People v. Avalos CA4/2

Filed 12/2/20 P. v. Avalos CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072862

v. (Super.Ct.No. RIF1704003)

JORGE ARMANDO AVALOS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Timothy J. Hollenhorst,

Judge. Affirmed.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta

and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jorge Armando Avalos first met 23-year-old Jane Doe,

who was his stepmother’s niece, at a family party. The following day, the family went

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together to brunch, where Doe drank Mimosas and, when leaving the restaurant, appeared

to be intoxicated. Defendant invited Doe and the rest of the family back to his apartment

complex to swim at his pool. Doe felt sick and she was helped to his apartment where

she fell asleep on his bed. She woke up to defendant having sexual intercourse with her,

he inserted his finger into her vagina, and he orally copulated her. Defendant was

interviewed by police and admitted to having sex with Doe, and that she may have been

too intoxicated to consent.

Defendant was found guilty of having sexual intercourse with an intoxicated

victim (Pen. Code, § 261, subd. (a)(3))1; sexual penetration with a foreign object of an

intoxicated victim (§ 289, subd. (e)); and committing an act of oral copulation on a

person unable to resist due to an intoxicating substance (§ 287, subd. (i)).2 Defendant

was sentenced to 14 years to be served in state prison.3

Defendant makes one claim on appeal that his statement to police was obtained

through coercion and implied promises of leniency in violation of his Fifth and

Fourteenth Amendment rights under the United States Constitution, which rendered his

confession involuntary. The People claim that the trial court did not have the authority to

stay the restitution fine and assessments imposed.

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

2 Defendant was also charged with sexual penetration by means of force or
violence (§ 289, subd. (a)(1)(A)), but he was found not guilty of the charge.

3 The trial court also imposed fines and fees that it stayed based on his inability to
pay, which we will discuss further, post.

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 FACTUAL HISTORY

A. PEOPLE’S CASE IN CHIEF

1. DOE’S FAMILY MEMBERS

Luz Loza was married to defendant’s father, Jorge Avalos, Sr. (Jorge Sr.). Loza

had two daughters, Tanya and Naomy Godoy. In August 2017, Tanya4 was dating Isaias

Avalos, defendant’s brother and Jorge Sr.’s son, and they had a child together. Jane Doe

was Loza’s niece. On August 26, 2017, Loza, Jorge Sr., Isaias, Tanya, Naomy and Doe

spent the day at Lake Perris. Defendant met them at the lake. Loza did not see any

interaction between Doe and defendant at the lake.

On August 27, 2017, Loza, Jorge Sr., defendant, defendant’s girlfriend Evelyn,

Isaias, Tanya (and her daughter), Naomy, Doe (and her son), and Doe’s sister Darlene all

went to an El Torito restaurant for brunch. Most of the adults were drinking all-you-can-

drink Mimosas. They were at the restaurant for several hours.

Doe and defendant were sitting across from each other at the table. Defendant

appeared to be interested in Doe even though he was sitting next to Evelyn. Loza

observed that as the day progressed, Doe appeared drunk. Defendant got into an

argument with Evelyn and she left as they were all leaving the restaurant.

When they decided to leave the restaurant, defendant invited them back to his

apartment because his apartment complex had a pool. As they were leaving, Tanya

4 We refer to some of the witnesses by their first names or initials for clarity due
to shared last names. No disrespect is intended.

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observed that Doe had trouble walking and appeared to be drunk. Loza had to help Doe

to the car. Doe had not expressed to Tanya that she had an interest in defendant.

Jorge Sr. drove Doe to defendant’s apartment along with Naomy, Darlene, and

Doe’s son. The rest of the family drove in two other vehicles. On the way to defendant’s

apartment, Jorge Sr. had to stop three times because Doe had to vomit. She vomited

again in the parking lot at defendant’s apartment complex. Naomy indicated that Doe

appeared a “little bit” drunk. Loza observed that Doe was drunk. Loza and Tanya

walked Doe to the couch in defendant’s apartment.

Doe vomited into the kitchen sink and defendant was present standing behind her.

Naomy observed while Doe and defendant were at the sink, defendant moved his hand

down Doe’s buttocks and pinched her buttocks. Loza saw defendant holding Doe at her

waist. Loza took Doe to the couch. Doe had a hard time walking and was slurring her

words. Doe was unable to sit upright on the couch.

Defendant allowed Doe to lay down in his bedroom. Loza and Tanya laid Doe

down on the bed. Doe went to sleep. Naomy noted that Doe appeared to be drunk.

