People v. Zuniga CA4/3 ( 2021 )

Filed 9/22/21 P. v. Zuniga CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060145
v. (Super. Ct. No. SS160920A)
EDGAR VAZQUEZ ZUNIGA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Monterey County,
Andrew G. Liu, Judge. Reversed and remanded.
Kelley Fleming, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein
and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Edgar Vazquez Zuniga of committing a lewd act upon
Jane Doe, a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)1 His sole
contention on appeal is that the court committed prejudicial error by admitting into
evidence statements he made during a police interrogation. He contends these statements
were involuntary because they were the result of coercive police tactics and their
admission violated his Fifth Amendment right against self-incrimination and his
Fourteenth Amendment right to due process. We agree.
The police interrogation of Zuniga took place in three segments. During
the first two segments, Zuniga maintained his innocence and did not waiver from his
unequivocal denial of the accusation. All the while, the officers told him they did not
believe him and made coercive statements, telling Zuniga that if he confessed and
apologized: his charge might be reduced to a misdemeanor; he could get out on bail; he
could receive minimal or no time in custody; he could be granted probation; and he could
continue working and providing for his family. They also told him that if he stuck with
his story, his face would be “plastered” on social media and the news in relation to the
case and he would do several years or the maximum sentence in custody. After making
these statements, the officers placed Zuniga in a holding cell for an hour. When they told
Zuniga they were taking him to county jail, his will was overborne and he began to
capitulate. At the beginning of the interview’s third segment, Zuniga started trying to
give the officers what he thought they wanted. He admitted there was a possibility that
what Jane Doe said was true, but he did not remember it because he was intoxicated.
When the officers were not satisfied with this and told him they probably could not help
him with the “possibility thing” and he needed to make what he remembered
“corroborate” the victim’s story, Zuniga confessed by agreeing with the officer’s version
of the incident.
1 All further statutory references are to the Penal Code, unless otherwise
indicated.
2
When the admissibility of Zuniga’s statements was litigated in the trial
court, the interrogating officers conceded they had made improper statements while
questioning Zuniga. The trial court suppressed Zuniga’s statements at the end of the third
segment, in which he agreed with the officer’s version of the incident. But the court
ruled the rest of the interrogation was admissible, including incriminating statements
Zuniga made admitting it was possible he committed the offense. We conclude the court
should have excluded all of Zuniga’s statements from the interview’s third segment. We
further conclude the error was not harmless beyond a reasonable doubt and reverse
Zuniga’s conviction.
FACTS
In 2016, Jane Doe (Jane) lived in a three-bedroom house with her Mother,
Stepfather (collectively parents), and two younger sisters.2 Jane’s maternal Grandmother
and Stepgrandfather (collectively grandparents) also lived in the house with their two
sons, Jane’s uncles. Jane’s parents slept in the master bedroom; her grandparents and
uncles slept in one of the bedrooms; and Jane shared a bedroom with her sisters. There
were two beds in Jane’s bedroom. Jane’s sisters both slept in the bed by the door. Jane’s
bed was farther in the room, underneath a window.
Mother and Stepfather were close friends with Zuniga and his wife. Both
families were part of a close group of several families that frequently got together. Jane
had known Zuniga since she was five years old and saw him often.
A. Incident at the Party
Jane was 13 years old when her parents hosted a birthday party at their
house for one of Jane’s younger sisters. Zuniga, his wife, and their three young children
2 We refer to the victim as Jane and her family members by their relationship
to her to comply with the court’s protective nondisclosure policy concerning victims in
criminal proceedings. (§ 293.5; Cal. Rules of Court, rule 8.90(b)(4).)
3
attended the party, as well as several other couples and their children. The party began in
the afternoon and lasted until the early morning hours of the following day.
Sometime between 11:00 p.m. and midnight, Zuniga’s wife decided she
wanted to leave the party and go home. Zuniga, however, wanted to stay, as did one of
their sons. Zuniga walked out with his wife and helped her put two of their children in
the car. Zuniga then returned to the party. Before leaving, Zuniga’s wife changed her
mind about letting their son stay. She went back inside, grabbed the child from the living
room, exclaimed she was taking him with her, and left. She did not tell Zuniga, who was
in the backyard at the time, that she was taking their son.
Jane went to bed around midnight. About 1:35 a.m., she woke up when she
felt someone grabbing her breast. The person’s hand continued downward, touching her
stomach over her clothes, rubbing and fingering her vaginal area through the leggings she
was wearing, and then sliding down her leg. It was dark in her bedroom, and Jane could
not see who was touching her. When she pretended to wake up, the touching stopped.
As the person walked into the lit hallway, Jane realized it was Zuniga.
Using her tablet, Jane tried sending an electronic message to her uncle in
the next bedroom, pleading with him to wake up her grandmother and come help her.
But her message did not go through because the Wi-Fi was off. Once Jane realized this,
she started banging on the wall between her room and her grandparents’ bedroom. When
there was no response, Jane went into her grandparents’ bedroom. She was scared and
crying. She told them Zuniga had come into her room and touched her breasts and
vagina.
Stepgrandfather left the bedroom to talk to Jane’s parents. He told
Stepfather what happened and then returned to the bedroom. Stepfather privately spoke
to Zuniga about Jane’s accusation, and Zuniga denied it.
About two hours later, Stepgrandfather decided Zuniga should leave and he
drove Zuniga home. During the drive, Stepgrandfather confronted Zuniga about Jane’s
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accusation. At first, Zuniga denied entering Jane’s room but then he explained he had
gone into her room looking for one of his sons. Zuniga denied doing anything improper.
After Zuniga left, Jane told Mother what had happened. Later that day,
Jane’s aunt called the police. Officers Froylan Aranda and Daniel Garcia responded to
the call and spoke to Jane. At the time, Aranda had been a police officer for less than a
month and Garcia was his field training officer.
B. Zuniga’s Arrest and Interrogation
After talking to Jane, Aranda and Garcia went to Zuniga’s house and
arrested him around 6:00 or 6:30 p.m. They took him to the police station, where Zuniga
was first placed in a holding cell before being moved to an interrogation room for
questioning.3
1. First Segment of the Interview
The interview’s first segment began a few minutes before 7:00 p.m. with
Aranda advising Zuniga of his Miranda4 rights. Zuniga indicated he understood his
rights and implicitly waived them as he invoked neither his right to remain silent nor his
right to counsel. (See People v. Cruz (2008) 44 Cal.4th 636, 667 [“A suspect’s expressed
willingness to answer questions after acknowledging an understanding of his or her
Miranda rights” constitutes an implied waiver of those rights].)
In response to questioning by Aranda, Zuniga stated he was good friends
with Jane’s stepfather and had known Jane for seven or eight years. He attended a party
3 In the trial court, the court and the parties characterized the interview as
occurring in three segments. For the sake of consistency and to avoid confusion, we
adopt the same characterization.
We discuss each segment in detail. Quotations are from the transcript of
the interview provided to the trial court and include indicated pauses, as well as
grammatical and typographical in the quoted material. We italicize several statements by
the officers relevant to our analysis of Zuniga’s appellate claim.
