Filed 12/18/14 P. v. Rodriguez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B252980

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA125898)
         v.

TOMAS PENA RODRIGUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
J. Higa, Judge. Affirmed.


         Marcus Gomez, for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney General and Pamela C.
Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.




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       Tomas Pena Rodriguez (defendant) challenges his convictions for committing
lewd acts upon a child on the grounds that his confession should have been suppressed
and that his trial counsel should have tried to introduce evidence that the victim had lied
about the death of two family members to an elementary school teacher. We reject these
arguments, and affirm defendant’s convictions and eight-year prison sentence.
                    FACTS AND PROCEDURAL BACKGROUND
       Defendant and his wife adopted P. (Daughter) when she was eight months old.
When Daughter was 12 years old, defendant came into her bedroom one night, placed his
head between her naked legs, and licked her vagina until she awakened. Daughter told
her best friend; her best friend’s mother; the officer who responded when the best friend’s
mother called the police; the forensic nurse who examined her; the police detective who
interviewed her; and the social worker who spoke with her a month later. Daughter also
reported that defendant had groped her breasts and buttocks, as well as stuck his tongue
in her mouth, starting when she was 10 years old—both at home and when she went with
him to work. The forensic examination revealed no injury, which was consistent with the
type of contact Daughter reported. Defendant admitted to police that it was “possible”
that he kissed her vagina when “the temptation came over” him.
       The People charged defendant with four counts of committing a lewd act upon a
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child (Pen. Code, § 288, subd. (a) ). Count 2 pertained to the bedroom incident; count 3,
to multiple acts of kissing over the prior two years; count 4, to fondling her at home over
the prior two years; and count 5, to fondling her at work over the prior two years. The
People further alleged that these crimes involved “substantial sexual conduct” with a
child under the age of 14 (§ 1203.066, subd. (a)(8)). (The People originally charged
continuous sexual abuse (§ 288.5, subd. (a)), but dismissed that count prior to trial.)
       Defendant went to trial. Daughter denied that defendant had touched her, and
denied telling anyone that he had. Defendant then called Daughter’s sister, the sister’s


1      All further statutory references are to the Penal Code unless otherwise indicated.


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partner, and two of the foster mothers who had taken custody of Daughter after she was
removed from her parents’ custody. Each of them testified that Daughter told them that
she had made a “big mistake”; had done “wrong”; or had made up the allegations against
defendant.
          The jury found defendant guilty of the bedroom incident and of kissing her in the
prior two years (counts 2 and 3); the jury acquitted him of both fondling counts (counts 4
and 5). The jury found the substantial sexual conduct allegation to be true. The trial
court denied defendant’s motion for new trial, and sentenced him to eight years in state
prison.
          Defendant timely appealed.
                                         DISCUSSION
I.        Admission of defendant’s confession
          Defendant was arrested mid-afternoon on a Tuesday. He was interviewed
approximately 10 hours later, around one a.m. on Wednesday morning, for approximately
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30 minutes. He was given his Miranda rights and waived them, but denied the charges.
He was released from custody midday on Thursday, and immediately re-arrested and
interviewed. He was again advised of his Miranda rights, and waived them. The
interviewing detective told defendant that DNA from his saliva was recovered from
Daughter’s vagina; this was untrue. Defendant continued to deny any wrongdoing , but
eventually said that he “possibly” licked Daughter’s vagina because he was overwhelmed
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by temptation. This second interview lasted an hour.
          Defendant moved to suppress his confession prior to trial, and the trial court
denied his motion. Defendant asserts this was error. The basis for defendant’s challenge
is unclear, so we will review the admissibility of his confession under Miranda, under the
Sixth Amendment, and under due process. Because the interviews were recorded, our


2     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3     Both interviews were conducted in Spanish by a Spanish-speaking detective.
They were recorded, and translated and transcribed for the jury.

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task is to apply undisputed facts to the law; our review is consequently de novo. (E.g.,
People v. Nelson (2012) 53 Cal.4th 367, 380 (Nelson).)
       A.     Miranda
       Where, as here, a suspect has been advised of his rights to remain silent and to
have an attorney present during police questioning (as required by Miranda), and has
waived those rights, police must stop their questioning only if the suspect
“‘unambiguously’ assert[s] his right to silence or counsel.” (People v. Suff (2014) 58
Cal.4th 1013, 1068, quoting People v. Stitely (2005) 35 Cal.4th 514, 535, italics omitted;
see also Davis v. United States (1994) 512 U.S. 452, 459 (Davis).) A request is
unambiguous only if the suspect “‘articulate[s] his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.’” (Nelson, supra, 53 Cal.4th at p. 376,
quoting Davis, at p. 459.)
       Defendant acknowledges that he waived his Miranda rights, but argues that he
thereafter invoked his right to counsel when he told the interviewing detective: “One
doesn’t have to wait around to see if I am given an attorney to tell her, uh, I mean, the
attorney. To see what the attorney tells me.” A reasonable police officer would not
understand this statement to be a request for counsel. The interviewing detective in this
case nevertheless tried to clarify what defendant wanted by asking him three times, “do
you want an attorney or do you want to speak with me?” Defendant finally replied,
“well, yes, to get it over with,” and kept talking to the detective.
       Defendant asserts that he was misled by the detective, who at one point stated,
“You are going to be given an attorney when you go to court”; defendant contends that
this led him to believe he did not have a right to have an attorney present during the
interview. It is unclear how (or whether) this statement by the officer affects the clarity
with which defendant says he invoked his right to counsel. In any event, this argument
ignores that defendant was advised at the outset of the interview that he had “the right to
have an attorney present here while we speak”, and that the statement he alleges is
misleading was sandwiched among the detective’s three attempts to clarify what