Defendant encouraged everyone to go to the pool.

Everyone went to the pool except for Isaias and Tanya, who stayed in defendant’s

apartment to watch over Doe. Defendant also stayed in the apartment. Defendant told

Tanya and Isaias that he wanted to “get at” Doe. Tanya told him Doe had a boyfriend.

Defendant left the apartment telling Isaias, Naomy and Tanya he was going to get

pizza for the children. They observed him walk down the stairs to the parking lot. Tanya

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wanted to check on her daughter at the pool so she and Isaias left the apartment and went

to the pool. It was a two-minute walk to the pool.

Naomy decided to return to defendant’s apartment to stay with Doe. Darlene

came with Naomy and sat on the couch. Naomy thought Doe was alone in the apartment

and defendant was out getting food. The door to the bedroom was open when Naomy

returned from the pool. Naomy looked into the bedroom to check on Doe, and defendant

was in the room with his shorts down. He pulled up his shorts when he saw Naomy. Doe

was on the bed and her legs were hanging over the edge. Doe appeared to be

unconscious. Defendant said, “Oops.” Doe did not see defendant having sexual

intercourse with Doe.

Naomy went back to the pool. She whispered in Tanya’s ear that she had found

defendant in the apartment with his pants down. Tanya told Loza. Tanya, Loza, Naomy

and Jorge Sr. ran back to the apartment. Doe was on the bed with her feet hanging off the

bed. She did not want them to touch her. Doe appeared to be still drunk and was upset.

Doe got into a fetal position on the bed and was agitated. Doe said that she was sorry that

Naomy “had to see that.” She also said that she told him “no,” and that she could not get

him off of her. She told them she did not want it to happen. Naomy and Tanya had seen

defendant on the stairs leading to the apartment and he said, “I didn’t do anything.”

Doe did not want anyone to touch her and kept pushing them away. Tanya, Loza

and Naomy were finally able to get her up but she stumbled and still appeared to be

intoxicated. Doe was crying and shaking. Doe stumbled when they finally got her off

the bed and still appeared to be intoxicated. Loza had to help Doe walk. Doe got into

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Jorge Sr.’s car with Loza and Doe’s son. Loza saw defendant at the apartment and he

appeared nervous. Doe did not initially want them to call the police.

Loza and Jorge Sr. took Doe to her apartment in Anaheim. Doe’s mother called

the police and they went to the hospital for a sexual assault exam. Tanya and Loza went

with Doe to the hospital. She was scared and shaking. Naomy also went to the hospital.

Doe seemed very sad.

Tanya was upset when she first saw Doe because she was aware that defendant

had previously been accused of raping a cousin. Doe also told Tanya and Naomy at the

apartment that she was embarrassed and that she should not have drank. She also said

she should not “have dressed this way.” She also said she told defendant “no” because he

had a girlfriend and that she did not want to “catch” anything.

Tanya acknowledged that after her testimony on direct, Isaias called and

threatened her telling her to watch her back because she was a liar. She obtained a

protective order against him. Isaias told her he had talked to defendant about her

testimony.

2. DOE

Doe was born in May 1993 and was 25 years old at the time of trial. Doe met

defendant for the first time on August 26, 2017, while she and her family were at the

lake. Doe lived in Anaheim but was staying with Loza for the weekend to celebrate her

son’s birthday. Doe had very little interaction with defendant on that day at the lake.

Doe was seeing someone and was not attracted to defendant. She did not flirt with him.

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 The following day, on August 27, she went with the family to El Torito for

brunch. Defendant met them at the restaurant. Doe drank Mimosas and ate shrimp

during brunch. The waiter refilled her original glass so she was unsure how many drinks

she had consumed. Defendant was drinking. Doe sat across from him and Evelyn.

Evelyn and Doe talked. Doe did not flirt with defendant. She started to feel lightheaded

and spilled her drink at one point. She did not recall leaving El Torito. After brunch,

Loza had planned to take Doe and her son back to their home in Anaheim, but instead

took her to defendant’s apartment.

Doe did not recall the drive home from El Torito to defendant’s apartment except

for at one point sticking her head out of the car and throwing up. She recalled sitting

down in defendant’s living room and feeling dizzy and sick. She vomited in the kitchen

sink. She then remembered laying down on defendant’s bed. Doe felt drunk. She fell

asleep.

