Opinion
A147089
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL M. HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082449A)
A jury tried and convicted Daniel Hernandez of two counts of sexual intercourse with a child under the age of 10 and one count of oral copulation with a child under the age of 10 (Pen. Code, § 288.7, subds. (a), (b)). The trial court sentenced Hernandez to an aggregate term of 50 years to life in state prison. Hernandez appeals, arguing (1) his admissions to police were involuntary and should have been suppressed; (2) his trial counsel rendered ineffective assistance by failing to impeach the victim with a prior inconsistent statement; (3) the trial court committed Marsden error; (4) in camera proceedings and records relating to pretrial discovery should be reviewed; and (5) cumulative error. We affirm.
Undesignated statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118, 124-125.
I. FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2006, Maria Cabrera babysat J. Doe on Saturdays and holidays while her parents worked. At the time, Doe was six or seven years old.
Cabrera and Hernandez lived together in a single-room converted garage located behind another house in Redwood City. The room had a single door, a bed, a sofa, but no kitchen or bathroom. Cabrera used the kitchen and bathroom facilities in the main house, which she could enter through a sliding glass door, approximately 30-35 feet away. Hernandez was often present when Cabrera cared for Doe. Cabrera would sometimes leave Doe with Hernandez for as long as 20 minutes when she went to prepare food or use the bathroom. Cabrera never saw anything inappropriate or Doe acting upset or frightened. In approximately 2008, Cabrera moved and ceased babysitting Doe.
During trial, the homeowner told a detective the kitchen is in the front of the main house, about 15 to 20 feet from the back door. Thus, the kitchen was estimated to be around 45 to 50 feet from the converted garage.
Doe's Testimony
Doe, who was 15 years old at the time of trial, testified that when she was hungry, Cabrera would leave Doe alone with Hernandez to cook in the main house. Within a few weeks after Cabrera started babysitting her, Doe was on the bed watching television when Hernandez told her to lie down and removed her pants and underwear. Hernandez unbuckled his pants, and got on top of Doe. She saw one of his hands on his zipper and felt a sharp pain in her vagina. What she assumed was Hernandez's penis penetrated her vagina about two inches. Hernandez told Doe not to tell her parents.
Doe testified Hernandez penetrated her every week she was at Cabrera's house—a total of more than 10 times. She was always on the bed, under the covers, and her pants and underwear were typically lowered to her knees. A blanket was usually around her waist so she could not see what Hernandez was doing. Doe usually told Hernandez to stop and tried to push him away, but he continued and said nothing in response. She was confused and did not know what was happening. Hernandez also licked or kissed Doe's vagina twice. He never touched her breasts.
Because it was uncertain when Cabrera would return from the main house, Hernandez would look through a large window in the room to see if she was coming. When he saw Cabrera, Hernandez told Doe to pull up her pants. On one occasion, Cabrera returned when Doe was not fully clothed. Hernandez pushed Doe off the bed, and she put her pants on.
Doe did not tell her parents for years. At some point, Doe told her mother she did not want to go to Cabrera's anymore, but did not give a reason. Doe thought if she told her mother, her mother would think it was no big deal or be angry with her. Doe also did not tell because Hernandez told her not to and she was scared. She tried not to think about it, but realized how wrong it was when she grew up and learned about sex.
Doe did not see Hernandez until years later when she and a friend, Stephanie, were walking near her house. She saw Hernandez, who said "hi" and asked Doe if her parents were home. Doe told Stephanie what had happened. She cried and asked Stephanie to keep it a secret. Doe saw Hernandez again, at a gas station near her house. He looked at Doe and smiled. Doe felt angry and sad and decided to tell her father. Doe's father took her to the police station and hospital. On cross-examination, Doe said her mother treated her better after she told her about the abuse.
Initially, Doe said this conversation occurred the same day she saw Hernandez. She later testified she talked to Stephanie several days afterward. Stephanie described walking with Doe, several years prior, when Doe started acting nervous and scared. Doe described having been sexually assaulted by a man she had just seen, while being babysat. Doe cried and asked Stephanie not to tell anyone.
Doe's Parents' Testimony
Doe's mother observed that Doe appeared unhappy, withdrawn, and more impulsive after Cabrera started babysitting. Doe started wearing looser clothing and repeatedly said she did not want Cabrera to babysit. Doe would sometimes cry when dropped off. Doe never mentioned any problem with Hernandez, who was kind to Doe.
Doe's father and Hernandez knew each other socially. After the babysitting arrangement ended, but before Doe disclosed any abuse, Doe's father saw Hernandez at family gatherings. Doe's father was not sure whether Doe was present at these events or in Mexico at the time. In October 2013, Doe told her father what Hernandez had done, and he took Doe to the police station and a hospital. Doe's father went to Hernandez's house and called him, but was unable to contact Hernandez.
Police Investigation
On October 26, 2013, San Mateo County Deputy Sheriff Blake Lycett took a brief statement from an emotional Doe. Doe said a man named Daniel, who she later identified as Hernandez, touched her breasts and forced sexual intercourse once. Doe told Lycett she remembered the abuse after recently seeing Hernandez.
At trial, Doe denied telling the police Hernandez penetrated her only once.