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defendant wanted, each of which focused on whether he wanted to speak with the
detective without the attorney being present.
          B.    Sixth Amendment
          A suspect also has the Sixth Amendment right not to be questioned regarding any
offense for which “adversary judicial criminal process has been initiated.” (People v.
Collins (2010) 49 Cal.4th 175, 205.) This process is initiated by the filing of formal
charges, the filing of an information, the return of an indictment, arraignment or a
preliminary hearing. (Rothgery v. Gillespie County (2008) 554 U.S. 191, 198.)
Defendant’s interviews preceded any charging, so his Sixth Amendment right had yet to
attach.
          C.    Due process
          The due process clause bars the admission of any involuntary statement obtained
when coercive police tactics overbear the suspect’s will. (People v. McCurdy (2014) 59
Cal.4th 1063, 1086 (McCurdy).) In evaluating voluntariness, courts look to the totality of
the circumstances and ask whether the confession is the product of “‘“rational intellect
and a free will.”’” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1401, quoting
Lynumn v. Illinois (1963) 372 U.S. 528, 534.) A confession induced by threats or
promises of leniency is involuntary (id. at p. 1401), but “[p]olice trickery . . . does not, by
itself, render a confession involuntary” (People v. Mays (2009) 174 Cal.App.4th 156,
164-165; People v. Musselwhite (1998) 17 Cal.4th 1216, 1240 (Musselwhite) [“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.”]). A confession
following a police ruse is involuntary only if there is “a proximate causal connection
between the deception or subterfuge and the confession.” (Musselwhite, at p. 1240,
italics omitted.)
          Defendant’s confession came after the detective’s false report of a DNA match.
However, “but for” causation is “insufficient” to establish involuntariness (Musselwhite,
supra, 17 Cal.4th at p. 1240), and here the requisite proximate causal link is missing.
Defendant continued to deny any wrongdoing after the false report. More to the point,

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his eventual confession was accompanied by his repeated explanation that he had
succumbed to temptation—a reason having nothing to with the DNA match.
       There is also nothing coercive in the timing or duration of the two interview
sessions. The interviews were relatively brief in duration, and did not follow any
deprivation of food, water, sleep, or bathroom breaks. Moreover, they were conducted by
a single detective who spoke with defendant in his native language.
II.    New trial motion
       Defendant sought a new trial, citing “newly discovered evidence” that Daughter
had lied to an elementary school teacher years before about finding her grandparents dead
in their bed one morning. The trial court denied the motion because, in its view, this
additional impeachment evidence would not have affected the jury’s verdict in light of
defendant’s confession. We review this ruling for an abuse of discretion. (McCurdy,
supra, 59 Cal.4th at p. 1108.)
       A trial court reviewing a motion for new trial on the basis of newly discovered
evidence is to examine: (1) whether the evidence is newly discovered; (2) whether it
could have been obtained prior to trial; (3) whether it is cumulative; (4) whether it would
“render a different result probable on a retrial”; and (5) whether the evidence proffered is
“the best evidence” possible. (People v. Howard (2010) 51 Cal.4th 15, 43.) In this case,
the facts regarding Daughter’s alleged lie to her elementary school teacher existed years
before defendant’s trial. The evidence was also cumulative; several witness testified that
Daughter lied about the very incidents charged against defendant. Because this evidence
is cumulative and in light of defendant’s confession, the trial court did not abuse its
discretion in determining that a different result on retrial was not probable, or in denying
the motion.
III.   Ineffective assistance of counsel
       Defendant lastly contends that his trial counsel was constitutionally ineffective for
not introducing the elementary school teacher’s testimony. To prevail on this claim,
defendant must establish that (1) his counsel’s performance was deficient, and (2) “‘there
is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions,

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the trial would have resulted in a more favorable outcome.’ [Citation.]” (People v.
Carrasco (2014) 59 Cal.4th 924, 982 (Carrasco); see also Strickland v. Washington
(1984) 446 U.S. 688.)
       We reject defendant’s claim for two reasons. First, we are required to conclude
that counsel’s performance was adequate where, as here, defendant raises this issue
during the direct appeal of his conviction and the “‘“‘record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged . . . .’”’” (Carrasco, supra,
59 Cal.4th at p. 982, quoting People v. Tello (1997) 15 Cal.4th 264, 266.) Second, and as
explained above, the teacher’s testimony is cumulative and remote; it is not reasonably
probable that its introduction would have resulted in a different outcome.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                      _______________________, J.
                                                               HOFFSTADT
We concur:




____________________________, Acting P. J.
         ASHMANN-GERST


____________________________, J.
              CHAVEZ




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