Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF2124, David A. Hoffer, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Ricardo Galicia was found under the covers in the bed of L., a sleeping six-year-old girl, whose family he lived with. It was not the first time he had crawled into the girl’s bed, and he had been warned not to do so. The girl’s pants were off, crumpled at the foot of the bed, and her underwear, which her mother had helped her put on only hours before, was inside out. Galicia’s shorts were unbuttoned and unzipped. A trace of his sperm was found in the girl’s vagina. On appeal, Galicia argues his conviction on a charge of sexual penetration of a minor (Pen. Code, § 288.7) should be reversed because the court erred in allowing the jury to hear his equivocal acknowledgment, during questioning by police, that he might have touched her with his hand inside her underwear. The argument is not persuasive.
All further statutory references are to the Penal Code unless otherwise indicated.
The transcript of the questioning supports the trial court’s conclusion Galicia’s statements, including his participation in the somewhat theoretical discussion about how his semen might have ended up on the girl’s vagina, was voluntary and not the product of coercive tactics. What’s more, the admission of the evidence, even if erroneous, was not prejudicial in the circumstances of this case. We can hardly conceive of more damning circumstantial evidence of guilt; his statement was hardly critical.
We likewise reject Galicia’s assertion his conviction on a separate count of lewd and lascivious conduct (§ 288, subd. (a)) was not supported by substantial evidence. The evidence included L.’s testimony that at some point prior to the incident described in the first paragraph, Galicia had touched L. in her genital area, which caused it to hurt. In the context of the other evidence adduced in this case, that was sufficient to support the separate conviction.
FACTS
In 2007, Galicia lived in a home with several other people, including six-year-old L. and her family, and he shared a bedroom with L. and her family. Although Galicia was supposed to sleep on a mattress on the floor, he sometimes crawled into L.’s nearby bed, claiming it was more comfortable. L.’s mother told him not do that.
In March of 2007, while L.’s mother was giving her a morning bath, L. recoiled as if in pain when her mother attempted to wash her vaginal area. She then told her mother that the area hurt. When her mother asked why, L. told her that “Tio Ricardo had grabbed her.” Later that day, L.’s mother took her along to a doctor’s appointment scheduled for L.’s brother, and asked the doctor to examine her. L.’s mother did not tell the doctor what L. had said about Galicia, and the doctor found nothing wrong.
Galicia continued to live with the family after that incident, although L.’s mother “was angry.”
On May 31, 2007, L.’s mother gave her a bath in the afternoon, and helped her get dressed in underwear, Capri pants and a top. At about 10:00, L.’s mother put her into bed with L.’s younger brother O., and then went to sleep herself. At some point in the night, O. moved from the bed where he had been sleeping with L., and into the bed shared by their parents – something he did fairly frequently.
At 3:00 in the morning, L.’s mother was awakened by O.’s movements, and got up to put him back in the bed with L. As she moved toward L.’s bed, she saw “like a big bundle on the bed.” She turned on the light in the room, and realized that the “bundle” was Galicia, who was under the covers with L. L.’s mother stated that while Galicia had his eyes closed, she believed he was only pretending to be asleep. L.’s mother then pulled back the covers, which revealed L. lying on her back, with her legs spread apart. L.’s Capri pants were entirely off, and her underwear was inside-out. According to L.’s mother, L. had never removed her own pants during the night while sleeping.
Galicia, who stood up from the bed when L.’s mother pulled the covers back, was wearing a T-shirt and jean shorts, and L.’s mother observed that the button on Galicia’s shorts was undone, and the zipper down. When L.’s mother asked him what he was doing in L.’s bed, Galicia responded “nothing happened.” When L.’s mother started to leave the room shortly thereafter, to summon her mother-in-law to “see what Ricardo had done to [L.], ” Galicia told her to “think well about what you’re doing.” She understood that to be a threat.
L.’s mother reported the incident to L.’s school the next day, and asked the school secretary to call the police. A trace of semen was retrieved from L.’s vulva, and was later found to be a match with Galicia’s DNA.
The defense called a DNA expert, who did not quibble with the conclusion that DNA in the semen matched Galicia’s. However, he also opined that its existence on L.’s vulva could have been attributable to circumstances other than sexual penetration. For example, a semen stain, either wet or dry, on the bed sheets might have transferred to her hand, and been retransferred to her vaginal area when she wiped herself after urinating.