Expert Testimony
On November 4, 2013, Doe underwent a pelvic exam. The exam was "normal" and showed no evidence of injury to Doe's hymen. Tricia Tayama, M.D., testified as an expert in pediatric forensic gynecology. Tayama testified the results could not prove or disprove whether Doe had been sexually abused five years earlier.
Psychologist Michael Grogan testified as an expert in child sexual abuse accommodation syndrome (CSAAS), which is characterized by secrecy, helplessness, entrapment, accommodation, delayed/conflicted disclosure, and recantation. CSAAS research indicates the majority of sexually abused children delay disclosing sexual abuse, possibly because they are fearful of the ramifications or they understand it to be secret and dangerous. When they do report, children often disclose to peers first and provide tentative disclosures to "test[] the waters."
Hernandez's Statements to Police
Officers unsuccessfully attempted to contact Hernandez at his home in Redwood City. On November 12, 2013, Hernandez was arrested in East Palo Alto. On the day he was arrested, San Mateo County Sheriff's Deputy Hector Acosta interviewed Hernandez in Spanish. The three-hour recorded interview was played for the jury.
The interview is described in more detail in section II.A., post.
After waiving his Miranda rights, Hernandez told Acosta he and Cabrera lived together when Cabrera babysat Doe, but had since broken up. Hernandez confirmed having seen Doe twice within the previous month—at a gas station and near her house. Acosta told Hernandez that Doe had accused him of putting his penis in her vagina "many times," and that police knew she was telling the truth because of a medical examination and DNA evidence. For most of the interview, Hernandez denied any sexual touching of Doe. However, Hernandez eventually acknowledged he had been planning to leave for Mexico because he knew the police were looking for him for raping a girl and "[b]ecause [he did not] want to be in jail."
Miranda v. Arizona (1966) 384 U.S. 436.
Acosta repeatedly encouraged Hernandez to "fix things" with Doe and her family by telling his side of the story. After Hernandez claimed he did not remember what occurred, Acosta demanded "the truth." Shortly thereafter, Hernandez said that, on one occasion, he woke up in the bed and Doe was moving on top of him. He said, "I pretended to be asleep to see what she was going to do, and when [¶] . . . [¶] [Doe] heard [Cabrera] was coming, [Doe] moved to the side as if nothing had happened." Acosta also suggested it would be "very good" or "fixing it a lot" if Hernandez had not forced any sex act on Doe.
Near the conclusion of the interview, Hernandez admitted orally copulating Doe after Acosta repeatedly said Doe was also "at fault" if she wanted to have sex with Hernandez. Hernandez said it was "a kiss" that happened "one time" about a month after Doe had climbed on top of him. He had pulled Doe's pants down "a little bit" and quickly kissed her vagina "on top." Hernandez also said he realized he had made a mistake and never did it again. He continued to deny penetrating Doe.
Defense Case
Theodore Hariton, M.D., testified as an expert in forensic gynecology. He reviewed the results of Doe's physical exam and found no evidence she had intercourse. Doe's hymen appeared normal. Hariton opined that, if a seven-year-old girl was repeatedly raped, she would show abnormalities or injuries to her hymen five years later. Doe's aunt testified she had been at family gatherings in 2009 and 2010, at which both Doe and Hernandez were present. Doe did not appear concerned.
Rebuttal testimony by Tayama established that disagreement exists in the medical community about whether early trauma to a girl's vagina and hymen can heal without permanent injury.
Jury Verdict and Sentence
The jury found Hernandez guilty of two counts of sexual intercourse with a child under the age of 10 (§ 288.7, subd. (a); counts one & two), and oral copulation with a child under the age of 10 (§ 288.7, subd. (b); count three). Hernandez was acquitted of a fourth count. Before sentencing, Hernandez's trial counsel, John Halley, filed a motion for new trial. In relevant part, Halley argued he provided ineffective assistance of counsel by mistakenly failing to impeach Doe with a statement she made to a social worker, three months before accusing Hernandez, in which she "denied ever being inappropriately touched by anyone." The trial court denied the motion. Hernandez was sentenced to an aggregate term of 50 years to life in state prison. This timely appeal followed.
Count four (sexual penetration of a child under 10; § 288.7, subd. (b)) was charged as an alternative to count one; the jury was instructed that if it returned a guilty verdict on count one, it must find Hernandez not guilty of count four.
II. DISCUSSION
Hernandez appeals, arguing (1) his admissions to police were involuntary and should have been suppressed; (2) his trial counsel rendered ineffective assistance by failing to impeach the victim with a prior inconsistent statement; (3) the trial court committed Marsden error by failing to substitute new counsel; (4) in camera proceedings and records relating to pretrial discovery should be reviewed; and (5) cumulative error. Hernandez fails to show any prejudicial error. A. Voluntariness of Hernandez's Admissions to Police
Hernandez contends the trial court erred, and denied him due process, by denying a motion to suppress his admissions to police. Hernandez insists Acosta provided a "materially deceptive account of the law" and coerced Hernandez's confession by implicitly promising leniency if he admitted a nonforcible offense. " 'The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession.' " (People v. Holloway (2004) 33 Cal.4th 96, 114; accord, Lego v. Twomey (1972) 404 U.S. 477, 483.) "The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. ([Lego,] at p. 489; [citation].) In determining whether a confession was voluntary, ' "[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne." ' [Citation]. Whether the confession was voluntary depends upon the totality of the circumstances. (Withrow v. Williams (1993) 507 U.S. 680, 693-694; [citation].) ' "On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review." ' " (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).) " 'When . . . 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. Maury (2003) 30 Cal.4th 342, 404.) We find no error.
