Filed 10/27/14 P. v. Arteaga CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066140
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF137123A)
                   v.

ROMAN ARTEAGA,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Following a jury trial, defendant Roman Arteaga was convicted on three felony
counts: one count of engaging in sexual intercourse or sodomy with a child 10 years old
or younger in violation of Penal Code section 288.7, subdivision (a),1 (count 1), and two
counts of engaging in oral copulation or sexual penetration of a child 10 years old or
younger in violation of section 288.7, subdivision (b), (counts 2 & 3). Defendant was
found not guilty on counts 4 and 5 for the felony offenses of committing a lewd or
lascivious act with a child under the age of 14 in violation of section 288, subdivision (a),
but was found guilty of the lesser included offense to each count, battery, a violation of
section 243, subdivision (a).2
       On appeal, defendant contends his convictions in counts 1, 2 and 3 should be
reversed because (1) police violated his constitutional rights by coercing him into making
incriminating statements; (2) the trial court committed prejudicial error by instructing the
jury that sexual penetration under section 288.7 is a general intent crime; and (3) as a
Mexican national, he should have been advised, upon his arrest and prior to his
interrogation, of his right to seek advice and representation from the Mexican Consulate
under the Vienna Convention and, since he was not, his statements should have been
suppressed or he should have been given the right at trial to consult with consular
officials regarding his case.
       We hold: (1) the police did not coerce defendant into making involuntary
incriminating statements; (2) although the trial court committed instructional error
regarding section 288.7, subdivision (b), the error was not prejudicial; and (3) defendant

1      All statutory references are to the Penal Code unless otherwise noted.
2      Regarding counts 4 and 5, defendant was also found guilty of an enhancement for
committing an offense against more than one victim under section 667.61,
subdivision (e)(4). The prosecution dismissed these enhancements following the
verdicts.



                                             2.
cannot use the Vienna Convention to suppress his statements to police and reverse his
convictions. Accordingly, we affirm.
                                      BACKGROUND
I.        Prosecution evidence
          A. Counts 1 and 2 – Di.3
          The jury convicted defendant on counts 1 and 2, which involved defendant’s
granddaughter, Di.
          When she was eight or nine years old, Di. and her sister, Da., rode with defendant
in his car in Bakersfield. Defendant dropped off Da. at one corner and drove Di. to
another corner. Defendant told Di. to pull down her pants but she refused. He then got
into the backseat where Di. was, pulled down her pants, and removed her underwear.
Defendant lay on top of Di. and put his penis inside her vagina, which she felt “a little”
inside her and “it was kind of in there.” Defendant then got up, and told Di. to pull up
her pants. When she sat up, Di. saw “white stuff” on the seat of the car in one spot next
to her. Defendant returned to the front seat of the car and drove back to where he had left
Da. and picked her up.
          About a year later, when she was about 10 years old, Di. went into defendant’s
residence to retrieve a bicycle. Defendant directed her to a room, followed her, and, once
in the room, removed her pants and licked her vagina. This did not last “very long” and
Di. then went outside.
          Di. did not tell anyone about these two incidents because she was embarrassed and
afraid.




3     In this opinion, certain persons are identified by initials in accordance with our
Supreme Court’s policy regarding protective nondisclosure. No disrespect is intended.



                                               3.
       B. Count 3 – Da.
       The jury convicted defendant on count 3, which involved Da., defendant’s
granddaughter.
       Da. rode with defendant and her sister, Di., in Bakersfield. Da. is a year older than
Di. Defendant dropped her off at a street corner and drove away with Di. Da. was scared
and did not know when defendant was going to return, or where he was going.
Defendant then returned and dropped off Di. Defendant drove off with Da. He had her
sit on his lap while he drove. Defendant asked Da. if he could touch her. She did not
know what he meant, but she told him no. Defendant then drove back to the street
corner, picked up Di., and they went home.
       Sometime later, Da. was at defendant’s residence at night watching a movie with
defendant and her grandmother. They were on a bed in a dark room. Da. lay between
her grandparents. Defendant was at the head of the bed and her grandmother was at the
foot of the bed with her back to them watching the movie. Defendant placed his hand
down Da.’s pants, touched her vagina and put his finger into her vagina. Da. attempted to
take out defendant’s finger by pulling his hand out of her pants, but she was not strong
enough to do so. She did not say anything out loud to alert her grandmother. Defendant
then took her hand and made her reach inside his pants so that she touched his penis.
       After defendant touched her, they finished watching the movie and Da. left
without saying anything. Da. never told anyone about this incident because she was
afraid of getting into trouble.
       C. Count 4 – De.
       The jury convicted defendant on count 4, which involved De., defendant’s
granddaughter.
       When she was six or seven years old, De. rode with defendant to a store in
Bakersfield. Defendant touched her upper left thigh with his right hand for “five
minutes” while they were in the car. She tried to move away but was unable to do so