Doe woke up and defendant was facing her. She was still dizzy and sick and kept

closing and opening her eyes. Defendant then pushed aside the romper she was wearing

and put his penis inside her vagina. Doe had not told him she wanted to have sex. She

did not consent to sexual intercourse. Doe asked defendant, “Why are you doing this to

me, you have a girlfriend?” Defendant whispered in her ear, “Don’t worry about her.

She’s not my girlfriend. She’s my business partner. She’s my associate.”

Defendant put his penis inside of her vagina two times. Defendant asked Doe to

perform oral sex on him to help him get erect but she refused. Doe felt disgusted and

confused; she did not want him to touch her. Defendant then performed oral sex on Doe.

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He forced his fingers inside her vagina and then tried to insert his penis in her vagina

again but he was not fully erect. It hurt when he put his fingers inside her. She did not

consent to defendant performing oral sex or inserting his fingers in her. Defendant then

stopped and left the room. Doe heard Naomy’s voice.

Doe recalled that Loza helped her out of the bedroom to the car. Doe felt dizzy,

lightheaded and still drunk. Doe kept saying that she was sorry because she felt that

nothing would have happened if she had not been drinking and had worn a different

outfit. She blamed herself for attracting defendant by drinking and wearing her outfit.

Doe froze while the assault was happening because she felt confused and disoriented.5

Once they got back to Doe’s house in Anaheim, the police were called. Doe

admitted she did not try to stop defendant. Doe was concerned about the fact she had

been drinking in the presence of her son and worried that child protective services would

take her son.

Doe denied that she ever grabbed defendant’s penis or kissed him. Doe denied

that she told defendant that she needed satisfaction. She did not recall that she pushed his

head down to her vagina while he was performing oral sex on her. Doe had trouble

reasonably responding to what defendant was doing because she was intoxicated. If she

had been sober, she would have tried to push him off and tell him no.

5 She admitted she was still able to talk to defendant and ask him why he was
doing this to her.

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 3. INVESTIGATION

Doe submitted to a sexual assault examination on August 27, 2017, at around

midnight. Doe was very anxious and was crying. She was disheveled. Doe had

abrasions around her vaginal opening. DNA swabs were taken from the vaginal area.

There was a laceration on her perineum. The laceration and abrasions were consistent

with a sexual assault occurring. These injuries were consistent with digital penetration.

Riverside Police Detective Paul Miranda investigated Doe’s case. He called

defendant and asked him to come to the police station to be interviewed. Detective

Miranda and Detective Everett Bercian interviewed defendant on August 28, 2017. The

interview was videotaped and played for the jury.

At the beginning of the interview, defendant denied touching Doe. Detective

Miranda used a ruse showing defendant a document that he claimed showed defendant’s

DNA was found in Doe’s vagina. Defendant admitted only to having sexual intercourse

with Doe. He then admitted that he put his finger in her vagina, and finally admitted to

performing oral sex on her. Defendant stated when asked if she was in the state of mind

to consent, that neither of them were because of the alcohol and that he had “fucked up.” 6

After the interview with defendant, Detective Miranda obtained the results of the

sexual assault exam. Defendant’s DNA was found on Doe’s vagina.

6 We will provide further detail of the interview, post.

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 4. PRIOR INCIDENT

R.B. was 33 years old at the time of trial and was defendant’s third cousin. In

1999, when she was 14 years old, she was at defendant’s house getting ready to go out

trick-or-treating for Halloween. She thought defendant was 17 or 18 years old at the

time. Defendant was upstairs and R.B. was downstairs listening to music with a friend.

Defendant called her up to his bedroom. Defendant asked R.B. to kiss him. R.B. felt

uncomfortable. She thought that she kissed him but she could not remember. Defendant

then raped her by having sexual intercourse with her without her consent. He put his

fingers inside her vagina. R.B. said it hurt her vagina. R.B. did not want to testify

because she had decided not dwell on the incident and live her life. This was her first

sexual experience.

B. DEFENSE

Isaias estimated they all arrived at the El Torito at 10:30 a.m. and left around 3:30

p.m. While they were there, Doe kept talking to defendant and Evelyn appeared to be

upset about it. Doe seemed “tipsy” during brunch. Loza had to help Doe to the car and

at that point appeared to be drunk. He, defendant, and Jorge Sr. drank more beer when

they got to the apartment. Doe fell asleep in defendant’s bedroom. Defendant never told

Isaias and Tanya that he was interested in Doe.

Defendant went to get pizza over one hour after they got back to the apartment.

