Filed 6/13/16 P. v. Acosta CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051453

         v.                                                            (Super. Ct. No. 12NF1929)

JAIME ACOSTA,                                                          OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Sheila F. Hanson, Judge. Affirmed.
                   Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                     INTRODUCTION
              Defendant Jaime Acosta appeals from the judgment entered after a jury
found him guilty of oral copulation with a child under 10 years old and committing a
lewd act upon a child under 14 years old. He contends the trial court erred by admitting
evidence of statements that he made during a police interview because they were made
involuntarily. Acosta contends his statements were involuntary because the police officer
“deliberately minimiz[ed]” Acosta’s prison-time exposure, made material misstatements
of pertinent law, and extended improper promises of leniency to Acosta.
              We affirm. Viewing Acosta’s statements under the totality of the
circumstances, Acosta’s statements were made voluntarily. The trial court therefore did
not err by denying Acosta’s motion in limine seeking to exclude them.


                                           FACTS
                                              I.

    FIVE-YEAR-OLD S. TELLS HER PATERNAL GRANDMOTHER ABOUT MOLESTATION
              INCIDENT, WHICH LEADS TO CRIMINAL INVESTIGATION.
              In June 2012, five-year-old S. told her paternal grandmother that her
stepfather, Acosta, had put peanut butter on his “front butt” and instructed her to lick it
off. At trial, then eight-year-old S. testified that Acosta made her touch his penis with her
hands and lick peanut butter off his penis; she stated white “stuff” had come out. S. was
asked why she had licked Acosta’s penis and she said, “[b]ecause he was the adult and I
had to listen.”
              After S. told her paternal grandmother about what had happened, the police
were contacted. Detective Stewart Hamilton and his partner, Detective Veronica Gardea,
of the Fullerton Police Department’s investigation unit’s family crimes detail began the
investigation by going to the apartment where S. lived with her mother, younger sister,


                                              2
and a roommate. Acosta was present. It was a Sunday and Hamilton and Gardea had
been called into work to investigate the case, so they were wearing civilian attire.
               Hamilton asked Acosta if there was a more private place where they could
talk; Acosta, Hamilton, and Gardea walked into a girl’s bedroom. Hamilton asked
Acosta if he would be willing to go to the police station to speak with him there.
Hamilton told Acosta he was not obligated to speak with him and that it would be of his
own free will. Acosta agreed to go to the police station.
               Acosta drove a car to the police station, following Hamilton who was
driving an unmarked police car. When they arrived, Hamilton had Acosta sit in an
interview room. Before Hamilton began the interview, he reminded Acosta that he was
not obligated to speak with him and was free to go at any time. Hamilton placed a small
recording device on the table in plain view. The interview room was equipped to make a
video and audio recording of the interview.


                                              II.

         HAMILTON INTERVIEWS ACOSTA AND, BASED ON ACOSTA’S STATEMENTS,
                      HAMILTON PLACES HIM UNDER ARREST.
               The prosecution played for the jury the video and audio recording of
                                                                     1
Hamilton’s interview of Acosta at the Fullerton Police Department. Hamilton began the
interview by thanking Acosta for “coming down” and stating, “I just want you to know
that you’re not obligated to speak to me. You’re free to leave at any time. Um. I
appreciate your cooperation.”
               Acosta stated that S. is his wife H.’s daughter and that he and H. were
separated. Acosta and H. had a daughter together. H. had a roommate named Nick.
Acosta had been at H.’s apartment the prior Wednesday to watch S. while H. was at


