Opinion
D070938
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. AZAEL CHAVEZ, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN337854) APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Reversed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
In People v. Saldana (2018) 19 Cal.App.5th 432, 455 (Saldana), this court recently addressed the situation where police questioning begins as investigatory but at some point transitions to an accusatory custodial interrogation. We reaffirmed that when an interrogation becomes custodial such that the suspect reasonably perceives he or she is not free to leave, police are required to stop the questioning and advise the suspect of his or her Fifth Amendment rights as required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). If they fail to do so, any statements made after the Miranda warnings should have been given are subject to exclusion.
In this case we again consider investigatory questioning that began, appropriately, without Miranda warnings because the defendant Azael Chavez was not then in custody. But over the course of the next two hours, the circumstances changed dramatically. Purporting to sympathize with Chavez's nervousness, one of the two interrogating detectives said, "I understand. This is a new experience for you, right? Ever been arrested?" At about this same time, the tone of the questioning, which started as informational, became increasingly accusatory, particularly after one of the detectives left the hospital conference room, returned, and began confronting the defendant with inconsistent statements made by his girlfriend in a nearby room. Nearly two hours after the questioning began, the detectives told Chavez that the interview with his girlfriend had been completed and "she's been honest." And "[y]our silence is not gonna . . . make this thing go away." If it wasn't already obvious, at that point it would have been clear to Chavez that he wasn't free to leave.
Not surprisingly, a few moments later Chavez finally broke down and whispered, "I did it"—referring to the abusive injuries found on one of his seven-month-old twins. Yet the interrogation did not stop there. For nearly an hour more, the detectives continued to question Chavez about just how he abused both of his twin baby girls. The officers videotaped Chavez, at their request, demonstrating the acts on a baby doll. After 2 hours and 47 minutes of questioning, Chavez was arrested. At no point during the interview was he informed of his Miranda rights.
The entire recording of Chavez's interview was played for the jury at trial. This was error. Because Chavez's incriminating statements were all made during what had become a custodial interrogation, he should have been Mirandized. Absent Miranda warnings, his confession was inadmissible as part of the prosecution's case in chief. Given the lengthy and detailed nature of Chavez's confession, we cannot conclude that the guilty verdict in this particular trial was surely unattributable to the error. Accordingly, we must reverse.
For the benefit of the court on remand, we also address Chavez's argument that his confession was involuntary and therefore inadmissible for any purpose, including to impeach his testimony. While we determine that Chavez should have been Mirandized, we further conclude that the circumstances here do not compel a finding of involuntariness.
FACTUAL AND PROCEDURAL BACKGROUND
Pre-Interrogation
When they were roughly age 15 and 16, Caren T. and Chavez met via social media. They began dating shortly after. About a year into their courtship, the two high-schoolers learned they would soon be parents: Caren was pregnant with twins.
California Rules of Court, rule 8.90(b) states that we "should consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the anonymity, by initials only" in order to protect those individuals' privacy. Accordingly, we refer to Caren (a witness) initially by her first name and last initial, and thereafter by first name only. We refer to the victims—both of whom are minors—only by first name.
A week or two after the twin girls (Isabella and Gabriella) were born prematurely, Chavez moved in with Caren, her mother, and her two siblings. Once the twins were released from the hospital, Chavez, Caren, and the babies shared a single bedroom in the apartment. Both Chavez and Caren quit high school to take on new fulltime roles. Chavez did landscape and construction work; Caren cared for their children.
The fateful day started like any other for their household. As per usual, the then-seven-month-old girls roused for feedings four or five times throughout the night. Around 5:00 a.m., Caren got up to make Chavez's lunch. Isabella woke too and started to cry in her bassinet. Caren tried (unsuccessfully) to feed her a bottle. Chavez remained in bed as Caren left the room. From the kitchen, Caren could hear Isabella's continued cries.
Caren returned to the bedroom about 20 minutes later. By then, Isabella was no longer crying nor in her bassinet. Rather, she was lying on the bed beside a now-awake Chavez. She looked "drowsy." Chavez rose, returned Isabella to her bassinet, and left for work. After another unsuccessful attempt at feeding Isabella, Caren went back to bed.
