Filed 2/2/21 P. v. Avelino CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G057775
Plaintiff and Respondent,
(Super. Ct. No. 15HF1405)
v.
OPINION
CATALINO AVELINO,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, John D.
Conley, Judge. Affirmed.
Carl Fabian, 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 and
Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Catalino Avelino of four counts of lewd or lascivious acts
committed against children under age fourteen for sexually abusing three of his
step-granddaughters. (Pen. Code, § 288, subd. (a); all further statutory references are to
this code.) The jury found true the allegation that these sex crime counts involved
multiple victims. (§ 667.61.) The jury also convicted Avelino on three other counts of
attempting to commit lewd acts against the girls. (§§ 664, 288, subd. (a).) The trial court
sentenced Avelino, who was 65 years old when he was arrested for the offenses, to
18-years-to-life in prison. The sentence consisted of an indeterminate 15-year term on
one completed count, similar concurrent terms on the other completed offenses, a
consecutive middle term of three years for one of the attempt counts, and similar
concurrent terms for the other attempts.
1
Avelino’s sole claim on appeal is that the Miranda waiver he gave to the
police was ineffective given the totality of the circumstances, including his “impaired
intellectual disability range.” He asserts the incriminating statements he made to the
officers were involuntary and should have been excluded. As we discuss, the trial court
during a pretrial hearing heard extensive evidence concerning the circumstances of
Avelino’s waiver, including the testimony of Avelino’s expert witness, a
neuropsychologist who interviewed him. The expert identified deficits in Avelino’s
reading and verbal comprehension, but acknowledged that in several tests administered as
part of a cognitive evaluation that Avelino scored in the average range, and his IQ did not
fall into the range considered to be intellectually disabled. Under the governing standard
of review, we cannot say the trial court erred in finding Avelino’s express
acknowledgment that he understood his Miranda rights made his waiver effective and
that his statements were voluntary. We therefore affirm the court’s pretrial ruling and the
judgment.
1
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
FACTUAL AND PROCEDURAL BACKGROUND
Because Avelino’s challenge concerns his police interview and Miranda
waiver, we begin there.
Avelino was arrested on November 19, 2015, a Thursday, and spent the
weekend in jail. The circumstances of his arrest are not in the record, but it appears he
was set to be released from jail the following Monday since no formal charges had been
filed against him. The court’s minutes for that date state, “District Attorney faxed over
refusal paperwork to the jail.”
Before he was released, Detectives L. Henriquez and J. Perez, who were
wearing casual attire rather than police uniforms, contacted Avelino in the section of the
jail where inmates are processed for release. Avelino was also wearing casual clothes; it
appears he was still handcuffed. The detectives, who were sworn members of the Orange
County Sheriff’s Department, identified themselves by name and as an “[i]nvestigator,”
but did not explicitly state they were members of law enforcement.
Henriquez told Avelino that Perez wanted to ask him some questions;
Avelino agreed (“okay”). Along with a jail deputy, they led Avelino into a holding cell,
where he was uncuffed and directed to sit on a bench. When asked whether he spoke or
understood English, Avelino responded, “No.” Henriquez explained that Perez did not
speak Spanish, so she would translate his questions and Avelino’s answers, respectively.
Henriquez then read Avelino his Miranda rights, which she prefaced with a
reminder that he was in jail, “under arrest [and] I need to read you your rights.” She
continued, “When I read you your rights what I need from you is if you understand say
yes, if you don’t understand say no, and I will explain. Understand?” Avelino confirmed
that he understood (“Yes”), and Henriquez proceeded to review each of his rights
individually with him, which, after each one, he confirmed he understood (“Yes”).
Henriquez then turned the interview over to Perez, who had been setting up an audio
recorder. The interview lasted just under an hour.
3
Perez began by asking identifying questions, including where Avelino lived
(Dana Point), whether he was married or single (separated), and the name of his wife
(C.P.). Avelino explained that he and C.P. had been separated for about five years,
breaking up after she did not want to move from Laguna Niguel to a new home with him.