 1
     The interview was about one hour and 15 minutes long.

                                              3
school. Acosta told Hamilton he had been informed of S.’s statement that Acosta “put
peanut butter on [his] front end” and had her “suck it off.” Hamilton asked Acosta why
he thought S. would say such a thing and Acosta said he had no idea and was surprised
when he had heard it.
                Hamilton told Acosta that S. had talked to H., her father, and her paternal
grandmother, and that S.’s statements were consistent. Hamilton said he was “not here to
judge [him]” and that he himself had made plenty of mistakes, being human. He told
Acosta, “I think there was something inappropriate that took place, it’s not the crime of
the century.”
                Hamilton told Acosta about the “DARE” program that Hamilton had taught
and how he would tell children, “we’re all going to make mistakes, God know[s] I’ve
made plenty, and, um and as long as you learn from that, and you don’t make the same
mistake” and “you’re good, um if, if part of moving on and growing and learning” is “to
say, you know what, something happened, I’m not proud of it, but I want to move on. I
want, I want my family to be good again and, right now, w[he]ther this occurred or not,
there’s some, there’s obviously some damage.” Hamilton referred to Acosta’s desire to
work things out with H., but that now “there’s going to be a trust issue.”
                Hamilton told Acosta, “some of the statements that S[.] made are very
graphic in nature. That you don’t just don’t make this stuff up okay.” Hamilton further
stated: “What I’m getting at is I really do believe, and I’m just being real frank with you,
I really believe that something inappropriate happened. Now, um, is it that, you know,
this was a playful thing and something that she suggested, or, or was it something that
you held her down and forced her into doing it? And I don’t believe that’s the case,
‘cause you seem like a really standup guy to me. But I think somewhere in between there
is what really took place.”




                                               4
               Hamilton asked Acosta whether it was a one-time event and Acosta
responded, “[i]t didn’t take place, I don’t do that ‘cause I’m not that type of person. I
love the kids.”
               Hamilton asked Acosta where, then, did S. get “this knowledge” of male
anatomy and physiology. Acosta said he did not know and Hamilton said, “[s]he’s
saying, she learned it from you.” Hamilton asked, “did Nick witness this, is he aware of
this incident” and Acosta responded, “[n]o, Nick hadn’t seen nothing. Nick walks in and
out when he goes to smoke.”
               Hamilton asked, “[t]o smoke? Oh, okay. Um, well I, I don’t[] think you’re
being completely honest with me and I’m just really worried for your sake because if,
let’s say, if this continues and this goes to court and, and you know it, and the report it
says, you know he continues to lie, continued to lie, yet we have this evidence, we have
these statements to indicate that it really did happen, so is it like I said before, was it a
case of playful thing, I didn’t mean anything by it, it got out of hand, it was a one-time
event, it’s not going to happen again, or is it something that’s been occurring for a period
of time and there was force involved, because that makes it a serious thing and, and so if,
if . . . my report reflects that, well, you know what, yeah it happened, it was a one-time
event, it was a playful thing she kind of encouraged it, she, you know, that’s a whole
different scenario so it, if, if, you know, you want to sit here and continue to tell me that
this precious little five-year-old is a liar, is she a liar?”
               Acosta stated, “[t]here’s tim[es] that she lies” to “get attention.” Hamilton
expressed doubt she would report that Acosta had put peanut butter on his penis and had
her lick it off to “five individuals” to get attention. Hamilton stated, “I don’t think you’re
being honest with me. So not, with you not being honest with me, like I said before, I
want to believe that you’re an upright guy who made a simple mistake, like I said we all
do, um, but not I don’t know if you’re lying about it, then maybe there’s a history to it,
there’s a pattern to it, this has been escalating and building up. Is that the case?”