When Caren got up again around 8:00 a.m., something was awry with Isabella. She would wake briefly, cry without opening her eyes, and then fall back asleep. She wouldn't even fully wake when water was splashed on her face in the bath. And even though her last feeding was around 3:00 a.m., she would not eat. None of this behavior was normal for her.
That morning, Caren took the girls to an already-scheduled check-up. The pediatrician was concerned "very much" by Isabella's demeanor—"irritable," "not making good eye contact," and "poorly responsive"—and "could tell . . . that something was very wrong." She advised Caren to take Isabella to a pediatric hospital. After Caren relayed the advice to Chavez, he left work early to join her. Caren's mom watched Gabriella while the two young parents took Isabella to the hospital.
There, a team of doctors evaluated Isabella's injuries—subdural hemorrhaging; "extensive" retinal hemorrhaging; bruising to her forehead, tongue, and gums; and scabbed lesions on her nose and chin. No past traumatic accident explained her condition. The doctors concluded that her injuries were likely the result of physical abuse.
Given Isabella's extensive injuries, the police were contacted. Four officers, all dressed in plain clothes, arrived. They spoke with a social worker and a doctor, and learned that abuse was likely the cause of Isabella's injuries.
After Chavez and Caren chatted briefly with the detectives in a hospital conference room, they both agreed to be interviewed separately. Caren and two officers moved to an unoccupied office, while Chavez, Detective Michelle Mayfield, Detective Jeff Udvarhelyi, and a social worker remained in the conference room. Both interviews were recorded. Neither included Miranda warnings.
Caren's interview started with foundational questions about the family's routine and the past 24 hours. Initially, she was not forthcoming about what had happened to Isabella. But around 45 minutes into the interview, she broke down crying and implicated Chavez. Caren told the detectives that Chavez often suffocated the children to stop them from crying and would frequently lock himself in the bedroom with one of them when he returned from work "in a bad mood"; afterwards, the baby would be "gasping for air." She thought Chavez harmed Isabella that morning while she (Caren) was in the kitchen. At some point during the interview, one of the detectives left the room and relayed some of Caren's statements—though it was never definitively established which ones—to Detective Udvarhelyi, who was interviewing Chavez with Detective Mayfield.
The Interrogation of Chavez
Chavez's interview started much like Caren's with general questions about their living arrangement and the past 24 hours. From the outset, Chavez said he didn't know what happened to Isabella, declined multiple opportunities to cast blame on Caren or her mother, and denied harming the twins.
Partway into the interview, Chavez said he was nervous. Detective Mayfield responded, "I understand. This is a new experience for you, right? Ever been arrested?" She continued, "It's okay . . . you're nervous. But the bottom line is your daughter has severe injuries. Extensive bleeding in her brain. That doesn't happen by accident and we need to know how it happened. Because if we don't know how that happened . . . the medical staff can't care for her . . . ."
Despite Chavez's reiterations that he didn't do it, didn't think Caren did, and didn't know how it happened, the detectives' questions grew longer—sufficient to later fill multiple pages of nearly uninterrupted transcription—and more accusatory. Detective Udvarhelyi commiserated with how difficult, tiring, and stressful Chavez's life must be. He suggested that Chavez had harmed Isabella that morning in "a moment of weakness," exhaustion, and frustration:
"[N]o one's gonna sit here and fault you for having a moment when you're just exhausted and you're frustrated and there's nothing you can do to stop Bella from crying. . . . I don't think for a second you thought to yourself you're gonna hurt your daughter but I think what happened is you got frustrated like so many other people. And, and you just reacted in a way that you probably regret. That there was a reaction that just came out of you that afterwards you thought, whoa, I need to get a grip here. . . . [I]n that moment you kind of caught yourself and thought I'm . . . not in control in this moment because
I'm so tired. . . . [B]eing a dad and being somebody who's had to work forty hours, I understand the frustration. It's hard. It is hard. And I'm not gonna sit here and, and say that it's not hard. Nor am I gonna sit here and pass judgment on you because you may have in a moment reacted in a way that you regret. But that's what it comes down to. Azael, that's what it comes down to. . . . I'm trying to figure out, do you regret what happened? And if so, help us understand . . . . You wanna be a great dad and . . . start the process of healing, help us understand what happened in that moment cause I don't think that this is who you are. I don't think it's a picture of your character but help us understand what happened in that . . . moment of frustration so that she gets the best care. . . . I don't think it is a mystery. . . . People aren't gonna stand out here in this hallway and point fingers and judge you. . . . I think it was a moment of weakness. I think it was fatigue. I think it was exhaustion. And I get that. . . . I see that there was an error of judgment. Help, help us understand what that was. What happened early in the morning?" (Italics added.)
