Filed 12/11/13 P. v. Arrioja CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B244295

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA394217)
         v.

JAVIER ARRIOJA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Sam
Ohta, Judge. Affirmed.
         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stacy S. Schwartz and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION


       Defendant Javier Arrioja appeals from a judgment of conviction entered after a
jury found him guilty of four counts of lewd acts upon a child aged 14 or 15 (Pen. Code,
§ 288, subd. (c)(1)) and one count of sending harmful matter with the intent of seducing a
minor (id., § 288.2, subd. (a)(1)). The trial court sentenced Arrioja to state prison for a
term of five years. On appeal, he challenges the admission of his confession. We affirm.


                   FACTUAL AND PROCEDURAL BACKGROUND


       A.     The Crimes
              1.      Count 1
       In 2011 Juan R. was 14 years old and played on two club soccer teams. Arrioja
was the coach of one of these teams, the Misioneros. In September or October Juan told
Arrioja before a game that his ankle was hurting. Arrioja took Juan to his car and
massaged Juan’s ankle. Arrioja then slid his hand under Juan’s “slider shorts”1 and
touched Juan’s penis. He told Juan, “You are going to like it.” Juan did not tell anyone
about the incident.


              2.      Count 2
       In the middle of October 2011 Juan injured a groin muscle while playing soccer
for his other team. He told Arrioja, who told Juan to come to his house so he could give
Juan a massage. Juan’s father drove Juan to Arrioja’s house. Juan’s father had seen the
words “sports medicine” on Arrioja’s business card, so he believed Arrioja knew what he
was doing. Arrioja directed Juan to the bedroom and closed the door, while Juan’s father
waited in the living room.


1      “Slider shorts” are tight shorts worn under soccer shorts to protect a player when
sliding. Juan wore them in place of underwear.


                                              2
       Inside the bedroom there were two beds. The first bed was elevated and did not
have a mattress on it, and Juan referred to it as a massage table. Arrioja told Juan to take
off all his clothes and lie down on it. Juan took off everything but his slider shorts and
lay on his back on the massage table. Arrioja massaged Juan’s chest with oil and told
Juan, “You’re going to like it.” He then began massaging Juan’s groin area. He slid his
hand up Juan’s leg underneath the shorts, wrapped his hand around Juan’s penis and
moved his hand up and down. Again he said, “You’re going to like it.” Arrioja then had
Juan turn over and massaged Juan’s back and buttocks.
       The massage lasted about 30 minutes. When it was over, Juan got dressed and
went into the living room. Juan’s father noticed that Juan seemed “a little nervous” when
he came out of the bedroom. Juan did not tell his father what happened because he was
scared.
       The next day, Juan told his girlfriend what had happened. He told her not to tell
anyone about it.


              3.     Count 3
       About two weeks later, Juan hurt his back while playing soccer. When Juan told
Arrioja about his injury, Arrioja told Juan to come to his house so Arrioja could give him
a massage. Juan’s father and grandfather drove him to the house. Arrioja told them to
wait outside while Juan went in the house.
       Juan went into the bedroom, where a man was lying on the massage table
watching television. At Arrioja’s direction, Juan took off all his clothes except for his
slider shorts and lay down on the bed. Arrioja began rubbing Juan’s chest with oil. He
then slid his hand under Juan’s shorts and began rubbing Juan’s penis. Arrioja told Juan,
“You’re going to like it.” Juan did not say anything because he was scared. Arrioja then
had Juan turn over onto his stomach, and Arrioja massaged Juan’s back with oil.
       After about 45 minutes, Juan’s father called out Juan’s name because he thought
the massage was taking too long. Arrioja told Juan to put his clothes on. Juan did so and
then went outside. Juan’s father noticed that Juan seemed nervous and asked him about

                                              3
it. Juan just said that nothing was wrong. He did not tell his father and grandfather what
happened because he was scared.


              4.     Counts 4 and 5
       During soccer practice on November 8, 2011, Arrioja asked Juan and another boy
to help him get some soccer balls from his car. The other boy got soccer balls from the
trunk of the car. Arrioja, who was in the driver’s seat, told Juan to get in the front
passenger seat of the car. Arrioja took a DVD player from the back seat and handed it to
Juan. Arrioja turned it on and told Juan to watch it. It showed a man and a woman
having sex. Arrioja reached over and tried to grab Juan’s penis. Juan pushed his hand
away, and Arrioja said, “Stop. You are going to like it.”
       When Juan got out of the car, Arrioja told him to get soccer balls out of the trunk.
Juan got them and took them over to the soccer field. He did not say anything to anyone
about what had happened because it was personal and embarrassing.