Galicia was not under arrest or in custody when he voluntarily agreed to talk to police about two and a half weeks after the incident. He spoke with two police detectives, and the session, which lasted approximately one hour and 15 minutes, was tape recorded and transcribed. At the beginning of the session, Galicia was informed of his right not to answer any questions; that what he said could be used against him in court; that he had a right to an attorney before and during any questioning; and that if he had no money to hire an attorney, one would be provided for him. After hearing and acknowledging he understood those rights, Galicia reiterated his willingness to talk to the detectives. Galicia also voluntarily gave the detectives a sample of his DNA.
The detectives told Galicia that L.’s parents had accused him of molesting her. They also falsely told him that L. herself had told them Galicia “touched her, ” and had provided a lot of “details.” The detectives suggested that while they did not believe L. was lying, there were two sides to every story, and asked Galicia to give his. The detectives stated “we know... there was some type of touching, ” but suggested it may have been an accident. Galicia denied any touching at all, and the detectives made it clear they did not believe that. The detectives then told Galicia they had recovered DNA from the girl’s vagina, and they would be matching it to the DNA sample he had just given them. The detectives falsely told Galicia they expected the results of the DNA match “any minute now.”
When the detectives asked Galicia “when we receive the results... and if the results say that it’s your DNA that’s there then... what are we going to do?” Galicia responded “[w]ell, let it be investigated more.... I didn’t touch her.”
After a short break, the detectives falsely told Galicia that L. had reported he had put his penis in her vagina, her “rear-end, ” and her mouth, although they also stated a suspicion she was exaggerating. Galicia denied any touching. The detectives then falsely told him the DNA sample he gave had already been matched to the DNA found inside L. Galicia again denied any touching.
The detectives suggested that perhaps Galicia had just touched L. with his hand, and not his penis, and reminded him that unless he told them the truth about what happened, they would have to believe L.’s claims. The detectives told Galicia that if he had merely touched her with his hand “it’s not a big thing... [a]nd that’s going to explain to us how it was that your DNA was recovered from her vagina.” The detectives suggested Galicia might have touched L. with his hand, and reiterated that “if it was a little bit [of touching] it’s not a big thing.”
The detectives then suggested Galicia might have made a “mistake” in touching L., and they would give him an opportunity to cleanse himself, maybe write a letter to L. apologizing. The detectives told him that “if it was only one time, it was only one mistake, maybe at that moment your temperature went up... if that’s what it was, man to man.... That happens to all of us, okay?”
Galicia again denied touching L. with either his penis or his hand. Galicia then suggested that maybe L. had picked up some of his DNA, which the detectives had told him might have come from any part of the body, because she touched his naked leg while she slept. The detectives responded “only if your leg went inside her vagina. Look... the DNA was recovered from her vagina, okay?”
Galicia then tried to explain that L. moved a lot while she slept, and she “attaches herself to people.” The detectives cut him off, again reminding him that his DNA was found inside her vagina. The detectives emphasized that DNA “does not lie” and reiterated there were only a few ways it could have gotten inside L.’s vagina – by penis, by mouth, or by touch.
One of the detectives then confessed to Galicia that he was no angel, and that when he makes mistakes, he analyzes them and then apologizes to anyone he has hurt. The detectives again suggested that if Galicia had simply made a mistake, this was his “opportunity to learn” and to “tell” about it. The detectives again explained their belief that L. may have “exaggerated” her claims, and reiterated that without “hearing from” Galicia, they would have no option but to believe her.
Finally, after again denying he touched her, Galicia suggested a hypothetical scenario in which his hand “brush[ed] against” L[.]’s vagina.” The detectives then began questioning him about that scenario, but making it clear they were not viewing it as a hypothetical: e.g., “Okay. So... that’s how... we are going to explain that your DNA is in her vagina. It was a touch then.” Galicia agreed. When asked what part of his hand touched L., Galicia responded “[w]ell, I don’t know, ” but he then agreed the touching was skin to skin. He described the touch as lasting “[l]ess than one second.”