Isaias observed defendant go into the apartment while they were all at the pool before he

went to get the pizza. Isaias recalled that at some point, defendant returned with the

pizza.

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 Isaias went back to the apartment to go to the bathroom while defendant was gone.

He checked on Doe and she was awake. She asked for a glass of water and seemed fine.

No one else was in the apartment. Naomy came in the bedroom and he heard Doe tell her

“Sorry.” Tanya and Loza joined Naomy. Doe was crying and she told them not to touch

her. Loza helped Doe to the car. Isaias believed that Doe was still drunk.

Isaias never heard Doe say that she told defendant “no” or that she could not get

him off of her. Isaias admitted that defendant called him after Tanya’s testimony and

complained that she had lied. Isaias was upset because he believed Tanya to be a

habitual liar. He admitted to calling her, accusing her of being a liar, and calling her a

bitch. He denied that he threatened her.

Defendant testified on his own behalf. Doe sat across from him and Evelyn at El

Torito. She asked Evelyn questions about his and Evelyn’s relationship. He drank

champagne during brunch and was intoxicated when they left. Doe drank Mimosas the

entire time she was at El Torito but did not seem drunk at the restaurant. They left El

Torito around 2:30 p.m. When defendant got back to his apartment, he drank more beers.

Defendant was aware that Doe vomited in the sink. Loza asked defendant if Doe

could lay down on his bed. He was hesitant because he had a girlfriend and it did not

“look right,” but he agreed. He never told Tanya he wanted to be with Doe. Around 5:00

p.m., he went to the pool and told everyone he was going to get pizza. Defendant

stopped by his apartment to get money.

Doe was waking up when defendant got into his apartment. He asked if she was

okay and she responded, “I’m all right.” Defendant told Doe, “I kind of like you,” and

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she responded “I do too.” Defendant was very intoxicated. Defendant kissed Doe on the

mouth and she kissed him back. They began kissing and he began rubbing her vagina.

Doe grabbed defendant’s penis over his clothes and began rubbing. He then performed

oral sex on her. He lifted his head to kiss her but she pushed his head back down telling

him she needed satisfaction. Defendant asked her to perform oral sex on him but she said

no. Doe was moaning and appeared to consent. Doe moved her underwear and he

inserted his penis in her vagina. Doe seemed to be consenting and knew she was

engaging in sexual intercourse. Defendant only inserted his penis twice and then stopped

because he felt guilty about his girlfriend. Defendant was putting his pants back on when

Naomy entered the room. Doe said, “Fuck.”

Defendant would not have engaged in sexual intercourse with Doe if he had not

been drinking. Defendant said “Oops” when Naomy entered the room because he was

putting his belt on. Defendant left the bedroom door open because the sexual acts were

spontaneous and had not been planned.

Defendant initially lied to the police about having sex with Doe because he was

embarrassed and Evelyn was waiting outside the police station for him. He lied to the

police because he felt he had done something morally wrong, not legally wrong, and

because he was afraid that Evelyn would find out. He admitted he told the detectives that

Doe was not in right state of mind because of their drinking, but he insisted that she

consented to the sexual acts. Although Doe had been drinking, she appeared to defendant

to be willingly engaged in the sexual acts. Doe only said no to giving him oral sex.

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 Defendant was 17 years old when he had sex with R.B. He was convicted of

unlawful sex with a minor. He lied to Detective Miranda that he had not been convicted.

DISCUSSION

A. VOLUNTARY STATEMENT

Defendant claims the trial court erred by admitting his statement to Detectives

Miranda and Bercian because the statement was a result of their offers of leniency and

coercion rendering his confession involuntary. The admission of his involuntary

confession violated his rights under the Fifth and Fourteenth Amendments to the United

States Constitution.

1. ADDITIONAL FACTUAL HISTORY

We have only reviewed the transcript of the interview on appeal as the parties

have not asked this court to review the videotape of the interview. At the beginning of

the interview, defendant spoke with the detectives about small businesses that he was

involved in, one of which was with his girlfriend, Evelyn. The detectives expressed

interest in his businesses. Detective Miranda asked defendant if he knew why he was

being interviewed. Defendant responded that it was because Doe had said he touched her

“which is absolutely . . . not true.”

Defendant noted that Doe was “hammered” at El Torito. Doe was put in

defendant’s bed back at his apartment and they all went to the pool. Defendant told them

he was going to get pizza for the family so he went to his room to change his shoes and

belt. While he was changing his belt, one of the girls in the family entered the room and

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thought he was doing something to Doe. When he came back from getting pizza, the

family accused him of doing something to Doe.