They previously lived together for about 10 years. During that time, two of C.P.’s
children also lived with them, as did several of C.P.’s grandchildren. The grandchildren
included two sisters, K.D. and K.M.
The testimony of K.D. and K.M., along with that of their cousin, L.G., who
did not live with them, indicated that Avelino abused each of them in separate instances
beginning when they were as young as first grade (K.M.), seven years old (L.G.), and
“very young” (K.D.). The abuse continued for several years, until K.D. and K.M.’s
mother began “having issues” with Avelino, which the record does not identify, and
“kicked him out” of the Laguna Niguel home.
During Avelino’s jail interview, after the initial background questions,
Perez turned the topic to whether Avelino had ever bathed K.D. or K.M., helped dress
them, or done their laundry, all of which Avelino denied. He also denied bathing L.G. or
seeing any of the girls naked (“No, never”). He further denied that anyone had ever
accused him of touching the girls inappropriately (“No, never”), or that he had ever done
such a thing (“No”).
When Perez stated directly that the girls claimed Avelino “touched their
vagina, and breast,” Avelino demurred that “the girls were very loving towards him
because he would buy them food and he would go with his wife to buy them clothes
and . . . if he touched them it was when he hugged them.” When Perez pressed that “the
little girls are, are upset and hurt that you touched them” and “right now is the time to tell
us” because “the only thing [they] want[] to know is that you feel bad for doing this,”
Avelino again deflected. He answered that “it’s possible I feel bad, after I’ve helped
4
them so much,” but noted “[t]hey threw me out, she didn’t want to[],” apparently
referring to his wife.
Perez conceded, “if it was by accident, I need to know.” Avelino agreed,
“[i]t’s possible that, excuse me, that it happened by accident.” Avelino thereafter
continued to insist that any touching was only accidental or as a “hug,” even when Perez
stated he knew Avelino had touched K.D.’s breast, which Avelino denied (“Ah, never”).
Avelino later admitted that “of the three” girls, he only touched K.D.’s breast, and only
once.
K.D. was the oldest of the three girls. When she was 13 or 14 years old,
Avelino admitted he “thought it was easy to touch her and tell her she has beautiful breast
[sic].” He seemed to also admit touching her vagina in a later incident, and volunteered it
was “at the pool,” which corresponded, Perez said, with an allegation K.M. stated
occurred when she was only ten years old.
Avelino denied it had been K.M., stating it was K.D. He maintained that
the touching was innocent, while “swimming” with K.D., who “always liked that I
thr[e]w her up” in the air. Avelino explained that “her mom was there with us in the
chair sitting down there” by the pool.
When Perez repeated that K.D. stated Avelino touched her vagina “in her
room,” and that “the girl is traumatized with what happened,” and needed to know “that
you . . . repent for what you did,” Avelino responded, “Of course I am repent[ant].” But
he continued to insist that any touching had only been at the pool.
Avelino denied touching L.G., claiming that she and her mother “wouldn’t
go to the house,” and he also described L.G.’s mother as an “instigator.” He insisted he
never touched L.G. inappropriately, even accidentally, nor did he touch K.M. When
Perez wondered, “So then why do they say yes [he did abuse them],” Avelino replied,
“[t]hey are blaming me” and “accusing me”; he added, “I don’t know why they are lying”
and “they are lying and committing a fraud . . . .”
5
Perez then said, “It’s not true and you know it” and “You know it’s not
true,” while telling Avelino (through Henriquez) that he “just wants you to be honest.”
Nevertheless, Avelino maintained that if he were going to “blame myself,” it would only
be for accidental touching “[i]n the game at the pool,” where “in the pool it’s true but no,
no, I didn’t do it [on] purpose.” When Perez countered that “[i]t’s true that you touched”
L.G., Avelino averred, “Swear to [G]od no, I never touched her . . . .”
If he touched L.G., it was only on her breast at the pool, not her vagina, but
again only accidentally because sometimes he had to grab the girls to keep them from
drowning.