The detectives again suggested Galicia would be given an opportunity to write a letter of apology to L. or her mother. Galicia stated he was not interested in doing that. Galicia repeatedly refused to respond when the detectives asked him to confirm he touched L., but then when asked the specific question of whether it had occurred on the night when he was found in bed with her, he agreed it had.
The detectives then asked him to describe exactly how it happened, and Galicia stated he had put his hand inside her underwear when he “hugged her.” He stated both of them were lying face-up on the bed. Galicia denied getting aroused by the touch, and asserted that “for a person to get excited by a child there has to be something wrong with his head.”
When asked why he touched L. then, Galicia denied he actually had touched her, explaining he had simply said it “so that we move on but... I didn’t touch her.” But he then did another about-face, and agreed that the story he had told them previously was the truth, and it explained why his DNA was recovered from L.’s vagina. He denied touching her at any other time. Finally, at the end of the interview, Galicia once again backed away from any acknowledgment he had touched L., asserting “I didn’t do anything to the girl....”
Approximately a month after the interview, Galicia sent a letter to L.’s mother from jail, asking her “to forgive me from the bottom of my heart because I failed that [sic] the confidence that everyone gave me.” The letter did not specify the manner in which Galicia had failed.
Galicia was charged with one count of lewd and lascivious conduct (§ 288, subd. (a)) in connection with the alleged touching incident in March of 2007. In connection with the incident in which he was found in L.’s bed, Galicia was charged with both a count of sexual intercourse with a child under 10 (§ 288.7, subd. (a)) and a count of sexual penetration of a child under 10 (§ 288.7, subd. (b).)
The jury convicted Galicia of the count alleging lewd and lascivious conduct for the touching incident in March of 2007. He was also found guilty on the count alleging sexual penetration of a child in the incident in which he was found in L.’s bed. Galicia was acquitted of the sexual intercourse charge in connection with that latter incident, but the jury found him guilty of the lesser charge of misdemeanor battery on that count. The court sentenced Galicia to a combined term of 18 years to life in prison.
I
Galicia first contends his conviction on the count of sexual penetration of L., during the incident in which he was found in her bed, must be reversed because the court prejudicially erred in allowing the jury to consider the statements Galicia made during his interrogation by the detectives. According to Galicia, the interrogation was coercive, “replete with psychological manipulation and pressure, such that the statements were not given freely and voluntarily.” Specifically, Galicia complains about the fact the detectives lied to him about the evidence they already had in the case, and their suggestion to him that if he admitted to merely touching L., that wouldn’t be “a big thing.” Galicia asserts these techniques were intended to give him the impression that if he simply admitted to the touching, “he could end the interrogation, walk out of the police station, and get on with his life.”
We conclude the trial court did not err in admitting the evidence. “In reviewing the voluntary character of incriminating statements, ‘“[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] ....”’.... (People v. Thompson (1990) 50 Cal.3d 134, 166.) ‘In order to introduce a defendant’s statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.]... When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.’ (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)” (People v. Maury (2003) 30 Cal.4th 342, 404.)
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778, citing Colorado v. Connelly [(1986)] 479 U.S. [157, ] 167.) A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. (Benson, supra, at p. 778.)” (People v. Maury, supra, 30 Cal.4th at pp. 404-405.) However, “[a] psychological ploy is prohibited only when, in light of all the circumstances, it is so coercive that it tends to result in a statement that is both involuntary and unreliable.” (People v. Mays (2009) 174 Cal.App.4th 156, 164, citing Illinois v. Perkins (1990) 496 U.S. 292, 297; see also People v. Ray (1996) 13 Cal.4th 313, 340.)
With respect to the issue of lying in particular, our Supreme Court has explained, “[n]umerous California decisions confirm that deception does not necessarily invalidate a confession. We note in particular In re Walker (1974) 10 Cal.3d 764, in which a wounded defendant was told, perhaps deceptively, that he might die before he reached the hospital and should talk to close the record, and People v. Watkins (1970) 6 Cal.App.3d 119, in which a defendant was falsely told that his fingerprints had been found on the getaway car. In both cases the confession was admitted on the ground that ‘the deception was not of a type reasonably likely to procure an untrue statement.’ (In re Walker, supra, 10 Cal.3d at p. 777; see People v. Watkins, supra, 6 Cal.App.3d at p. 125.)” (People v. Thompson (1990) 50 Cal.3d 134, 167; but see People v. Hogan (1982) 31 Cal.3d 815, 840-841, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771 [“While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citations].”].)