4 Miranda v. Arizona (1966) 384 U.S. 436.
5
at their home the day before with his wife and children. When asked to describe what
happened at the party, Zuniga recounted his wife left around midnight with two of their
children but told him she was leaving one of their sons there with him. Zuniga continued
drinking with others at the party. Eventually, he went to the restroom and then decided to
check on his son because he was considering leaving soon. He first looked for his son in
the master bedroom. Zuniga saw Stepfather and told him that he was searching for his
son. Stepfather told Zuniga that his son was in Jane’s room and pointed to her room.
Zuniga went into the room and found it to be completely dark. There were
two beds in the room. He kneeled onto the bed farthest from the door, “tapped” the bed
with his hand, and called out to his son. He felt Jane on the bed and tapped the other side
of the bed to see if his son was there, but it was empty. He left the room. In the hallway,
he saw Stepfather again and they returned to the party and drinking.
At some point, Stepfather privately spoke to Zuniga and told him that Jane
was crying and saying that Zuniga touched her inappropriately. Zuniga denied it,
exclaimed he would never do that, and explained he was looking for his son. Stepfather
believed him but indicated Jane was pretty upset. Zuniga thought he might have startled
Jane. Zuniga returned to the party and stayed until everyone left.
Later that day, Zuniga called Stepfather to talk and make sure everything
was okay. When Stepfather did not answer, Zuniga went to Jane’s house to talk to
Stepfather and Mother. Stepfather told Zuniga that he was “with” him but Mother did not
believe his story and was going to call the police. Zuniga indicated his understanding and
willingness to cooperate and talk to the police. He offered to stay at their house until the
police arrived, but Stepfather told him to go home.
Aranda questioned Zuniga about how much he had to drink at the party,
and Zuniga responded he had about 10 beers over six or eight hours. Aranda suggested
drinking that much alcohol can get someone “pretty drunk,” to the point they are
“unaware of much of their actions.”
6
Zuniga reiterated his version of what happened in Jane’s room. Aranda
informed Zuniga they had talked to Jane and she had provided them a different version.
Aranda returned to how much Zuniga had to drink that night and doubted he personally
would be able to “handle [10] beers.”
Garcia took the lead in interviewing Zuniga. He explained Jane was very
detailed in her description of what happened and her reaction was consistent with it being
a traumatic event. Garcia remarked people “tend to make bad mistakes” when they drink.
Garcia informed Zuniga that Jane’s sweatpants were being tested for DNA and Zuniga’s
DNA would be present on Jane’s clothes if Zuniga did the things she described.5 He
warned Zuniga it would be worse for him if his DNA was found on Jane’s clothes, and he
urged Zuniga to tell them the truth so that it would not be as bad when he goes to court.
Garcia told Zuniga Jane was traumatized and that when she heard him at the house that
morning, she got scared, ran outside, and was crying and shaking.
Garcia asked Zuniga why Jane would lie about what happened. In
response, Zuniga suggested she was asleep and may have only thought he did something
because she woke up with him in the room and felt his hand touch her. Zuniga indicated
he understood that Jane might have been startled and frightened because she woke up to
find him in her bedroom and he had never before been in her bedroom. When Garcia
pressed Zuniga to explain why Jane would lie, Zuniga said he did not know, but
nevertheless, he tried to offer an explanation based on past abuse in Jane’s family.
Garcia again suggested people make mistakes when they drink and told
Zuniga that he was “just trying to help [him] out.” He advised Zuniga that if his DNA
was found on Jane’s pants, Zuniga would have to explain it to the judge and the judge
would probably add another charge.
5 This appears to have been a ruse as Jane’s clothing was not collected for
DNA testing.
7
When Garcia mistakenly said that Zuniga had indicated he tapped Jane on
the shoulder, Zuniga disagreed. Zuniga clarified he tapped the middle of the bed and
therefore might have touched her mid or lower section. Garcia accused Zuniga of
changing his story and warned him that he was making himself look bad. Zuniga
admitted it looked bad and explained that was why he went to talk to Jane’s family that
morning and wanted to cooperate with the police.
Garcia indicated he would give Zuniga a couple of minutes to decide if he
wanted “to stick to that story,” while Garcia talked to his sergeant. Garcia told Zuniga if
he told them what really happened and wrote an apology letter, it would help Zuniga. He
informed Zuniga that he was facing only one charge, not multiple counts. Garcia then
stated: “And the big difference from the incident we’re investigating now for being one
incident because we made a bad decision and we’ve been drinking and it’s plain, simple
and it’s done with already. Okay? . . . I mean, to be honest with you, you could bail out if
you wanted to . . . tonight if you wanted to, but that’s if we do decide to take you to jail or
not, okay? All right? So I’ll give you a couple minutes to think about it. We’ll be back.”
The officers left Zunia alone in the interrogation room for approximately 10 minutes
before the interview’s second segment began.
2. Second Segment of the Interview
When the officers returned, Garcia informed Zuniga he had just spoken to
Stepfather on the telephone, who denied telling Zuniga to look for his son in Jane’s room.
Zuniga maintained he spoke to Stepfather before going into the bedroom. He reiterated
that when he spoke to Stepfather after Jane made the allegation, Stepfather believed
Zuniga’s explanation and indicated everything was okay.
Garcia did not believe Zuniga’s story. Garcia indicated he felt for Jane and
believed something traumatic happened to her to cause her to be so traumatized and
frightened of Zuniga. Garcia advised Zuniga his story would “look stupid in court” and
said he was trying to help Zuniga. When Zuniga maintained his version of what
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happened, Garcia urged Zuniga to “tell [them] right now what really happened” because
doing so would “help” Zuniga. Garcia stressed Zuniga was only facing one charge, not
multiple counts. Garcia then returned to the DNA ruse, telling Zuniga “professionals”
would examine Jane’s pants “and if . . . if they do find your DNA, then you’re pretty
much gonna do the max time that that charge carries, okay?” Garcia said in contrast, if
Zuniga said he was sorry, admitted he made a mistake, and wrote an apology letter,
Zuniga could: “move on . . . and . . . probably do way, way, way less time than that. You
can bail out . . . you could be out on bail and never see jail time, okay?” Garcia
reiterated Zuniga was facing only one charge, not multiple counts. He told Zuniga the
charge was a felony but it “could be dropped down to a misdemeanor if” Zuniga admitted
he made a mistake and apologized, given his lack of record.
In response, Zuniga indicated he understood the officers were trying to help
him but he had already told them what he remembered happening. He continued: “And
like you said, I had a few, you know, blend of beers to, I guess, be on the drunk side.
Garcia again indicated he did not believe Zuniga. Garcia stated it was
inconceivable Jane would be so frightened and traumatized if all Zuniga did was
accidentally wake her up. He continued to press Zuniga, telling him: “I understand you
have a family and you have kids and you have a household to run and stuff like that. But
that DNA to come back [on] those pants, I mean, you’re gonna be in a lot of trouble. I
mean, you can tell your family you won’t see them for a couple years. And then now
you’re gonna leave your family to struggle and to have them pretty much . . . Oh, I’m
gonna say your . . . your wife . . . to run that household and . . . and do what she needs to
do to cover your house. So think about that as well, okay? And if you think I’m lying to
you, I’m . . . I’m not lying to you. It goes better off if you tell the truth than to . . . we
find out what really did happen.”
Going through the incident again, Zuniga maintained his version. As
Zuniga had not changed his story, Garcia indicated they were “done” talking but asked if
9
Zuniga had any questions. Zuniga inquired what he was being charged with, and Garcia
responded it was one count of child molesting. Garcia told Zuniga that if his DNA was
found on Jane’s pants, he would “do the max time . . . and that’s several years” and
would have to annually register as a sex offender.