                                             4.
because the door was next to her. When defendant finished he instructed her not to tell
her mother. De. was scared while it happened, but she never told anyone about it.
       D. Count 5 – M.
       The jury convicted defendant on count 5, which involved M. M. was 12 years old
at the time she testified. Her sister is the mother of Di., Da. and De.
       When M. was around nine years old, defendant touched her on her vagina and
buttocks. This happened more than five times. She did not know if it happened more
than 10 times. It happened when M. visited her sister’s home. Defendant touched her
sometimes over her clothes and sometimes under. He did not touch her on her vagina
and her buttocks every time, but one or the other. She stated defendant would “slide it”
when describing how he touched her with his hand on her vagina under her clothes and
she testified defendant would just “touch it” when asked to describe how he touched her
buttocks with his hand.
       A little over a year prior to her trial testimony, M. spoke with Detective Caldas
and she told him about defendant touching her buttocks but she did not say anything
about defendant touching her vagina. She first informed Caldas about defendant
touching her vagina the Friday before her trial testimony. M. did not tell Caldas about
that at their first meeting because she forgot and was scared.
       E. Detective Caldas’s testimony
       Caldas interviewed Di., Da. and M. about what happened with defendant. Di.
informed him defendant’s penis was “erect” when she was with him in the back of his
car, and “white stuff” came out onto her vagina. Da. informed him she was nine or 10
years old when defendant digitally penetrated her. Caldas confirmed M. never mentioned
defendant touching her vagina when he interviewed her in June 2011, but she
remembered it and first told him on September 14, 2012, the Friday before the trial.




                                             5.
       Caldas also interrogated defendant, which was recorded, regarding allegations
defendant sexually abused his granddaughters. The jury viewed the recording at trial and
was provided a copy of the interview transcript.
       Caldas used a “ruse” to get “the truth” from defendant when he interrogated him.
Caldas incorrectly informed defendant that Di. was medically examined and he implied
DNA linked defendant to the criminal allegations. Prior to the ruse, defendant had denied
involvement in the alleged activities. Caldas used the DNA ruse because it was a tactic
he had used “numerous years” in his assignments and it had worked for him.
       Caldas also placed a “religious card”4 (the Saint Card) (taken earlier from
defendant’s wallet) on the table in front of defendant. Caldas told defendant he wanted to
tell the girls that defendant “had repented for what he did.” Defendant then said “lock me
up” but continued to deny what had happened. Caldas continued to press defendant,
saying words to the effect of, “If you’re repenting, I need more information.”
II.    Defense evidence
       Defendant testified on his own behalf and was the only witness for the defense.
He denied engaging in sexual intercourse or oral copulation with Di., and he denied
touching Da.’s vagina. He also denied touching De. in a sexual way but admitted he
touched or slapped her right knee while he drove her to a store. He denied ever touching
M.’s vagina, but recalled a time when the family played soccer, and he fell and “touched
her butt.”




4      Caldas testified during the Evidence Code section 402 suppression hearing this
was a “photograph of the Lady of Guadalupe” but, during the taped interview, Caldas
referred to the saint as a “gentleman” and defendant stated it was “Saint Olivio.”
However, during the trial, Caldas testified it was “a picture of -- it looked like the virgin -
- the Virgin Mary.” Caldas admitted during trial cross-examination he could not
remember at that point whom the card depicted.



                                              6.
       Defendant stated all the girls were incorrect in their testimony. When asked why
he thought the girls would not tell the truth about what happened, defendant suggested it
was his wife who wanted the girls to say these things for unspecified “vengeance.”
       Defendant testified Caldas “forced” him to make incriminating statements because
Caldas lied to him. Defendant stated he was “shaking” and was “very nervous” during
the interview, and he was “scared” when Caldas talked about DNA. Defendant said he
lied to Caldas because he was pressured and felt fearful.
                                       DISCUSSION
I.     Defendant’s statements to the police
       Defendant contends the court erred in denying a motion to suppress the
incriminating statements he made to police during custodial interrogation. Defendant
argues the detective coerced statements from him by appealing to his religious beliefs and
using his lack of education to deceive him as to the nature of DNA evidence.
       A. Facts from the suppression hearing
       The trial court conducted a pretrial hearing under Evidence Code section 402
regarding the admissibility of defendant’s statements to Caldas. During the hearing,
neither the recording nor the transcript was offered into evidence. The only evidence
came from Caldas’s testimony. Defendant’s counsel, however, referred to the transcript
during the hearing when cross-examining Caldas.
       Caldas interviewed defendant on June 6, 2011, and he advised defendant of his
rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before asking
incriminating questions. Defendant verbally answered “yes” to each of the Miranda
advisements, indicated he understood his rights and he agreed to talk. Defendant then
made numerous denials before Caldas observed a photograph of a saint in defendant’s
wallet (the Saint Card), took it out and placed it on the table. Either before or after
placing the Saint Card on the table, Caldas made a reference that, if you touch somebody,
the DNA stays on them forever. Caldas could not recall whether his DNA comment or