1. Background
Before trial, Hernandez moved to suppress his November 2013 statements to police on the grounds his admissions were involuntary. The People opposed the motion. The trial court reviewed the video recording of the interview, which began with Acosta providing Hernandez with food and drink. Acosta read the Miranda warnings aloud, and Hernandez said he understood his rights. After making small talk about Hernandez's job in construction, Acosta turned to Doe's allegations. For much of the interview, Hernandez denied any sexual touching of Doe.
Acosta established a theme that would emerge repeatedly over the course of the interview: Acosta told Hernandez that Doe was suffering, and Hernandez could "fix it" with Doe and her family by telling the truth and apologizing. Acosta asked, "What do I tell her?" Hernandez replied, "That I don't even remember, but if any day I did it, to forgive me . . . it wasn't my intention." Unpersuaded, Acosta continued in this vein for many minutes. Hernandez said at one point, "I haven't hurt her, what do I have to do, say yes?" Acosta said, "no, no, no" and pointed out that "by your saying that you didn't do anything to [Doe], you are saying that she is making things up." Acosta reminded Hernandez he could "fix . . . [his] mistake" and help Doe by telling the truth. Hernandez again asked, "So, do I have to say I did do it?" Acosta said, "No, I'm not telling you that either."
Acosta continued to emphasize how Doe would be hurt to hear Hernandez's claim he could not remember. Acosta reminded Hernandez he could "fix" things with Doe and her parents by accepting responsibility for his acts and telling the truth. At one point Hernandez asked, "[D]o I have to say yes after all?" Acosta responded, "No. No. [H]iding the scandal . . . it's not going to help anyone, Ok? No one." Hernandez insisted, "I didn't do anything to her."
Acosta took a break, and when he returned, said he had been mistaken about Doe's allegations. Specifically, Acosta said that he been told during his break that (1) Hernandez was accused of placing his mouth on Doe's vagina, and (2) Doe had been seven or eight years old at the time, not five. Acosta apologized and said having consensual oral sex with an eight-year-old girl was less serious than forcing sexual intercourse upon a five-year-old girl. Acosta also said: "I know that you put your mouth on her vagina. There's nothing wrong with that, because as a man, I know how good that is, I know that." Acosta suggested an eight year old is capable of initiating and consenting to sex with an adult. He pointed out that girls in Mexico sometimes get married at age 10 or 11. Acosta then asked Hernandez if he had ever forced sex on Doe, and Hernandez repeatedly said he had not. Acosta said this was "very good" and continued to ask if Doe had initiated or encouraged the sexual activity. Hernandez insisted he "didn't have relations with her."
Acosta changed tack, asking why Hernandez was "going to Mexico?" Hernandez first said he wanted to go to Mexico because he might marry his girlfriend there. However, Hernandez ultimately acknowledged he had been planning to leave for Mexico "[b]ecause [he did not] want to be in jail." After this admission, Acosta returned to imploring Hernandez to "fix things with [Doe] and her parents," by giving his side of the story. Acosta also repeated his suggestion that consensual sex acts with Doe would be "very different" than sex acts by force, and that Doe would also be "guilty." Instead of denying the accusations altogether, Hernandez now said he had never done anything to Doe or anyone else "by force." Acosta replied that it was "very good" Hernandez had never engaged in sex with Doe by force. Hernandez repeated, "It wasn't by force. . . . It wasn't like that." Acosta asked, "How was it?" Hernandez responded, "I'm going to tell you."
Hernandez said, on one occasion, he woke up and Doe was moving on top of him. He said, "I pretended to be asleep to see what she was going to do, and when . . . [¶] . . . [¶] . . . [Doe] heard that [Cabrera] was coming . . . [Doe] moved to the side as if nothing had happened." Acosta said it sounded like Doe had been a willing participant and that was "very good." Approximately two hours and 50 minutes into the interview, Hernandez acknowledged orally copulating Doe. Hernandez denied having penetrated Doe with his penis. Acosta said, "But you did put your mouth on her vagina?" Hernandez said, "Yes." Hernandez clarified he had pulled Doe's pants down "a little bit" and quickly kissed her vagina "on top."
The trial court denied Hernandez's motion to suppress, reasoning: "I have watched the video in its entirety . . . . [¶] . . . I don't believe there is anything in that interview . . . that amounts to coercion. I did not see any implied or express offer of leniency."
2. Analysis
Hernandez argues his admissions were involuntary because Acosta implicitly promised him leniency if he admitted a nonforcible sex offense against Doe. In determining whether a statement was voluntary, we look at the totality of circumstances, keeping in mind the defendant's background, experience, and conduct, as well as the nature of the interrogation. (People v. Kelly (1990) 51 Cal.3d 931, 950; People v. Hall (2000) 78 Cal.App.4th 232, 239.) " 'Once a suspect has been properly advised of his [or her] rights, he [or she] 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. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession.' " (People v. Holloway, supra, 33 Cal.4th at p. 115.) "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked." (People v. Maury, supra, 30 Cal.4th at pp. 404-405.)