       B.     The Reporting
       Juan texted his girlfriend and told her what had happened. Juan’s girlfriend told
her sister, who told their mother, who spoke to the guidance counselor at Juan’s school,
and, on the counselor’s recommendation, to the dean of students at Juan’s school. The
dean of students called Juan to her office and told him she had received an anonymous
call saying that he might be in danger. Juan “[w]as appalled” but eventually told her that
his coach had fondled him and tried to make him look at pornography. The dean then
notified law enforcement.


       C.     Arrioja’s Statements to Law Enforcement
       Arrioja was arrested at his house on February 17, 2012. On February 19, 2012
Los Angeles County Deputy Sheriff Robert Risiglione and his partner interviewed




                                              4
Arrioja. Deputy Risiglione read Arrioja his Miranda2 rights in Spanish, and Arrioja
signed a form indicating that he understood.
       After a discussion about the difference between a predator and an honest person
who makes a mistake, Deputy Risiglione’s partner told Arrioja that what he said “is
going to determine whether you’re really a good person who just made a mistake or a
predator.” Arrioja said he had Juan’s penis in his hand for three or four seconds when he
massaged Juan. Arrioja acknowledged that his actions were inappropriate and had
crossed the line.
       Arrioja denied that he had a DVD player, showed Juan pornographic videos, or
touched him in the car. He also denied becoming aroused when he touched Juan’s penis.
He acknowledged having “negative impulses” but said he was not “a sick person.” He
never intended to hurt or humiliate Juan. Arrioja told the deputies he did not touch or
molest any of the other players on his team.


       D.     The Evidence Code Section 402 Hearing
       During a break in Deputy Risiglione’s testimony at trial, the trial court held a
hearing under Evidence Code section 402 on the admissibility of Arrioja’s statements in
his February 19, 2012 interview. Deputy Tim Abrahams testified that on February 17,
2012 he spoke to Arrioja at Arrioja’s home, with Deputy Mejia assisting with translation.
They took Arrioja to the sheriff’s station, where they advised him of his rights and he
indicated that he understood his rights. They began to question him. Arrioja never told
the deputies to stop or that he did not want to talk to them anymore. He was not
handcuffed, and the deputies spoke to him in a conversational tone. During the course of
the interview, he never stated that he wanted a lawyer.
       The transcript of the February 17 interview showed that Deputy Mejia asked
Arrioja, “Did you understand all your rights, ah, would you like to talk to us?” Arrioja



2      Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].


                                               5
answered, “Yes, yes, yes.” Deputy Mejia then asked, “do you need an attorney?” Arrioja
answered, “Well I really don’t know if I would need one or not. I don’t know.” Deputy
Mejia stated, “Okay, he says he understands rights and he—he says he doesn’t—he
doesn’t think he needs a lawyer because he doesn’t understand what this is all about.” At
that point, Deputy Abrahams interjected, “Okay. Well that’s why I brought you in to talk
to you about what’s going on.” Deputy Mejia stated, “And that’s why . . . we give you
the opportunity to come here to talk and find out what is happening.” Arrioja responded,
“Yes.” Then the deputies started talking about Juan’s allegations.
       Deputy Risiglione then testified that on February 19, 2012 he spoke to Arrioja for
the purpose of conducting a polygraph test. After a discussion about soccer, the deputy
read Arrioja his Miranda rights from a form.3 Either he or Arrioja circled “si” after each
question on the form, and then Arrioja signed the form. Arrioja also signed a form
consenting to a polygraph test. The form advised him that the polygraph would be taped
and filmed and that he could stop it at any time.
       Before reading Arrioja his rights, Deputy Risiglione had asked if he had eaten or
slept, and Arrioja said he had not eaten or been able to sleep much. Arrioja also
complained that he was cold because he was wearing only a light shirt and shorts.
Arrioja, however, appeared alert and responsive to questioning.
       Counsel for Arrioja argued that “on the date that he gave the statement, both under
the polygraph examination and then once the polygraph was over, there were continuous
questions of him where he was not adequately advised.” Counsel argued that Deputy
Risiglione “put paperwork in front of Mr. Arrioja and told him where he needed to initial
and then roughly kind of went over his rights without asking whether or not he expressly




3      Deputy Risiglione could not recall whether he explained he was going to give
Arrioja a polygraph test before reading Arrioja his rights. He added, “My equipment was
out. And he—I believe he requested a polygraph exam. And I told him I was there to do
the polygraph exam, so I don’t know at what point.”