Avelino’s denials began to waver once Perez told him (falsely) that K.D.
and K.M.’s older brother, M.R., said that he “specifically remembers [Avelino] touching
2
[K.M.] and he saw it.” When Perez said M.R. recounted, “One time you, in your room
you touched” K.M. when she “was in fourth grade,” Avelino said, “Yes,” but then added,
“Look that one time I carried [K.M.], that’s true.” Avelino conceded “it seem[s]” he
might have touched her then. He also admitted telling K.M. at the time, “[K.M.] you are
going to have big breast [sic] when you are a young lady.”
Perez stated that was not the incident he was referring to; rather “this
specific time that [I] am asking [about] is he showed [M.R.] and [K.M.] pornography.
[M.R.] had left the room, but came back in and saw” Avelino “touching [K.M.’s]
vagina.” Avelino admitted that “my wife would tell me don’t bring that pornography the
2
At trial, M.R. testified that while he told a police investigator (Perez) in a
phone interview in 2015 that Avelino did not show him and K.M. his (Avelino’s) “‘porn
stash,’” “if you asked me now, I would say yes.” He testified that Avelino had called
K.M. and him into his room and showed them a video of a man and a woman having sex.
M.R. acknowledged that in his phone interview with Perez, when M.R. was about 16 or
17 years old, he had stated only that Avelino “‘would talk about perverted things, like a
porn stash, and he would watch porn sometimes’” and that Avelino “‘showed me [M.R.]
like porn sites and stuff.’” But M.R. denied in the interview that K.M. or, implicitly
K.D., were present, stating, “‘No. I don’t think he would pull it out in front of them.’”
6
kids are going to see it. One time . . . when I came back from the store with [his wife,
C.P.] they had the book open they were looking at it.” Avelino insisted it was “the three
kids . . . in his room looking at the porn,” but denied “showing pornography to them.”
Finally, Avelino admitted abusing K.M. stating, “I will say the truth.”
Avelino then confessed, “She asked me to[],” telling him, “Little Old Man touch me,
touch me she tells me. I want to feel what it feels like.” Admitting this occurred “[i]n
[his] room,” Avelino said, “I told her no little one, I said your mom is going to come and
that [sic],” which Henriquez explained to Perez meant, “Your mom might come in here.”
Avelino admitted he touched K.M. on that occasion “[j]ust over the
vagina,” but “[j]ust one, that one time,” and he touched her breast another time in a
different incident. When Perez insisted, “She told us it happened more than once,”
Avelino answered, “They’re lying” and just wanted to “blame” him, which Henriquez
explained to Perez meant “they just want to get him in trouble.” Nevertheless, when
Perez repeated that the girls “are traumatized” and “need to know why you did it and if
you repent,” Avelino answered, “I repent for everything” and admitted, “It was wrong.”
Perez offered Avelino the opportunity to “apologize” to the girls by
“mak[ing] a note and we can give it to them.” Avelino agreed and dictated the following
to Henriquez before signing it: “[K.D.] please give me the opportunity to apologize for
what happened. The same to the others. All I want is sorry [sic] and would like to spend
more time with you guys even though it’s from a distance. That there isn’t any grudges
[and] that nothing will ever happen, and the day that we get to see each other again we
[will] see each other with joy.”
Avelino confirmed his statement with Henriquez and Perez stating, as to
K.M., he “touched her breast and vagina” when she was around 12 or 13 years old; he
touched L.G. only on her breast; and K.D. “on the breast and the vagina at the pool” and
“in the room.” Before confirming his statement, Avelino stated he felt “more relaxed”
having made his admissions. As the interview closed and the jail deputy put the
7
handcuffs back on Avelino, he told the deputy in Spanish, “I’m going to sleep happy
tonight.”
Avelino explained to the deputy, “Yes. Yes because I felt bad also about
this,” trailing off and adding, “I felt like this was going to happen, I had a feeling. But
today I feel happy.” The deputy stated in Spanish, “That’s why they asked for you to say
all of the truth,” and Avelino agreed, “Yes.”