                                              7.
the placing of the Saint Card occurred first without reviewing the recording. Caldas
agreed that, prior to this time, defendant had been denying any sexual contact with the
girls. Caldas testified that, after placing the Saint Card on the table, defendant stated “I
repent” and he began confessing. The hearing then ended.
       As to the coercion issue, defendant’s counsel argued the use of the Saint Card
induced defendant to confess in violation of his constitutional rights. The trial court,
however, ruled Miranda rights were appropriately given and no coercion took place. In
deciding that no coercion occurred, the trial court noted it did not “have enough facts and
information” to know whether or not defendant was a religious man or whether showing
the Saint Card would affect him in any way. The trial court stated it appeared to be “a
typical ruse that officers use during the course of a questioning to get the defendant to say
something.” The trial court said it did not “see that showing [the Saint Card] to
[defendant] was coercive in any way. He saw … the [Saint Card] and then apparently
said that I repent and began confessing. [¶] So I find that … Miranda rights were
appropriately given at the time, and at least on the information I have in front of me now
there was no coercion on behalf of Officer Caldas to the defendant.”
       B. Facts from the recording and transcript
       On appeal, defendant references the transcript and portions of the recording not in
evidence during the hearing to support his argument his statements were inadmissible due
to references to religion and the lie about the DNA evidence. In a footnote, respondent
asks us to disregard this evidence because it was not before the trial court during the
hearing. Respondent argues that “‘when reviewing the correctness of a trial court’s
judgment, an appellate court will consider only matters which were part of the record at
the time the judgment was entered.’ [Citation.]” (Vons Companies, Inc. v. Seabest
Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) “A defendant cannot challenge a lower
court’s ruling and then ‘augment the record’ with information not presented to (or
withheld from) the lower court.” (People v. Brown (1993) 6 Cal.4th 322, 332.)

                                              8.
       Defendant counters that, even if the transcript and recording were not admitted
into evidence at the hearing, the trial court was aware of the transcript and the recording
and failed in its duty to fully explore the issue and consider all circumstances surrounding
the interrogation. In addition, defendant claims this court must undertake an independent
review of the evidence to determine if defendant’s constitutional rights were violated.
       We need not determine if our review is limited solely to the testimony presented at
the hearing or if it includes the recording and transcript because, under either method of
review, defendant’s claim is meritless.5
       Shortly after starting the recording of defendant’s interview, Caldas left the room
to get a cup of water for defendant. While Caldas is off screen (and presumably out of
the interview room), defendant “crossed himself.” There is no evidence Caldas saw
defendant cross himself.
       After returning, and prior to advising defendant of his rights under Miranda,
Caldas asked him for his social security number, defendant stated he did not know it, and
began to search through his wallet. Caldas asked defendant for his wallet. After
defendant handed it to him, Caldas searched it. In doing so, Caldas located the Saint
Card and asked about it. Defendant indicated it depicted a saint. Caldas almost
immediately set the Saint Card aside away from defendant and he continued to search
through defendant’s wallet.
       Caldas then advised defendant of his rights under Miranda. Defendant indicated
he understood his rights and he agreed to talk. At no time did defendant ask for a lawyer
or invoke his right to silence.




5      We express no opinion regarding defendant’s contention the trial court failed in its
duty to review the recording and transcript during the hearing despite defendant’s failure
to offer them into evidence.



                                             9.
       Caldas informed defendant he wanted the truth and stated “sometimes we make
mistakes …. [¶] … [¶] … because of alcohol” and he wanted defendant’s
granddaughters to understand “that their grandfather didn’t do it on purpose.” Defendant
said it was okay to talk.
       When first asked, defendant stated the girls were lying about the allegations.
Caldas then informed defendant, “… I know that you sexually abused [Di.]. What I don’t
know is why? I don’t know if you were a little drunk. I don’t know if you were a little
drugged up. Or if you really need help and these are one of those things that one can’t
control.” Defendant only responded with “Uh huh.”
       Caldas then used the “ruse” and informed defendant Di. had been examined and
DNA stays on a person’s body “forever.” Caldas implied defendant’s DNA had been
discovered based on a match to defendant’s fingerprint. Caldas then informed defendant,
“I know you did it. Okay?” Defendant said something unintelligible and Caldas told him
to “stop the lies.”
       Caldas then stated, “I want to go to the little girls and tell them, ‘You know what,
[defendant] promised, told the truth and repented from what he did.’” At or about the
same time, Caldas moved the Saint Card in front of defendant and tapped it once with his
closed fist to emphasize his statement. Defendant then crossed himself, appeared to start
crying and stated, “Okay.” Caldas then asked, “Okay[,] what happened?” Defendant
stated, “I just got her like this” (touching his right leg/thigh) and “That was all.”
Defendant then indicated he “asked for forgiveness” and he stated, “May God forgive
me.” Defendant then asked Caldas to “lock me up.” Caldas, however, informed
defendant he first needed to state what happened.
       Caldas then confronted defendant about touching Da.’s vagina, which defendant
denied. Caldas said, “Okay, if you are really repenting of this, I need the truth my son.”
Defendant stated, “It’s fine, it’s fine, if I touched her, I’m sorry, I was drunk too.” Caldas
then asked defendant why he touched her, and defendant answered, “I don’t know what