                                             6
waived those rights.” He also claimed that Deputy Risiglione told Arrioja both that he
had a right to a lawyer and that he did not have a right to a lawyer.
       In ruling on the admissibility of Arrioja’s statements on February 19, the trial
court, citing People v. Whitson (1998) 17 Cal.4th 229, first noted that the prosecution had
the burden of showing by a preponderance of the evidence that Arrioja had knowingly
and voluntarily waived his Miranda rights. The court said it looks at the totality of the
circumstances in determining whether the deputies had properly advised Arrioja of his
rights and whether Arrioja had freely and voluntarily waived his rights to counsel and to
remain silent.
       The court looked at Arrioja’s statement that he did not know whether he needed an
attorney in light of the totality of the circumstances: He had been arrested and was in
custody. The court stated that the deputies had told Arrioja that they were going to ask
him about Juan and his father, “so in his mind he had to have known that he was going to
be asked about criminal conduct related to either the father or Juan R.” He had stated that
he understood his rights and wanted to talk to the deputies. The court further stated that
Arrioja’s statement about not knowing whether he needed an attorney was not an
invocation of his right to counsel. Any confusion “relates to why he is being asked
questions. He is not confused about his right to an attorney; he indicated he understood
that and that he was willing to talk.” The court found “the totality of evidence
surrounding the interrogation reveals both an uncoerced choice and a requisite level of
comprehension of his Miranda rights and that those rights were waived.” The court also
found that because Arrioja waived his rights on February 17, 2012 when Deputies
Abrahams and Mejia had first questioned him, “there was no bar to the subsequent
contact for purposes of interrogation.”
       On the issue of whether Arrioja’s statement was voluntary, the trial court noted
that “first of all, we have to understand that now he has been in custody for several more
days from the first advisement. He knows in the first advisement questioning process
that he was being accused of . . . sexual misconduct involving Juan R. So this is not a
circumstance where the defendant was unaware of what was going on. He knew.” The

                                              7
court stated that Arrioja also signed the admonition form indicating that he understood
his rights. The court concluded that “looking at the totality of circumstances surrounding
the interrogation, it is clear to the court that the conversation was uncoerced and that
there was the requisite level of comprehension of his rights before he began to speak,
which shows that he waived his rights . . . both to remain silent and his right to an
attorney. So based on all of the foregoing, the court concludes that the defendant was
properly advised and that the defendant waived his rights; and therefore, the prosecution
will be permitted to introduce” the February 19, 2012 statement.4


       E.      Arrioja’s Trial Testimony
       Arrioja had coached soccer in Mexico and the United States for 21 years. He had
a license for massage and sports medicine in Mexico.
       Arrioja usually provided massages at the playing field, but Juan’s father brought
Juan to Arrioja’s house for a massage on two occasions. The first time he gave Juan a
massage at his home, soccer practice had ended late and Arrioja had to drive some of the
other players home, and he did not want to have them wait while he treated Juan. During
the massage, Juan was fully clothed and the door to the bedroom remained ajar. When
Arrioja felt a tear in Juan’s hamstring, he asked Juan’s father to come into the bedroom
and told him that Juan was badly injured. Arrioja did not touch Juan’s penis.
       On the second occasion, Juan’s father and grandfather brought Juan to Arrioja’s
house because Juan had injured his lower back. Arrioja had Juan remove his shirt so that
he could rub a special cream into Juan’s lower back. Arrioja did not touch Juan’s penis
or buttocks.
       Arrioja never showed Juan pornography or touched Juan’s penis while Juan was in
his car. Arrioja did not own a device for watching movies and he did not like to watch
pornographic movies.


4     The prosecution did not seek to introduce any of Arrioja’s statements on
February 17, 2012 during his conversation with Deputy Abrahams and Deputy Mejia.