Likewise, in People v. Mays, supra, 174 Cal.App.4th 156, the police administered a fake polygraph test to defendant, and then showed him a fake graph which they represented as reflecting he had not been telling the truth. Defendant then admitted he had been present at the scene of the crime. The court concluded the deception did not render the incriminating statement involuntary. In People v. Smith (2007) 40 Cal.4th 483, 500, the police falsely told defendant that a “Neutron Proton Negligence Intelligence Test” established he had recently fired a gun. Again, the tactic was deemed to be non-coercive. In People v. Farnham (2002) 28 Cal.4th 107, 182, the court was unfazed by the fact police had falsely told defendant that his fingerprints were on a wallet belonging to the victim; and in Frazier v. Cupp (1969) 394 U.S. 731, 739, the Supreme Court held that a confession was not rendered involuntary simply because police had falsely told the defendant that his codefendant had been apprehended and already confessed.
In this case, the detectives did tell Galicia they had evidence against him which did not exist, specifically including “details” of his alleged acts supplied by L. herself. But they also told Galicia they did not quite believe L.’s supposed claims, and were thus interested in getting his version of events. In our view, telling a defendant there is evidence against him which even the detectives do not claim to find particularly credible, is not as likely to coerce a confession as falsely telling him they had some objectively damning piece of evidence – such as his fingerprints on the victim’s wallet, or on the getaway car. And even in those situations, courts have found the false assertions did not constitute coercive behavior.
Of course, the other “lie” told to Galicia did involve an objectively damning piece of evidence: that the DNA sample he had given them had been matched to the semen sample found on L.’s vulva. It was this evidence (rather than the supposed claims made by L.) which the detectives emphasized in their interrogation of Galicia. As they repeatedly reiterated, there had to be a reason his DNA was found on her vagina.
But we could not conclude this factual assertion would qualify as the type of “deception” which is “reasonably likely to procure an untrue statement” (In re Walker, supra, 10 Cal.3d at p. 777), for the simple reason that – while not known to the detectives during the interrogation – the assertion turned out to be true. DNA matching Galicia actually was found in L.’s vagina. And the test of whether an interrogation is coercive must be determined from the point of view of the defendant, not the interrogators. The impact of this DNA evidence on Galicia was the same whether or not the detectives themselves knew it to be true at the time they spoke to him. Thus, Galicia was not deceived, and whatever he chose to say in response to this evidence was the same as it would have been if the DNA match had actually been completed at the time of his interrogation.
Nor are we persuaded that the detectives’ suggestion to Galicia that his mere touching L. was potentially a “mistake, ” and “not a big thing” was so misleading as to cause Galicia to falsely confess to touching in the belief that it would be a way to end the interrogation and go home. In context, two things are clear: first, that the detectives were characterizing the mere touching of L.’s vagina as “not a big thing” only in relation to the seriousness of the other methods by which Galicia might have landed his DNA in her vagina. The clear message was “it got there somehow, so you’re going to have to explain how that was.” Merely informing a defendant there are differing consequences for various degrees of wrongdoing is not improper. “Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.” (People v. Holloway (2004) 33 Cal.4th 96, 115, quoting People v. Anderson (1980) 101 Cal.App.3d 563, 576.)
Second, and perhaps more significant, it’s clear that Galicia did not believe merely “touching” L.’s vagina with his hand was of no particular criminal significance. He initially resisted admitting anything, even in the face of the detectives’ purported assurances, and when he did finally acknowledge, obliquely, that some touching might have happened, he vehemently denied becoming aroused by doing so, and then immediately denied having touched her at all. This is not the conduct of someone who has become convinced that mere “touching” would not be viewed as significant.