                                              10.
happened. She was hugging me like this but I don’t know. I don’t understand them.
But, by no means. Forgive me and may God forgive me and you give me what you’re
going to give me.”
       Caldas then informed defendant he had not told him anything and “right now I
can’t tell the girls that you have been honest.” Caldas again asked defendant why he
touched Da.’s vagina and defendant answered, “I didn’t, I didn’t (unintelligible) I was
drunk that day.” Defendant then demonstrated to Caldas how he touched Da.’s vagina by
touching around his groin area. Caldas later asked defendant how much of his finger
went inside Da.’s vagina and defendant answered, “No[,] it was just like this. [¶] … [¶]
… Like this but outside.”
       Regarding Di., defendant stated she got on top of him while he was lying face up
and he told her, “‘Get off.’” Defendant stated Di. got on top of him but they did not have
sex. He told Caldas, “No, she’s my granddaughter. I was very drunk.”
       Caldas questioned defendant about the incident with Di. in the car and asked if she
was flirting; defendant answered, “Yes, she was. She was. [¶] … [¶] … She would tell
me to give it to her, to give it to her and I told her no, no mama.” After being questioned,
defendant stated Di. took off her pants, sat on him and told him “to give it to her” and he
told her “‘No.’” Defendant denied his penis entered into Di.’s vagina “because it doesn’t
work.” He told Caldas he did not take out his penis but it was Di. who did so and she
“would sit on it” but it did not stand up. Caldas denied ejaculating and denied putting
sperm inside Di.’s vagina but he said “… I just felt a little bit wet but it was inside my
underwear.”
       Caldas asked him about touching M.’s buttocks, and defendant stated he said,
“‘Run [M.]’” and “hit her” while they were playing soccer.
       C. Standard of review
       “Any involuntary statement obtained by a law enforcement officer from a criminal
suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal

                                             11.
Constitution and article I, section 7 of the California Constitution.” (People v. Dykes
(2009) 46 Cal.4th 731, 752.) To determine whether a confession is voluntary, courts
examine “‘“whether a defendant’s will was overborne”’” by examining all of the
circumstances surrounding the confession. (Ibid.) “In making this determination, courts
apply a ‘totality of the circumstances’ test, looking at the nature of the interrogation and
the circumstances relating to the particular defendant.” (Ibid.; People v. Haley (2004) 34
Cal.4th 283, 298.) Among the factors to examine 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.”’” (People v. Massie (1998) 19 Cal.4th 550,
576.)
        “‘The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.’” (People v. Linton (2013)
56 Cal.4th 1146, 1176, quoting People v. Carrington (2009) 47 Cal.4th 145, 169.) “‘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.’”
(People v. Linton, supra, at pp. 1176-1177, quoting People v. Williams (2010) 49 Cal.4th
405, 425.) “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.” (People v. Linton, supra, at p. 1177, citing People v. McWhorter (2009) 47
Cal.4th 318, 346.)
        D. Caldas’s references to religion were permissible
        Defendant relies on the holding from this court in People v. Adams (1983) 143
Cal.App.3d 970 (Adams), disapproved on other grounds in People v. Hill (1992) 3
Cal.4th 959, 995, footnote 3, for the proposition his statements to Caldas were
involuntary because of religion. This reliance is misplaced.



                                               12.
       In Adams, the police interviewed the defendant several times concerning her claim
that several unidentified assailants murdered her boyfriend. The sheriff, who knew her
from church and her employment at a Christian bookstore, then spoke with her alone and
told her he did not believe her story based on the physical evidence and her behavior.
The sheriff knew the defendant was suffering from nervousness and was having difficulty
sleeping. The sheriff suggested to the defendant she was having a difficult time telling
the truth because of their prior relationship through the church. (Adams, supra, 143
Cal.App.3d at p. 979.) He reassured her he would not judge her or think of her as un-
Christian and explained to her “there was accountability attached to her actions, that [the
defendant] knew this as a Christian, and should she continue to deny accountability for
what he believed she had done, she would continue to have problems in experiencing
more guilt.” (Ibid.) The sheriff quoted Bible verses indicating “‘God is a merciful God’”
(ibid.), but disregarding God’s rules would cause God to turn his back on that individual,
who would suffer some form of retribution. (Id. at p. 980.) The sheriff referred to a book
written by a minister which included a description of a young woman in a mental
institution suffering from a “‘sin factor’” arising from guilt. He told the defendant he
believed her situation was similar, suggesting she could end up in a mental institution.
(Ibid.) The defendant indicated her story might not be true, but stated she did not want to
spend the rest of her life in jail. The sheriff responded that only a judge could determine
the sentence but explained some people received sentences of only “‘four to seven
years’” (id. at p. 981) for killing another person. The defendant then admitted she had
been lying and directed officers to the murder weapon.
       Adams agreed the cumulative effect of the sheriff’s reliance on his friendship with
the defendant, his knowledge and use of her religious beliefs, and his suggestion she
might end up in a mental institution if she did not tell the truth rendered her admissions
involuntary. (Adams, supra, 143 Cal.App.3d at pp. 983, 986, 989.) Adams noted “the
totality was not purely intellectual persuasion, but an overwhelming and calculated