                                              8
       Arrioja watched a video recording of his confession and heard himself say he had
touched Juan’s penis. He explained that he was arrested on Friday, February 17, and
interviewed on Sunday, February 19. He had not slept or eaten during that time because
he had “never been in a situation like this, and . . . it was like death emotionally.” Arrioja
had been offered food while he was in jail, but it was “not . . . food for a person.” He
chose not to eat “[n]ot so much because of that but because of the emotional situation
[he] was living through.” In addition, the cell where he was being held “was extremely
cold.” He never told the interviewers, however, that he did not want to speak to them
because he did not feel well, although the man who conducted his polygraph examination
said that Arrioja “looked bad.” He told the deputies who were interviewing him that he
had touched Juan’s penis even though he had not done so “[b]ecause of the pressure.
Because of the way that I was asked those questions. I watched myself there and I can’t
believe it’s me, to tell the truth.”


       F.      Rebuttal Testimony
       When Deputy Risiglione interviewed Arrioja, Arrioja looked “maybe a little
tired,” like “he was waking up.” Arrioja told him he had not eaten much and had only
slept about three hours the previous night. Arrioja, however, never said he was not
feeling well or that he was light-headed or faint. He never said anything to indicate “he
may have been mixed up” about what the interviewers were asking him.


                                       DISCUSSION


       Arrioja contends that his “Fifth, Sixth, and Fourteenth Amendment rights were
violated by the admission of his involuntary confession.” He discusses the question of
the voluntariness of his statements to Deputy Risiglione in the context of Miranda. A
defendant’s waiver of his rights and any statement following Miranda warnings must be
both knowing and intelligent (People v. Sims (1993) 5 Cal.4th 405, 440) and voluntary
(People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219). (See People v. Whitson,

                                              9
supra, 17 Cal.4th at p. 247.) In addition, “[b]oth the state and federal Constitutions bar
the prosecution from introducing a defendant’s involuntary confession into evidence at
trial.” (People v. Linton (2013) 56 Cal.4th 1146, 1176.) Even where the police have
given Miranda warnings, the court must still analyze the voluntariness of the confession.
(Dickerson v. United States (2000) 530 U.S. 428, 434-435 [120 S.Ct. 2326, 147 L.Ed.2d
405]; Miller v. Fenton (1985) 474 U.S. 104, 110 [106 S.Ct. 445, 88 L.Ed.2d 405]; see
U.S. v. Lall (11th Cir. 2010) 607 F.3d 1277, 1285 [“‘[e]ven if a court finds compliance
with Miranda, the court must still rule on the confession’s voluntariness’”]; Doody v.
Schriro (9th Cir. 2008) 548 F.3d 847, 860 [Miranda “[w]arnings and a waiver are not
dispositive of a confession’s voluntariness”]; cf. People v. Andreasen (2013) 214
Cal.App.4th 70, 86 [“statements elicited in violation of . . . Miranda principles may not
be used against the defendant at trial . . . even if the defendant’s statements were
voluntary apart from the Miranda violation”].) Because Arrioja’s contention that his
confession was involuntary appears to encompass both a Miranda violation and a due
process violation, we address both. We conclude that the confession was voluntary and
therefore admissible.


       A.     Standard of Review
       Evidence Code section 402, subdivision (b), permits the court to “hear and
determine the question of the admissibility of a confession or admission of the defendant
out of the presence and hearing of the jury if any party so requests.” The court may use
Evidence Code section 402, subdivision (b), to hear a challenge to the admissibility of a
confession or statement on the ground that law enforcement obtained it in violation of
Miranda (People v. Whitfield (1996) 46 Cal.App.4th 947, 958-959) or that it was
involuntary (People v. Lewis (2001) 26 Cal.4th 334, 377). On appeal, we examine “the
evidence independently to determine whether a defendant’s confession was voluntary,
but will uphold the trial court’s findings of the circumstances surrounding the confession
if supported by substantial evidence.” (Lewis, supra, at p. 383; see People v. Wash
(1993) 6 Cal.4th 215, 236 [“[a]lthough we independently determine whether, from the

                                             10
undisputed facts and those properly found by the trial court, the challenged statements
were illegally obtained [citation], we ‘“give great weight to the considered conclusions”’”
of the trial court].) To the extent the facts are disputed “we must accept the trial court’s
resolution of disputed facts and inferences, as well as its evaluation of the credibility of
witnesses where supported by substantial evidence.” (People v. Cruz (2008) 44 Cal.4th
636, 667; see People v. Haley (2004) 34 Cal.4th 283, 299; People v. Whitson, supra, 17
Cal.4th at p. 248.)