Chavez's story didn't change: "Like I said, that's all . . . I know." But the detectives insisted that Chavez knew more than he was letting on, stating, "Okay, no you know, you know more, and you know how I know you know more? [B]ecause I can see it in your face and you're overwhelmed. I get it and you're probably afraid and scared . . . [¶] . . . You know more than you're letting on." They asserted that he was being dishonest in the interest of "self-preservation."
Another speech followed. Again the detectives emphasized how trying Chavez's life must be:
"[Y]ou know what happened and I'm telling ya right now you have the opportunity in this moment to help us understand what happened because I don't wanna have to sit here and think that you're just some self-centered monster and all you wanted was sleep and therefore you're gonna do whatever it takes to make your daughter quiet. I just, I don't see that. I don't wanna believe it. But something happened in that room. Something happened in there. And . . . just looking at ya, I can see the fatigue on your face. You're a guy who
works hard to provide for your family. . . . I don't think for a second that you have hatred, anger or anything toward those children. I think you're just, you're just drained. You are a wreck. I mean, forty hours a week. No break. . . . [E]veryone depends on you. You're the guy. That's hard. Not only is it hard but in moments where you're so tired and all you want is four to five hours of sleep. That's it. That's all you want and you, you haven't gotten it in seven months."This particular lecture ended with pleas to Chavez to fulfill his role as a father: "Azael, you have to help us. . . . [H]elp Bella in this moment. Help Bella, help, help Bella . . . . That is your job as a father."
Still, Chavez said he didn't know what happened. Even so, Detective Udvarhelyi replied, "No, you do, you do know. You know what happened. You know what happened." The detective told him,
"I feel pretty confident that I know exactly how it happened. I know how it happened. It happened in the midst of frustration and angst and just being worn out. That's how it happened but we've got to know exactly what happened. Be the father that I know deep down that you wanna be in this moment. . . . I'm talking to you one dad to another. . . . [A]ny dad in this room, raise your hand if you've never made a mistake with your children. I can't raise my hand. I'm not perfect with my kids. Neither are you and neither is Caren. You can't hide behind the I don't know because by doing that, you absolutely know you do not help that little girl . . . . I guarantee you, she'll still love you. But how much do you love her right now? I'm just talking to another father. And hoping you step up in that role in this moment." (Italics added.)Chavez didn't budge, reiterating that he "didn't do anything" and telling them, "I cannot say . . . something I don't know."
Reflecting that there had been communication between the two sets of interrogating detectives, Udvarhelyi then asked if it "[w]ould . . . interest [Chavez] at all to know that Caren said that . . . she was gone for about ten minutes . . . and [Chavez] [was] the only one in that bedroom with both of those girls." The detective reiterated, "You were the only one." Chavez stuck to his story: He didn't know what happened.
The detectives pressed on. Udvarhelyi asked Chavez if he ever got frustrated. Chavez said, "Yeah." From there, the detectives launched into a tag-teamed lecture:
"[Detective Udvarhelyi:] Yeah. That's one of the first times, by the way, that you have been honest and I want you to know I appreciate that very much. I appreciate it because I'm gonna tell ya right now, we're not asking questions here that we don't have answers to. . . . Thank you for being honest in that moment because that is the truth. You get frustrated. In fact, there are times when you go in there by yourself with the kids. You go into the room by yourself and it's in those moments of frustration, and I know that this is an absolute fact. . . . [Y]ou have a baby girl in there . . . right now that's begging for her father to be honest about what happened this morning. . . . [W]e're not going to go down the I don't know, I don't know, I don't know anymore. You need to realize we've already . . . finished talking to Caren. My partners are done and . . . . she's been honest. . . . [Y]ou have a daughter in this hospital who's desperate for her father to step up and be her dad. Are you gonna choose to do that right now and just talk honestly about the frustration that you have, about the fatigue, about the exhaustion of what it's like to raise twins, seven months old? Or are you gonna sit here in denial . . . ? Or are you gonna step up and be a daddy? . . . . [Y]ou're gonna be the father who said I'm gonna be a dad. I screwed up. This is what happened and I want everyone to help my little girl recover. Be that dad right now. What happened this morning? What happened? Azael hey, what happened?