Defendant insisted that he never touched Doe. Detective Miranda told defendant

that other family members had advised him that defendant had gone into the room where

Doe was sleeping, rolled her over and then penetrated her. He asked for oral sex but she

said no, so he put his fingers in her vagina and performed oral sex on her. Defendant

responded, “Absolutely not.”

Detective Miranda then told defendant, “So, um, if you’re telling me that you’ve

never—you never touched her . . . [¶] . . . [¶] . . . but then I have evidence that your

DNA is on her. I mean, how would you react to that?” Defendant responded, “How is

my DNA on her if I didn’t touch her?” Miranda told defendant that Doe went to the

hospital and had a rape kit exam, and if defendant had been inside of Doe, they were

going to know. Miranda then told defendant that they “did know” and they did not want

defendant to screw up his life by lying. He told defendant that it was possible he was

drunk or Doe asked for it. The detectives knew they had sex and by saying he had not

touched her, he was either a “monster” or he was scared. Miranda understood that

defendant was going to get in trouble with his girlfriend but told defendant it was “far

worse” to lie to the detectives. Miranda asked defendant what he thought they were

going to do if he lied, and defendant responded, “Lock me up.” Miranda told defendant,

“Exactly, man. Not going to lock you up but you’re going to get in trouble with the law.”

Detective Miranda told defendant they could start the conversation over and that

he would not be offended that defendant had lied. However, Miranda told defendant that

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if defendant continued to lie, Miranda would think defendant was a “monster,” and “then

I’ll take . . . another approach.” Miranda asked defendant if he wanted to tell him what

had happened that day. Defendant responded, “We were both drunk.” Defendant

insisted he was not a monster and Doe never said no.

Defendant said he went into the bedroom, and Doe told him “Yeah, Uh, I kind of

like you.” Defendant responded to Doe, “Me, too,” and they started kissing. Doe

grabbed his penis and told him, “I need satisfaction.” Doe moved aside her clothes and

he penetrated her vagina two times then stopped. He denied performing oral sex or

putting his finger in her vagina. He denied he forced himself on her or raped her; Doe

wanted to do it.

Detective Miranda told defendant that Naomy had seen him kneeling on the

ground with his head between Doe’s legs. Defendant insisted that Naomy only saw him

adjusting his belt. Defendant had stopped penetrating Doe because he could not finish

the “task.” He could not finish because, “she was drunk and I know better than that.”

Defendant said that he made a “stupid choice.”

Detective Bercian then spoke to defendant. He told defendant that defendant was

smart but that he had “fucked up.” Bercian did not think defendant was the type of guy

who would take advantage of a drunk girl and put his penis in her. Bercian and Miranda

were trying to “humanize” him. They did not think he was a “monster” but rather, he

was scared because he had “fucked up.”

Defendant responded he initially lied to the detectives because he was scared; he

was not a monster and had a lot to lose. Detective Bercian told defendant there was a

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difference between sperm and saliva DNA and that defendant should tell them if he

performed oral sex on Doe. Defendant admitted he put his fingers in her vagina but still

denied performing oral sex on her. Detective Miranda told defendant the entire sexual

assault kit was going to come back so he should be honest; “Fall on the sword and then

move on with your life because lying’s not gonna do anything for you Jorge.” Miranda

advised him, “Because we’re not the only—when we present this case to the DA. Now if

the DA gets this and they like, “Aw, man, Jorge’s lying—lying—lying. He’s not gonna

admit to this? Well what can happen? They don’t [know] who Jorge is because they

didn’t sit down next to him. . . . I have an idea who you are. Someone who wants to tell

the truth but they’re afraid to tell the truth until they’re up against the wall.” Miranda

asked defendant why it was so hard for him to tell the truth about performing oral sex on

Doe.

Defendant responded, “So it is to me. I fucked up.” Detective Bercian reiterated

that the district attorney was going to look at the interview and make a decision as to how

to proceed with the case. The detectives were only seeking to have defendant tell the

truth. Defendant then admitted to performing oral sex on Doe but insisted that no one

saw him.

Defendant swore on his daughters’ lives that Doe consented and that she forced

his head down to give her oral sex. He only penetrated her twice. He insisted he was

telling the truth. Detective Bercian told defendant, “Just—just listen to me. Tell the truth

because this is going to help you out more than anything.” Bercian asked defendant, “Do

you think—do you think she was, uh, in a state of mind to give consent?” Defendant

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responded, “None of us were.” Bercian asked, “But do you think she was in a state of

mind . . . .” Defendant interrupted and stated, “No. She wasn’t.” Bercian continued, “. .

