26, subd. One.) Hence, in a delinquency proceeding involving a child who was under 14 when the crime was committed, the prosecution must prove by clear and convincing evidence that the child “knew his or her conduct was wrong at the time it was committed.” (People v. Cottone (2013) 57 Cal.4th 269, 282; In re Manuel L. (1994) 7 Cal.4th 229, 239.) One of the leading California cases on this point is In re Gladys R. (1970) 1 Cal.3d 855.

“In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence [citation] including the minor’s age, experience and understanding, as well as the circumstances of the offense including its method of commission and concealment [citation].” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298,)

Here, just one month earlier, the minor had been accused of sexually touching a younger female relative; as a result, he was no longer allowed to see her, even though he used to see her often.

At the time of the charged offense, the minor was 11 years and 10 months old. (See In re Jerry M., supra, 59 Cal.App.4th at p. 298 [fact that child was 11 years and 2 to 4 months old supported finding that he knew that touching girls’ breasts was wrong].) Before committing the offense, he closed his bedroom door and locked it; he also blocked the victim’s exit by standing just inside the door. (See In re Tony C. (1978) 21 Cal.3d 888, 901 [minor’s “conduct in taking [victim] to a secluded location . . . shows he was aware that he had to accomplish his intended deed in private in order to minimize the risk of detection and punishment”].) He coerced the victim by telling him he would have to orally copulate him if he wanted to use his Xbox. (See In re Jerry M., supra, at pp. 294, 298 [minor refused to return victim’s bicycle unless she let him touch her breasts].) Clearly he knew that he was forcing the victim to do something that he would not do voluntarily. He also told the victim not to tell his mother what had happened, and he threatened to harm the victim’s brothers if the victim did tell, “indicating [he] was aware that what he had done was wrong. [Citation.]” (In re Billie Y. (1990) 220 Cal.App.3d 127, 131, disapproved on other grounds in In re Manuel L., supra, 7 Cal.4th at p. 239, fn. 5.) When the victim’s father asked what they were doing, the minor did not answer, further showing an awareness that what he had done was wrong.[3]

There was no contrary evidence. The minor testified. However, he did not claim that he committed the act without knowing it was wrong; rather, he denied committing it altogether, again showing consciousness of wrongdoing. He even admitted that, at least as of the time of trial, in January 2017, he knew that the act would be wrong.

We therefore conclude that there was sufficient evidence that the minor knew that the charged act was wrong.

III

THE ADMISSIBILITY OF THE MINOR’S STATEMENTS TO DETECTIVE BRAZIL

The minor contends that the trial court admitted statements by him regarding his knowledge of right and wrong that were obtained in violation of Miranda. He also contends that these statements were factually involuntary.

A. Additional Factual Background.

The evidence in connection with the minor’s motion to suppress (see part III.B, post) showed the following.

While the minor was at school, a school staff member escorted him to a room in which Detective Brazil and Vice-Principal Christie Jackson were waiting for him. The door was left open. Detective Brazil greeted the minor and introduced herself. Then there was this discussion:

“BRAZIL: Uh, I am here to talk to you about some stuff that’s been going on at home.

“[R.M]: Mm-hm.

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“[R.M]: Yeah.

“BRAZIL: So when I talked to you, um, you have the right to have a school employee with you just to make sure that I’m not mean, that I don’t do anything unfair and stuff like that . . .

“[R.M]: That’s good.

“BRAZIL: . . . but because Vice Principal Jackson is, you know, in charge of discipline, I don’t know if you would want her. So she offered that there’s counselors and other people and maybe even if you’d prefer a man to be in while we talk.

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left:0; text-align:left; z-index:251660288" to="519.8pt,238.7pt" wrap anchorx="page" wrapline“[R.M]: No, that’s okay. She . . .

“JACKSON: So we could do Mrs. Davis or Mr. Albeck or myself. It’s up to you.

“[R.M]: It’s okay. [¶] . . . [¶]

“BRAZIL: It’s okay if we talk here?

“[R.M]: Mm-hm. [¶] . . . [¶]

“BRAZIL: All right. So there’s a couple legal things we gotta go over first because of your age. Um, anytime you talk to the police you have the right to remain silent. Do you know what that means?

“[R.M]: Mmm.

“BRAZIL: Okay. What that means is you don’t have to say anything. You don’t have to talk the police so you have that right. Okay?