At the pretrial hearing on Avelino’s motion to suppress his statements, the
trial court reviewed the transcript and audio recording of the interview and heard
testimony from two witnesses. One was Investigator Henriquez; the other was a
neuropsychologist called by the defense, Dr. Francisco Gomez.
Henriquez confirmed the accuracy of the audio recording. She verified that
Avelino affirmatively answered “yes” after she read him each of his Miranda rights and
that he did not express any confusion or lack of understanding about those rights. She
testified that throughout the interview Avelino did not ask her to repeat or clarify any
questions. Henriquez also testified that Avelino asserted himself to correct her at
“several points” during the interview; she gave as one example that when she “misspoke
and said another street [for his address,] he corrected me.”
Dr. Gomez testified at the suppression hearing that he “interviewed, tested
and evaluated Mr. Avelino . . . for the purpose of determining whether or not he
understood his Miranda rights during that November 2015 contact with the police.” He
concluded: “In my opinion, I don’t think he gave a knowing and intelligent waiver of his
Miranda rights.”
Gomez based his opinion on standardized testing that indicated Avelino had
issues related to his reading and verbal comprehension, as well as in processing
information quickly. Avelino was 68 at the time he was tested, and he had only three
years of formal schooling in Mexico. Gomez explained that Avelino’s low verbal IQ and
reading comprehension scores translated into a range between kindergarten and second
8
grade level capability in those categories. Nevertheless, Gomez acknowledged that
Avelino’s intellectual abilities as measured by the standardized testing did not fall below
the threshold to indicate even mild mental retardation. In a number of neurological tests,
Avelino scored in the average range, some of which indicated he had “no difficulty” with
verbal problem solving or cognition for someone his age.
Gomez opined that based on his “22 years of . . . experience doing forensic
evaluations” and “knowing the Latino culture very well,” individuals from Latin
American countries with low education and low “acculturation” are more likely to
acquiesce to an authority figure. He based his low acculturation assessment of Avelino
on factors including that he “has been in the country—what?—40 years, and he still
doesn’t speak English. His English is like at a survival level.” Gomez described low
acculturation as a “cultural style” that “doesn’t always apply to everybody” of a
demographic, but might include “some general tendencies” such as those exhibited by
Avelino in his interview with Gomez. As Gomez recounted, “He was very passive. Low
acculturation. Low education. Okay. He is not likely to question me. He wasn’t asking
direct questions. . . . [¶] He just was following what I was asking him.”
Gomez agreed that Avelino appeared to be responsive to the officers’
questions in his police interview. In Gomez’s interview, Avelino’s responses indicated
he understood the difference between right and wrong, understood the nature of the
allegations against him, largely seemed to comprehend Gomez’s questions, and he was
able to provide responsive answers. Gomez listened to “the entirety of” Avelino’s
recorded police interview, but mainly focused on “the Miranda part.” He acknowledged
that Avelino did not ask the officer to repeat any portion of the Miranda warnings, nor
3
did he tell the officers that he “didn’t understand or was confused” about his rights.
3
In the factual background portion of his appellate brief, Avelino
summarizes Gomez’s trial testimony in which Gomez emphasized Avelino’s “risk for
suggestibility.” Gomez based his suggestibility assessment on factors including
9
The trial court denied Avelino’s suppression motion. The court found the
motion “very valid” in that it was possible, theoretically, that “someone with
Mr. Avelino’s limited education and experience could very well not have understood the
Miranda rights” as read to him, “or might be susceptible to suggestion.”