" 'It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, 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. [Citation.] On the other hand, "if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . ." ' " (People v. Holloway, supra, 33 Cal.4th at p. 115.) A promise of benefit need not be explicit, "but may be implied from equivocal language not otherwise made clear." (People v. Hill (1967) 66 Cal.2d 536, 549, italics added.)
"The line 'can be a fine one' [citation] between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not." (People v. Holloway, supra, 33 Cal.4th at p. 117.) The police may permissibly implore a defendant to tell the truth to ease his conscience or otherwise psychologically benefit. (See People v. Jackson (1980) 28 Cal.3d 264, 299 [police told defendant he would " 'feel better' " if he confessed and would be "helping himself by cooperating"], disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Flores (1983) 144 Cal.App.3d 459, 469.) "Moreover, truthful and 'commonplace' statements of possible legal consequences, if unaccompanied by threat or promise, are permissible police practices and will not alone render a subsequent statement involuntary and inadmissible." (Flores, at p. 469.)
Whether the police employed deception during the interview is also relevant and weighs against a finding of voluntariness. (Frazier v. Cupp (1969) 394 U.S. 731, 739; People v. Hogan (1982) 31 Cal.3d 815, 840-841, disapproved on other grounds by People v. Cooper (1991) 53 Cal.3d 771, 836; People v. Engert (1987) 193 Cal.App.3d 1518, 1524.) However, "subterfuge is not necessarily coercive." (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.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing." (Ibid.) Deception related to or supporting a false promise of leniency will not be upheld. (People v. Thompson (1990) 50 Cal.3d 134, 167; People v. Cahill (1994) 22 Cal.App.4th 296, 315 (Cahill).) "Even collateral deception is material if it is allied with matters amounting to a false promise of leniency; 'deception which is "used to make more plausible" a promise of assistance' does render a statement inadmissible." (Cahill, at p. 315.)
With these governing principles in mind, we turn back to the record. Hernandez asserts the following exchange, which occurred shortly before Hernandez admitted orally copulating Doe, shows an implicit promise of leniency.
"[HERNANDEZ]: I never did anything by force.
"[ACOSTA]: That's good. Well . . . I know that it is going to bother her parents.
"[HERNANDEZ]: Well, yes.
"[ACOSTA]: But it's better to tell her parents, 'You know what, the two of them wanted to do it.' It's bothersome to tell them, 'You know what, he did it by force and . . . he does not remember what happened and he is lying and all that.' No, no. It will . . . hurt them a little a bit but not like the pain that they are in right now. 'Because you know what, your daughter started things. Talk to her.' It was not . . . his fault, Daniel's, your daughter started out things. So, can I say that? Um, according to you it happened, right. She started it? Yes, right?
"[HERNANDEZ]: Well, yes, [?---].
"[ACOSTA]: Ah! Sir, thank you for telling us, explaining to us what happened. Because . . . , look, in my head, . . . I was [?---]. How . . . could he have done it by force to . . . a five-year-old girl?
"[HERNANDEZ]: No.
"[ACOSTA]: That's not it? Ah! Thank you. Look . . .
"[HERNANDEZ]: Yes.
"[ACOSTA]: . . . if it's that, that she wanted to start it with you, she is at fault too, not just you.
"[HERNANDEZ]: And that is to be at the edge of problems.
"[ACOSTA]: Look.
"[HERNANDEZ]: I don't want problems.
"[ACOSTA]: Nobody wants problems.
"[HERNANDEZ]: [?---], then.
"[ACOSTA]: Look, Daniel, no, nobody wants . . .
"[HERNANDEZ]: I am not going to the fucking jail.
"[ACOSTA]: Sir, nobody wants problems. Nobody. Nobody wants problems. But you know what, she is pointing her finger at you. That's not fair, that's not fair. If she started it, she wanted it, she should also be at fault. It is not your fault. Look, . . . I know how is the urge in those days. Who is going to stop? If she was starting it. And you did not start it, right? . . . Did she start it? You can tell the parents, 'Look, I have good and bad news. Good news, that he didn't do it, didn't rape . . . your daughter by force. That's the good news. The bad news, your daughter is also guilty, she started things.' Because you are telling me, . . . are you 100% sure about what you are telling me, that it was not by force, it was not by force? . . . [Y]ou are telling me that it was the two of you. And that . . . changes everything. I don't want to think that you were doing, putting the girl by force, like she said. And look . . .
"[HERNANDEZ]: Uh-hum.
"[ACOSTA]: I know that you don't want a problem. Nobody wants problems in life, nobody.
"[HERNANDEZ]: I don't want to be in jail.
"[ACOSTA]: Look, we need to fix this thing. [¶] . . . [¶] We need to fix this thing. But you are fixing it a lot by saying it was not by force because that is different. Very different from someone pointing the finger at you, saying that it was by force." (Italics added.)