                                                 5
              Acosta asked for clarification on what Hamilton meant by “building up.”
Hamilton said, “have you been touching her inappropriately for months now and then this
happened, or is this, was this a one-time event? Like I said before I’m, I’m going to be
completely truthful with you, I don’t believe you’re being honest with me, I know that it
happened okay. I’m, I’m, we’re also gathering evidence to indicate . . . right? You know
about DNA right?” Hamilton asked Acosta if he could say with certainty that his semen
would not be found on S.’s clothes. Acosta said his semen would not be found on her
clothes and he would be willing to provide a DNA sample.
              Hamilton responded: “Alright. Um, and hopefully that’s the case. I’ve
been doing this for nineteen years and I’ve been working on this unit for about four and a
half and, um, I’d love for it to be that I’m wrong, but I’ve done this a long time and I, and
I really don’t believe that I’m wrong okay. Um, and like I said before, I’d like to be able
to put in my report that, yeah, you know what, he feels remorseful, and he guarantees me
that this type of behavior is not going to continue. That’s going to go pretty far if, if it
comes to the point of going to court. If you continue to say, no, no, no, lie, lie, lie and
then we have the DNA evidence to prove it, you know, we have this little girl’s
statements from these five different people I guarantee you, by the time that [t]his gets
any further, she’ll be interviewed by a forensic specialist who does nothing but interview
children, um, and then to find out that you lied about it, it’s not going, it’s not going to
bode well for you. I hate, I ha[t]e to see that happen.” Hamilton added, “[y]ou know
because I think by, by denying this, you’re just digging a deeper hole, you know what I
mean?” Hamilton also told Acosta that he had been showing signs of nervousness “since
the moment I met you at the house.”
              Acosta asked Hamilton, “[c]an we speak off record right now? And after
talking off record, I’ll say something.” Hamilton clarified, “[w]ant me to turn this off,”
while gesturing to the small recording device on the table between them. Acosta
responded in the affirmative. Hamilton stated, “I’ll turn it off for you. Alright. It’s off.”

                                               6
Hamilton and Acosta engaged in the following dialogue, recorded by the video and other
audio equipment in the room.
               “ACOSTA: If, what needs to happen if we do go to court and they say that
I lied? Okay. Or if I say that it had, had, actually did happen, what would happen from
here and on?
               “HAMILTON: You know I, I, I’m just a worker bee.
               “ACOSTA: I know.
               “HAMILTON: I, I don’t, I don’t work for the DA’s Office . . .
               “ACOSTA: Uh-huh.
               “HAMILTON: . . . I’m not a Judge. I, I, I don’t see, I just, I can’t, I don’t
have a crystal ball, I can’t tell you . . .
               “ACOSTA: Okay. From your experience, what have you seen?
               “HAMILTON: Clarify that. What do you mean by that?
               “ACOSTA: Say, say, you’ve done this for a while, what have you seen in
cases of this magnitude?
               “HAMILTON: You know, I handle all different kinds of cases.
               “ACOSTA: Yeah.
               “HAMILTON: Okay. Um, when, when, when people continue to lie and
continue to lie, I mean, put yourself, put yourself in, in a District Attorney’s shoes, put
yourself in, in a Judge’s shoes, or in a jury’s shoes . . .
               “ACOSTA: Hmm.
               “HAMILTON: Oh, he, he doesn’t even feel remorseful? He’s been, he, he
lied about this? That means that this is gonna continue . . .
               “ACOSTA: Hmm.
               “HAMILTON: . . . this means he’s a, he’s a pedophile and, and, you know,
he, he, he may need to go away for, for life, he may need to go away for 25 years . . .
               “ACOSTA: Uh-huh.