“The problem is,” the court explained, “when you listen to the audio, you
don’t see any evidence of a problem. Dr. Gomez, on an academic level, sees the
defendant’s limited education, and has concerns whether the defendant understood,
whether he was suggestible.” In contrast, the court observed, “I don’t see any signs of
officers putting words in his mouth. And I think there were no threats. There were no
promises. There was no indication of being bullied. Everything was handled very
professional and low key. [¶] So we have a 55-minute example [i.e., the length of the
police interview] of how he was thinking at the time, and I don’t see any evidence that he
did not understand or he was confused.” The court found that the officers’ “refusal to
accept a denial” did not make the interview coercive or Avelino’s Miranda waiver
invalid.
The court further observed that Avelino’s cognitive “testing results, as
indicated by the prosecutor, were mixed. Many scores were average. A long time in the
Avelino’s low IQ, “cognitive” or “neurocognitive” impairments, a passive or
“non-confrontational nature,” and “cultural factors, such as an expectation that one
should acquiesce to authorities.” Gomez testified at trial that Avelino’s risk of
suggestibility included problems with memory and memory retrieval and that a
suggestible person could find a situation, such as a police interview, so stressful that he or
she would make untrue admissions in order to end “the ordeal.” Gomez testified that
studies had shown this effect could occur within as short a time frame as 30 to 45
minutes. Avelino does not indicate whether Gomez made these same points in his
pretrial testimony at the suppression hearing, though the court’s comments reflect it was
well aware of the problem presented by suggestibility. In any event, we review the
correctness of a trial court’s ruling at the time it was made, not by reference to evidence
produced later at trial. (People v. Jenkins (2000) 22 Cal.4th 900, 1007-1008, fn. 23;
People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hendrix (2013) 214 Cal.App.4th
216, 243.) Avelino did not testify at the suppression hearing or at trial.
10
United States. No language barrier at all, because the interview is in Spanish.” The court
noted that the interview showed Avelino was “not reluctant to correct the officer, when
the officer says something wrong.” The court highlighted from the transcript a few
examples, including on pages “35, 42, and 48,” “‘It was not [K.M.],’ he corrects,” on
“[p]age 38, he corrects another [alleged] version of one of the victims,” and, “[o]n page
92, in respect to [L.G.], ‘I did not touch her vagina.’” The court concluded, “So when
you look for signs that his will is being overborne or he doesn’t really understand what is
happening, I don’t see it.”
Finally, the court recalled, “in terms of voluntariness,” Avelino’s
concluding statements in the interview: “I’m going to sleep happy tonight”; “I felt bad
also about this”; “I felt like this was going to happen”; and as he was handcuffed again, “I
had a feeling, but today I feel happy.” The court remarked, “So this is not a reluctant
person, being badgered. It is someone who seems happy to get it off his chest.”
In summary, the court observed, “So, yes, there potentially is a problem
with a person like the defendant here, but 55 minutes of experience shows there was no
actual problem.” The court referenced several cases in support of its ruling: “A
15-year-old with a 47 IQ,” where “a knowing, intelligent, and voluntary waiver” was
found; another case involving “Low IQ and actual brain damage,” but nevertheless a
sufficient “showing [the Miranda waiver was] knowing and intelligent”; and a third case
with the same result involving a “13-year-old, low IQ and schizophrenic.” (Citing
People v. Lewis (2001) 26 Cal.4th 334, 383; People v. Kelly (1990) 51 Cal.3d 931, 951;
In re Norman H. (1976) 64 Cal.App.3d 997, 1001.) The court concluded against this
backdrop that “the academics see it a lot differently than the practical courts see it.”
Following his conviction and sentencing as noted above, Avelino now
appeals the trial court’s denial of his suppression motion.
11
DISCUSSION
Miranda warnings provide a procedural safeguard to protect an individual’s
Fifth and Fourteenth Amendment right against self-incrimination. (Florida v. Powell
(2010) 559 U.S. 50, 59.) Miranda thus requires notice to the defendant of the right to
remain silent. (Miranda, supra, 384 U.S. at p. 469.) When Miranda warnings are given
and understood by the accused, but he or she nevertheless speaks to the police, the
defendant impliedly waives the right to remain silent—provided the statement is
uncoerced. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382.)