                                            13.
appeal to the emotions and beliefs, focusing [the defendant’s] fears in an area the sheriff
knew [the defendant] to be particularly vulnerable.” (Id. at p. 986.)
       Here, defendant’s argument Caldas knew defendant to be particularly vulnerable
and used religion as the mechanism through which he manipulated defendant into making
admissions is without merit. Unlike the sheriff in Adams, there is no evidence Caldas
was acquainted with defendant, let alone had a prior friendship based on attending the
same church. Further, it is pure speculation Caldas “may have seen [defendant] crossing
himself when left in the room alone prior to the start of the interrogation.” Even if,
arguendo, Caldas saw defendant cross himself before he found the Saint Card, Caldas’s
brief reference to religion, by itself, is not an impermissible coercive technique. (People
v. Kelly (1990) 51 Cal.3d 931, 951-953 [permissible for officer who learned suspect was
Christian to tell suspect his actions violated Christian upbringing along with state law and
everything else].)
       Caldas’s brief religious references were not pervasive as in Adams and, unlike the
sheriff in Adams, Caldas did not quote bible verses. Unlike the sheriff in Adams, Caldas
neither suggested defendant’s failure to confess would result in a mental health
commitment nor did he suggest defendant would receive a leniently short sentence.
Unlike the sheriff in Adams, Caldas did not attempt to lecture defendant about God’s law,
sin, guilt or a “‘reprobate mind.’” (Adams, supra, 143 Cal.App.3d at pp. 979-980 &
fn. 8.) Caldas did not assume the role of a priest or a spiritual advisor, as defendant
contends, but simply sought information while speaking in a quiet tone and without
lecturing defendant about God.
       Caldas did not place his hand on the Saint Card like he was “swearing” on a Bible
as defendant argues, but rather he tapped it once with his closed fist after stating he
wanted to tell the granddaughters that defendant told the truth and repented. Caldas used
defendant’s granddaughters, as much if not more than any reference to religion, as the
mechanism to elicit defendant’s statements, and his infrequent use of the words “repent”

                                             14.
or “repented” appeared less associated with religion than a general plea for defendant to
confess his crime.6
       Caldas’s brief reference to religion was not “an overwhelming and calculated
appeal” to defendant’s emotions and beliefs in an area Caldas knew defendant was
vulnerable. (Adams, supra, 143 Cal.App.3d at p. 986.) Adams is distinguishable and
does not control.
       Instead, Caldas’s brief reference to religion was an exhortation to tell the truth.
Exhortations to tell the truth, unaccompanied by either a threat or a promise, do not
render defendant’s statements involuntary. (People v. Carrington (2009) 47 Cal.4th 145,
174, 176 [detective’s statement “‘there’s someone up above, bigger than both us looking
down saying Celeste, you know that you shot that person … and it’s time to purge it all’”
was not calculated to exploit religious beliefs].) When defendant denied certain
allegations, Caldas stated, “Okay, if you are really repenting of this, I need the truth[,] my
son.” When defendant further continued to deny specific allegations, Caldas told him he
thought he was lying, and it was important to tell the truth because “right now I can’t tell
the girls that you have been honest.” There was nothing impermissible about Caldas’s
comments. (People v. Hill (1967) 66 Cal.2d 536, 549 [nothing improper where benefit
mentioned by the police is merely that which flows naturally from a truthful and honest
course of conduct].)
       Moreover, defendant resisted whatever psychological pressure Caldas employed in
appealing to his feelings about his family and seeking forgiveness because he continued
to deny engaging in certain conduct, such as removing Di.’s pants, touching Da.’s vagina,




6      The first definition of “repent” is “[t]o feel remorse, contrition, or self-reproach for
what one has done or failed to do; be contrite.” (American Heritage Dict. (4th ed. 2006)
p. 1479.)



                                             15.
and having sex with Di. This suggests defendant’s will was not immediately overborne
because of religion.
       As such, the trial court properly denied defendant’s motion to suppress based on
the evidence before it and, even when the entire record is reviewed to include evidence
not considered during the hearing, defendant’s statements were not coerced by references
to religion.
       E. Caldas’s misrepresentation about DNA was permissible
       Defendant also contends the court should have excluded his statements to Caldas
because Caldas capitalized on his lack of education and ignorance regarding modern
science “to trick” him into “thinking that DNA evidence conclusively established his
guilt.” He further argues Caldas tied the DNA deception to an appeal to his religious
beliefs and, under the totality of the circumstances, this successfully overbore his will.
       “Lies told by the police to a suspect under questioning can affect the voluntariness
of an ensuing confession, but they are not per se sufficient to make it involuntary.”
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) “Where the deception is not of a
type reasonably likely to procure an untrue statement, a finding of involuntariness is
unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182 [fabricated evidence of
fingerprints on a wallet alone not of type reasonably likely to procure an untrue
confession]; People v. Thompson (1990) 50 Cal.3d 134, 167 [officers repeatedly lied,
insisting they had forensic evidence linking the suspect to a homicide]; In re Walker
(1974) 10 Cal.3d 764, 777 [confession found voluntary where wounded defendant was
told, perhaps deceptively, that he might die before reaching the hospital and that he
should talk to close the record].)
       Here, while scientific evidence can be persuasive, defendant failed to demonstrate
the DNA deception was “reasonably likely to procure an untrue statement.” (People v.
Farnam, supra, 28 Cal.4th at p. 182.) There is no substantive difference in coerciveness
between the untrue DNA evidence here and falsified fingerprints and forensic evidence