“[R.M]: Okay.

“BRAZIL: Also, if you do talk to the police anything you say can and will be used against you in a court of law. So that means if we talk today, um, and I’ll certainly let you know what will happen, um, if we talk today and this progresses to a court of law, what we talk about will come up in court, okay? So it doesn’t end today. There are other people that could evaluate our conversation and make decisions off of that. Okay? Um, and then of course anytime you talk to the police you have the right to have an attorney present and that means during questioning, um, any part of the process. So anytime, um, you talk to the police you have a right to have an attorney present before or during questioning, and if you can’t afford an attorney one will be appointed to represent you free of charge. Okay? So anytime you have interaction with the police, um, you have the right to talk to [an] attorney first to make decisions a- and make informed decisions and if you can’t afford an attorney, then the courts will appoint you one and that’s free, okay? All right. Do you understand all those rights?

“[R.M]: Mm-hm.

“BRAZIL: Do you have any questions about them?

“[R.M]: No.

“BRAZIL: Okay. I am recording when we talk, so y- nodding your head up and down, does that mean to you?

“[R.M]: Mmm. Really, uh, I don’t know because I really — I have — I haven’t, like, you haven’t said nothing to me, like, about what we’re gonna talk about.

“BRAZIL: Of course. Um, and — and that is something that you should know as well. You could change your mind at any time. So what’s important to me is that you understand what your rights are and that you have a choice to — to u- use those rights at any time when we talk.

“[R.M]: Okay.

“BRAZIL: Okay? Do you understand that part of it?

“[R.M]: Yeah.

“BRAZIL: Okay, cool. And with those rights in mind, do you still wanna talk this morning?

“[R.M]: Um . . .

“BRAZIL: And you can — and . . .

“[R.M]: . . . could we do it like tomorrow?

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You can tell me, um; you know, I — I — I don’t wanna talk today — whatever it is. Um, there’s a couple of business questions that have nothing to do with the case. Um, are you okay talking to me about that?

“[R.M]: Yeah.

“BRAZIL: Okay. Do you wanna talk about that tomorrow or today?

“[R.M]: No, we can do that today.”

Using a “Gladys R. questionnaire” (capitalization altered) (see part II, ante), Detective Brazil proceeded to ask the minor questions designed to determine whether he knew the difference between right and wrong.

B. Additional Procedural Background.

The minor filed a motion to suppress his statements to Detective Brazil. He argued that he did not waive his Miranda rights, but, to the contrary, he invoked his right to remain silent.

The People opposed the motion, arguing, among other things, that the minor was not in custody, and the minor did not invoke his Miranda rights.

After hearing argument, the trial court denied the motion. It found that the interview was not custodial because “[t]he door was open. The vice-principal was present. Detective Brazil offered for anyone else at the school to come in if the minor would have been more comfortable, and he said that was fine.”

The minor’s statements to Detective Brazil were then introduced into evidence at trial.

After the prosecution rested, the minor moved to dismiss (Welf. & Inst. Code, § 701.1) on the ground that the prosecution had not proven that he knew his conduct was wrong. The trial court ruled that, “based on the answers to the questions that were presented by Detective Brazil,” there was sufficient evidence that the minor knew that the commission of the charged act was wrong.

The defense proceeded to put on its case. After hearing argument, the trial court found the allegation true. It specifically found that the minor knew that the charged act was wrong. It explained: “[I]n reading the report about [R.M.] before this trial even started, he’s an honor student. He’s very bright. He appears to be mature. If the court believes [the victim]’s father’s testimony and [the victim’s] testimony, the door was locked. That in itself is an indication of the knowledge that what was going to go on was wrong, and that he was well aware of it.”

C. General Legal Principles.

To safeguard the privilege against self-incrimination, the police cannot interrogate a person in custody until they have advised the person of the right to remain silent and the right to an attorney and until the person has validly waived these rights. (Miranda, supra, 384 U.S. at pp. 444-445.) “A statement obtained in violation of Miranda may not be admitted in the prosecution’s case-in-chief . . . . [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1092, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)

“In reviewing the trial court’s ruling on a claimed Miranda violation, ‘“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 [those facts] whether the challenged statement was illegally obtained.”’ [Citation.]” (People v. Elizalde (2015) 61 Cal.4th 523, 530.)

D. Custody.

The minor contends that the trial court erred by finding that he was not in custody.