Hernandez argues Cahill, supra, 22 Cal.App.4th 296 is analogous. In Cahill, the defendant was convicted of first degree murder with special circumstances that the murder occurred in the course of a burglary, robbery, and rape. The defendant appealed, arguing the trial court erred in admitting his confession. (Id. at p. 300.) After the defendant was given Miranda warnings, the police told him they had all the physical evidence they needed to place him in the victim's house. (Id. at p. 305.) An officer told the defendant, " 'I'm here really to try to see what I can do for you,' " suggested a judge could consider " 'sympathetic' ways in which the incident might have occurred," and stated, " 'If I don't hear from you why this happened, I'm going . . . to assume that this was a cold-blooded premeditated murder.' " (Id. at pp. 305-306, italics added.) The officer also gave a deceptive synopsis of homicide law in California, which described first and second degree murder, voluntary manslaughter, but omitted any reference to felony murder. (Id. at pp. 306-307.) The officer said, " '[W]e need to know where this falls. . . . But if she [attacked you and] had you cornered you're stuck. Okay. And it just happened. In which case, it wouldn't fall into first degree murder.' " (Ibid., italics added.) After a discussion of the potential prison term for murder, the officer repeated his assertion that the investigators were there " 'to help' " the defendant, and suggested he could testify favorably about the defendant's remorse if he talked. (Id. at pp. 307-308.) Eventually, the defendant admitted entering the victim's house with intent to commit a burglary. (Id. at p. 308.)
On appeal, the defendant in Cahill argued his confession was coerced by promises of leniency coupled with false and misleading representations about homicide law. (Cahill, supra, 22 Cal.App.4th at p. 309.) The Third District Court of Appeal agreed, concluding police had effectively told the defendant he could avoid first degree murder by admitting to the killing but stating it was not premeditated. (Id. at p. 314.) The court reasoned: "The thrust of [the officer's] argument to defendant was that he should tell what had occurred to dispel the implication that the murder was premeditated. [¶] In the context of the interrogation session, the remarks . . . amount to a threat, or promise of leniency . . . . The clear implication . . . is that defendant would be tried for first degree murder unless he admitted that he was inside the house and denied that he had premeditated the killing. . . . Under the case law it counts as an implied promise that if the defendant did admit a role in the killing but had not premeditated he might avoid trial and conviction of first degree murder." (Id. at p. 314.) The implication was also advanced by the officer's "materially deceptive account of the law of murder," which omitted reference to the felony-murder doctrine. (Id. at p. 315.) The defendant had just turned 18 and had been educated only to the eighth grade. "To such a person 'unskilled and uncounseled in the law' the representations that premeditation was an element of first degree murder 'might have offered a hope' that if defendant confessed but denied premeditation he might be cleared of the most serious charges against him." (Id. at p. 317.)
Hernandez insists the facts of this case are similar to those presented in Cahill because Acosta's exhortations to "fix" this, combined with deception regarding the law of consent, "misled [Hernandez] to believe [he] was 'fixing' his concern about going to jail by admitting to a nonforcible offense." He points out that, under California law, an adult is subject to a term of 15 years to life for oral copulation or sexual penetration of a child under 10, regardless of whether force was involved. (§ 288.7, subd. (b).) Thus, Hernandez asserts he was materially misled to believe he could "fix" things—i.e., avoid incarceration or serve less time—by admitting a nonforcible offense. The People disagree that Acosta's statements were necessarily deceptive, pointing out that although consensual sex with an eight year old would still violate section 288.7, "the use of force to accomplish any crime is inevitably an aggravating factor." We need not resolve this dispute because, even if we assume Acosta's statements were deceptive, Carrington, supra, 47 Cal.4th 145 demonstrates Hernandez's confession was nonetheless voluntary.
In Carrington, the defendant confessed to one of two charged murders shortly after a detective told the defendant that " 'what happened out there . . . was probably an accident' " and urged her " 'to get that off your shoulders.' " (Carrington, supra, 47 Cal.4th at p. 170; see id. at pp. 155-157.) Our Supreme Court deemed this a permissible tactic: to "merely suggest[] possible explanations of the events and offer[] [the] defendant an opportunity to provide the details of the crime." (Id. at p. 171.) During a second interview, Carrington confessed immediately to an attempted murder charge. On appeal, she challenged her admission, at the end of a third interview, that she committed the second charged murder. (Ibid.) With respect to the second murder, the detective said, at the end of the second interview, " '[a]t this point, to us you have nothing else to lose' and that her admission to this homicide 'wouldn't make any difference.' He continued: 'I want you to pretty much purge yourself of all these bad things that you've done, so at least you can start again.' " (Id. at pp. 171-172.)
Our Supreme Court agreed these statements regarding the second murder were deceptive because a prosecutor would be more likely to seek, and a jury more likely to impose, the death penalty in the case of multiple murders. "The use of deceptive statements during an interrogation, however, does not invalidate a confession unless the deception is ' " 'of a type reasonably likely to procure an untrue statement.' " ' [Citations.] Considered in this context, the gist of [the officer's] comments was that, in view of the overwhelming evidence against defendant, her denial of participation in the [second] homicide was unlikely to alter the outcome of the case against her. Moreover, when law enforcement officers describe the moral or psychological advantages to the accused of telling the truth, no implication of leniency or favorable treatment . . . arises." (Carrington, supra, 47 Cal.4th at p. 172.)
In the third interview, the officer said it would be beneficial to Carrington if the police could deliver "an 'entire package' " to the prosecutor and state that she had fully cooperated with police. (Carrington, supra, 47 Cal.4th at p. 174.) The officer also reminded her of the relief she felt after confessing the other charges. Our Supreme Court rejected the notion the police implied Carrington would receive more lenient treatment if she confessed. (Id. at pp. 173-174.) "The statements made by the officers did not imply that by cooperating and relating what actually happened, defendant might not be charged with, prosecuted for, or convicted of the [second murder]. The interviewing officers did not suggest they could influence the decisions of the district attorney, but simply informed [her] that full cooperation might be beneficial in an unspecified way." (Id. at p. 174.)