"[Detective Mayfield:] Your silence is not gonna . . . make this thing go away. You're here. You're in the hospital. . . . You need to let all the other worries that you have just, just go away because right now what's important is Bella.
"[Detective Udvarhelyi:] You've got the weight of the world on your shoulders. It is so evident. There is a heaviness, there is a guilt that you've got to off load.
"[Detective Mayfield:] People understand frustration. They understand mistakes. Caren will understand frustration. Everyone experiences frustration and the weight that you have and the fatigue that you feel. Everyone understands that. And what's gonna matter most . . . is whether or not you're honest about what happened this morning. That's what matters. . . . Caren and Bella and Gabby as they get older . . . they're gonna say you know what? Things happen, people make mistakes but Azael, . . . he stood up and he was strong when it was difficult. That's what makes a man." (Italics added.)It was here—1 hour and 48 minutes into the interview—that Chavez finally cracked. He broke down crying and whispered, "I did it." Detective Udvarhelyi responded, "I know and you know what? . . . I'm so proud of you. . . . Walk us through what happened so we can get [Isabella] the help she needs."
The interview continued for another hour, still without any Miranda admonitions. Chavez initially only confessed to hitting Isabella once—"that was it." But following more pushing and prodding from the detectives, he eventually divulged that he had hit and suffocated both Isabella and Gabriella multiple times. The detectives videotaped him demonstrating those acts on a baby doll. At the end of the 2 hour and 47 minute interview, Chavez was arrested and handcuffed.
Post-Interrogation
That evening, a social worker retrieved Gabriella so she too could be examined at the hospital. The doctors discovered similar indicia of abuse—subdural hemorrhaging; "significant" retinal hemorrhaging; swelling on her scalp; two skull fractures; bruising on her forehead; and "the same excoriations and cuts to her chin." One doctor later characterized the twins' injuries as "strikingly similar." Another later noted it was "peculiar" for both to have the same injuries.
Chavez was charged with two counts of felony child abuse—one for each twin. (Pen. Code, § 273a, subd. (a).) As to each count, it was further alleged that he personally inflicted great bodily injury on a child under five years old within the meaning of Penal Code section 12022.7, subdivision (d) and personally inflicted great bodily injury within the meaning of Penal Code section 1192.7, subdivision (c)(8).
Before trial, the People moved to admit Chavez's confession into evidence as party admissions under Evidence Code section 1220. Chavez moved to suppress the same statements as involuntary and violative of Miranda, supra, 384 U.S. 436. The People successfully opposed Chavez's motion. The entire interview and related video recording were played for the jury at trial over defense counsel's continued objections.
After a month-long trial, the jury convicted Chavez on all counts and found true all the related allegations. He was sentenced to prison for a total term of 14 years and 8 months.
DISCUSSION
In this appeal, Chavez argues that his statements to the detectives at the hospital were obtained in violation of Miranda, supra, 384 U.S. 436 and, as a result, were inadmissible at trial. He contends this error is sufficiently prejudicial to warrant reversal of his conviction. As we shall explain, Chavez is correct. 1. Miranda Requirement
a. Inadmissibility of Chavez's Confession
Miranda admonitions are required when—and only when—an individual is subjected to "custodial interrogation." (Miranda, supra, 384 U.S. at p. 444; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera).) Statements obtained in violation of a defendant's Miranda rights are not admissible to prove his or her guilt in a criminal trial. (Berkemer v. McCarty (1984) 468 U.S. 420, 429.)
As in Aguilera, "[i]t is beyond reasonable dispute that [Chavez's] interview was reasonably likely to elicit incriminating responses and thus was 'interrogation' within the meaning of the Miranda rule. [Citations.] The People do not claim otherwise." (Aguilera, supra, 51 Cal.App.4th at p. 1161.) Thus, the issue before us is whether Chavez's interview at the hospital was custodial.
"An interrogation is custodial . . . when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " (People v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore), quoting Miranda, supra, 384 U.S. at p. 444.) "When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation." (Moore, at p. 395.) "All the circumstances of the interrogation are relevant to this inquiry" (ibid.), and no single factor is dispositive (Aguilera, supra, 51 Cal.App.4th at p. 1162). "[W]e look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to arrest." (Ibid.)