“An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] The test for Miranda custody is, ‘“would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.”’ [Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 80.)

“[A] child’s age properly informs the Miranda custody analysis.” (J.D.B. v. North Carolina (2011) 564 U.S. 261, 265.) “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.” (Id. at pp. 264-265.) “[C]hildren ‘generally are less mature and responsible than adults,’ [citation]; . . . they ‘often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,’ [citation]; . . . they ‘are more vulnerable or susceptible to . . . outside pressures’ than adults, [citation]; and so on. [Citation.]” (Id. at p. 272.) “This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. [Citation.]” (Id. at p. 277.)

Here, a school staff member escorted the minor to a room in which both a police officer and the vice-principal in charge of discipline were waiting for him. He would reasonably have perceived Detective Brazil’s explanation that she was there to talk about the “stuff with your cousins” as accusatory. The fact that she was recording him was also accusatory. The minor could not return to class without a pass. Under these circumstances, no reasonable child would have supposed for a moment that he or she was free to leave.

The People point to the fact that the door was open. Children, however, must remain in class and in school, even though the school doors may be unlocked or even open. Between the two authority figures inside the room and the requirement of a pass to go outside the room, it would have appeared that getting up and leaving would be futile. As defense counsel argued below, “You take an 11-year-old boy, you sit him with the assistant principal and law enforcement, and he is not going to just get up and walk out of a room.”

The People also point to the fact that Detective Brazil offered the minor some choices. Thus, she said he could choose to have a different school official present in place of Vice-Principal Jackson. Likewise, she asked him, “Is it okay if we talk here?” Both questions, however, implied that he could not simply choose not to be interviewed at all.

The People assert that “Detective Brazil was careful to ensure [the minor] understood he did not have to talk to her, and he could terminate the interview at any time.” The only statements to the effect that he did not have to talk to her, however, came as part of the Miranda warnings themselves. This reasoning seems circular. It suggests that, any time Miranda warnings are given, by the end of the warnings, the suspect is no longer in custody, and therefore need not be asked to waive his or her Miranda rights. Actually, in most custodial situations — in the field, in a police station, or in prison — merely giving a Miranda warning does not mean that the suspect is free to leave; the suspect may be free not to talk, but that does not mean he or she will be free to leave as a result.

Here, the minor was told, as part of the warnings, “You don’t have to say anything. You don’t have to talk to the police”; however, he was not told that, if he chose not to talk, the interview would be terminated. Indeed, when he did indicate a tentative unwillingness to talk, by asking, “[C]ould we do it like tomorrow?,” Detective Brazil did not end the interview; rather, she persisted, saying that she still wanted to ask him “a couple of business questions that have nothing to do with the case.” And he was never told that he would be free to leave. The presence of a school official suggested that he would still be subject to school discipline.

Finally, Detective Brazil questioned the minor using a “Gladys R. questionnaire.” (Capitalization altered.) This form cautions, “To be filled out on all arrestees under 14 years of age after Miranda Rights have been waived.” The use of such a questionnaire is a “significant factor” indicating that an interrogation is custodial. (In re Joseph H. (2015) 237 Cal.App.4th 517, 531.)

We therefore conclude that the trial court erred by finding that the minor was not in custody.

E. Waiver of Miranda Rights.

The minor further contends that he did not validly waive his Miranda rights. Because the trial court erroneously found that he was not in custody, it did not reach this issue.

“‘To establish a valid Miranda waiver, the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation.’ [Citation.]” (People v. Duff (2014) 58 Cal.4th 527, 551.)

“The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) “Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” (Id. at pp. 422-423, fn. omitted.)

“Juveniles, like adults, may validly waive their Miranda rights. [Citations.] ‘Determining the validity of a Miranda rights waiver requires “an evaluation of the defendant’s state of mind” [citation] and “inquiry into all the circumstances surrounding the interrogation” [citation]. When a juvenile’s waiver is at issue, consideration must be given to factors such as “the juvenile’s age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” [Citations.]’ [Citations.]” (People v. Jones (2017) 7 Cal.App.5th 787, 809.)

We may assume, without deciding, that Detective Brazil’s initial statement of the minor’s Miranda rights, although somewhat rambling, was adequate. Even if so, however, she never obtained the minor’s waiver of those rights. She did ask, “Do you understand all those rights?,” and he replied, “Mm-hm.” However, when she asked, “And with those rights in mind, do you still want to talk this morning?,” he answered, “[C]ould we do it like tomorrow?”