The facts of the present case are closer to those presented in Carrington than in Cahill. No doubt, Acosta used ruses and deception—i.e., suggesting DNA evidence linked Hernandez to the crimes and an eight year old could consent to sexual activity with an adult—in respective efforts to make the People's case appear stronger and to "soften up" Hernandez by minimizing his conduct. However, an attempt to establish "rapport" with a suspect is not coercive. (See People v. Bradford (1997) 14 Cal.4th 1005, 1043.) And "[p]olice deception 'does not necessarily invalidate an incriminating statement.' " (People v. Smith (2007) 40 Cal.4th 483, 505; accord, Carrington, supra, 47 Cal.4th at p. 172.) Contrary to Hernandez's assertion, Acosta did not suggest Hernandez would be subject to "lesser liability" if he admitted a nonforcible offense or, conversely, that a forcible offense "would lead to greater punishment." It is true that Acosta made ambiguous statements that admitting nonforcible acts "fix[ed] it a lot" and showed that Doe was also "at fault." But Acosta never once explicitly suggested Hernandez would escape prosecution, be subject to lighter punishment, or receive any other lenient treatment from the police, prosecution, or court for such acts.
Nor did Acosta make any implied offer of leniency. Hernandez insists that what turned the interview was Acosta's change in course—from initially saying Hernandez needed to "fix things" with Doe and her parents to a later implication that Hernandez could fix his legal concern (going to jail) by admitting a nonforcible offense. We can agree that, towards the end of the interview, Hernandez made clear he was concerned about jail. But Acosta's responses ("nobody wants problems," "I know that you don't want a problem") did not reasonably suggest Hernandez could avoid jail if he confessed. In fact, although Acosta continued to mention "fixing this" during this same portion of the interview, he explicitly returned to the subject of Doe's parents and said they would be somewhat relieved to know Hernandez did not forcibly rape their daughter. Acosta's discussion of consent may have been deceptive, but, unlike in Cahill, Acosta never explicitly or implicitly promised any benefit to Hernandez in exchange for an admission. (Cahill, supra, 22 Cal.App.4th at pp. 306-307.) The context makes clear that Acosta was not referring to any legal benefit, but merely permissibly alluding to the psychological benefit Hernandez, Doe, and Doe's parents would receive if Hernandez told the truth. (Carrington, supra, 47 Cal.4th at p. 174.)
Other factors also suggest Hernandez's admissions were voluntary. Having viewed the recording of the entire interview and read the transcript, we agree with the trial court that the interrogation was calm and respectful. Acosta steadfastly responded, "No," in response to Hernandez's questions "do I have to say I did do it?" Acosta provided Hernandez with food, drink, rest breaks, and never threatened Hernandez or raised his voice. Hernandez does not appear to be particularly vulnerable to police coercion—he was an adult, admitted prior contact with police, and the interview was conducted in his native language. The prosecution sustained its burden to establish that Hernandez's admissions were voluntary. The trial court did not err, or violate due process, by denying the motion to suppress. B. Ineffective Assistance of Counsel
Hernandez also maintains his trial counsel provided ineffective assistance by failing to impeach Doe with an arguably prior inconsistent statement contained in juvenile dependency records. After conviction, Hernandez raised this issue in an unsuccessful motion for new trial. Accordingly, the question before us is whether the trial court erred in denying the motion for new trial. (People v. Taylor (1984) 162 Cal.App.3d 720, 723-724.)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to effective assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684-686.) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ledesma, at p. 215.) To establish ineffective assistance of counsel, a defendant must show: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms and (2) that the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland, at pp. 688, 692; Ledesma, at pp. 216-217.) "In considering a claim of ineffective assistance of counsel, it is not necessary to determine ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." ' " (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
A nonstatutory motion for new trial may raise a claim of ineffective assistance of counsel. (People v. Callahan (2004) 124 Cal.App.4th 198, 209.) On appeal from a denial of a new trial motion based on a claim of ineffective assistance, we apply a mixed standard of review. We defer to the trial court's factual findings if supported by substantial evidence, but we exercise independent, or de novo review, over the ultimate issue of whether the defendant's constitutional rights were violated. (In re Valdez (2010) 49 Cal.4th 715, 730; People v. Taylor, supra, 162 Cal.App.3d at pp. 724-725.) We also independently review the trial court's prejudice determination. (Valdez, at p. 730; People v. Mayham (2013) 212 Cal.App.4th 847, 850.)
1. Background
In the middle of trial, Hernandez's counsel obtained, pursuant to a request under Welfare and Institutions Code section 827, records from the juvenile court regarding child abuse investigations involving Doe. The records, which were discussed in open court (outside the presence of the jury) but ultimately filed under seal, showed, among other things, that Doe had been reported as having been physically abused by her parents. Defense counsel unsuccessfully sought to continue trial so that he could interview the reporting party and social worker. However, the trial court allowed defense counsel to separately interview Doe and her father to determine if she had, in fact, made any false accusations. Because Doe and her father largely agreed that both parents had used physical force to discipline Doe, the trial court ruled the defense could not admit minor inconsistencies in Doe's prior statements about physical abuse. The records also showed that during the July 2013 physical abuse investigation, Doe was interviewed by a social worker and "denied ever being inappropriately touched by anyone." However, Doe's denial of "inappropriate touching" was not discussed either in evidence or outside the presence of the jury.