                                                7
               “HAMILTON: . . . you, you know. And somebody, and once again I, I’m,
I can’t, I can’t promise anything . . .
               “ACOSTA: I know you can’t promise anything, I just want . . .
               “HAMILTON: But, but, um, you know, if, if someone shows that they’re
remorseful . . .
               “ACOSTA: Uh-huh.
               “HAMILTON: . . . um, I think human nature would show that hey it’s, he
feels bad. This is, this stuff, this kinda thing’s not gonna happen again.
               “ACOSTA: Uh-huh.
               “HAMILTON: You know what I mean.
               “ACOSTA: Hmm. Yeah, ‘cause right now this is gonna, ‘cause it is so bad
‘cause it’ll ruin, ruin my, it’s gonna ruin my job. It’s gonna ruin a lot of stuff for me.
               “HAMILTON: Right.
               “ACOSTA: And this is so bad. And I don’t wanna lose everything.
               “HAMILTON: I get that.
               “ACOSTA: Uh-huh.
               “HAMILTON: But do you, you wanna live a lie and then have
consequences anyway?
               “ACOSTA: Hmm. *** it’s hard to say.
               “HAMILTON: Right.
               “ACOSTA: I love H[.]. I love my daughter. I don’t want to ***
               “HAMILTON: And I do, I know you do.
               “ACOSTA: Right.
               “HAMILTON: You seem like a good guy. And like I said before . . .
               “ACOSTA: Uh-huh.
               “HAMILTON: We’re humans right?
               “ACOSTA: Yeah.

                                              8
                “HAMILTON: We make mistakes. Trust me.
                “ACOSTA: Uh-huh.
                “HAMILTON: I’ve made plenty in my day . . .
                “ACOSTA: Uh-huh.
                “HAMILTON: . . . you know, and like I said before, just like I tell, we tell
those sixth grade children, you make the mistake, you own up to it . . .
                “ACOSTA: Uh-huh.
                “HAMILTON: . . . and that’s a part of bein’ a man. And, and then . . . you
move on . . .
                “ACOSTA: Uh-huh.
                “HAMILTON: . . . and, and you, you come out and say, you know what, I
screwed up, this is not, I guarantee it’s not gonna happen again.
                “ACOSTA: Uh-huh.” (Original ellipses.)
                Hamilton told Acosta that H. wanted to trust him but if he were to continue
“this lie,” she was not going to trust him. Hamilton suggested to Acosta, “if you could go
to H[.] right now and say look, sweetie, I screwed up” and “I feel horrible and, and I, and
I want your forgiveness, um, I, I want S[.]’s forgiveness.” Hamilton then asked if alcohol
was involved and Acosta said “[n]o.” After confirming Acosta did not “smoke weed or
anything,” Hamilton said, “[b]ut nevertheless, um, we have hormones, you know, things,
our minds wander” and “things happen.” Hamilton asked Acosta whether it was his idea
and the peanut butter was involved to entice S. Hamilton also told Acosta that he “had to
know that she was gonna tell.”
                Hamilton and Acosta’s dialogue continued as follows.
                “ACOSTA: . . . I don’t know what to say. ‘Cause the—, there’s *** I’m
gonna lose everything.
                “HAMILTON: Well, not, not necessarily.
                “ACOSTA: Hmm.

                                              9
              “HAMILTON: Not necessarily.
              “ACOSTA: Hmm. Hmm. Probably get some jail time and ***
              “HAMILTON: Maybe. I, I don’t have a crystal ball . . .
              “ACOSTA: Well, I know that.
              “HAMILTON: . . . I can’t make, like I said before I can’t make any
promises. You came down here on, on your free will to talk with me. I told you that you
were free to go.
              “ACOSTA: Uh-huh.
              “HAMILTON: I appreciate your honesty. I, I feel like I’m really close to
being able to write my report.
              “ACOSTA: Uh-huh.
              “HAMILTON: And say, you know what, it’s obvious that [Acosta] knows
he screwed up and he was honest with me and, and, and he, he wants to ensure that this
type of behavior doesn’t continue. He wants to be around to make sure that those girls
are not harmed by, by anybody else.
              “ACOSTA: Uh-huh.
              “HAMILTON: Okay? You’re there to protect them.
              “ACOSTA: Uh-huh.
              “HAMILTON: Right?
              “ACOSTA: Uh-huh.
              “HAMILTON: And one of the ones that you’re there to protect, you let her
down.
              “ACOSTA: Uh-huh.” (First ellipsis added.)
              Acosta told Hamilton it was a one-time event. He said it happened in the
living room and that he had used a peanut butter packet. He told Hamilton that the
ejaculate went “nowhere near her.” After more questions, Hamilton placed Acosta under
arrest and read him his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

                                           10
Hamilton asked Acosta whether there “was a time with the peanut butter and a time
                                                    2
without” because S. had said it occurred twice. Acosta said it happened only once with
the peanut butter and he did not put his penis in her mouth but that it was “[j]ust a lick.”