Aranda warned Zuniga that if he stuck with his story and the “evidence
technicians come back with your fingerprints all over the pants, it’s gonna caught
up . . . get caught up in the media. Your face might show up in the, Face . . . in Facebook
and stuff.” Aranda urged Zuniga to be straight with them and “tell [them] what really
happened. You were drunk.” Aranda continued: “I know it happened. He knows it
happened. You know it happened. All you’ve gotta do is be straight up with us. Tell us
what actually happened, all right? Do you want your face all over the media?” Aranda
told Zuniga if he stuck with his story and they found out the truth: “Something’s gonna
come out, and your face is gonna be plastered . . . plastered all over the media. People
are gonna find out. So if you don’t want anybody to find out, talk to your wife, tell her
what really happened, you can move on. It’s one count, as he said. You have nothing in
the past. The judge is gonna see that. It’s gonna come into record that you were
drinking, you have nothing in your past. Ten beers, that’s a lot of beers. I’m not . . . in
ten beers, I’m not consciously there.”
Aranda suggested Zuniga may have been looking for his son but then saw
Jane in the bed and because he had been drinking “touched [her] a bit more than [he] had
to.” He urged Zuniga to “be straight up” with them and stated, “We can work this out.”
As Zuniga again began to deny the accusation, Aranda interrupted him and told Zuniga:
“It’s only one charge, as we said. Just be straight up with us. You have a conscience
. . . .” Garcia suggested it was a mistake if it happened, but Zuniga continued to deny
anything happened.
Garcia told Zuniga when they compared Jane’s story with his, Jane’s
version made sense and a judge would believe her story. Garcia again returned to the
10
possibility of DNA evidence coming back against Zuniga, warning Zuniga: “there is no
reason . . . no reason why your DNA should be on her crotch area, okay? And like I said,
I would hate for you to go to jail for several years for something that you could have not
just . . . put it on the table . . . and say, ‘You know what? I fucked up. I’m sorry.’ . . .
Done with already . . . you could have just done minimal time. I mean, even . . . not even
go to jail. You can stay out on probation . . . be on probation and be out on bail, and not
get in trouble and still provide for your family and work and do what you have to do,
okay? But like I said, I . . . I . . . I’m done. And I’m pretty sure you’ll never . . . .”
Zuniga responded: “Yeah, I mean . . . but I mean, if you want me to tell you that, you
know, when you’re drinking and then you sometimes lose control . . . .” Garcia indicated
that drinking was a factor.
Garcia repeated he was “done” talking to Zuniga and they would run “it” by
their supervisor and “see what happens.” He made one last appeal for Zuniga to tell them
what happened because if Zuniga’s DNA came back on Jane’s pants, everything was
going to “blow up” in his face. When Zuniga maintained his innocence. Aranda took
Zuniga back to the holding cell while Garcia talked to their sergeant.
Zuniga remained in the holding cell for about an hour. When Aranda went
to the holding cell and told Zuniga they were going to take him to county jail, Zuniga said
he wanted to give another statement. The officers took Zuniga back to the interrogation
room, and the interview’s third segment commenced.
3. Third Segment of the Interview
Garcia asked Zuniga to confirm he was not being forced to make a
statement and not promised anything; Zuniga answered, “You didn’t force me to.”6
Garcia then urged Zuniga to tell them “what really happened,” and Zuniga responded:
“So what I’ve told you so far is exactly the recollection I have” “from that night. Um,
6 Statements admitted at trial are indicated in boldface and italics.
11
however, while sitting in the cell right now, and I did think about the many times that
I’ve consumed alcohol in excess and felt like, yes, you can do things that you might
forget. Um, it’s hard to admit to something that you do not have a recollection of, but
obviously, the possibility that it happened is . . . it’s there.” “It exists because . . . you
know, happen . . . the situation. So I . . . I mean, I don’t know how to word it, but I . . .
it’s hard to admit something that you don’t recall.”
When Zuniga was not forthcoming with anything new, Garcia reminded
him that he wanted to talk to them again and suggested Zuniga was “on the border of”
telling them “what really happened.” The following exchange then occurred:
“[Zuniga]: Well, honestly that’s what I recall.
“[Garcia]: Well, you said there’s a possibility [what] . . . she said did
happen.
“[Zuniga]: Well . . .
“[Garcia]: What . . . what . . . what do you remember from that?
“[Zuniga]: I . . .
“[Garcia]: I mean, is it a possibility?
“[Zuniga]: I remember . . . I remember the same thing that I told you that
I . . . went and tapped and . . .
“[Garcia]: So you’re not telling me anything different then?
“[Zuniga]: Well, I’m telling you that the possibility does exist cause, you
know, when you’re intoxicated and . . . I mean, I’ve done things that I . . . I remember
people telling me, ‘You kissed this girl. You did this. You did that.’
“[Garcia]: So what you’re telling me is that since you were intoxicated,
whatever Jane Doe told us is a possibility that happened, but a mistake on your part
because of the alcohol?
“[Zuniga]: Yes.
12
“[Garcia]: Okay. So, I mean, it’s pretty much there. And . . . and I think
you do want to tell me exactly what happened, but you’re just kind of like . . . .
“[Zuniga]: Well, like I said, officer, I . . . I mean, it’s hard to admit to
something that you don’t recall. I mean, I . . . I’m not proud to say it, but, I mean, I
have abused alcohol for the last . . . .
[¶] . . . [¶]
“[Zuniga]: 20 years maybe. . . .
[¶] . . . [¶]
“[Zuniga]: But, um, you know, from thinking there . . . and just thinking
of the many times I’ve done stupid things that you don’t remember, you don’t all. . . .
All . . . you know is . . . [w]hat people tell you, and that’s how you know, so . . . .”
Zuniga stated he felt “extremely bad for harming [Jane’s family].” Garcia
continued to question Zuniga: “And so you pretty much put yourself there in your . . .
your pretty much telling me that because of the alcohol, whatever she said happened,
right?
“[Zuniga]: It’s a fair poss- . . . it’s a possibility.
“[Garcia]: But you don’t remember it clearly?
“[Zuniga]: No.”
When Garcia offered a scenario that Zuniga went into the room looking for
his son but saw Jane and made “a stupid decision at the moment,” Zuniga rejected it. He
stated: “I mean, whether I touched her longer than I should have, you know, when I
tapped her, I mean, that’s. . . . that’s what . . . we’re discussing that. It wasn’t my
intention to stay there for more than what . . . .” Garcia suggested Zuniga did not want
to fully admit what happened and look bad. Zuniga responded he did not remember it.
He indicated he was willing to admit he had a history of alcohol abuse and could
“totally relate to doing things” while drunk that you do not remember. The following
exchange then occurred:
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“[Garcia]: But you do have a recollection of being in that room, right?
“[Zuniga]: Of course.
“[Garcia]: And telling me that you were that intoxicated, that whatever
Jane Doe told us, that it’s a good possibility it happened?
“[Zuniga]: Uh-huh.”
Garcia suggested Zuniga was trying to set up an intoxication defense.