"A juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be disseminated . . . to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section. . . ." (Welf. & Inst. Code, § 827, subd. (a)(4).)
After the verdicts were received, Hernandez's trial counsel filed a motion for new trial, asserting his own incompetence in failing to impeach Doe with her previous statement. Specifically, Halley argued that he had been ineffective in failing to offer Doe's denial as a statement inconsistent with her later accusations. (Evid. Code, § 1235.) The trial court held an evidentiary hearing, at which Halley was questioned by another attorney, appointed by the private defender's office for "that very limited purpose." Halley testified, consistent with his prior declaration, he was not sure why he had not attempted to introduce the omitted prior inconsistent statement. Halley believed he "set [this denial] aside" and forgot to return to it.
In denying the motion for new trial, the trial court agreed the statement would have been admissible for impeachment but was "not prepared to say that the mistake . . . rises to a level of ineffective assistance of counsel." Instead, the trial court determined any error was not prejudicial, explaining: "[I]f one accepts for argument's sake that [defense counsel] engaged in ineffective assistance of counsel . . . the focus is is there a reasonable probability that a different verdict would have been reached in this case? . . . [¶] . . . [¶] The evidence in the case was so compelling that I don't believe [defense counsel's] mistake of not seeking to impeach [Doe] with this statement—and he would have been allowed to do so. It's absolutely classic prior impeachment. I don't believe his failure to bring this to the court's attention would have resulted in any different outcome in this trial."
2. Analysis
Preliminarily, we note it is not seriously disputed that Doe's prior inconsistent statement would have been admissible, and that defense counsel did not have a tactical reason for failing to use the statement to impeach Doe. (Evid. Code, § 1235.) It appears counsel simply overlooked the statement amidst the press of trial. We need not decide whether such an error falls below an objective standard of reasonableness. Even if we assume Hernandez established the first prong of his ineffective assistance claim, we agree with the trial court and People that prejudice cannot be shown.
"It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Strickland v. Washington, supra, 466 U.S. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "[T]he question is whether there is a reasonable probability that, absent [counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Here, we have little doubt the jury would still have returned guilty verdicts even if Halley had impeached Doe with the prior inconsistent statement. We cannot conclude, as Hernandez asserts, the omitted impeachment evidence, if introduced, "would have given the jurors a significantly different impression of [Doe's] credibility." It was undisputed that Doe had delayed disclosing Hernandez's abuse for many years. Doe's statement to the social worker was made during an investigation into whether she had been physically, but not sexually, abused by her parents, at a time before she had yet told anyone one about Hernandez's acts. Given this context, the omitted impeachment is simply not as damaging as Hernandez posits. Furthermore, Hernandez's trial counsel successfully elicited, on cross-examination, that Doe's mother was nicer to her after she disclosed the assaults—suggesting Doe may have made false accusations to curry favor with her parents. Thus, we cannot agree with Hernandez that his defense was deprived of evidence necessary to "point to a plausible motive for [Doe] to fabricate her allegations."
On the other hand, the People dispelled the strength of the inference to be drawn from Doe's delay by presenting evidence from the CSAAS expert, who explained the frequency of delayed disclosure and that abused children often disclose to peers before adults. Most importantly, Hernandez himself admitted orally copulating Doe. In addition to this inculpatory statement, his admission that he was going to flee to Mexico because he was being sought by police for child rape suggested consciousness of guilt. Given this evidence, as well as evidence corroborating many details of Doe's testimony, we find it highly unlikely the jury would have been swayed by the inconsistent statement Hernandez now relies on. There is no reasonable probability of a different result. C. Marsden Error
We also disagree that the trial court was required to appoint new counsel sua sponte for Hernandez after Halley asserted, in connection with the motion for new trial, he had provided ineffective assistance and it became apparent Halley would testify. Hernandez essentially argues the trial court was required to hold a Marsden hearing to determine whether it should appoint substitute counsel to pursue the new trial motion. Specifically, Hernandez contends the trial court should have appointed another attorney to represent him regarding the motion for new trial because the record demonstrates Halley "suffered from an actual conflict of interest, and it is reasonably probable that the conflict adversely affected the outcome."
Because Hernandez never made an explicit request for substitute counsel, as our high court has required, the argument fails. (People v. Sanchez (2011) 53 Cal.4th 80, 84 (Sanchez) ["a trial court must conduct such a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that the defendant wants a substitute attorney"]; People v. Dickey (2005) 35 Cal.4th 884, 920 [" ' "[a]lthough no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney' " ' "]; People v. Richardson (2009) 171 Cal.App.4th 479, 484-485 [rejecting Marsden error claim when defendant did not request substitute counsel to assist in making motion for new trial or to represent him at sentencing]; People v. Gay (1990) 221 Cal.App.3d 1065, 1070 [motion for new trial asserting ineffective assistance of counsel does not trigger Marsden].)