                                             III.
                                    DEFENSE EVIDENCE
              A test conducted on pants found at S.’s apartment did not show the
presence of semen. H.’s roommate, who had been home the night of the molestation,
testified he did not see anything unusual.
              An expert neuropsychologist conducted a five-hour neuropsychological
assessment of Acosta and testified that Acosta has a “dependent personality style” and
was considered “on the edge for what we call dependent personality disorder” which
involves “folks that are less assertive. They are easily coerced. They avoid
confrontation. They are more passive in their behavior. Lower self-esteem.” He further
testified, “[i]f you are not a confrontational person, you are more likely to give in
sooner.” The expert found that Acosta had an average intelligence quotient, and did not
find he had any neurological impairments.


                            PROCEDURAL BACKGROUND
              Acosta was charged in an information with oral copulation with a child 10
years old or younger, in violation of Penal Code section 288.7, subdivision (b) (count 1),
and committing a lewd act upon a child under 14 years old, in violation of Penal Code
section 288, subdivision (a) (count 2).
              Acosta filed a motion in limine seeking the exclusion of his statements to
Hamilton during his interview at the Fullerton Police Department. He argued his
 2
   S. had told Gardea that the same thing “happened twice on the same day. One with
peanut butter. One without.”

                                             11
statements were the product of police coercion because they were made in a custodial
setting without the benefit of an advisement under Miranda, and were not knowingly,
intelligently, and voluntarily given.
              The trial court viewed the video recording of Hamilton’s interview of
Acosta and after conducting a hearing, the court denied the motion. The court
thoughtfully set out its findings and reasoning on the record. The trial court found that
Acosta was not in custody for purposes of Miranda until he was arrested. The court
observed that Acosta was willing to, and did, drive to the police station to speak with
Hamilton, Hamilton was wearing plain clothes, Hamilton informed Acosta he was free to
leave, and Acosta had access to his cell phone.
              The trial court stated that Acosta’s argument regarding the voluntariness of
his statements was his “stronger argument.” Citing People v. Holloway (2004) 33 Cal.4th
96, the court stated the video recording reflected “a very casual conversation” between
Hamilton and Acosta. The court noted “Detective Hamilton never in his tone implies that
he is angry or forceful with the defendant. He appears to be having a conversation where
they’re both able to communicate. There was nothing about that conversation that leads
the court to believe that the free will of the defendant was overcome or that he was, in
fact, promised something implicitly or threatened implicitly or explicitly under either of
those scenarios. [¶] Rather, the officer was informing him honestly as to what would
happen in terms of relaying the information, and the fact that individuals can take into
consideration remorse. But he wasn’t promising him with any particular result or threat.
[¶] The court believes that the defendant did voluntarily make the statements of
                                                        3
admission not because of any conduct of the officer.”


 3
    The court noted that the portions of the interview, on which Acosta relied in support
of his motion in limine to show his statements were made involuntarily, “are the
statements that, of course, would make the court cringe if looking at them by
themselves—and I say that not because I think that they were the type that rendered this

                                            12
              The jury found Acosta guilty as charged on both counts. The trial court
sentenced Acosta to 15 years to life in state prison by imposing a term of 15 years to life
on count 1, and the middle term of six years on count 2, to run concurrently to the
sentence imposed on count 1. Acosta appealed.


                                        DISCUSSION
              Acosta contends the trial court erred by admitting evidence of his
statements to Hamilton because they were involuntarily made. He contends the
admission of that evidence violated his rights under the Fifth and Fourteenth
Amendments to the United States Constitution. Although some of Hamilton’s statements
make this a closer call, we conclude that under the totality of the circumstances, Acosta’s
statements were voluntarily made and properly admitted at trial.