To be effective, a defendant’s Miranda waiver must be made
““‘voluntarily, knowingly and intelligently.’”” (People v. Combs (2004) 34 Cal.4th 821,
845 (Combs), quoting Moran v. Burbine (1986) 475 U.S. 412, 421.) Avelino challenges
the first factor. He contends his Miranda waiver was ineffective and his inculpatory
statements must be excluded because they were involuntary. Relinquishment of Miranda
rights, including the right to remain silent, “must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or
deception.” (Combs, at p. 845.)
In reviewing the voluntariness of a Miranda waiver, “[w]e accept [the] trial
court’s factual findings, provided they are supported by substantial evidence, but we
independently review the ultimate legal question.” (People v. Scott (2011) 52 Cal.4th
452, 480 (Scott).) That question is simply “‘whether the challenged statement was
illegally obtained.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) “Voluntariness
does not turn on any one fact, no matter how apparently significant, but rather on the
‘totality of [the] circumstances.’” (People v. Neal (2003) 31 Cal.4th 63, 79.) Avelino, as
the appellant, bears the burden of demonstrating error in the trial court’s ruling. (People
v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
12
Avelino asserts “[t]he interrogation was coercive in that it contained
implied promises of leniency and confidentiality.” In our view, the record does not
support this conclusion.
“In general, “‘any promise made by an officer or person in authority,
express or implied, of leniency or advantage to the accused, if it is a motivating cause of
the confession, is sufficient to invalidate the confession and to make it involuntary and
inadmissible as a matter of law.’” [Citations.] In identifying the circumstances under
which this rule applies, we have made clear that investigating officers are not precluded
from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the
event the accused speaks truthfully about the crime. [Citation.] The 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. Ray (1996) 13 Cal.4th 313, 339-340.) “[M]erely advising a suspect that it
would be better to tell the truth, when unaccompanied by either a threat or a promise,
does not render a confession involuntary.” (People v. Davis (2009) 46 Cal.4th 539, 600.)
Avelino does not explicitly articulate how the officers made him an offer of
leniency or confidentiality. Both in his briefing and during oral argument he seems to
find an implied promise of lenient treatment in “the detectives stress[ing] that the only
objective of the interrogation was to provide solace to the three complainants.” He
quotes Perez’s statements that the girls “just want to know he is sorry” and the “only
thing about all of this is we want to [sic] these young lad[ies] . . . are traumatized. The
only way to help them is by knowing the truth. . . . [W]e need to know why you did it,
and if you repent, you understand me?” (Initial italics added; Avelino’s bolded italics.)
13
This claim fails in light of the overall record. The claim is untenable given
Henriquez’s Miranda admonitions at the outset that “You have the right not to say
anything” and “What you say today can be used against you in a court.” Avelino
expressly stated he understood these rights. These warnings “touched . . . the bases
required by Miranda,” informing Avelino “that he had the right to remain silent,” and
“that anything he said could be used against him in court.” (Duckworth v. Eagan (1989)
492 U.S. 195, 203.)
On appeal, Avelino suggests the officers’ “deceptive statements that the
purpose of the interrogation was solely for the benefit of the [girls’] emotional needs”
(italics added) undercut and nullified his prior understanding. But his statements at the
end of the interview reflect otherwise. As the discussion ended, Avelino said, “I felt like
this was going to happen, I had a feeling.” He also stated he was “happy” about the
conversation and he would “sleep happy tonight,” which does not suggest Avelino failed
to grasp the situation. To the contrary, other courts have recognized, “The compulsion to
confess wrong has deep psychological roots, and while confession may bring legal
disabilities it also brings great psychological relief.” (People v. Andersen (1980)
101 Cal.App.3d 563, 583–584, fn. omitted.)
Avelino also contends his confession was involuntary because the
detectives “lied . . . about the evidence against him,” including by telling him M.R.
reported seeing him “touch his sister’s vagina,” which M.R. denied both in his interview
during Perez’s investigation and at trial. Given this record, we must disagree.
