Filed 7/6/16 P. v. Aguirre CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041415
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1118723)

             v.

LUIS ANTONIO AGUIRRE,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         An information charged defendant Luis Antonio Aguirre with 12 counts of
aggravated sexual assault of a child under 14 years of age (Pen. Code, § 269; counts 1-
12) and 12 counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1);
counts 13-24). The named victim in all 24 counts was Kassandra Doe.
         The case proceeded to jury trial. On the motion of the prosecutor, count 4 was
dismissed due to insufficient evidence. The jury convicted defendant on counts 2, 3, 9-
13, and 17-24. For each of counts 14, 15, and 16, the jury found defendant guilty of the
lesser included offense of lewd conduct on a child (Pen. Code, § 288, subd. (a)). The jury
acquitted defendant on count 1 and counts 5-8. The trial court sentenced defendant to a
prison term of 90 years to life consecutive to 64 years.
       Defendant now appeals from the judgment of conviction. On appeal, defendant
argues that we must reverse the judgment due to the admission of his involuntary
confession.1 As set forth below, we will affirm.
                                       DISCUSSION2
       Defendant contends that his confession was involuntary, and thus inadmissible,
because “the police coerced [his] admissions by insisting his denials were rebutted by
scientific proof, by asserting the alleged conduct was understandable and implying he
could obtain help by admitting guilt.” (Capitalization omitted.) ~(AOB at p. 14)~ He
emphasizes that the recent decision in In re Elias V. (2015) 237 Cal.App.4th 568 (Elias
V.) compels the conclusion that his confession was involuntary. As explained below,
defendant’s confession was not involuntary.
Background
       Detective Angel Mina and Detective Tina LaTendresse interrogated defendant on
October 26, 2011. At trial, Detective Mina testified that defendant waived his Miranda3
rights before the interrogation. She also testified that she and Detective LaTendresse
utilized a “ruse” when they interrogated defendant. She explained that a ruse is a
“common” and “accepted” investigative tool in which police provide false information to
a suspect in order to “elicit truthful responses.” Detective Mina testified that she and



       1
          The Attorney General contends that defendant forfeited his argument by failing
to seek suppression of his confession in the trial court. Defendant contends that, if his
argument is deemed forfeited, his counsel rendered ineffective assistance in failing to
object to the admission of his confession. Because we can easily resolve defendant’s
claim on the merits, we will not address the issues of forfeiture and ineffective assistance
of counsel.
       2
          The facts underlying defendant’s conviction are not relevant to our analysis of
the issue presented on appeal. We therefore will not summarize those facts.
       3
           Miranda v. Arizona (1966) 384 U.S. 436.
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Detective LaTendresse provided the following false information to defendant during the
interrogation: 1) the alleged victim, Kassandra, had undergone a physical examination
when she was younger; 2) police had medical records from when Kassandra was
younger; 3) when a child has sexual intercourse, it causes scarring; 4) Kassandra had
scarring due to sexual intercourse as a child; 5) Kassandra kept clothing from when she
was a little girl; 6) a sample of defendant’s DNA, which was obtained during the
interrogation, had been analyzed; and 7) defendant’s DNA was on Kassandra’s clothing.
Detective Mina also testified that she showed defendant a false DNA report during the
interrogation. A video of the interrogation was played for the jury.
       The interrogation began at 10:13 a.m. At the beginning of the interrogation,
Detective Mina and Detective LaTendresse asked defendant general questions about his
place of birth, the places he had lived, his job, and his family. The detectives offered
defendant food. Detective Mina asked defendant if he had any idea why he being
questioned by the police. Defendant responded that he thought it was related to a phone
call he recently received from his wife’s 19-year-old granddaughter, Kassandra. Officer
Mina asked what the phone call was about, and defendant said that Kassandra accused
him of “sexual harassment” when she was a child. When the detectives asked defendant
what sort of sexual harassment Kassandra alleged, defendant said he never touched
Kassandra and explained that when Kassandra was a child she would “jump” on him and
“go crazy.” When asked if Kassandra was a “good kid” when she was “growing up,”
defendant responded that he did not like it when Kassandra would sit on his lap and “go
crazy all over the place.” Defendant also said that Kassandra would “jump all over” him.
When Detective Mina asked defendant what he meant by “jump all over,” defendant
stated that Kassandra would “rub” him and “hug” him.
       Defendant asserts that coercive police conduct began after the detectives asked
him for a DNA sample. After defendant gave the officers permission to extract a DNA