Most significantly, Detective Brazil then said, “Sure, and you can tell me . . . I don’t wanna talk about that. . . . Um, there’s a couple of business questions that have nothing to do with the case. Um, are you okay talking to me about that?” (Italics added.) Only then did the minor say, “Yeah.”

This response was misleading. The minor’s ability to appreciate the wrongfulness of his conduct, while technically not an element of the offense (In re Manuel L., supra, 7 Cal.4th at p. 236), was a crucial matter that the prosecution would have to prove as part of “the case.” Detective Brazil indicated, falsely, that she was accepting the minor’s unwillingness to talk about “the case” “today,” and she would ask only questions unrelated to “the case.” Moreover, this response negatived her statement earlier, as part of the Miranda warnings, that “anything you say can and will be used against you in a court of law.” (Cf. People v. Russell (1968) 259 Cal.App.2d 637, 645-646 [officer’s Miranda warnings were “nullified” by his “gratuitous” statement, “‘It might be better for you if you talked.’”].) Hence, when the minor agreed to talk, he was not “aware of the State’s intention to use his statements to secure a conviction . . . .” (Moran v. Burbine, supra, 475 U.S. at pp. 422-423.)

We recognize that, once the police have obtained a valid Miranda waiver, they have some leeway to use deception in their interrogation. (People v. Scott (2011) 52 Cal.4th 452, 481 [“The use of deceptive statements during an interrogation does not invalidate a confession as involuntary unless the deception is of a type reasonably likely to produce an untrue statement. [Citations.]”) Nevertheless, they cannot use deception to obtain the waiver in the first place. “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” (Miranda, supra, 384 U.S. at p. 476.)

We therefore conclude that the minor did not knowingly, intelligently, and voluntarily waive his Miranda rights.

F. Prejudice.

“The erroneous admission of statements obtained in violation of Miranda is reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18 . . . (Chapman). [Citations.] Under Chapman, reversal is required unless the People establish that the court’s error was ‘harmless beyond a reasonable doubt.’ [Citation.]” (In re Z.A. (2012) 207 Cal.App.4th 1401, 1422.)

An error may be held harmless under Chapman when “the evidence . . . is ‘of such compelling force as to show beyond a reasonable doubt’ that the erro[r] ‘must have made no difference in reaching the verdict obtained.’ [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 431, fn. omitted.) In part II, ante, we held that the evidence that the minor knew the charged act was wrong was sufficient. As our discussion there shows, however, it was not only sufficient but overwhelming and uncontradicted.

By contrast, the minor’s responses to Detective Brazil’s Gladys R. questionnaire tended only weakly to show the requisite knowledge. He admitted to her that he knew the difference between right and wrong in general. However, this is something one would expect any 11-year-old child to know. It shed little light on whether he knew specifically that oral copulation by means of duress or menace was wrong.

We recognize that, in denying the minor’s motion to dismiss, the trial court specifically cited his responses to the Gladys R. questionnaire. It was only later, however, after hearing all of the evidence, that it made the finding that he knew that the charged act was wrong. At that point, it did not even mention the Gladys R. questionnaire. Rather, it cited his brightness and his apparent maturity as well as the fact that he locked the door before committing the act. Thus, we are convinced, beyond a reasonable doubt, that even if his statements to Detective Brazil had been excluded, the trial court would still have found that he knew that the charged act was wrong when he committed it.

G. Voluntariness.

Defense counsel forfeited the issue of whether the minor’s statements were factually voluntary by not raising it below. (People v. Kennedy (2005) 36 Cal.4th 595, 611-612, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Ray (1996) 13 Cal.4th 313, 339.) The motion to suppress was based solely on Miranda; it did not assert that the statements were involuntary. “Because the question of coercion turns on the intensely factual inquiry into the totality of the circumstances [citation], it is an especially poor candidate for first-time consideration on appeal. [Citation.]” (People v. Quiroz (2013) 215 Cal.App.4th 65, 78.)

In any event, the minor’s statements were voluntary.