And finally, Galicia’s claim of coercion is severely undercut by the overall circumstances of his interrogation. He knew he was not under arrest at the time of the interrogation, and that he was speaking with the police voluntarily. He was informed of his right not to answer any questions at the beginning of the session, and thus he presumably understood he could leave without answering any of the detectives’ questions at all. The overall tone of the interrogation (as reflected in the written transcript) is quite respectful. It is difficult to conclude that any reasonable person, under those circumstances, would think that making a false inculpatory statement might be his only means of ending the session and going home, after only an hour or so of questioning. We thus conclude the court did not err in determining that Galicia’s statements were not the product of coercion, and allowing the transcript of Galicia’s interrogation into evidence.
But in any event, even if we had concluded it was error to admit Galicia’s statements into evidence, that conclusion would not justify a reversal of his conviction in this case, since we would have no trouble concluding the error was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 509-510.)
First, the circumstantial evidence of Galicia’s guilt was overwhelming. He was found in L.’s bed, after having been warned to stay out of it. Her pants were off, her underwear was inside-out, and his own shorts were unzipped and unbuttoned. Galicia’s sperm was found on L.’s vulva, and although a defense expert suggested some rather complicated alternatives to explain how it might have gotten there, the most obvious explanation was that he had touched her vagina with some part of his body that had sperm on it. It is difficult to conceive of more damning circumstantial evidence of child molestation.
And second, the so-called admissions elicited by the detectives during the challenged interrogation were equivocal, for the most part hypothetical, contained almost no detail, and were almost immediately revoked. As a consequence, those statements were not particularly persuasive of Galicia’s guilt. When we combine these two factors – the powerful circumstantial evidence and the questionable value of the statements elicited during the interrogation, we have no trouble concluding Galicia would have been convicted even in the absence of that interrogation evidence. He was thus not harmed by its admission.
II
Galicia next contends his conviction on the count of lewd and lascivious conduct must be reversed because there is insufficient evidence that he willfully touched L. in the incident alleged to have occurred in March of 2007, or that he did so with the necessary intent to arouse, appeal or gratify his lust passion, or sexual desires.
We start by reciting the standard which always governs our review of an assertion that the jury’s verdict was not supported by substantial evidence: “On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] 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. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) We are obligated to draw “all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime.” (People v. Misa (2006) 140 Cal.App.4th 837, 842.)
Here, the direct evidence is clearly sufficient to support the conclusion Galicia did touch L.’s vaginal area, in a way which caused it to hurt, in March of 2007. Not only did L.’s mother testify that L. had recoiled with pain when she tried to wash the area, but she also testified that, when asked if she hurt, L. specifically stated that she did, and attributed the pain to the fact that Galicia had “grabbed” her there. Additionally, L. herself confirmed in her testimony that the incident had occurred. When asked if she remembered telling her mother during a bath that her vaginal area hurt because Galicia had touched her, L. replied “yes.” She was then asked the follow-up question, “is that what happened?” and she again responded “yes.”
So the first question is, could the jury reasonably infer, from the fact that Galicia touched, or “grabbed” L.’s vaginal area in such a way as to make it hurt, that he did so willfully? We conclude, without any difficulty at all, that it could. Indeed, although Galicia suggests it would be entirely speculative for the jury to infer willfulness, because “there are any number of innocent factual possibilities which are at least as likely as the guilty one, ” with the “most obvious [being] that there was some accidental or inadvertent contact, ” we cannot agree. The fact is, we find it difficult to imagine any circumstances in which that sort of touching, with enough force or friction to cause pain, might have happened accidentally. Significantly, Galicia does not suggest any.
And in light of the very reasonable inference Galicia touched L.’s vaginal area intentionally, in a manner which caused it to hurt, the next question is whether the jury could reasonably infer he did so with the intent to arouse or gratify his lust or sexual desire. Again, we have no difficulty concluding the jury could. There is simply no evidence at all which suggests Galicia might have had any other reason to be intentionally touching L.’s vaginal area. And there was evidence, revealed by the later incident in which Galicia was found in L.’s bed, and which the jury found proved beyond a reasonable doubt that he sexually penetrated her, which clearly suggested his interest in her was sexual. “[E]vidence that a person committed a crime, civil wrong, or other act [may be admitted] when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b), italics added.)
The evidence adduced in this case was clearly sufficient to support the jury’s determination that Galicia’s act of touching L.’s vagina in March of 2007, was both willful and done with the intention of arousing or gratifying his sexual desire. Consequently, it amounted to lewd and lascivious conduct.
The judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.