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sample from his mouth, Detective LaTendresse told defendant that DNA “can stay on
clothing” and “can stay inside the body” for “years.” Detective LaTendresse then asked
defendant, “Is there any reason why your DNA when we swab you would be somewhere
on Kassandra that it should not be?” Defendant responded, “Uh huh. Oh, I don’t know.
No.” Detective LaTendresse then told defendant that Kassandra “had an exam when she
was younger,” “some things were found,” and that was why the police wanted
defendant’s “swab.” Detective LaTendresse informed defendant that Kassandra “kept
her clothing when she was a little girl” and then asked defendant if there was “any reason
why [his] DNA would be on any of her clothing.” Defendant responded, “No, no, no.”
Shortly after defendant’s response, the detectives offered defendant water, coffee, and
food, and they gave him a break from questioning. The break occurred at 11:08 a.m.
       At 11:12 a.m., the detectives again offered defendant food. They then swabbed
the inside of defendant’s cheek. After obtaining the swabs, Detective Mina said, “We’re
gonna drop these off.” The detectives left the room at 11:15 a.m.
       The detectives resumed questioning defendant at 11:29 a.m. Immediately upon
resuming the questioning, Detective Mina asked defendant if he was “okay.” Defendant
responded, “Yeah.” Detective Mina told defendant, “I don’t want to be disrespectful to
you.” Detective Mina reminded defendant that his house had been searched by police,
and she informed defendant that there was “enough evidence against” him to search his
house and question him. Detective Mina advised defendant “to be honest,” and
defendant continued to deny touching Kassandra. Detective Mina said to defendant, “I
will not listen to anymore lies.” Defendant then told the detectives that “sometime” he
removed Kassandra’s underwear “[f]rom the dirty clothes” and licked them. He
explained that he did so because “she used to come and grab and hug me hard.”
       Detective Mina asked defendant what he did after he licked the underwear, and
defendant insisted that he “didn’t do anything.” Detective Mina said, “I’m in charge

                                            4
now.” She advised defendant to “tell the truth,” reminded him that the “stuff is at the
lab,” and informed him that DNA “doesn’t go away after a year, two years, five years.”
Defendant continued to deny touching Kassandra in a sexual manner. Detective Mina
accused defendant of lying, informed him that police “seized a bunch of stuff from [his]
house,” and advised him that he could not “make this go away” because police had his
DNA. Defendant again denied touching Kassandra, and he denied any attraction to
Kassandra. Detective LaTendresse then stated: “I believe that this is not all your fault. I
believe that this—I’ve seen this young lady. I know she’s very attractive. And she
probably was very attractive as—girl, okay. And she probably had some curiosities and
she may have been interested in you in that way. . . . And I can understand how you
could be attracted to her because she probably came on to you, okay. But we understand
that. The big thing is, Luis, we just want to know the truth of what happened and why.
That’s it. We know what happened. But we want you to tell us what happened.”
Defendant responded by stating that he had not “done anything . . . sexual to her.”
       Detective Mina reminded defendant about licking Kassandra’s underwear, and
defendant stated, “That’s sick in my mind.” Detective Mina told defendant that DNA
“[i]n the mouth” is “[n]ot the same.” Defendant responded that he “didn’t do sex to her.”
He then stated that Kassandra sat on his lap in the jacuzzi, she did “a lot of crazy stuff,”
and semen “might” have leaked from his penis. Detective LaTendresse told defendant to
“get it off [his] chest.” Defendant responded that Kassandra was “attractive” and “[s]he
go crazy.” Defendant stated that he was “so stupid,” but he continued to insist that he
“didn’t do her sexual.” When Officer Mina asked defendant what he had done, defendant
stated that Kassandra sat in his lap and tried to grab his “thing.” He emphasized that he
never “penetrate[d]” Kassandra. When Detective LaTendresse asked if he ever put his
penis inside Kassandra’s vagina, defendant stated, “No, never, no.”