Garcia indicated Zuniga knew what happened and could “set stuff right” so when he went
to court it would not look as bad and it would help him. Zuniga responded he was “not
familiar with the court system and all that business.” Zuniga expressed it was not in his
best interest “to take this as far as it could go . . . .” Garcia told Zuniga: “Yeah, cause, I
mean, it’s a possibility if you did take it as far as it goes” “and you go to jury trial and
you’re gonna have 12 people” “looking at the evidence we have” “and you’re . . . what
you’re presenting . . . .” “Where in a court system, the way it works out . . . so you do go
to jail for this, okay? And there’s . . . there’s no if, ands or buts out . . . about it. You do
go. And if you get your attorney, they look at it, and you plead out to some deal and the,
uh . . . the District Attorney’s Office agrees to that deal, that’s . . . that’s the agreement
they reach, given that, ‘Okay. I messed up.’ I . . . I . . . they look at your record, blah,
blah, blah, okay. Uh, probation for three years. It’s done with already. Stay out of
trouble. Don’t do it again.”
Garcia told Zuniga a jury would not believe his story and would believe
Jane. Zuniga responded: “So, I mean, the reason I wanted to talk to you is because like
I said, I . . . I’m admitting to the possibility of it happening and if it needs to get to that,
you know, for them to prove me guilty, I mean, I . . . I don’t want to get it that far.” “I
mean, if I can . . . if I can do it now, I mean, obviously, I will serve time . . . .” Garcia
remarked, “There’s a difference between you telling me ‘a possibility’ to ‘Yes, I did it.’”
Zuniga replied: “Because I don’t . . . I don’t recall it. I don’t . . . I mean, that’s . . .
that’s different.”
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Garcia said he believed Zuniga did recall what happened. He told Zuniga
he was not promising him anything but it would “go better [for him] in court” and Zuniga
maybe could “go out to some plea deal” if he confessed. Zuniga again said it was “hard
to admit to something that” he did not remember but “it’s obviously a possibility.”
Garcia commented Zuniga was sticking to his story that nothing happened. Garcia told
Zuniga: “[A]nd I know you had time to think about it. . . . And I know you know what
happened, okay? I . . . I . . . I just know it. ‘Cause I knew in the beginning her story and
your story did not match, and something really happened. And it’s kinda . . . it’s getting
there, okay? But, let’s . . . let’s just . . . for your family and her family, it’s not fair to say
that it was a possibility it happened. ‘Cause in . . . in your heart, you know what
happened, okay? I mean, I don’t think you were that passed out drunk in order to not
recollect some of it, what happened, okay? If you tell me, I’m . . . and . . . and . . . and
the way it is, like if you tell me what happened, I know it sounds bad.” “It’s gonna look
bad. But it’s gonna look bad if you go against 12 people” “where you can just handle it
[through] a plea deal and it’s done with already, okay?” “Just do whatever time they
give you, whatever. If you get a good attorney, then they can give you a good deal.”
“And . . . and less charge and less time, maybe even probation, get out on bail.”
Zuniga asked: “Without lying, does it make a diff- . . . difference if I told
you, ‘Yes, I mean, there’s a possibility that like I touched her.’” Garcia responded they
had gone “from ‘It didn’t happen’” to “‘a possibility it did happen’” but “‘I don’t
remember.’” Zuniga stated he had told them the events as he recalled them. He
explained: “And then I sat down there and was thinking about the many times I’ve gotten
that drunk . . . and yes, how you forget details and how, yeah, you could do things
that . . . .”
Garcia reiterated Zuniga did not want to say he was guilty or what
happened because it looked bad. He continued: “But in the long run if you say, ‘You
know what? I fuckin’ did it. I’m sorry. You know, I . . . I apologize. We make mistakes.
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This is where you’re going. ‘I was drunk. I made a mistake. I’m sorry.’ Because the
judge is saying a possibility is not going to cut it, whether you . . . it’s either you did it or
not, right?” Garcia made conflicting statements, telling Zuniga that saying it is a
possibility was not good enough but also that it was the same as saying it happened. He
told Zuniga his attorney “would have to work up some master plan to make [him] not
guilty.” In response, Zuniga stated, “I mean, I’ve told you exactly everything that I
recall. I mean, I could use different wording maybe, but I mean that’s
. . . that’s the best that I recall it.”
Garcia again pressed Zuniga to confess: “the matter of the fact is it
happened, it happened ‘cause we know what the crime is. So, like I said, it did or it
didn’t. It . . . there’s not a possibility it did.” “The evidence says you did.” “And you’re
telling me at first it didn’t, but you’re . . . you’re working up to right here.” Zuniga
responded that “it’s hard to admit one’s guilt if you don’t recall the events.” Garcia did
not believe Zuniga’s lack of recall and told Zuniga: “You’re . . . you’re doing this”
“because you know you have to do this. You’re doing this for your family’s peace of mind
and the victim’s peace of mind, okay? In reality, she is a victim.” “Okay? So, like I said,
um, this possibility thing, I probably can’t help you with that. It’s either gonna be, ‘You
know what? I fucked up. I did it’ or you didn’t do it. That’s how we work. I’m not
going to take you to jail because I think you did it. I’m taking you to jail because the
evidence shows it happened. Now I’m not taking you to jail because I don’t like you. It
doesn’t work that way. That’s why we bring you here. We give you your side of the
story, okay?”7
Zuniga responded, “I mean, I’m . . . I’ll . . . I’ll admit to it happening
then if that’s what you want to hear, but . . . .” When Garcia said that was not what he
wanted to hear, Zuniga stated, “Okay. Well, that’s how I . . . that’s the way I have to
7 As explained post, the court ruled Zuniga’s subsequent statements were
coerced and inadmissible at trial.
16
word in order to . . . to help myself, or to help the situation or help myself, so . . . .”
Garcia replied he was not forcing Zuniga to talk to them. Garcia told Zuniga he was “not
promising [him] anything, but” was telling him if he did “cooperate with the
investigation” to make what he remembered “corroborate [Jane’s] story” then that could
be sent to the court and it would not look as bad for Zuniga. Zuniga confessed by
agreeing with Garcia’s statements:
“[Zuniga]: But anyways, um, obviously, I mean, I’ll admit that I did it, but
I . . . I cannot tell you the details or what I . . . because they’re . . . they’re not there.
“[Garcia]: So what . . . what you’re telling me now is whatever Jane Doe
told us, you’re admitting to that?
“[Zuniga]: Uh-huh.
“[Garcia]: But you don’t remember the details on where you touched her,
right?
“[Zuniga]: Uh-uh.
“[Garcia]: But you do know . . . you do admit to . . .
“[Zuniga]: I was there.
“[Garcia]: . . . touching her?
“[Zuniga]: Yes.
“[Garcia]: In places you should not have touched her, right?
“[Zuniga]: Yes.”
Garcia told Zuniga his confession would be noted in the report and his
attorney could work with the prosecutor’s office on a plea deal. He indicated Zuniga
could take the case to trial, but Garcia would “hate for” Jane to have to testify and for
Zuniga’s attorney to “make her look like a liar” because that was not fair to Jane. Garcia
played on the fact Zuniga was a father and would not want his daughter to testify, be
crossed-examined by an attorney, and called a liar. After Garcia told Zuniga they were
17
taking him to jail and he could call his wife from there, Zuniga asked if he could get out
on bail as Garcia had said. Zuniga wrote an apology letter as Garcia had suggested.