                                             16.
the Supreme Court has found unlikely to prompt a false confession. (Id. at p. 182
[fabricated fingerprints on a wallet]; People v. Musselwhite, supra, 17 Cal.4th at p. 1241
[fingerprints falsely said to have been lifted from victim’s neck]; People v. Thompson,
supra, 50 Cal.3d at p. 167 [lie police had found soil samples, car tracks and rope fibers
connecting suspect to murder did not invalidate confession].)
       Defendant further argues the deception worked because Caldas knew defendant
only had a second grade education in Mexico, had been raised by a series of relatives
after his parents’ death, had a very hard youth “‘washing cars, cleaning windows,’” and
now worked as a field laborer and recycler. However, defendant is incorrect Caldas
testified he used the DNA ruse “because he knew [defendant] had very little education.”
To the contrary, Caldas testified he did not use the ruse based on defendant’s level of
education, but, rather, because it was a tactic he had used “numerous years” and it had
worked well for him. Further, while defendant may have had a hard childhood, he was
born in 1960 and there is no evidence to suggest he lacked maturity or had mental health
issues that allowed him to be easily coerced. There is also nothing about the length of the
single interrogation, lasting just under 39 minutes, or its location, to raise concerns.
       The combination of the DNA deception and the religious references “under the
totality of the circumstances” did not successfully overbear defendant’s will. Even after
Caldas used the DNA deception, and then the brief references to religion, defendant
continued to deny certain conduct, which suggests his will was not overborne by these
factors either separately or in combination. In any event, Caldas’s tactic never resulted in
defendant unequivocally admitting the allegations.
       Under the totality of all the circumstances, taking into consideration both the
characteristics of the accused and the details of the interrogation, defendant’s statements
to Caldas were voluntary and not coerced.




                                             17.
II.    Instructional error
       The court instructed the jury that defendant was charged in count 3 with
“engag[ing] in an act of … sexual penetration … with Da.” in violation of section 288.7,
subdivision (b). Such crime is committed when any person 18 years of age or older
“engages in … sexual penetration, as defined in Section 289, with a child who is 10 years
of age or younger .…” (Ibid.)
       Defendant contends that, as to count 3, the trial court prejudicially erred in giving
the instruction on general intent (CALCRIM No. 250). Defendant argues the court’s
purported failure to instruct on specific intent requires reversal of his conviction.
       A. Duty to instruct
       “‘In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.’” (People v. Anderson (2011) 51 Cal.4th 989, 996,
quoting People v. Martinez (2010) 47 Cal.4th 911, 953.) “A trial court’s duty is not
always adequately performed by merely reading to the jury the wholly correct requested
instructions; it is that court’s duty to see to it that the jury are adequately informed on the
law governing all elements of the case submitted to them to an extent necessary to enable
them to perform their function in conformity with the applicable law. [Citations.]”
(People v. Sanchez (1950) 35 Cal.2d 522, 528.)
       B. The instruction given
       The court instructed the jury using CALCRIM No. 250, which he read to them as
follows:

              “The crimes charged in this case requires [sic] the proof of the union
       or joint operation of act and wrongful intent. For you to find a person
       guilty of the crimes in this case in Counts 1, 2 and 3 and the lesser crime of
       battery, that person must not only commit the prohibited act but must do so
       with wrongful intent.




                                              18.
              “A person acts with wrongful intent when he or she intentionally
       does a prohibited act. However, it does not require that he or she intend to
       break the law. The act required is explained in the instruction for that
       crime, which I’ll give you in a moment.”
       As to count 3, the court did not instruct the jury using CALCRIM No. 251
that, in order to find defendant guilty, he must have done the act with specific
intent.7
       The terms “specific intent” and “general intent” differ in that, “‘“When the
definition of a crime consists of only the description of a particular act, without
reference to intent to do a further act or achieve a future consequence, we ask
whether the defendant intended to do the proscribed act. This intention is [general
intent]. When the definition refers to a defendant’s intent to do some further act or
achieve some additional consequence, the crime is deemed to be one of specific
intent.”’ [Citation.]” (People v. Ford (1983) 145 Cal.App.3d 985, 989.)
       We agree with defendant’s assertion that section 288.7, subdivision (b),
when violated by an act of sexual penetration, is a specific intent crime. Sexual
penetration requires that defendant committed the act of penetration of the
victim’s “genital or anal opening for the purpose of sexual arousal, gratification,
or abuse by any foreign object, substance, instrument, or device, or by any
unknown object.” (§ 289, subd. (k)(1), italics added; accord People v. Ngo (2014)




7       The trial court’s instruction with respect to CALCRIM No. 251 was as follows:
“The crimes and/or other allegations charged in this case require the proof of the union or
joint operation of act and wrongful intent.… [¶] … [¶] … For you to find the person
guilty in the crimes in this case of Counts 4 and 5 and the lesser of attempt, or to find the
allegations true, the person must not only intentionally commit the prohibited act or
intentionally fail to do the required act, but must do so with the specific intent and/or
mental state. [¶] The act and specific intent and/or mental state required are explained in
the instructions for that crime or allegation.”