                                              5
      Detective LaTendresse told defendant that “there was some type of contact”
between his penis and Kassandra, and Detective LaTendresse asked defendant to explain
“what it was.” Detective LaTendresse told defendant to “[j]ust be honest.” Defendant
admitted that he put his leg on top of Kassandra’s legs, and his penis “was leaking
through” his underwear. He stated, “[I]t might be some DNA because I was leaking.”
He continued to emphasize, however, that he “didn’t sexual her.” Detective Mina
informed defendant that his wife saw him rub his penis against Kassandra, and Detective
Mina asked defendant if his wife was lying. Defendant stated that Kassandra “went
crazy” on his leg “like she was doing sex.” Defendant also stated that Kassandra would
“go on top” of his penis when he was clothed and do “horsy riding.”
      The detectives then showed defendant an envelope, and Detective Mina said,
“This is the DNA stuff.” The detectives accused defendant of penetrating Kassandra,
explaining that the “lab results” showed that Kassandra had vaginal scarring “from when
she was younger.” Defendant denied penetrating Kassandra with his penis or his finger.
Detective Mina said that defendant’s semen was found inside Kassandra’s vagina.
Defendant stated that he “didn’t penetrate her.” Detective Mina told defendant,
“[T]here’s DNA from your fingers insider her too.” Defendant denied touching
Kassandra with his hands. Detective Mina accused defendant of lying. Defendant
repeatedly denied penetrating Kassandra.
      The detectives offered defendant coffee and water. They gave defendant a break
from questioning at 12:34 p.m.
      The detectives resumed questioning defendant at 1:13 p.m. Detective Mina asked
defendant if he tried to get Kassandra to perform oral sex. Defendant said, “No.”
Detective LaTendresse then advised defendant that she and Detective Mina were going to
ask him some questions to “make sure” the detectives “didn’t disrespect” defendant
during the interrogation. The detectives asked defendant how he felt when they accused

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him of lying, and defendant stated that he felt “relief in [his] chest.” Detective
LaTendresse asked defendant, “Were we respectful to you?” Defendant responded, “Oh,
no, no, no, no. No, you do your job. You did a great job.” Detective LaTendresse then
asked, “We treated you okay?” Defendant replied, “Oh, yeah. . . . Everything good.”
The interrogation ended at 1:42 p.m.
Defendant’s Confession was Not Involuntary
       “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. Massie (1998) 19 Cal.4th 550, 576 (Massie). “A confession is
involuntary if it is the result of coercive police activity.” (People v. Mays (2009) 174
Cal.App.4th 156, 164.)
       Courts “apply a ‘totality of circumstances’ test to determine the voluntariness of a
confession.” (Massie, supra, 19 Cal.4th at p. 576.) The totality of the circumstances test
looks at “the nature of the interrogation and the circumstances relating to the particular
defendant.” (People v. Dykes (2009) 46 Cal.4th 731, 752.) “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.].” (Massie, supra, 19 Cal.4th at p. 576.)
        “Police trickery that occurs in the process of a criminal interrogation does not, by
itself, render a confession involuntary . . . . [Citation.] Why? Because subterfuge is not
necessarily coercive in nature. [Citation.] And unless the police engage in conduct which
coerces a suspect into confessing, no finding of involuntariness can be made.
[Citations.]” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 (Chutan).) “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.

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[Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a
guilty person into confessing. The cases from California and federal courts validating
such tactics are legion.” (Ibid., italics in original.)
       “ ‘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. . . .” ’
[Citations.]” (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
       On appeal, the voluntariness of a confession is subject to independent review.
(Massie, supra, 19 Cal.4th at p. 576.) “In determining whether a confession was
voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially
free” because his will was overborne.’ [Citation.]” (Ibid.)
       Here, we cannot conclude that defendant’s will was overborne by police coercion.
Defendant’s major argument regarding involuntariness centers on the detectives’ lies
about DNA evidence. Defendant emphasizes that, through the detectives’
misrepresentations regarding DNA, he “was manipulated” into providing damaging
admissions, “regardless of his guilt or innocence.” This argument is unconvincing. The
record shows that the detectives’ misrepresentations regarding DNA were “not of a kind
likely to produce a false confession.” (Chutan, supra, 72 Cal.App.4th at p. 1280, italics