C. Trial Proceedings
1. First Trial
Zuniga was charged with a single count of committing a lewd act upon Jane
(§ 288, subd. (a)) and was tried before a jury. During the trial, the prosecution presented
testimony by Jane and her family but did not seek to admit any of Zuniga’s police
interview. The trial ended in a mistrial after the jury announced it was deadlocked and
revealed it was evenly split.
2. Second Trial
A different prosecutor picked up the case for retrial. In an in limine
motion, the prosecution indicated it intended to introduce a portion of Zuniga’s police
interview but did not specify which of his statements. Zuniga, in his in limine motion,
argued statements he made “as a result of threats of increased punishments and promises
of leniency” by the officers were “inadmissible for all purposes.” In a supplemental trial
brief, the prosecution asserted that despite the officers’ “inappropriate questions and
comments,” Zuniga’s will was not overcome by these tactics, and therefore, his
confession was not coerced.
a. Pretrial Evidentiary Hearing on the Admissibility of Zuniga’s Statements
At the evidentiary hearing on the admissibility of Zuniga’s statements, the
prosecution submitted the video recording of Zuniga’s police interview and its
corresponding transcript and presented Aranda and Garcia’s testimony.8 Both Aranda
and Garcia testified they had received training on proper interrogation techniques.
Aranda had been trained not to promise a suspect a specific outcome in the case, indicate
a felony would be reduced to a misdemeanor, or talk about bail. Similarly, Garcia had
8 We ordered the video recording transferred from the superior court to us for
review.
18
been trained not to promise a suspect a minimum sentence, bail, or probation. Based on
his training, Aranda knew they were not to threaten, coerce, or promise things to a
suspect to get a statement.
However, both officers admitted that during their interrogation of Zuniga,
they disregarded their training, engaged in improper interview techniques, and said
inappropriate things in an effort to get Zuniga to confess. When asked to explain why,
Aranda testified he was sympathetic to Jane and felt he needed to get a confession from
Zuniga to protect her. He believed Zuniga was guilty, and he was “eager to get
[Zuniga’s] confession.” He acknowledged that in his zeal, he “might have” made some
inappropriate statements to Zuniga. Garcia likewise attributed the violation of his
training and use of improper interview techniques to his belief that Jane was telling the
truth. Admitting he made some promises and statements to Zuniga he should not have,
Garcia explained he did so because he had “kind of [a] hunch . . . that the incident
occurred” and thought he could get Zuniga to confess. Nevertheless, both officers
believed they were unable to manipulate Zuniga and their efforts were unsuccessful
because Zuniga never fully confessed.
1. Argument and Court’s Ruling
Arguing for the admission of Zuniga’s statements, the prosecutor
acknowledged the officers made some inappropriate comments during the interrogation,
but the prosecutor asserted the officers’ threats and promises were “poorly done” and
unsuccessful. The prosecutor contended the officers’ promises did not result in an
unreliable and involuntary statement because Zuniga’s statements came solely from his
desire to cooperate. Zuniga’s counsel, on the other hand, argued the officers made both
express and implied promises during the interrogation that produced involuntary
statements. Defense counsel urged the court to consider the progression of the interview
and how the officers’ conduct impacted Zuniga, resulting in him changing his statement
in the interview’s third segment.
19
The court suppressed Zuniga’s statements at the end of the third segment,
in which Garcia laid out a confession and Zuniga agreed with it. The court concluded
these statements were coerced and unreliable. But the court ruled the rest of Zuniga’s
statements were admissible. Providing a detailed explanation of its findings and
conclusions, the court discussed its review of the interrogation’s video recording and
transcript and indicated it found credible the officers’ testimony at the hearing.
Addressing Aranda’s statements to Zuniga that his face could end up
“plastered” on Facebook and in the media if he stuck with his story, the court found this
statement was an improper “attempt to publicly embarrass or publicly shame” Zuniga that
could have “pervasive negative consequences.” The court noted that despite this
statement and other statements in the interview’s first two segments, Zuniga maintained
his version of the event. The court indicated it began “to have concerns about the
reliability and voluntariness of [Zuniga’s] statement” after Garcia asked Zuniga to
confirm, early in the third segment, that he was intoxicated and there was a “good
possibility” that whatever Jane said happened was true.
The court concluded “the [officers’] implicit inducements that there
[would] be a benefit if [Zuniga] gave a statement consistent with Jane Doe’s comments,”
combined with the emotional pressure asserted on Zuniga given his relationship with
Jane’s family, “resulted in an unreliable admission” near the end of the interview’s third
segment. The court explained: “So when I look at the totality of all this and I see the
context of it all I see a situation where the defendant was attempting to appease the
officers and in particular, help Jane Doe’s family by admitting to whatever it is that Jane
Doe said[,] which is ultimately what he said, not entirely knowing what she said[,] it
seems based on the interview as well.” After further argument, the court also suppressed
Zuniga’s apology letter.
20
b. The Prosecution’s Case
At trial, the prosecution presented evidence concerning the incident at the
party, as detailed above, from the testimony of Jane, Mother, Grandparents, and Zuniga’s
wife. Aranda testified regarding Zuniga’s arrest and questioning at the station. He
explained that in the interview’s first two segments, they allowed Zuniga to tell his
version of what happened and Zuniga answered their follow-up questions. During the
first two segments, Zuniga’s version of what happened remained consistent and he did
not say he made a mistake because of alcohol or that he was unable to recall events from
that night because of alcohol.
Aranda explained that because Zuniga’s story did not match Jane’s, they
tried different approaches to get him to admit that what Jane said was true. Aranda was
trained at the police academy not to promise a suspect something to get him to talk. He
did not believe he violated his training during the interview but acknowledged he “might
have gotten close to the line of . . . promising something to” Zuniga.9 During cross-
examination, Zuniga’s counsel highlighted statements the officers made during the
interview, in which they warned Zuniga his face might be broadcast or appear on
Facebook in connection with the allegation, told him that he could go to jail for several
years, and implied he would not have to go to jail if he told them what they wanted to
hear. Aranda admitted Garcia falsely told Zuniga the charge could be reduced to a
misdemeanor. Even though they were trained not to say things to the suspect about the
charges that are not true, Aranda did not believe Garcia’s statement violated their training
because it was qualified as a possibility. After the officers made comments to Zuniga
9 Aranda’s denial of violating his training was inconsistent with his prior
testimony at the evidentiary hearing, where he admitted he disregarded his training and
used improper interview techniques to get Zuniga to confess. When questioned about
this inconsistency, Aranda essentially denied his prior admission, stating he previously
testified he was close to violating his training.
21
eight times suggesting he made a mistake because of alcohol, Zuniga came back in the
interview’s third segment and said it was a possibility he made a mistake because he had
been drinking.
The prosecution played for the jury 10 snippets of Zuniga’s police
interview. The first two snippets came from the first two segments of the interview. In
these, Zuniga told the officers his version of the events, explaining he went into the
bedroom to look for his son; it was dark so he tapped the bed and called out his son’s
name.10 The other snippets were statements Zuniga made during the interview’s third
segment, in which he admitted: it was a possibility the incident happened as Jane said
but he had no recollection of it because he was intoxicated; he had abused alcohol for 20
years and sometimes does not remember things he does when he is drunk; and he made a
mistake because of alcohol.
c. The Defense’s Case
In his testimony, Zuniga described his close relationship with Jane’s family.