       B.     Miranda
       Under Miranda, “‘a suspect [may] not be subjected to custodial interrogation
unless he or she knowingly and intelligently has waived the right to remain silent, to the
presence of an attorney, and, if indigent, to appointed counsel.’ [Citations.] After a
knowing and voluntary waiver, interrogation may proceed ‘“until and unless the suspect
clearly requests an attorney.”’ [Citation.] The prosecution bears the burden of
demonstrating the validity of the defendant’s waiver by a preponderance of the evidence.
[Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 751; accord, People v. Whitson,
supra, 17 Cal.4th at pp. 244-245.)
       Waiver of Miranda rights may be express or implied. (People v. Sauceda-
Contreras, supra, 55 Cal.4th at p. 218; People v. Whitson, supra, 17 Cal.4th at pp. 246-
248.) “A suspect’s expressed willingness to answer questions after acknowledging an
understanding of his or her Miranda rights has itself been held sufficient to constitute an
implied waiver of such rights.” (Sauceda-Contreras, supra, at pp. 218-219.) “‘“[W]hen
a suspect under interrogation makes an ambiguous statement that could be construed as
an invocation of his or her Miranda rights, ‘the interrogators may clarify the suspect’s
comprehension of, and desire to invoke or waive, the Miranda rights.’”’” (Id. at p. 217.)
       “‘[T]he determination whether statements obtained during [a] custodial
interrogation are admissible against the accused is to be made upon an inquiry into the
totality of the circumstances surrounding the interrogation, to ascertain whether the
accused in fact knowingly and voluntarily decided to forego his rights to remain silent

                                              11
and to have the assistance of counsel. [Citation.]’” (People v. Whitson, supra, 17 Cal.4th
at pp. 246-247, quoting Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [99 S.Ct. 2560,
61 L.Ed.2d 197].) The “court analyzing the question must consider two distinct
components: ‘First, the relinquishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than intimidation, coercion,
or deception. Second, the waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.
Only if the “totality of the circumstances surrounding the interrogation” reveals both an
uncoerced choice and the requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is
determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all
times knew he could stand mute and request a lawyer, and that he was aware of the
State’s intention to use his statements to secure a conviction, the analysis is complete and
the waiver is valid as a matter of law.’” (Whitson, supra, at p. 247, quoting Moran v.
Burbine (1986) 475 U.S. 412, 421, 422-423 [106 S.Ct. 1135, 89 L.Ed.2d 410].)
       Arrioja acknowledges that “a suspect who has received and understood the
Miranda warnings, and has not invoked his Miranda rights, waives the right to remain
silent by making an uncoerced statement to the police. . . . Understanding his rights in
full, he waive[s] his right to remain silent by making a voluntary statement to the police.”
(Berghuis v. Thompkins (2010) 560 U.S. 370, 388-389 [130 S.Ct. 2250, 176 L.Ed.2d
1098]; see People v. Whitson, supra, 17 Cal.4th at pp. 247-248 [collecting cases of
implied Miranda waivers].)
       Arrioja contends that the trial court erred in finding that his waiver of his Miranda
rights was voluntary.5 He argues that “[a]lthough the trial court was correct in finding
that [Arrioja] did not invoke his right to remain silent, the court erred when it found that
the confession was voluntary under the totality of the circumstances . . . because the


5       Arrioja does not argue that his waiver of his Miranda rights was not knowing or
intelligent.


                                              12
court did not actually consider all of the circumstances surrounding the confession.”
Arrioja argues that the trial court “failed to take into account the fact that [Arrioja] spoke
to the officers when he had not eaten in several days, was very tired, and very cold”;
“was given a polygraph test, which is principally used as a police tool of intimidation,
and that he was repeatedly told that he had flunked the test”; and “was interrogated at
length by numerous officers who laughed at him and mocked him.” Arrioja’s argument
appears to be that the trial court failed to make specific findings as to each of these
circumstances. Evidence Code section 402, however, does not require such findings.
Subdivision (c) of section 402 provides: “A ruling on the admissibility of evidence
implies whatever finding of fact is prerequisite thereto; a separate or formal finding is
unnecessary unless required by statute.”
       The evidence at the Evidence Code section 402 hearing consisted of the testimony
of the deputies involved in the interrogations and the transcripts of one of the
interrogations. The record shows that although Arrioja complained that he had not eaten
or slept and was cold, Arrioja never asked that the deputies stop the interrogation for
those reasons, and Arrioja appeared alert and responsive to questioning. Arrioja points to
nothing in the record to support his argument that the police gave him a polygraph test in
order to intimidate or coerce him into confessing. Deputy Risiglione testified that he
“believed [Arrioja] requested a polygraph exam.” A transcript of the discussion before
the polygraph examination shows that Deputy Risiglione stated, “So we want to know
what’s happening. Okay?” Arrioja responded, “Yes, I know. I’m also interested in
having this . . . in clearing this up because, I mean, like he told me, he says, ‘We’re going
to investigate. We’re going to ask—’ ‘Go ahead and ask anywhere you want,’ I told
him . . . . [¶] . . . [¶] ‘Anything you want to do—I said—because I don’t . . . don’t . . . I
don’t feel bad as if I had committed a serious offense or anything, you know. . . .” In
other words, Arrioja apparently agreed to the polygraph examination because he believed
it would “clear[] this up” and show his innocence.
       The record shows that the deputies twice advised Arrioja of his Miranda rights
and he indicated that he understood them. He then spoke to the deputies and explained