In Sanchez, the Supreme Court specifically disapproved "the procedure of appointing substitute or 'conflict' counsel solely to evaluate a defendant's complaint that his attorney acted incompetently," instead of conducting a Marsden hearing. (Sanchez, supra, 53 Cal.4th at p. 84.) The court also disapproved authority (People v. Mejia (2008) 159 Cal.App.4th 1081; People v. Mendez (2008) 161 Cal.App.4th 1362) to the extent they "incorrectly implied that a Marsden motion can be triggered with something less than a clear indication by a defendant, either personally or through current counsel, that the defendant 'wants a substitute attorney.' " (Sanchez, at p. 90, fn. 3.) A Marsden hearing was required, in Sanchez, because defense counsel had requested substitute counsel be appointed to assess the defendant's reasons for wanting to withdraw his plea. (Ibid.)
Here, unlike in Sanchez, Hernandez did not express any desire to have substitute counsel represent him either in his motion for new trial, at the hearing on the motion, or at sentencing. In fact, Hernandez concedes he never requested appointment of new counsel. The trial court did not err in failing to conduct a Marsden hearing. D. Confidential Discovery
Hernandez is correct that "the trial court does bear a duty of inquiry on its own motion when it knows or should know of a potential conflict of interest between a defendant and his or her counsel." (People v. Martinez (2009) 47 Cal.4th 399, 422.) Criminal defendants have a constitutional right to representation by counsel free of conflicts of interest. (Wood v. Georgia (1981) 450 U.S. 261, 271; People v. Cornwell (2005) 37 Cal.4th 50, 74-75, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) "Conflicts of interest broadly embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests." (People v. Bonin (1989) 47 Cal.3d 808, 835.) "[F]or both state and federal purposes, a claim of conflicted representation is one variety of claim that counsel provided ineffective assistance. Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate that (1) counsel labored under an actual conflict of interest that adversely affected counsel's performance, and (2) absent counsel's deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009-1110.) "In determining whether a defendant has demonstrated the existence of an actual conflict of interest satisfying the first prong of the analysis, we consider whether 'the record shows that counsel "pulled his punches," i.e., failed to represent defendant as vigorously as he might have had there been no conflict.' [Citation.] And yet we must bear in mind . . . that when ' "a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission." ' " (Rundle, at pp. 169-170.)
Hernandez has made no showing of an actual conflict of interest that adversely affected his trial counsel's performance. We agree Hernandez's trial counsel undoubtedly suffered a potential conflict in arguing his own deficiency. (People v. Smith (1993) 6 Cal.4th 684, 690 [recognizing "obvious conflicts defense attorneys have in defending themselves . . . and in arguing that their clients are entitled to some sort of relief . . . because of their own ineffectiveness"]; Christeson v. Roper (Jan. 20, 2015) ___ U.S. ___ [135 S.Ct. 891, 894] ["a 'significant conflict of interest' arises when an attorney's 'interest in avoiding damage to [his] own reputation' is at odds with his client's 'strongest argument' "].) Although Halley was in the unique and difficult position of arguing his own ineffectiveness, the record is devoid of evidence Halley's performance was adversely affected. Defense counsel freely acknowledged he had made a mistake, and he urged his own ineffectiveness as the basis for a new trial. We are unpersuaded by Hernandez's circular argument that the conflict had an adverse effect on his counsel's ability to argue prejudice before the trial court, as an attorney from the private defender's office had only recently become involved in the defense. Hernandez also suggests Halley may have been hesitant to argue, as a separate ground, that he was ineffective in failing to present a motive for Doe to lie. The argument is wholly unsupported by the record.
In advance of trial, Hernandez sought discovery of potential impeachment information from Doe's confidential mental health records and Stephanie's educational records. The trial court found Hernandez had made a sufficient showing for an in camera review of the records. After an in camera review of the material, the trial court stated, "I have reviewed those documents, and . . . there is nothing contained within the subpoenaed documents which is responsive."
The record before us does not show any objection on the ground such discovery would violate the psychotherapist-patient privilege (Evid. Code, § 1014) or constitutional privacy rights (Cal. Const., art. I, § 1).
Hernandez asks us to conduct an independent review of the trial court's in camera proceedings to determine whether the trial court abused its discretion by withholding discoverable records. Hernandez contends the Sixth and Fourteenth Amendments entitle him to pretrial disclosure of such records. In pretrial proceedings, a trial court is not constitutionally required to review a victim's confidential psychiatric records to determine if they are subject to production, even if the defendant's purported need for the information outweighs the patient's interest in confidentiality. (People v. Gurule (2002) 28 Cal.4th 557, 592-593; People v. Hammon (1997) 15 Cal.4th 1117, 1119, 1123-1124, 1127-1128.) Here, the trial court nonetheless conducted an in camera, pretrial review of the subpoenaed records. Assuming for the sake of argument Hammon does not apply, we have reviewed the sealed materials and find no material evidence worthy of disclosure. E. Cumulative Prejudice
Our high court is currently considering whether to overrule People v. Hammon, supra, 15 Cal.4th 1117. (Facebook, Inc. v. Superior Court (Hunter), review granted Dec. 16, 2015, S230051.) --------
We need not consider Hernandez's position the cumulative effect of the trial court's errors require reversal of the judgment. With only one exception, we have rejected Hernandez's arguments of trial error on the merits.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.