Both families frequently socialized with a group of other families, and it was common for
these get-togethers to be at the home of one of the families with children present and
playing together. Sometimes the children would sleep somewhere in the house, a
bedroom or sofa, and the adults would continue fraternizing.
Zuniga’s testimony concerning the party was consistent with his statements
in the first two segments of his police interview. When he entered Jane’s room, he saw a
small child with long hair in the bed to his left and recognized that was not his son. He
saw a figure lying on another bed farther in the room, but it was very dark. Kneeling by
the bed, he tapped the middle of the bed, and twice softly called out his son’s name. He
realized the figure was not his son but reached over the figure and ran his hand across the
10 In his appeal, Zuniga does not challenge the admission of his statements in
the first snippet, which he requested the trial court admit under Evidence Code section
356.
22
bed to see if his son was curled up in one of the corners. Finding that portion of the bed
empty, he walked out of the room. When Stepfather confronted him about what
happened in Jane’s room, Zuniga explained he went into Jane’s room looking for his son.
Zuniga was shocked by the accusation he had improperly touched Jane and wanted to
remain at the party to clear up the matter.
Zuniga was arrested later that day. He waived his Miranda rights because
he wanted to talk to the police and tell them what happened. He explained to the officers
he went into the room looking for his son, tapped the bed, and then left. He repeated this
to them more than once, but they did not believe him.
The officers made statements to him suggesting alcohol may have had
something to do with the incident. They told him that if he continued with his story, he
would be charged with a felony and would spend several years in prison, but if he
changed his story and agreed to what they were saying, the charge would probably be a
misdemeanor, he would do minimal time, and could probably get out on bail that night.
While he was in the holding cell, he thought about everything the officers had said to him
and he weighed his options. He was at a loss and felt he could not win against them. He
believed them when they said it would be better for him if he said it happened because he
was intoxicated. Given the officers’ statements about what would happen if he changed
his story, Zuniga felt he had to give in and change his story to what they wanted. When
Garcia said to him, “This is where you’re going. I was drunk. I made a mistake. I’m
sorry,” Zuniga thought that was what Garcia wanted him to say. He tried to say what the
officers wanted, but it was not true; he did not touch Jane’s her breasts, legs, or vagina.
One of Zuniga’s close friends, who was Stepfather’s brother-in-law and
part of the social group that attended the party, testified on Zuniga’s behalf. He saw
Zuniga’s wife leave the party with two of her children and did not see her return and take
their third child. It was common at events like this for the children to fall asleep in one of
23
the bedrooms. He had seen Zuniga interact with children on many occasions, and in his
opinion, Zuniga was not disposed to lewd conduct with children.
d. Verdict and Sentencing
The jury convicted Zuniga of committing a lewd act on a child. The trial
court suspended imposition of sentence and placed Zuniga on formal probation for six
years, with a condition he serve 364 days in jail.
DISCUSSION
Zuniga argues the trial court committed prejudicial error by admitting
incriminating statements he made during the police interview. Specifically, he contends
the court should have suppressed his statements after Garcia told him the charge could be
reduced to a misdemeanor if he confessed and apologized because statements he made
subsequent to this and other promises of leniency and threats by the officers were
involuntary as they were the result of police coercion. The Attorney General makes three
arguments in response: (1) Zuniga forfeited his appellate claim by failing to object to the
specific statements admitted at trial; (2) the trial court properly concluded Zuniga’s
statements were voluntary and admissible; and (3) any error was harmless. We disagree
with the Attorney General on each point.
A. Forfeiture
The Attorney General asserts Zuniga forfeited his appellate contention
because his “[t]rial counsel did not argue below that the isolated portions of the interview
that were admitted at trial were involuntary, [or] argue that everything after page 41 of
the transcript was inadmissible.” We disagree. The record establishes Zuniga’s counsel
argued in the trial court that all of Zuniga’s statements made “as a result of threats of
increased punishments and promises of leniency” should be suppressed, and counsel
identified page 41 of the transcript as one of the first instances where the officers made an
improper promise of leniency to Zuniga. In both the trial court and on appeal, Zuniga has
24
argued statements he made during the interrogation that resulted from police coercion
were inadmissible.
The Attorney General also contends Zuniga forfeited his claim because he
did not identify “in his motion in limine the specific statements the defense sought to
exclude at trial.” Again, we disagree. The requirement of a timely objection (Evid.
Code, § 353) is satisfied if the trial court is alerted “to the nature of the anticipated
evidence and the basis on which exclusion is sought” and the prosecution is afforded “an
opportunity to establish its admissibility.” (People v. Williams (1988) 44 Cal.3d 883,
906.) All of these requirements were satisfied in this case. In their in limine motions,
both parties alerted the court that the admissibility of Zuniga’s statements was a contested
issue. As the party seeking admission of Zuniga’s statements, the burden was on the
prosecution to establish they were voluntary and admissible. (People v. Sanchez (2019) 7
Cal.5th 14, 48.) At the evidentiary hearing, the prosecution presented evidence,
testimony, and argument on this issue, while Zuniga’s counsel argued for suppression of
Zuniga’s statements on the ground the officers’ promises produced an involuntary
confession. The court was fully apprised of the issue and the analysis needed to make an
informed ruling. Nothing more was required to preserve the issue for appeal. (People v.
Partida (2005) 37 Cal.4th 428, 435.)
B. Applicable Legal Principles
“Both the federal and state Constitutions bar prosecutors from introducing
into evidence a defendant’s involuntary statement to government officials. [Citation.]
This prohibition bars the admission of an involuntary confession, as well as an
involuntary admission. [Citation.]” (People v. Battle (2021) 11 Cal.5th 749, 790.) An
incriminating statement “is involuntary if the ‘“‘influences brought to bear upon the
accused were “such as to overbear [the defendant]’s will to resist and bring about
confessions not freely self-determined.”’”’ [Citation.] ‘A confession [or admission] may
be found involuntary if extracted by threats or violence, obtained by direct or implied
25
promises, or secured by the exertion of improper influence.’ [Citation.]” (People v. Wall
(2017) 3 Cal.5th 1048, 1065-1066 (Wall).) “In determining whether a [statement] is
involuntary, we consider the totality of the circumstances to see if a defendant’s choice to
confess was not ‘“‘“essentially free”’”’ because his will was overborne by the coercive
practices of his interrogator. [Citation.]” (People v. Spencer (2018) 5 Cal.5th 642, 672.)
In Wall, our Supreme Court explained: “‘[W]here 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.’ [Citation.]” (Wall, supra, 3 Cal.5th at p. 1066.)
“‘“Although coercive police activity is a necessary predicate to establish an involuntary
confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’
[Citation.] The statement and the inducement must be causally linked. [Citation.]”
[Citation].’ [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).)