“‘[A]n involuntary confession may not be introduced into evidence at trial.’ [Citation.] In determining whether a confession is involuntary, we consider the totality of the circumstances to see if a defendant’s choice to confess was not ‘“essentially free”’ because his will was overborne by the coercive practices of his interrogator. [Citation.]” (People v. Spencer (2018) 5 Cal.5th 642, 672.) “Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)

“Admissions and confessions of juveniles require special caution, and courts must use special care in scrutinizing the record to determine whether a minor’s custodial confession is voluntary. [Citation.] Age may be a factor in determining the voluntariness of a confession. [Citation.] This is because threats, promises, confinement, and lack of food or sleep, are all likely to have a more coercive effect on a child than on an adult. [Citation.]” (In re Joseph H., supra, 237 Cal.App.4th at pp. 533-534.)

“[A] determination that a confession was involuntary requires a finding of coercive police conduct [citations] . . . . [Citation.]” (In re Elias V. (2015) 237 Cal.App.4th 568, 577.) Here, there was none. Detective Brazil did not threaten, menace, or bluster. Quite the contrary, she was polite and accommodating; she worked to put the minor at ease. She denied any intention of being “mean” or “unfair.” She told him that, if she made a mistake, he should correct her; if he did not understand something, he should say so; and if he did not feel comfortable answering her questions, he should tell her. Her questioning was not prolonged nor conducted in uncomfortable conditions.

In arguing that his statements were nevertheless involuntary, the minor relies on one single factor: Detective Brazil’s assurance that she was going to ask only “a couple of business questions that have nothing to do with the case.” We agree that this was misleading. However, “[t]he use of deceptive statements during an investigation does not invalidate a confession as involuntary unless the deception is the type likely to procure an untrue statement. [Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1088.) The deception here tended, at most, to make the minor think that his statements would not be used against him. It would not have tended to make him confess falsely. Specifically, there was no reason why this deception would have led him to claim that he was aware of the difference between right and wrong if he was not. It appears that he admitted it freely, without coercion.

Finally, even assuming the minor’s statements were factually involuntary, we would conclude that the admission of those statements was harmless beyond a reasonable doubt for the reasons already stated in part III.F, ante.

IV

THE EXCLUSION OF EXPERT TESTIMONY

THAT THE MINOR LACKED ANY DEVIANT SEXUAL INTERESTS

The minor contends that the trial court erred by excluding expert testimony that he had no “deviant sexual interests.”

A. Additional Factual and Procedural Background.

Defense counsel proposed to call one Dr. Veronica Thomas as “an expert regarding my client not having any negative or deviant sexual interests . . . .”[4]

The prosecutor objected that a deviant sexual interest was not an element of the offense. He added, “A minor who has a normal pubescent or prepubescent sexual interest or behavior could still be found to have the requisite intent necessary to commit the acts. Therefore, if [Dr.] Thomas testifies that the minor is a kid with normal sexual interests for boy his age, . . . the People do not see how that assists the trier of fact . . . .”

The trial court excluded the evidence. It explained, “[I]t could be a piece that would be very helpful should the petition in any part be sustained at disposition. But I do not feel that it would be helpful in making a decision as to whether or not . . . the acts alleged occurred. So, at this point, I do not fell that Dr. Thomas’s testimony would be relevant or helpful to the Court in terms [of] whether . . . the acts alleged occurred . . . .”

B. Discussion.

This case involves what has been called “‘psychological character evidence[,]’ where . . . the accused has an expert testify about personality traits to indicate his nondisposition to commit the offense.” (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 188.) Under Evidence Code section 1102, subdivision (a), “evidence of the defendant’s character . . . in the form of an opinion” is admissible when “[o]ffered by the defendant to prove his conduct in conformity with such character . . . .” Here, if defendant did not have any “deviant” sexual interests, that made it at least somewhat less likely that he committed a “deviant” sexual offense. This was true even though unlawful oral copulation does not require a sexual specific intent. (Pen. Code, § 288a; People v. Warner (2006) 39 Cal.4th 548, 557.)

The minor aptly relies on People v. Stoll (1989) 49 Cal.3d 1136. There, the defendants were charged with multiple counts of lewd and lascivious acts on a child (Pen. Code, § 288). (People v. Stoll, supra, at p. 1141.) Two of the defendants (Grafton and Palomo) sought to introduce the testimony of Dr. Mitchell, an expert psychologist, to the effect that they had no sexually deviant propensities. (Id. at pp. 1146-1151.) The trial court excluded this evidence, ruling that it did not meet the Kelly/Frye test.[5] (Id. at pp. 1150-1151.)