. to give consent?” Defendant stated, “That’s why I said I fucked up.”

Defendant was asked about the prior incident with R.B. and defendant claimed

that she had lied and he was never convicted. Defendant was told that he was going to be

arrested and booked for rape. Defendant insisted that Doe never pushed him away and

did not stop him. He was willing to take a lie detector test about insisting she wanted him

to pleasure her. As they were waiting for defendant to be booked, defendant discussed

different ways of investing on the Internet with the detectives.

Before trial, defendant brought a motion to exclude his statement to police as

involuntary, insisting that the police lied to him by showing him a false DNA report,

threatened to lock him up, and called him a monster. The trial court, in ruling that the

statement was admissible, noted that it had seen “hundreds, if not thousands” of

interviews that were very similar. The trial court noted that the interview was “a-run-of-

the-mill-type interview” in terms of questioning and answering. There was no yelling nor

raised voices. The trial court felt that defendant was very intelligent and the conversation

appeared friendly. The interview was short and defendant was not handcuffed. The

detectives were polite. “So based on the totality of the circumstances, the Court does find

that the confession or the interview was voluntary.”

2. ANALYSIS

“Both the state and federal Constitutions bar the prosecution from introducing a

defendant’s involuntary confession into evidence at trial. [Citations.] ‘ “A statement is

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involuntary if it is not the product of ‘ “a rational intellect and free will.” ’ [Citation.]

The test for determining whether a confession is voluntary is whether the defendant’s

‘will was overborne at the time he confessed.’ ” ’ ” (People v. Linton (2013) 56 Cal.4th

1146, 1176.) “ ‘Whether the confession was voluntary depends upon the totality of the

circumstances.’ ” (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams); People v.

Smith (2007) 40 Cal.4th 483, 501.)

“In evaluating the voluntariness of a statement, no single factor is dispositive.”

(Williams, supra, 49 Cal.4th at p. 436.) “The presence of police coercion is a necessary,

but not always sufficient, element. [Citation.] We also consider other factors, such as the

location of the interrogation, the interrogation’s continuity, as well as the defendant’s

maturity, education, physical condition, and mental health.’ ” (People v. Caro (2019) 7

Cal.5th 463, 492.)

“In assessing allegedly coercive police tactics, ‘[t]he courts have prohibited only

those psychological ploys which, under all the circumstances, are so coercive that they

tend to produce a statement that is both involuntary and unreliable.’ ” (People v. Smith,

supra, 40 Cal.4th at p. 501; see also People v. Jones (1998) 17 Cal.4th 279, 297-298

(Jones).) “Police deception ‘does not necessarily invalidate an incriminating

statement.’ ” (Smith, at p. 505.) Deception does not undermine the voluntariness of a

defendant’s statement to the authorities unless the deception is ‘ “ ‘ of a type reasonably

likely to procure an untrue statement.’ ” ’ ” (Williams, supra, 49 Cal.4th at p. 443.)

In Williams, supra, 49 Cal.4th 405, the defendant claimed his confession was

involuntary because the officer threatened he would suffer the death penalty if he did not

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cooperate with them and lied to him that the defendant’s fingerprints were found, which

tied him to the crime. The California Supreme Court found that reference to the death

penalty did not “necessarily” render the statement involuntary. A confession was only

invalidated if “ ‘officers threaten a vulnerable or frightened suspect with the death

penalty, promise leniency in exchange for the suspect’s cooperation, and extract

incriminating information as a direct result of such express or implied threats and

promises.’ ” (Id. at pp. 442-443.) As for the deception by the officers that the

defendant’s fingerprints had been found, it noted that use “of deceptive comments does

not necessarily render a statement involuntary.” (Id. at p. 443.) The court concluded that

“it is evident that neither the mention of the death penalty nor the deception overcame

defendant’s will” as he had prior experience with the criminal justice system, he showed

no sign of distress, and ultimately denied responsibility. (Id. at pp. 443-445.)