                                             19.
225 Cal.App.4th 126, 157.) Thus, the trial court erred in not including count 3 in
its CALCRIM No. 251 instruction.
       C. The error was harmless because of CALCRIM No. 1128
       The California Supreme Court has held that “‘“‘every kind’”’” of jury
instructional error, including “‘“‘incorrect, ambiguous, conflicting, or wrongly
omitted instructions’”’” can equally “‘“‘“misdirect”’”’” a jury and, thus, falls
under the California constitutional test for reversible error. (People v. Breverman
(1998) 19 Cal.4th 142, 173.) A trial court’s mistaken instruction to a jury that a
crime required only a general intent, rather than a specific intent, is subject “‘to
harmless error analysis [when] it appears beyond a reasonable doubt that the error
did not contribute to [the] jury’s verdict.’” (People v. Haley, supra, 34 Cal.4th at
p. 314, quoting People v. Flood (1998) 18 Cal.4th 470, 504.) Further, an
instruction “that omits a required definition of or misdescribes an element of an
offense is harmless only if ‘it appears “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”’ [Citation.] ‘To say
that an error did not contribute to the verdict is … to find that error unimportant in
relation to everything else the jury considered on the issue in question, as revealed
in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
       However, any claim of instructional error requires examination of the jury
instructions as a whole. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Further, jurors are presumed to be sufficiently capable of understanding and
“‘correlating’” all jury instructions given. (Ibid.)
       The error in this case was, however, harmless because the court later
instructed the jury using CALCRIM No. 1128 to define section 288.7,
subdivision (b), in relevant part as follows:




                                                20.
             “Defendant is charged in Counts 2 and 3 with engaging in oral
       copulation or sexual penetration with a child under ten years of age or
       younger, in violation of Penal Code Section 288.7, sub (b).

              “To prove that the defendant is guilty of this crime, the People must
       prove that, one, the defendant engaged in an act of oral copulation, which is
       Count 2, against [Di.], or sexual penetration, which is Count 3 with [Da.].
       [¶] … [¶]

               “Sexual penetration is penetration however slight of the genitalia or
       anal opening of the other person or causing the other person to penetrate,
       however slightly, the defendant or someone else’s genital or anal opening
       or causing another person to penetrate, however slightly, his or her own
       genital or anal opening by any foreign object, substance, instrument, device
       or any unknown objection [sic] for the purpose of sexual arousal, abuse or
       gratification.

             “Penetration for sexual abuse means penetration for the purpose of
       causing pain, injury or discomfort.

              “An unknown object includes any foreign object, substance,
       instrument or device, or any part of the body, including a penis, if it is not
       known what object …. [¶] … penetrated the opening.

              “A foreign object, substance, instrument or device includes any part
       of the body except a sexual organ.” (Italics added.)
       Even though the court did not give a separate instruction informing the jury the
crime of sexual penetration required a finding of specific intent, the court, by giving
CALCRIM No. 1128, in effect, instructed such a finding was required. Since the jury
here was actually told sexual penetration must have the purpose of sexual abuse, arousal
or gratification, there was no danger defendant could have been convicted for sexual
penetration of Da.’s genitals absent a purpose of sexual arousal, abuse or gratification.
       Considering the instructions as a whole, we conclude the trial court’s error in
referring to count 3 as a general intent crime, rather than a specific intent crime, was
harmless as it was “‘unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record.’” (People v. Mayfield, supra, 14 Cal.4th at
p. 774.)


                                             21.
       D. Prejudice is not present from a missing voluntary intoxication defense
       Defendant argues prejudice occurred from the trial court’s instructional error
because he was “precluded from raising the issue of his voluntary intoxication, a factor
which potentially would have had a major effect on the jury’s verdict on count three.”
Defendant correctly points out the jury instruction conference was not memorialized in
this matter. As such, defendant contends it is impossible to know if defense counsel
objected to the erroneous instruction or requested others, including a voluntary
intoxication instruction as to count 3. As a result, defendant claims prejudice is present
and he is entitled to reversal of his conviction on count 3. Defendant’s claim lacks merit.
       Trial courts are not required to give sua sponte instructions regarding the actual
effect of the defendant’s voluntary intoxication on his relevant mental state, such as
specific intent, premeditation, or deliberation. (People v. Lewis (2001) 25 Cal.4th 610,
650; People v. Ervin (2000) 22 Cal.4th 48, 90.) An instruction on voluntary intoxication
is deemed a pinpoint instruction which courts are required to give on request. (People v.
Verdugo (2010) 50 Cal.4th 263, 295.) However, a defendant is entitled to an instruction
on voluntary intoxication “‘only when there is substantial evidence of the defendant’s
voluntary intoxication and the intoxication affected the defendant’s “actual formation of
specific intent.”’ [Citations.]” (Ibid.)
       Here, it was clear the defense theory at trial was defendant never sexually touched
Da. (or any of the victims) and she, along with the others, were not telling the truth. At
no time did defendant testify he touched Da., but was inebriated. Despite defendant’s
argument to the contrary, a voluntary intoxication instruction would have conflicted with
the defense theory of the case. Moreover, such an instruction would properly have been
refused because defendant never testified intoxication affected his actual formation of
specific intent to sexually penetrate Da. As such, defendant has not shown prejudice due
to instructional error.