“‘Once a suspect has been properly advised of his rights, he may be
questioned freely so long as the questioner does not threaten harm or falsely promise
benefits. Questioning may include exchanges of information, summaries of evidence,
outline of theories of events, confrontation with contradictory facts, even debate between
police and suspect. . . . Yet in carrying out their interrogations the police must avoid
threats of punishment for the suspect’s failure to admit or confess particular facts and
must avoid false promises of leniency as a reward for admission or confession. . . . [The
police] are authorized to interview suspects who have been advised of their rights, but
they must conduct the interview without the undue pressure that amounts to coercion and
without the dishonesty and trickery that amounts to false promise.’ [Citation.]” (People
v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
“‘It is well settled that a confession is involuntary and therefore
inadmissible if it was elicited by any promise of benefit or leniency whether express or
implied. [Citations.] However, mere advice or exhortation by the police that it would be
26
better for the accused to tell the truth when unaccompanied by either a threat or a promise
does not render a subsequent confession involuntary. . . . Thus, “[w]hen the benefit
pointed out by the police to a suspect is merely that which flows naturally from a truthful
and honest course of conduct,” the subsequent statement will not be considered
involuntarily made. [Citation.] On the other hand, “if . . . the defendant is given to
understand that he might reasonably expect benefits in the nature of more lenient
treatment at the hands of the police, prosecution or court in consideration of making a
statement, even a truthful one, such motivation is deemed to render the statement
involuntary and inadmissible . . . .”’ [Citations.]” (Holloway, supra, 33 Cal.4th at
p. 115.) “‘The offer or promise of such benefit need not be expressed, but may be
implied from equivocal language not otherwise made clear.’ [Citations.]” (People v.
Cahill (1994) 22 Cal.App.4th 296, 312 (Cahill).)
“‘On appeal, we conduct an independent review of the trial court’s legal
determination’ as to the voluntariness of a confession. [Citation.]” (Wall, supra,
3 Cal.5th at p. 1066.) “[W]e rely on the trial court’s factual findings to the extent they
are supported by substantial evidence . . . .” (Ibid.) But “where, as here, ‘[t]he facts
surrounding an admission or confession are undisputed to the extent the interview is tape-
recorded,’ those facts as well as the ultimate legal question are ‘subject to our
independent review.’ [Citation.]” (Ibid.) The prosecution bears the burden of proving
by a preponderance of the evidence the voluntariness of a defendant’s statements to the
police. (Ibid.)
Independently reviewing the matter, we conclude the officers made
coercive statements at multiple points in the interview by making promises of leniency if
Zuniga confessed and threats of greater punishment if he did not. We further conclude
the officers’ conduct was the motivating factor of Zuniga’s decision to make inculpatory
statements in the interview’s third segment.
27
C. Analysis
Recognizing the difference between a promise of leniency and a statement
of fact can be difficult as the difference is subtle. (People v. Thompson (1990) 50 Cal.3d
134, 169.) “The line ‘can be a fine one’ [citation] between urging a suspect to tell the
truth by factually outlining the benefits that may flow from confessing, which is
permissible, and impliedly promising lenient treatment in exchange for a confession,
which is not.” (Holloway, supra, 33 Cal.4th at p. 117.) Viewing Zuniga’s interview in
its entirety, we conclude the officers crossed this line, repeatedly.
At the hearing on the admissibility of Zuniga’s statements, the officers
candidly admitted they said inappropriate things and made promises they should not have
during the interrogation. In arguing for the admission of Zuniga’s statements, the
prosecutor explicitly stated he was not taking “the position that the officers were
appropriate” during their questioning of Zuniga. He conceded “that what [the officers]
did was at times improper.” However, the Attorney General has taken a different stance
on appeal, asserting the officers did not make express or clearly implied threats or
promises to Zuniga, and therefore, the officers said nothing improper during the
interview. We disagree.11
Some of the officers’ most troubling statements occurred during the
interview’s second segment. One of the first promises of leniency came when Garcia
told Zuniga that if he confessed and wrote an apology letter, he “could be out on bail and
never see jail time . . . .” Garcia then followed up this comment by telling Zuniga he was
facing a single felony count that could be “dropped down to a misdemeanor if . . . given
your record, given you have no history, given that it was, uh, ‘My mistake . . . [¶] . . . and
I apologize.’” Another occurred near the end of the interview’s second segment where
11 Given the officers’ admissions at the hearing and the prosecution’s stance
below, we were dismayed to read the Attorney General’s position on appeal. It is
baffling.
28
Garcia told Zuniga: “And like I said, I would hate for you to go to jail for several years
for something that you could have not just . . . put it on the table . . . and say, ‘You know
what? I fucked up. I’m sorry.’ . . . Done with already . . . you could have just done
minimal time. I mean, even . . . not even go to jail. You can stay out on probation . . . be
on probation and be out on bail, and not get in trouble and still provide for your family
and work and do what you have to do, okay?”
The officers also made express and clearly implied threats. Aranda told
Zuniga that if he stuck with his story that he innocently touched Jane while looking for
his son, his case would get caught up in the media and his face would be “plastered all
over the media” and Facebook. Garcia tied some of his threats to the DNA ruse, warning
Zuniga that if he stuck with his story and the DNA evidence came back against him, the
judge would probably add another charge; he would serve years in prison, leaving his
family to struggle without him; and he would “do the max time . . . and that’s several
years” and have to annually register as a sex offender.
In the interview’s third segment, the officers made more promises of
leniency. After Zuniga stated he was “not familiar with the court system,” Garcia told
Zuniga that his attorney could work out a plea deal with the district attorney’s office if he
admitted he “‘messed up’” and Garcia explained “they look at your record, . . . . uh,
probation for three years. It’s done with already. Stay out of trouble. Don’t do it again.”
Garcia later tried to walk back this comment, telling Zuniga that he was not promising
him anything but that it would “go better [for him] in court” and Zuniga maybe could “go
out to some plea deal” if he confessed. But a minute or two later, Garcia advised Zuniga
that if he told them “what happened,” he could handle the case through a plea deal and
with a good attorney get a “less charge and less time, maybe even probation, get out on
bail.” After Zuniga admitted it was a “possibility” the incident happened, but he could
not remember because he was intoxicated, Garcia told him that he probably could not
29
help him with “this probability thing” and that he needed to admit he did it. Zuniga
stated he would “admit to it happening” if that is what they wanted him to say.
The interplay of the officers’ promises of leniency and threats created a
coherent theme—if Zuniga admitted he did it and wrote an apology letter, the charge
could be reduced to a misdemeanor, he could get out on bail, receive probation, and not
do jail time, but if he did not, he would serve the maximum sentence, leaving his family
to suffer, and his face would be plastered all over the news and social media. Contrary to
the Attorney General’s contention, the officers did more than merely point out the benefit
that “‘“flows naturally from a truthful and honest course of conduct.”’” (Holloway,
supra, 33 Cal.4th at p. 115.) The officers were not simply describing the possible
consequences of a conviction, which is permissible. (Ibid.)
The clear import of the officers’ statements was if Zuniga told them the
truth as they viewed it and wrote an apology letter, he would receive more lenient
treatment. They did not offer vague statements about how his confession might help him,
instead, they told him specifically that the charge could be reduced to a misdemeanor, he
could bail out, get probation, serve minimal time, and continue providing for his family.
(Cf. People v. Carrington (2009) 47 Cal.4th 145, 174 [officers’ statements “simply
informed defendant that full cooperation might be beneficial in an unspecified way”].)
Not only did they specify how his confession would help, they also specified how his
continued denial would hurt him, his case, and his family. (Cf. Ibid. [officers’ statements
“did not threaten defendant and did not specify how her continued denial of criminal
involvement could jeopardize her case].) Nor can the officers’ transgressions be excused
as a “brief and isolated exchange” as they occurred repeatedly throughout the interview.