                                              13
his side of what had occurred. He did not invoke his right to remain silent. He did not
unequivocally invoke his right to counsel, and Arrioja does not contend that he did. (See
People v. Sauceda-Contreras, supra, 55 Cal.4th at pp. 216, 219 [“‘[i]f you can bring me a
lawyer, that way I[,] I with who . . . that way I can tell you everything that I know and
everything that I need to tell you and someone to represent me’ was not a clear invocation
of his right to counsel”].) Substantial evidence supports the trial court’s finding that
Arrioja’s waiver of his Miranda rights at the second interrogation was voluntary. (See
Berghuis v. Thompkins, supra, 560 U.S. at pp. 388-389; People v. Whitson, supra, 17
Cal.4th at p. 248.)


       C.     Due Process
       As with a claim that a defendant’s waiver of his or her Miranda rights was
involuntary, the “‘prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.’” (People v. Linton, supra,
56 Cal.4th at p. 1176.) In determining whether a statement was voluntary, the court must
look at the totality of the circumstances, including the characteristics of the defendant and
the details of the interrogation. (Ibid.; People v. Tully (2012) 54 Cal.4th 952, 986.) “‘In
general, a confession is considered voluntary “if the accused’s decision to speak is
entirely ‘self-motivated’ [citation], i.e., if he freely and voluntarily chooses to speak
without ‘any form of compulsion or promise of reward. . . .’ [Citation.]” [Citation.]
However, where a person in authority makes an express or clearly implied promise of
leniency or advantage for the accused which is a motivating cause of the decision to
confess, the confession is involuntary and inadmissible as a matter of law.’” (Tully,
supra, at p. 985.) The confession must be “‘“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.]” (Linton,
supra, at p. 1176.)
       Nothing in the record suggests that the facts that Arrioja had not eaten and was
tired and cold “were the ‘motivating cause’” of his statements to Deputy Risiglione or

                                              14
that Arrioja’s “will was overborne.” (People v. Linton, supra, 56 Cal.4th at pp. 1176,
1177.) Arrioja never requested that the interrogation stop for any of these reasons, and
Deputy Risiglione testified that Arrioja appeared alert and responsive to questioning. In
addition, Deputy Risiglione did not promise any advantage to Arrioja, such as to release
him or alleviate his discomfort, in exchange for a statement. (See People v. Tully,
supra, 54 Cal.4th at p. 985; Linton, supra, at p. 1177.)
       Nor does the record support Arrioja’s claims that the deputies used the polygraph
test as a “tool of intimidation,” or that he “was interrogated at length by numerous
officers who laughed at him and mocked him.” As discussed above, Arrioja agreed to
the polygraph test, which was preceded by an interrogation on February 17 by Deputies
Abrahams and Mejia. The polygraph examination and the second interrogation on
February 19 were conducted by Deputy Risiglione, with his partner, Deputy Mejia, and
another deputy who was present at some point. At one point during the second
interrogation, there was laughter and the unnamed deputy stated, “I like to mess you
guys.” This evidence does not show that Arrioja “was interrogated at length by
numerous officers,” or that the interrogation was characterized by deputies laughing at
Arrioja or mocking him. Under the totality of the circumstances, Arrioja’s statements
were voluntary, and the trial court did not err in admitting them.




                                             15
                                    DISPOSITION


      The judgment is affirmed.



                                                SEGAL, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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