                                            22.
III.   Vienna Convention
       Defendant argues he was denied his rights under the Multilateral Vienna
Convention on Consular Relations and Optional Protocol on Disputes, April 24, 1963, 21
U.S.T. 77, T.I.A.S. No. 6820 (hereafter Vienna Convention). It is undisputed defendant
was never informed of his rights under the Vienna Convention nor was he given the
opportunity to consult with his consulate.
       The Vienna Convention’s article 36 requires signatory nations to advise every
arrested foreign national that he or she has the right to have his or her national consulate
notified of the arrest and the right to communicate with his consular post. (21 U.S.T. at
p. 101; People v. Corona (2001) 89 Cal.App.4th 1426, 1429 (Corona).) Defendant
contends that, as a result of this failure, either his statements to Caldas should have been
suppressed or he should have been given a right at trial to consult with consular officials
regarding his case. Thus, defendant asserts, his convictions should be reversed.
       The Vienna Convention is a 79-article, multilateral treaty signed by the United
States and Mexico (among other nations), and ratified by the United States Senate in
1969. (U.S. v. Lombera-Camorlinga (9th Cir. 2000) 206 F.3d 882, 884, cert. den. sub
nom. Lombera-Camorlinga (2000) 531 U.S. 991 (Lombera-Camorlinga); Corona, supra,
89 Cal.App.4th at p. 1428.) Its provisions cover a number of issues requiring consular
intervention or notification, including the death of a foreign national, the crash of a
foreign airplane, and the arrest or detention of a consular officer. (Lombera-Camorlinga,
supra, 206 F.3d at p. 884; Corona, supra, at pp. 1428-1429.) Article 36 deals with what
a member state must do when a foreign national is arrested and it provides in relevant
part: “1. With a view to facilitating the exercise of consular functions relating to
nationals of the sending State: [¶] … [¶] (b) if he so requests, the competent authorities
of the receiving State shall, without delay, inform the consular post of the sending State
if, within its consular district, a national of that State is arrested or committed to prison or
to custody pending trial or is detained in any other manner. Any communication

                                              23.
addressed to the consular post by the person arrested, in prison, custody or detention shall
also be forwarded by the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this sub-paragraph.” (21 U.S.T. at
pp. 100-101; Corona, supra, 89 Cal.App.4th at p. 1429.)
       However, the Vienna Convention does not link consular notification to police
interrogation or require officials to halt an interrogation if the arrested foreign national
invokes his rights under article 36. (Corona, supra, 89 Cal.App.4th at p. 1429, citing
Lombera-Camorlinga, supra, 206 F.3d at p. 886.) Significantly, and as defendant agrees,
suppression of illegally obtained evidence is not an appropriate remedy for violation of
an arrested foreign national’s rights under article 36 of the Vienna Convention.
(Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 350; Lombera-Camorlinga, supra, at
p. 885; Corona, supra, at pp. 1429-1430.) Suppression of illegally obtained evidence is a
“uniquely” American right that was not contemplated as a remedy for a violation of
article 36 by the signatories to the Vienna Convention. (Corona, supra, at p. 1429;
Sanchez-Llamas v. Oregon, supra, at pp. 343-344.) Thus, defendant cannot use the
Vienna Convention to suppress his statements to Caldas and reverse his convictions.
       Defendant, however, further argues his claim under the Vienna Convention should
be read as part of a “‘broader challenge’” of the voluntariness of his statements to police,
a claim the Sanchez-Llamas court noted a defendant could raise. (Sanchez-Llamas v.
Oregon, supra, 548 U.S. at p. 350.) Defendant contends his article 36 challenge is part of
a “larger attack on the legality of the interrogation he endured.” Defendant refers to
Justice Breyer’s dissent in Sanchez-Llamas as support that, even though he received
Miranda warnings, those warnings did not vitiate the need to give him the right to confer
with consulate officials.8 Thus, defendant maintains, he was entitled to a remedy —

8      In dissenting, Justice Breyer explained Miranda does not necessarily “cure every
seriously prejudicial failure to inform an arrested person of his right to contact his


                                              24.
either suppression of his statements to Caldas or an opportunity to confer with, and
secure the benefits of, the aid of consulate officials.
       Article 36 does not grant a right for a consulate to intervene in an arrest or
detention but only to be informed of it, and it does not guarantee defendants any
assistance at all. (Sanchez-Llamas v. Oregon, supra, 548 U.S. at p. 349.) Further, as the
Supreme Court noted, “[i]n most circumstances, there is likely to be little connection
between an Article 36 violation and evidence or statements obtained by police.” (Ibid.)
“The failure to inform a defendant of his Article 36 rights is unlikely, with any frequency,
to produce unreliable confessions.” (Ibid.)
       Here, nothing suggests the failure to advise defendant of his rights under the
Vienna Convention produced unreliable admissions. Defendant’s statements to Caldas
were voluntary and not coerced. He is not entitled to reversal of his convictions.
                                           DISPOSITION
       The judgment is affirmed.


                                                                  _____________________
                                                                            DETJEN, J.
WE CONCUR:


 _____________________
 LEVY, Acting P.J.


 _____________________
 KANE, J.




consular post.” (Sanchez-Llamas v. Oregon, supra, 548 U.S. at p. 393 (dis. opn. of
Breyer, J.), italics omitted.)



                                              25.