The Supreme Court reversed, holding that the expert’s opinion was not based on a new scientific technique for purposes of the Kelly/Frye test. (People v. Stoll, supra, 49 Cal.3d at pp. 1155-1161.) In the course of its discussion, however, the court also said, “[Evidence Code s]ection 1102 allows an accused to present expert opinion testimony of this kind to indicate his nondisposition to commit a charged sex offense.” (Id. at p. 1153, fn. omitted.) Moreover, it said, “We also agree with defendants that the proffered evidence satisfies limits placed by [Evidence Code] section 801, subdivision (a), on all expert opinion testimony. That subdivision requires that such testimony be ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citation.] We have interpreted this language to require exclusion of expert opinion ‘only when it would add nothing at all to the jury’s common fund of information . . . .’ [Citation.] Here, testimony by the alleged victims implicated Grafton and Palomo in homosexual or incestuous acts with children, including participation in at least one adult-child group sex encounter. Since the jury could not otherwise have been aware of personality traits inconsistent with such misconduct, Dr. Mitchell’s testimony had potential to ‘assist’ the jury on a pertinent point.” (Id. at pp. 1153-1154.)

The People argue that Stoll is “inapposite” because it dealt with the Kelly/Frye test. While that is true of the court’s main holding, the court also held, as noted, that the evidence was admissible character evidence under Evidence Code section 1102 as well as admissible expert opinion under Evidence Code section 801. The People also argue that Stoll is distinguishable because there, the charged crime required a sexual specific intent. The court’s reasoning, however, did not turn on this fact. To the contrary, it observed that the evidence was relevant because it tended to show that the defendants did not commit the charged acts at all (People v. Stoll, supra, 49 Cal.3d at pp. 1152-1153, 1158, 1161-1163) — i.e., rather than showing that they committed them without the necessary specific sexual intent.

But even if these distinctions did apply to Stoll, they do not apply to a case on which Stoll relied — People v. Jones (1954) 42 Cal.2d 219. There, too, the defendant was charged with lewd and lascivious acts on a child. (Id. at p. 221.) The trial court excluded the testimony of an expert psychiatrist, which the defendant offered to show that he was not a sexual deviate. (Id. at pp. 222-223.) The Supreme Court held that this was reversible error. (Id. at pp. 223-226.) It acknowledged that the evidence was offered, not to disprove specific intent, but to disprove the commission of the charged acts. (Id. at p. 223.) It explained: “From evidence which tends to prove that a person is not a sexual psychopath, an inference reasonably may be drawn that he did not commit the act denounced by section 288. [Citation.]” (Id. at p. 225.)

The People argue that the trial court had discretion to exclude the evidence under Evidence Code section 352. The trial court indicated, however, that it was excluding it as irrelevant, not as more prejudicial than probative.

We therefore conclude that the trial court erred. The error, however, was harmless. The trial court was the trier of fact, and in its view, the evidence would not be “helpful in making a decision as to whether or not . . . the acts alleged occurred.” It could appropriately reason that an 11-year-old boy may commit a forcible sexual offense for reasons other than innate sexual deviance — for example, to experiment sexually or just to enjoy bullying a younger child. Actually, the trial court did not so much exclude the evidence as accept defense counsel’s offer of proof but find it unpersuasive. On this record,[6] it seems clear — beyond a reasonable doubt, if necessary — that even if the trial court had admitted the evidence, the outcome of the trial would have been the same.

V

RELIANCE ON FACTS IN THE PROBATION REPORT

The minor contends that the trial court erred by relying on matters in the probation report as part of the basis for its adjudication.

A. Additional Factual and Procedural Background.

A probation report was filed on June 30, 2016.

The case was set to be heard by Judge Mark E. Petersen. On January 23, 2017, however, minor’s counsel objected to Judge Peterson presiding over the jurisdictional hearing because he had already read the probation report. Judge Petersen ordered the case reassigned.

It was reassigned to Judge Donna L. Crandall. At that point, defense counsel proposed a negotiated disposition of informal probation. This discussion followed:

“THE COURT: You’re in this court right now because the judge next door read the report that the probation officer prepared and didn’t get a waiver from you that he could read the report and still hear your trial. I’m here to do your trial, but I’m also willing to consider you for informal probation; however, I’m not willing to consider it without reading the report and knowing what probation had to say about you. If I read the report without talking to you, I’m in the same position as the judge next door.