In Jones, supra, 17 Cal.4th 279, superseded by statute on other grounds as stated

in People v. Johnson (2013) 222 Cal.App.4th 486, the defendant made several statements

to officers, admitting his involvement in a murder, and ultimately admitting to being the

shooter. The defendant claimed on appeal that his statements were involuntary because

the officers had promised leniency by telling the defendant that they would intercede with

the district attorney on his behalf if he was honest and that the “ ‘truth is going to set you

free.’ ” (Jones, at p. 281.) The officers also claimed to have “superior knowledge of the

crimes and that it would be best for him to confirm facts they already knew, when in fact

they did not know them.” (Id. at pp. 295, 297-298.) The California Supreme Court

found that the claims regarding leniency did not render the defendant’s statement

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involuntary as they were “truthful implications that his cooperation might be useful in

later plea bargain negotiations.” Further, as for deception, the court held, “Nor did the

detective’s deceptive statements offend any constitutional guaranty. The detective

implied at various times that he knew more than he did or could prove more than he

could. Such deception regarding the evidence was permissible, for it was not ‘ “of a type

reasonably likely to procure an untrue statement.” ’ ” (Id. at pp. 298-299.)

Here, defendant was told the results of the DNA test from the sexual assault exam

had already been obtained and that his DNA was found in Doe’s vagina. At that point,

although defendant had maintained that he had not touched Doe, he then admitted to

inserting his penis in her vagina. He still adamantly denied that he had performed oral

sex on her or put his fingers in her vagina. In addition, at that point, he claimed the

sexual intercourse was consensual. The showing of the DNA test did not result in a

confession by defendant of all of the sex acts and he maintained that the sexual

intercourse was consensual.

The detectives had spoken with Doe and the family members. It was evident that

some sort of sexual encounter had occurred. It was not a lie that Doe had submitted to a

sexual assault exam and that DNA results would be forthcoming. The detectives lied to

defendant that they already had the results, but it did not result in defendant confessing to

having sex with Doe without her consent.

The detectives also gave defendant a choice: he was either a monster or scared.

At that point, defendant admitted that he penetrated Doe, but he insisted that the

encounter had been consensual. He insisted they both expressed that they liked each

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other and the sexual intercourse spontaneously occurred. Defendant did not confess at

this point that he raped Doe but rather insisted that they had consensual sex. He also did

not admit to performing oral sex on Doe or putting his fingers in her vagina. Defendant’s

will was not overcome and he did not incriminate himself as a result of the detective’s

ruse about the DNA and calling him a monster. (See Williams, supra, 49 Cal.4th at pp.

444-445.)

Moreover, suggesting to defendant that he would be better off telling the truth

rather than lying did not render the statement involuntary. The court in Williams stated,

“ ‘No constitutional principle forbids the suggestion by authorities that it is worse for a

defendant to lie in light of overwhelming incriminating evidence.’ [Citation.] Absent

improper threats or promises, law enforcement officers are permitted to urge that it would

be better to tell the truth.” (Williams, supra, 49 Cal.4th at p. 444.)

Here, we do not agree with defendant’s claim that the detectives’ insistence that he

tell the truth was an implied promise of leniency. Rather, the detectives encouraged

defendant to tell the truth, and made no promises as to what would happen to his

sentence. They advised him of Doe’s statements and what family members had seen in

order to encourage him to tell the truth. The detectives advised defendant the district

attorney would see the interview and would know defendant lied, but did not discuss the

charges or sentence. Further, they advised him that it was up to the district attorney to

file charges, but that the detectives just wanted the truth. These were not promises of

leniency as there was no discussion of the charges, which would imply that if defendant

told the truth he would receive a lesser sentence.

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 Further, defendant insists that the detectives threatened defendant by telling him

they were not going to lock him up if he lied but he was going to be in trouble with the

law. Defendant insists that this was an implied promise of leniency in that he would go

free if he told the truth. In context, this was not an implied promise of leniency. The

detectives were discussing defendant’s concern that defendant’s girlfriend would find out

about the sexual encounter if he told them what had happened, was not as problematic as

if defendant lied to them. It was not a promise that he would go free if he told the truth.

These statements properly advised defendant that he would be better off if he told the

truth and did not constitute threats or implied promises of leniency. (Jones, supra, 17

Cal.4th at pp. 297-299.)

Based on the totality of the circumstances, defendant’s statement was voluntary.

Defendant maintained throughout the interview that Doe had consented to the sexual acts.

He swore on his daughters’ lives that Doe consented. He acknowledged that they had

both been drunk, but insisted she still consented. He offered to take a lie detector test as

to the fact that Doe wanted to engage in the acts. Defendant’s will was not overborne by

the detectives and his statement as to the sexual acts committed was voluntary.