Relevant circumstances include: "whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (Aguilera, supra, 51 Cal.App.4th at p. 1162; accord, People v. Saldana (2018) 19 Cal.App.5th 432, 455 (Saldana).)
" 'Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact.' " (Moore, supra, 51 Cal.4th at p. 395.) "On appeal, we accept the trial court's findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was 'custodial.' " (Aguilera, supra, 51 Cal.App.4th at p. 1161; accord, Moore, at p. 395.) "[T]o the extent the interview is tape-recorded," as is the case here, "[t]he facts surrounding an admission or confession are undisputed" and thus "subject to our independent review." (People v. Linton (2013) 56 Cal.4th 1146, 1177; see People v. Jackson (2016) 1 Cal.5th 269, 339.)
Chavez contends that although his interview at the hospital started voluntarily, it eventually became custodial. We agree.
It is established that an interview with law enforcement may start voluntarily and later turn custodial. (See Saldana, supra, 19 Cal.App.5th at pp. 455-456; United States v. Kim (9th Cir. 2002) 292 F.3d 969, 975.) Our opinion in Saldana is illustrative. There, the defendant (Saldana) voluntarily went to a stationhouse for questioning at the police's request. (Saldana, at p. 441.) Despite the closed door to the interview room, the police told Saldana at the outset that he was not under arrest and could leave whenever he wanted because " 'we're not going to arrest you right now.' " (Id. at p. 442.) About 30 minutes later, Saldana confessed. (Id. at p. 457.) We opined, "By then, the circumstances had significantly changed. No longer were police asking Saldana biographical or open-ended questions to hear his version of what happened. To the contrary, long before Saldana confessed, the detective asked an unrelenting number of accusatory questions." (Ibid.) "[T]he accusatory nature of the questioning . . . objectively conveyed that Saldana was not free to leave." (Id. at p. 462.)
To be sure, our conclusion in Saldana did not rest on the nature of the interrogation alone. However, we considered it quite significant. And the weight we assigned it was by no means unusual or novel. As our colleagues in the Sixth Appellate District remarked over two decades ago, "[O]n the issue of custody, courts consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory." (Aguilera, supra, 51 Cal.App.4th at p. 1164.)
This case is much like Saldana. Although the interview started voluntarily, "the circumstances had significantly changed" by the time Chavez confessed—1 hour and 48 minutes later. (Saldana, supra, 19 Cal.App.5th at p. 457.) The officers had repeatedly rejected Chavez's answers up to that point, with retorts like, "No, you do, you do know," and "[W]e're not gonna go down the I don't know, I don't know, I don't know anymore." (Italics added.) "[I]n light of the detective[s'] repeated rejection of [Chavez's] denials, a reasonable person in [his] position would eventually have realized that telling the 'truth' meant admitting the detective[s'] information was correct—and that until this 'truth' came out, [he] could not leave." (Saldana, at p. 458; see also Aguilera, supra, 51 Cal.App.4th at p. 1163.)
The People characterize the questioning as "generally kind and sympathetic." While it began that way, the questions became increasingly "aggressive, confrontational, and/or accusatory" as the interrogation progressed. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) At one point, the officers outright commanded Chavez to admit he "screwed up." They "manifested a belief that [Chavez] was culpable and [that] they had evidence to prove it" (ibid.) through their repeated repudiations of his story and by suggesting that Caren had blamed him. They told him, "[W]e're not asking questions here that we don't have answers to."
In short, Chavez's guilt was posited as a fact, though the officers did not simply indicate they did not believe his repeated denials. Rather, they "dominated and controlled the course of the interrogation" (Aguilera, supra, 51 Cal.App.4th at p. 1162) with lectures that later filled multiple pages of transcription. Indeed, Chavez's confession followed a particularly "intense, persistent, aggressive, confrontational, [and] accusatory" " 'tag-team' " lecture as the proverbial interview clock was already nearing the two-hour mark. (Id. at pp. 1164-1165.)
The tactics employed can only be characterized as "interrogation techniques to pressure [Chavez]." (Aguilera, supra, 51 Cal.App.4th at p. 1162.) As it happens, they track a method detailed in Miranda itself: "The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reason why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood . . . . The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged." (Miranda, supra, 384 U.S. at p. 450, footnotes omitted.)