“‘Lies told by the police to a suspect under questioning can affect the
voluntariness of an ensuing confession, but they are not per se sufficient to make it
involuntary.’ [Citations.] Where the deception is not of a type reasonably likely to
procure an untrue statement, a finding of involuntariness is unwarranted.” (People v.
Farnam (2002) 28 Cal.4th 107, 182.) In Farnam, the Supreme Court concluded police
subterfuge that defendant’s fingerprints were found on the victim’s wallet was “unlikely
14
to produce a false confession.” (Ibid.) Similarly, a detective implying “at various times
that he knew more than he did or could prove more than he could” does not “offend any
constitutional guaranty” because it is not reasonably likely to result in an untrue
admission. (People v. Jones (1998) 17 Cal.4th 279, 299.)
The same is true here. Avelino does not suggest how Perez’s false
overstatements about what M.R. actually told him (which was restricted to Avelino’s
penchant for pornography, not that he abused anyone) were likely to produce a false
confession. There is no indication, for example, that Avelino—though innocent—was
playing a hero by accepting blame that rightfully belonged to M.R. or anyone else.
Indeed, Avelino continued to deny touching any of the girls inappropriately despite
Perez’s assertion that M.R. “says he specifically remembers that.” Avelino responded,
“Don’t remember” and “No, no” to Perez’s insistence M.R. told him this, and he
continued his tack of denying inappropriate touching, admitting only that he told K.M.
she would have large breasts “when you are a young lady.” No evidence shows the
requisite “proximate causal connection between the deception or subterfuge and the
confession.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.)
Finally, Avelino argues that his “mental deficits play an important role in
evaluat[ing voluntariness] because a person with low IQ is ‘more susceptible to subtle
forms of coercion.’” (Quoting Com. of Northern Mariana Islands v. Mendiola
(9th Cir. 1992) 976 F.2d 475, 485.) “[W]hile mental condition is relevant to an
individual’s susceptibility to police coercion, a confession must result from coercive state
activity before it may be considered involuntary.” (People v. Smith (2007) 40 Cal.4th
483, 502.)
Here, neither predicate for reversal is present: neither a mental deficit
precluding the possibility of a voluntary waiver or indicating an involuntary waiver, nor
wrongful police conduct. Dr. Gomez estimated that Avelino’s IQ was “somewhere
between 87 and 70,” pegging the number in his report as “likely in the lower IQ range of
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84 to 87” and in his hearing testimony as “probably in the 70 range,” which did not
4
qualify him as being “in the mildly, mentally retarded range.”
As the trial court commented, theoretically “there could be a problem here
with this. But then when I look at the interview, where is the problem? I’m not seeing it
in the interview.” Our review confirms this assessment. Avelino’s answers indicated
voluntary participation in the interview, an awareness of its stakes, and consistent denials
of culpability, all while minimizing and explaining his actions innocently.
Henriquez testified she did not have to repeat any questions for Avelino,
nor did he indicate he did not understand his rights. Nothing in the interview suggested
the officers were aware Avelino had any cognitive limitations or that they attempted to
prey upon them. “[N]one of the police comments here appear to have been calculated to
exploit a particular psychological vulnerability of defendant.” (People v. Kelly (1990)
51 Cal.3d 931, 953.) Under the totality of the circumstances, defendant’s low
intelligence does not support a finding of involuntariness, since the record does not show
the police used any improper tactics that took “‘unfair or unlawful advantage of his
ignorance, mental condition, or vulnerability to persuasion.’” (See In re Brian W. (1981)
125 Cal.App.3d 590, 603 [15-year-old boy with an IQ of 81 validly waived his Miranda
rights].) Avelino’s bid to overturn the court’s pretrial ruling therefore fails.
4
Gomez explained at trial that the range of IQ’s generally considered
“intellectually disabled” itself consists of gradations in which “the mild range is 55 to
70,” “45 to 55 is the moderate range,” and “the severe range is below 35.”
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DISPOSITION
The judgment is affirmed.
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
17