                                               I.
               APPLICABLE LEGAL PRINCIPLES AND STANDARD OF REVIEW
              “Both the state and federal Constitutions bar the prosecution from
introducing a defendant’s involuntary confession into evidence at trial. [Citations.] ‘“A
statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’
[Citation.] The test for determining whether a confession is voluntary is whether the
defendant’s ‘will was overborne at the time he confessed.’”’ [Citations.] [¶] ‘“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. [Citation.]”

involuntary, but as I said, it’s always better if there’s zero issues regarding that rather
than an issue.”

                                               13
[Citation].’ [Citation.] A confession is not rendered involuntary by coercive police
activity that is not the ‘motivating cause’ of the defendant’s confession. [Citation.]”
(People v. Linton (2013) 56 Cal.4th 1146, 1176.)
              “‘The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.’ [Citation.] ‘Whether a
confession was voluntary depends upon the totality of the circumstances.’ [Citations.]
‘On appeal, we conduct an independent review of the trial court’s legal determination and
rely upon the trial court’s findings on disputed facts if supported by substantial evidence.’
[Citation.] The facts surrounding an admission or confession are undisputed to the extent
the interview is tape-recorded, making the issue subject to our independent review.
[Citation.]” (People v. Linton, supra, 56 Cal.4th at pp. 1176-1177.)
              Under both state and federal law, relevant factors in determining the
question of voluntariness of a confession, by applying the totality of circumstances test
include “‘“‘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.’”’” (People v. Boyette (2002) 29 Cal.4th 381, 411.)


                                               II.

                     THE TOTALITY OF THE CIRCUMSTANCES SHOW
                   ACOSTA’S STATEMENTS WERE MADE VOLUNTARILY.
              Acosta argues that “viewed under the totality of the circumstances, [his]
recorded statement, without the benefit of proper legal advice or any Miranda warning”
               4
(italics added) was made involuntarily because Hamilton (1) deliberately minimized
Acosta’s prison-time exposure; (2) made “material misstatements of pertinent law”; and

 4
   Acosta does not argue that his statements were inadmissible because he had not been
advised of his Miranda rights.

                                               14
(3) made “improper promises of leniency.” Viewing Hamilton’s statements in context,
they were “not ‘“of a type reasonably likely to procure an untrue statement”’” (People v.
Jones (1998) 17 Cal.4th 279, 299), and did not render Acosta’s statements to Hamilton
involuntary.
               Acosta argues Hamilton improperly minimized Acosta’s prison-time
exposure and, in so doing, misrepresented the law. Hamilton referred to S.’s report of
what had happened as “not the crime of the century.” After Acosta asked Hamilton to
speak off the record and asked him about what happens if “it had, had, actually did
happen,” Hamilton immediately explained to Acosta that Hamilton is only a “worker
bee,” does not work for the district attorney’s office, is not a judge, and does not have a
crystal ball. When pressed by Acosta about what Hamilton had seen in his experience
with cases like this, Hamilton told Acosta to put himself in the district attorney’s, a
judge’s, or a jury’s shoes in viewing someone who continues to lie. Hamilton stated that
a person who is not remorseful would continue the conduct and is a pedophile who “may
need to go away for, for life, he may need to go away for 25 years.”
               When Acosta told Hamilton that he did not know what to say because he
was “gonna lose everything,” Hamilton responded by saying “not necessarily,” which did
not foreclose the possibility that Acosta would lose everything, whatever that means,
depending on what Acosta would admit to. When Acosta said, “[p]robably get some jail
time,” Hamilton responded, “[m]aybe. I, I don’t have a crystal ball.”
               Hamilton did not know what Acosta was about to confess, including the
surrounding circumstances. Specifically, he did not know that Acosta would admit to
conduct that qualifies as oral copulation with a child under 10 years old in violation of
Penal Code section 288.7, subdivision (b), which carries a mandatory 15-year-to-life
prison term. He did not know Acosta would admit to this general intent crime to which
playfulness, single molestation, and remorse are not defenses. Although Hamilton’s
statements were intended to make Acosta comfortable and encourage him to reveal the