Like we said in Saldana, "[t]hese tactics are not unusual, nor are they unreasonable. In fact, if [Chavez] had been properly Mirandized and made the same confession, it might be called good police work. But such an interrogation is associated with 'the full-blown interrogation of an arrestee, and except for a Miranda advisement, we cannot conceive how [Chavez's] interrogation might have differed had he been under arrest.' " (Saldana, supra, 19 Cal.App.5th at p. 460; see also Aguilera, supra, 51 Cal.App.4th at p. 1165.)
In arguing that Chavez's interview was not custodial, the People point to our Supreme Court's statement in Moore, supra, 51 Cal.4th 386 that "police expressions of suspicion, with no other evidence of restraint on the person's freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody." (Id. at p. 402.) Our conclusion here is in accord. First of all, the court did not say that "police expressions of suspicion, with no other evidence of restraint on the person's freedom of movement," are never sufficient, but rather they are "not necessarily sufficient." (Ibid., italics added; cf. Saldana, supra, 19 Cal.App.5th at pp. 461-462 [distinguishing Moore].) Thus, there might conceivably someday be a case where custody is established through "police expressions of suspicion" alone. (Moore, at p. 402.) This, however, is not that case. Our conclusion today does not rest solely on the officers' expressions of suspicion.
Miranda warned that "the 'principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation.' " (Miranda, supra, 384 U.S. at p. 449.) To that end, " 'the interrogation should take place in the investigator's office or at least in a room of his own choice.' " (Ibid.) Granted, Chavez's interrogation was in a hospital conference room, not the interrogator's office at a police station. But the conference room, which the detectives apparently selected, still allowed Chavez to be isolated in an unfamiliar setting. The detectives closed the door to the room. And although one of the detectives left and returned during the interview, there was nothing to indicate that Chavez understood he was free to leave.
To the contrary, the record here, unlike in Saldana, reflects that Chavez was never told he could leave at any time—not even at the outset of the interview. Nor was he told that he was not under arrest. Although "[w]e do not suggest that police must give such advice," "where, as here, a suspect repeatedly denies criminal responsibility and the police reject the denials, confront the suspect with incriminating evidence, and continuously press for the 'truth,' such advice would be a significant indication that the interrogation remained noncustodial." (Aguilera, supra, 51 Cal.App.4th at p. 1164, fn. 7.) Moreover, since Chavez was never assured that he was not under arrest, we consider notable that Detective Mayfield asked him, "This is a new experience for you, right? Ever been arrested?" and later stated, "Your silence is not gonna . . . make this thing just go away." These circumstances all weigh in favor of determining that a reasonable person in Chavez's position would have perceived he was not free to leave.
Additionally significant is the fact that Chavez was arrested at the close of the interview. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) And the near three-hour duration of the interview is "suggestive of custodial circumstances." (Saldana, supra, 19 Cal.App.5th at p. 463, citing United States v. Kim, supra, 292 F.3d at p. 977 [interrogation duration of approximately one hour supported determination that defendant was in custody].) In sum, our conclusion here does not rest on the nature of the questioning alone.
The People's reliance on People v. Mosley (1999) 73 Cal.App.4th 1081 (Mosley) is also unavailing. There, Division Five of the Second Appellate District considered "whether a person who is in the physical custody and care of medical personnel such as paramedics and who is being treated in an ambulance for a gunshot wound at the time of an interview with a police officer should be considered to also be 'in custody' for purposes of triggering the requirements of the Miranda decision." (Mosley, at p. 1089.) The court concluded Miranda was not triggered. It reasoned that "[a]ny restraint of [the] defendant's freedom of action was caused by the need to treat his gunshot wound, which was still bleeding and was actively being treated during the brief interview." (Mosley, at p. 1091.) Moreover, the court "note[d] that the interview was in view of and in the presence of medical personnel who continued to treat [the] defendant during the brief interview" and "the questioning was not accusatory or threatening." (Ibid.)
Perhaps certain parallels can be drawn between Mosley and this case. For example, neither the defendant there nor Chavez was handcuffed or at a police station. Yet we find the contrasts between Mosley and this case more illuminating. Unlike in Mosley, the questioning here was accusatory and the interview was not brief. Further, in Mosley the main physical restraint on the defendant was manifestly attributable to medical personnel, not law enforcement. Here, in contrast, a reasonable person would have felt confined to the hospital conference room based on Detectives Udvarhelyi's and Mayfield's behavior and representations.