“So my question to you is, may I read the report that the probation department prepared . . . and if I don’t think that you should have informal probation, may I still hear your trial?

“THE MINOR: Yes, Your Honor.”

The trial court took a recess so the minor could discuss the matter with his counsel. After the recess, the minor confirmed his agreement.

As stated in part III.B, ante, when the trial court found that the minor knew that the charged act was wrong, it relied, in part, on the statement in the probation report that he was an honor student.

B. Forfeiture by Failure to Object.

The People respond that the minor’s trial counsel forfeited this contention by failing to raise it below. The case law on this point is in conflict.

Under In re Gladys R., supra, 1 Cal.3d 855, a trial court errs if it reads the probation report before it presides over the jurisdictional hearing. (Id. at pp. 859-862.) This rule has been incorporated into the rules of court. (Cal. Rules of Court, rule 5.780(c) [“Except as otherwise provided by law, the court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing.”].) Gladys R. also held that the minor’s counsel’s failure to object below did not forfeit the error, but only because the new rule that it formulated had not yet been established at the time. (In re Gladys R., supra, at p. 861.)

Thereafter, in In re D.J.B. (1971) 18 Cal.App.3d 782, the court said, “The review by the juvenile court of a probation report . . . prior to or during the jurisdictional hearing constitutes prejudicial error even though no objection is made at the juvenile court hearing to the court’s premature use of such report or social study. [Citations.]” (Id. at pp. 784-785, italics added.) In support of this proposition, it cited several cases, including Gladys R. (In re D.J.B., supra, at p. 785.)

D.J.B. was decided in 1971. If the jurisdictional hearing was held before Gladys R. was decided, in 1970, the court was correct; under Gladys R. itself, no objection was required. But otherwise, the cases that D.J.B. cited did not support its italicized language. Indeed, one of the cases that it cited was In re Joseph G. (1970) 7 Cal.App.3d 695, which held that the error was forfeited: “[N]o objection was made to the probation officer’s conclusion at the time of the hearing, and opinion evidence, like hearsay evidence, is admissible where no objection is made. [Citations.]” (Id. at pp. 700-701.)

Thus, In re Christopher S. (1992) 10 Cal.App.4th 1337, criticized and rejected D.J.B. There, the court said: “The only reason an objection was excused in In re Gladys R. was that it would have been unfair to require defense counsel to anticipate its holding, which was contrary to the prevailing interpretation of the law. The decision in In re D.J.B., which posited a general exemption of the objection requirement, inappropriately extrapolated this fact-specific holding in In re Gladys R. to all situations in which a juvenile court prematurely reads the social study. We believe such error must be raised to the juvenile court or it is waived on appeal; we therefore depart from the conclusion reached in In re D.J.B.” (In re Christopher S., at p. 1345, fn. omitted.)

We agree with Christopher S. The minor does not explain why the usual rule of forfeiture should not apply here. We conclude that it does.

C. Forfeiture by Express Consent.

The minor also forfeited this contention by expressly agreeing that the trial judge could read the probation report before presiding over the jurisdictional hearing.

The minor argues that he agreed that the trial judge could read the probation report, but not that the trial judge could consider the probation report. This is a distinction without a difference. The rule of Gladys R. “affords a necessary protection against the premature resolution of the jurisdictional issue on the basis of legally incompetent material in the social report.” (In re Gladys R., supra, 1 Cal.3d at p. 860.) It applies regardless of whether the trial judge actually considers the probation report. In other words, it assumes that reading the probation report will taint the trial judge’s consideration of the merits of the case. If trial judges could infallibly refrain from considering the contents of a probation report they have read, the rule would not exist. Moreover, if we were to hold that consent to reading is not consent to considering, a trial judge less candid than Judge Crandall could subvert that holding merely by not admitting, on the record, that he or she has considered the probation report. Accordingly, consent to the trial judge reading the probation report necessarily is also consent to him or her considering it.

D. Prejudice.

Separately and alternatively, the asserted error was not prejudicial. The probation report indicated that in 2015-2016, the minor was on the honor roll. It also showed that he was ranked 110 out of 425 students. Thus, it stated that his academic performance was “good.”

The minor’s mother, however, had already testified that he was “good in school” and “[h]e’s always had good grades . . . .” Thus, it appears that, even if the trial court had not considered the probation report, it would still have found that the minor knew the charged act was wrong, in part because he was reasonably bright.

VI

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

SLOUGH

J.