(Cf. People v. Jones (2017) 7 Cal.App.5th 787, 813 [concluding detective’s isolated
comment defendant “would only ‘do a little time in camp’” if he confessed was not the
proximate cause of defendant’s admissions].)
30
When we analyze the interview as a whole, we find more troubling aspects.
Beginning early in the interview’s first segment, the officers suggested Zuniga may have
been drunk at the time the incident occurred and unaware of his actions. This is a
common interview tactic, where officers suggest a possible explanation and offer the
defendant an opportunity to provide details, and is generally permissible. (People v.
Carrington, supra, 47 Cal.4th at p. 171.) But the problem here is the frequency with
which the officers deployed this tactic—more than eight times in the interview’s first two
segments—and how they welded it to their promises of leniency. The reoccurring theme
the officers presented in the first two segments was for Zuniga to admit he was drunk and
made a mistake, apologize for it, and he would get out on bail, receive probation, and
might not even go to jail.12
Having concluded the officers engaged in coercive conduct, we must
consider whether this conduct was a “‘motivating cause’” of Zuniga’s admissions.
(Wall, supra, 3 Cal.5th at p. 1066.) Had Zuniga confessed immediately after the officers’
promises and threats, it would be undeniable he was relying on them. (Linton, supra, 56
Cal.4th at p. 1177.) “Where the dominant focus of an interrogation is an implied promise
of leniency and a confession ensues, absent adduction of countervailing evidence, e.g., a
substantial time lapse between the implied promise and the incriminating statements, the
confession must be attributed to that implied promise.” (Cahill, supra, 22 Cal.App.4th at
p. 316.) Here, the promises of leniency offered by the officers, specifically Garcia, were
a dominant focus of the interrogation. Zuniga was repeatedly told he could get out on
bail, receive probation or minimal jail time if he just admitted he committed the crime
12 Although not coercive statements, we are nonetheless troubled by some of
Garcia’s statements to Zuniga regarding his constitutional rights. Garcia misstated the
presumption of innocence, falsely telling Zuniga that his attorney would have to prove
him innocent. He also advised Zuniga to waive his right to a jury trial, forgo his right to
confrontation, and take any deal his attorney works out because it would be unfair to Jane
to force her to take the stand and be subjected to cross-examination.
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and apologized. Nor was there a significant lapse in time between the officers’ promises
of leniency and Zuniga’s admissions in the interview’s third segment—only the hour in
which Zuniga was left in the holding cell. During this time, Zuniga realized his denials
were ineffective and he was going to have to give the officers what they wanted so he
could get the leniency they told him about.
The circumstances in this case remove any doubt the officers’ promises and
threats were a motivating cause of Zuniga’s admissions in the third segment. At the
beginning of the interview’s third segment, Garcia asked Zuniga to confirm he was not
being promised anything or forced “to provide a statement that’s not gonna be true.”
Zuniga responded only that he was not being forced. Zuniga’s failure to confirm he was
not promised anything reflects his understanding he had in fact been promised leniency if
he conformed his statement to what the officers wanted.
During the interview’s third segment, Garcia told Zuniga: “This is where
you’re going. ‘I was drunk. I made a mistake. I’m sorry.’” And that is exactly where
Zuniga went. Zuniga tried to follow the theme laid out by the officers and said he was
drunk at the time of the incident and in the past he had done things he did not recall so it
was possible the incident occurred. At times, he sought clarification from the officers as
to exactly what they wanted him to say. At the end of the interview’s third segment, after
giving the officers everything he thought they wanted, Zuniga asked if he could get out
on bail as they talked about earlier.
When ruling on the admissibility of Zuniga’s statements, the trial court
indicated it began “to have concerns about the reliability and voluntariness” of Zuniga’s
statements early in the interview’s third segment. After conducting our de novo review,
we share these concerns. We conclude the court should have suppressed not only
Zuniga’s statements agreeing with Garcia’s version of the incident but also his
admissions that he was drunk, made a mistake, and did not recall everything that
happened so it was possible the incident occurred.
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D. Prejudice
We now turn to the issue of whether the error was harmless beyond a
reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-312; Chapman v.
California (1967) 386 U.S. 18, 24.) This standard requires the Attorney General “prove
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” (Chapman, supra, 386 U.S. at p. 24.) “‘To say that an error did not contribute
to the ensuing 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. Neal (2003) 31 Cal.4th 63, 86.) Under this test, the Attorney General has a
steep but surmountable climb to convince us the admission of Zuniga’s incriminating
statements was harmless beyond a reasonable doubt. The Attorney General endeavors to
meet this challenge, but his effort falls short.
At trial, it was undisputed Zuniga touched Jane. The contested issues were
where he touched her and his intent in doing so. On these issues, Jane’s testimony was
credible and compelling. Moreover, her conduct in the minutes and hours after the
incident corroborated her allegation. This evidence alone was sufficient to support the
jury’s verdict. But the evidence of Zuniga’s guilt was not so overwhelming or conclusive
that we can say the erroneous introduction of his incriminating statements was harmless
beyond a reasonable doubt.
We cannot help but question whether the admission of Zuniga’s
incriminating statements contributed to the verdict against him as the jury in his first trial,
which did not hear this evidence, was unable to reach a verdict and hung six-six. (See
People v. Diaz (2014) 227 Cal.App.4th 362, 385 [previous trial resulting in a hung jury
supports a finding of prejudice where the evidence presented at both trials was similar,
except the challenged evidence was not presented at the first trial].) We acknowledge
there were differences in the evidence before the two juries, as pointed out by the
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Attorney General. Thus, we place limited weight on this fact and do not rely on it
exclusively in concluding the error was prejudicial.
We place more weight on the prosecutor’s reliance on Zuniga’s
incriminating statements. (People v. Diaz, supra, 227 Cal.App.4th at p. 384 [prosecutor’s
repeated references in closing argument to evidence that should have been excluded
“increases the potential for prejudice flowing from the error”].) The prosecutor used
Zuniga’s admissions—it was possible the incident occurred; he was drunk; and he does
things he does not remember when he is drunk—to both corroborate Jane’s testimony and
to attack Zuniga’s trial testimony. The prosecutor’s theory of the case, as he explained it
to the jury, was that Zuniga “molested Jane Doe and he doesn’t remember” it because he
was drunk. During closing and rebuttal arguments, the prosecutor supported this theory
by replaying portions of Zuniga’s admissions six times, demonstrating they were a
prominent part of the prosecution’s case. Indeed, this was the only substantial attack the
prosecutor waged on Zuniga’s credibility and testimony.
In closing argument, both parties argued the case boiled down to
credibility. The prosecutor repeatedly used the incriminating statements Zuniga made in
the third segment of the interview to attack Zuniga’s credibility. The prosecutor had little
else to use as minutes after the incident, Zuniga had offered a plausible explanation for
why he was in Jane’s room and he maintained this story throughout the interview’s first
two segments and in his trial testimony. On this record, we cannot say Zuniga’s
incriminating statements were “‘unimportant in relation to everything else the jury
considered on the issue’” of how Zuniga touched Jane. (People v. Neal, supra, 31Cal.4th at p. 86.) We conclude the admission of statements Zuniga made in the
interview’s third segment was prejudicial error.
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DISPOSITION
The judgment is reversed and the matter is remanded to the trial court.
O’LEARY, P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
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