Here, the presence of the social worker—another individual unfamiliar to Chavez—in the conference room does not alter our conclusion that the interview was custodial. Unlike the medical personnel already treating the defendant in Mosley, supra, 73 Cal.App.4th 1081, there was no reason for a reasonable person in Chavez's situation to know that the social worker was not just another detective. She did not partake in the bulk of the interview and did not explain that her role was distinct from the officers until the very end of the interview.
Of course, it is difficult to precisely pinpoint when a reasonable person in Chavez's position would have realized he was not free to go. Detective Mayfield's comment about the questioning being a "new experience" for Chavez followed immediately by the question, "Ever been arrested?" certainly suggested that Chavez was about to experience—or was in fact experiencing—his first arrest. Even if this was not sufficient, what followed were a series of lengthy lectures, punctuated by increasingly pointed and aggressive questions. Chavez was confronted with statements Caren made identifying him as the likely suspect. Eventually they told him that Caren's interview had been completed and she had been truthful. Now it was Chavez's turn. And he needed to understand, his continued "silence is not gonna . . . make this thing go away." The inescapable conclusion at this point if not earlier: Chavez was not free to leave.
For the foregoing reasons, we conclude that Chavez's interrogation was rendered custodial before he confessed. As Chavez was not Mirandized before that point, his statements were inadmissible.
b. Harmlessness
We review a Miranda error for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Aguilera, supra, 51 Cal.App.4th at p. 1166.) Chapman requires reversal unless the People establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (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.' " (People v. Neal (2003) 31 Cal.4th 63, 86.) "[T]he focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error.' " (Ibid.; accord, People v. Quartermain (1997) 16 Cal.4th 600, 621 (Quartermain).)
"A confession is like no other evidence." (Arizona v. Fulminante (1991) 499 U.S. 279, 296 (Fulminante).) It " '[a]lmost invariably' provide[s] persuasive evidence of a defendant's guilt" and "often operate[s] 'as a kind of evidentiary bombshell which shatters the defense.' " (People v. Cahill (1993) 5 Cal.4th 478, 503 (Cahill).) Thus, "the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence" and "is much more likely to be prejudicial under the harmless-error standard." (Ibid.)
Of course, such an error can be harmless. (E.g., People v. Gonzales (2012) 210 Cal.App.4th 875, 885 (Gonzales); People v. Houston (2005) 130 Cal.App.4th 279, 296.) For example, it might be harmless where "the defendant was apprehended by the police in the course of committing the crime" (Cahill, supra, 5 Cal.4th at p. 505); "there are numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence" (ibid.; Gonzales, at p. 885); "the prosecution introduced . . . a videotape of the commission of the crime" (Cahill, at p. 505); or other cumulative confessions were properly admitted (ibid.; In re Joseph H. (2015) 237 Cal.App.4th 517, 533).
But the fact remains "the improper admission of a confession is likely to be prejudicial in many cases." (Cahill, supra, 5 Cal.4th at p. 503.) Chavez's case is one of the many.
While there was overwhelming evidence that the twins were abused, there was less evidence that the abuse occurred at Chavez's hand. Aside from the confession, the only evidence that Chavez perpetrated the abuse came from Caren and, to a very limited extent, her mother. Caren testified that Chavez suffocated the girls by pressing them against his cheek and holding their mouths closed. She said that he pulled scabs, caused by a skin condition, off their faces. She also testified that Chavez would often take one of the girls into the bedroom alone and after, the child would appear scared, drowsy, and cross-eyed. The day Isabella was taken to the hospital, she appeared that way after Caren left her alone in the bedroom with Chavez, even though she was fine before Caren left the room.
Caren's mother corroborated that Chavez often locked himself in the bedroom with the girls. She recalled one instance where Gabriella appeared out of breath afterwards. Yet she also testified that she never saw Chavez harm the twins and that she felt safe leaving the children with him. Somewhat similarly, Caren testified that she never saw Chavez strike the twins.
Caren, as Chavez's then-girlfriend and the mother of his children, can hardly be classified as a disinterested witness. Nor can her mother. Thus, their testimony does not convince us that Chavez's conviction was surely unattributable to the error in admitting his confession.