                                                8
omitted.) Although the detectives’ lies about DNA may have influenced defendant to
admit licking Kassandra’s underwear and to admit that his penis was “leaking,” the
detectives’ comments about DNA were insufficient to procure more serious admissions
from defendant. The detectives repeatedly tried to get defendant to confess to penetrating
Kassandra’s vagina with his penis or his finger, and defendant repeatedly denied any sort
of penetration. Despite the detectives’ assertions that the DNA evidence demonstrated
penetration, defendant insisted throughout the entire interview that he had never
penetrated Kassandra. If the detectives’ misrepresentations regarding DNA were as
powerful as defendant claims they were, those misrepresentations would have prompted
defendant to confess to penetration, regardless of whether or not he penetrated Kassandra.
Defendant’s “resistance, far from reflecting a will overborne by official coercion,
suggests instead a still operative ability to calculate his self-interest in choosing whether
to disclose or withhold information.” (People v. Coffman (2004) 34 Cal.4th 1, 58.) We
must conclude that the ruse utilized by the detectives was not coercive, and the ruse did
not render defendant’s admissions involuntary.
       Defendant also asserts that Detective LaTendresse’s use of a “minimization tactic”
rendered his admissions involuntary. Specifically, defendant contends that when
Detective LaTendresse described Kassandra as “very attractive,” suggested that
Kassandra “probably had some curiosities,” and posited that Kassandra “came on to”
defendant, she made an implied promise of leniency that coerced defendant’s admissions.
This argument is not persuasive. We see nothing in Detective LaTendresse’s comments
that constituted a promise of leniency. Nothing in Detective LaTendresse’s comments
improperly suggested that defendant “ ‘ “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. ” ’ ” (Holloway, supra, 33 Cal.4th at p. 115.) Rather, Detective
LaTendresse’s comments were brief and isolated, and they simply conveyed to defendant

                                              9
a possible excuse for his conduct. Detective LaTendresse’s “minimization tactic” did not
render defendant’s admissions involuntary.
       Finally, defendant’s reliance on Elias V., supra, 237 Cal.App.4th 568 is
unavailing. In Elias V., the First District Court of Appeal applied the totality of the
circumstances test and concluded that 13-year-old Elias’s confession was involuntary.
The court explained: “Our finding that Elias’s statements were involuntary is based on a
combination of factors: (1) Elias’s youth, which rendered him ‘ “most susceptible to
influence,” [citation], and “outside pressures,” [citation]’ [Citation.]; (2) the absence of
any evidence corroborating Elias’s inculpatory statements; and (3) the likelihood that [the
interrogating officer’s] use of deception and overbearing tactics would induce involuntary
and untrustworthy incriminating admissions.” (Elias V., supra, 237 Cal.App.4th at pp.
586-587.) The court repeatedly emphasized Elias’s youth in concluding that his
confession was involuntary. (Id. at pp. 581, 587-591, 593, 595-596, 597.) Here,
defendant was 51 years old at the time of his interrogation, not a 13-year-old child.
Children are “much more vulnerable” in dealings with police than “resilient” adults. (Id.
at p. 588.) Defendant’s age makes this case distinguishable from Elias V., and Elias V.
does not compel us to conclude that defendant’s confession was involuntary.
       Moreover, unlike Elias V., we believe that the totality of the circumstances here
demonstrate that defendant’s confession was voluntary. Detective Mina and Detective
LaTendresse made no threats or promises during the interrogation. The interrogation was
not unduly lengthy, and the detectives gave defendant breaks from questioning. The
detectives made an effort to make defendant comfortable, offering defendant food and
beverages at many points during the interrogation, asking defendant whether he was
“okay,” and informing defendant that they did not intend to be “disrespectful” to him. At
51 years old, defendant had the maturity to freely decide whether to confess. Although
the detectives made misrepresentations regarding DNA evidence and accused defendant

                                              10
of lying during the interrogation, the record suggests that defendant was not uneasy—he
laughed during portions of the questioning, he affirmed that the detectives treated him
“okay,” and he stated that the detectives “did a great job” during the interrogation. On
this record, we cannot conclude that defendant’s will was overborne by police coercion,
and we must conclude that defendant’s confession was voluntary.
       In sum, defendant’s arguments regarding involuntariness are not persuasive.
Defendant’s confession was voluntary, and reversal due to the admission of the
confession is unwarranted.
                                      DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Aguirre
H041415




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