Defendant relies on People v. Elias (2015) 237 Cal.App.4th 568, 570, 574-575

(Elias). In Elias, the officers interrogated a 13-year-old boy who was suspected of

committing a lewd and lascivious act upon a child who was three years old. The boy

adamantly denied that he had touched her. The officer suggested that the boy had

touched her vagina because he found it exciting or he was curious. The officer

aggressively questioned the boy and made false representations, claiming witnesses saw

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the boy touch her vagina when no such evidence existed. The boy then admitted he

touched the girl’s vagina because he was curious. (Id. at pp. 570-571, 574-575, 582-583.)

On appeal, the Elias court noted that the use of false evidence during police

interrogation could cause young defendants to give false confessions. It stated,

“[C]hildren and adolescents are much more vulnerable to psychologically coercive

interrogations and in other dealings with the police than resilient adults experienced with

the criminal justice system.” (Elias, supra, 237 Cal.App.4th at p. 588.) The Elias court

found the “accusatory interrogation was dominating, unyielding, and intimidating.” (Id.

at p. 586.) It found the statement involuntary based on the boy’s youth, the absence of

any corroborating evidence, and the likelihood the deception and tactics induced the boy

to make an involuntary and untrustworthy admission. (Id. at pp. 586-587, 592-594, 597.)

Here, defendant was not a juvenile and was clearly not intimidated by the

detectives. He talked with the detectives about running businesses and ended the

interview discussing Internet investing. Further, there was corroborating evidence here,

unlike in Elias, in that Doe’s sexual assault examination revealed signs of forcible sexual

acts, and defendant was seen by Naomy pulling up his shorts in the bedroom. Further,

there is no evidence that Detectives Miranda and Bercian were “dominating” or

“intimidating.”

Moreover, the fact the detectives told defendant that he was either scared or a

monster did not result in a false confession. Even though defendant had stated Doe was

not in the right mind to consent, he then clarified that they were both drunk, and neither

would have made the same choices if sober. The deception by Detectives Miranda and

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Bercian did not overcome defendant’s will as he maintained that Doe consented to the

sexual acts.

Defendant’s statement was properly admitted and did not violate his Fifth and

Fourteenth Amendment rights under the United States Constitution.

B. STAY OF FINES AND FEES

The People, in a footnote, contend the trial court erred by staying the restitution

fine and fees imposed because it did not have the authority to stay those assessments or

the restitution fine.

During sentencing, defendant’s counsel requested that the trial court not impose

the requested fines and fees in the case because defendant did not have the ability to pay.

Defendant’s counsel also requested that the trial court set the restitution fine at $300 but

stay the imposition of the fine also because defendant did not have the ability to pay. The

trial court ruled, “The Court will find no ability to pay based on [defendant]’s prison

sentence and the fact that he is an indigent defendant represented by a government

attorney. [¶] The Court will impose the minimum fines and fees applicable, but will stay

the imposition of those fines.” There was no objection by the prosecutor.

The minute order reflects that a $300 restitution fine (Pen. Code, § 1202.4, subd.

(b)); a $300 parole revocation fine (Pen. Code, § 1202.45); a court operations assessment

in the amount of $120 (Pen. Code, § 1465.8, subd. (a)(1)); and a criminal conviction

assessment of $90 (Govt. Code, § 70373) were imposed and stayed.

The People have waived any claim on appeal that the trial court improperly stayed

the restitution fine and the assessments. The prosecutor did not object to the stay of the

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fines and fees in the trial court. “[U]nless a party makes a contemporaneous objection, he

or she generally cannot challenge a court’s ruling for the first time on appeal.” (People v.

McCullough (2013) 56 Cal.4th 589, 594.) This equally applies to the imposition of fines

and fees. (See People v. Tillman (2000) 22 Cal.4th 300, 303 [failure of prosecutor to

object to trial court’s omission of mandatory restitution fine pursuant to section 1202.4

waived any claim on appeal that it should be imposed].)

While we recognize that the assessments pursuant to Government Code section

70373 and Penal Code section 1465.8 are mandatory, the prosecutor remained silent

when defendant’s counsel argued that the trial court should not impose the assessments

and when the trial court decided to stay the assessments. Here, had the prosecutor

objected, the trial court could have considered if it could properly stay the fines and fees,

or could have chosen not to impose them. As such, the failure of the prosecutor to object

waives the issue on appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.
We concur:

RAMIREZ
P. J.

FIELDS
J.

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