Moreover, we cannot ignore the lengthy and detailed nature of Chavez's confession. After Chavez first whispered, "I did it," he was interrogated for nearly an hour more. During that time, Chavez explained in depth how he harmed the girls and even demonstrated the acts on a baby doll before a video camera. The erroneous admission of a defendant's statements is particularly likely to be prejudicial where, as here, they amount to "a full confession in which the defendant discloses the motive for and means of the crime." (Fulminante, supra, 499 U.S. at p. 296.) Such a comprehensive confession may well "tempt the jury to rely on that evidence alone in reaching its decision." (Ibid.) Suffice it to say, we harbor particular concern that the jury in this trial was influenced by the probative and damaging weight of Chavez's comprehensive confession.
We do not take our decision to reverse here lightly. This was a lengthy and difficult trial, and there was strong evidence against Chavez. But under Chapman, supra, 386 U.S. 18, it is not enough that " 'in a trial that occurred without the error, a guilty verdict would surely have been rendered.' " (Quartermain, supra, 16 Cal.4th at p. 621.) As we have explained, we must instead ask " 'whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " (Ibid.) Here, we cannot answer that question affirmatively. Accordingly, we are compelled to reverse for a new trial.
At oral argument, the People also argued Chavez's confession would have been admissible to impeach Chavez's testimony, and thus any error was not prejudicial. But "[w]hether [Chavez] would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties' tactical choices." (People v. Bradford (2008) 169 Cal.App.4th 843, 855.) Given the speculation necessary to even entertain this argument, we do not find the possibility of impeachment persuasive on the issue of prejudice. Moreover, it is likely that had the statements been admitted solely for purposes of impeachment, the jury would have been instructed accordingly. (E.g., CALCRIM No. 356.)
2. Voluntariness
An "involuntary confession may not be used for purposes of impeaching the testimony of the accused." (People v. Underwood (1964) 61 Cal.2d 113, 120; accord, People v. Neal, supra, 31 Cal.4th at p. 78.) Accordingly, for the benefit of the trial court on remand, we address Chavez's additional argument that his confession should have been suppressed as involuntary. We conclude his confession was not involuntary.
" 'A statement is involuntary if it is not the product of " 'a rational intellect and free will.' " ' " (People v. McWhorter (2009) 47 Cal.4th 318, 346 (McWhorter).) " 'The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." ' " (Id. at pp. 346-347.) " 'A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence.' " (Id. at p. 347.) " '[C]oercive police activity is a necessary predicate to establish an involuntary confession, [but] it "does not itself compel a finding that a resulting confession is involuntary." ' " (Ibid.)
The People must prove by a preponderance of the evidence that the defendant's statements were voluntarily made before they can be admitted. (McWhorter, supra, 47 Cal.4th at p. 346.) On appeal, we independently review the trial court's ultimate finding as to voluntariness, but will uphold its factual findings as to the surrounding circumstances if supported by substantial evidence. (People v. Carrington (2009) 47 Cal.4th 145, 169.) To the extent the interview is recorded, the facts are undisputed and thus also subject to our independent review. (McWhorter, at p. 346.)
Chavez argues that his confession was involuntary given the "intense emotional pressure" applied by the detectives' "repeated[] suggest[ions] that unless he told them what happened, his daughter would not be able to receive the medical care necessary to help her." "Courts have made clear," however, "that investigating officers may freely encourage honesty and lawfully discuss any ' "naturally accru[ing]" ' benefit, advantage or other consequence of the suspect's truthful statement." (People v. Falaniko (2016) 1 Cal.App.5th 1234, 1250.) " ' "[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or promise does not render a subsequent confession involuntary." ' " (People v. Carrington, supra, 47 Cal.4th at p. 174.)
Here, the detectives' encouragement to Chavez to be truthful did not entail improper threats or promises. Instead the detectives primarily emphasized the benefits that would naturally flow from his honesty. The record before us lacks the coercive police activity necessary for a finding of involuntariness. Given that missing "necessary predicate" (McWhorter, supra, 47 Cal.4th at p. 347), Chavez's reliance on his personal attributes as supportive of an involuntariness finding is also unavailing.
DISPOSITION
The judgment is reversed.
DATO, J. WE CONCUR: HALLER, Acting P. J. AARON, J.