                                             15
truth of what had happened with S., they did not minimize Acosta’s criminal liability
exposure so as to render Acosta’s confession involuntary.
              Acosta argues Hamilton employed psychological tactics (as he admitted at
trial) to encourage Acosta to confess and his statements “came directly on the heels” of
those tactics. Acosta further argues those tactics included proscribed “direct or implied
promises, however slight.” As a result, Acosta asserts he “was ‘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.’”
              In People v. Smith (2007) 40 Cal.4th 483, 505-506, the California Supreme
Court held the defendant’s incriminating statements to police were not rendered
involuntary because the police officers falsely told him that they had conducted a test
which showed the defendant had recently fired a gun. The Supreme Court stated,
“[p]olice deception ‘does not necessarily invalidate an incriminating statement.’” (Id. at
p. 505.) In People v. Jones, supra, 17 Cal.4th at pages 297-298, the California Supreme
Court stated: “‘The courts have prohibited only those psychological ploys which, under
all the circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable.’”
              Acosta has failed to identify a single promise that Hamilton made, except
Hamilton’s general suggestion that telling the truth has its benefits. Hamilton alluded to
such benefits as including the potential of restoring trust with loved ones, healing family
relationships, possibly making a positive impression on decision makers, such as juries or
judges, and possibly reducing the chance others might think Acosta was guilty of conduct
that was worse than what had actually happened. Hamilton repeatedly told Acosta that
he could not make any promises to him. Acosta has also failed to show that any
psychological ploy, utilized by Hamilton during the interview, had a causal connection to
Acosta’s decision to confess.



                                             16
              In his opening brief, Acosta also argues the record shows he was not a
“sophisticated criminal defendant,” given, inter alia, that he had no prior criminal record,
asked to speak off the record, and inquired about his potential criminal liability and
police and court procedures. He also argues that he made his statements without the
benefit of any attorney’s advice and receiving Miranda warnings.
              Although Acosta was unfamiliar with the criminal justice system and with
police, jail, and court procedures, “the record does not even hint that these factors came
into play in this case,” to bear on the question whether his statements to Hamilton were
voluntary. (People v. Boyette, supra, 29 Cal.4th at p. 412 [rejecting the defendant’s claim
that his youth, lack of educational achievement, modest level of literacy, and
unfamiliarity with the legal system rendered his confession involuntary].) Acosta’s
expert witness testified that Acosta had an average intelligence quotient and no
neurological impairments. Acosta does not argue that he did not understand the
proceedings or Hamilton’s questions during the interview, or otherwise show the
existence of any factor that resulted in him making involuntary statements during the
interview.
              Acosta argues the trial court erroneously relied on People v. Holloway,
supra, 33 Cal.4th 96, which, he contends, is “wholly inapposite.” The trial court
acknowledged distinguishable aspects of that capital case, including the fact that in
People v. Holloway, the defendant had been read his rights under Miranda before making
incriminating statements. In People v. Holloway, the California Supreme Court held,
inter alia, that “‘[i]t 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

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truthful and honest course of conduct,” the subsequent statement will not be considered
involuntarily made. [Citation.]’” (People v. Holloway, supra, at p. 115, italics added.)
              Upon our independent review of the totality of the circumstances (People v.
Boyette, supra, 29 Cal.4th at p. 412), we conclude Acosta’s statements to Hamilton were
made voluntarily. The trial court therefore did not err by admitting evidence of them at
trial.


                                     DISPOSITION
              The judgment is affirmed.



                                                 FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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