In re T.J.

Filed 6/25/08 In re T.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark A. Cope, Judge. Reversed.

Andrew E. Rubin and Howard Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant T. J. (minor) appeals after he was adjudicated a ward of the juvenile court, and placed on probation. Minor argues that the court erred in admitting certain statements and that the evidence was insufficient to support the findings of the court. We reverse.

FACTS AND PROCEDURAL HISTORY

Minor, age 13, was accused of molesting his half sister, three-year-old J.

Minors father had a relationship with Christina H., a former girlfriend. They ended their relationship before Christina realized she was pregnant with J. Christina did not tell the father about J., and the father did not establish a relationship with his daughter until approximately March 2006. J. was then just over three years old.

Between March and May 2006, Christina had brought J. to visit her father several times; J. had stayed at the fathers apartment perhaps four or five times. At that time, minors father was living in an apartment with his current girlfriend, Tory Tory. About a month before the incident, in approximately April 2006, minor also moved into the apartment and began living with his father. Until then, minor had lived all his life with his maternal grandparents in Arizona. Minor occupied one of the bedrooms in the fathers apartment.

On May 3, 2006, Christina brought J. to the fathers apartment; he was to look after J. while Christina was at work. Christina later telephoned to report that her work hours had been extended, and she would be unable to return to pick up J. until the next day. Because Christina had originally intended to pick up J. on May 3, she had not brought any extra clothes for J. As noted, minor had his own bedroom in the apartment. When J. stayed over at her fathers apartment, she normally slept on the couch.

On May 4, 2006, Christina went to the fathers apartment to pick up J. at approximately 5:00 or 6:00 p.m. She knocked on the door, but there was no immediate response. Christina called the father on a mobile telephone; he informed her that he was on his way home, but that J. should still be at the apartment. Christina continued to knock. After about 10 minutes, minor opened the door. He told Christina that he and J. had been sleeping.

Soon, the father and his girlfriend, Tory, arrived home. They had gone to the grocery store to pick up some food for J., leaving her at home alone with minor. Everyone went inside the apartment while J. ate. After J. had eaten, Christina took her home.

After they had arrived home, J. asked Christina to accompany her to the bathroom. Christina thought this was unusual, as J. normally went by herself. Christina noticed that J.s underwear was on backwards. J. told Christina that her brother had taken her underpants off. J. complained of a burning pain while urinating. According to Christina, J. had never made this complaint before, although Christina also later told one of the detectives that J. had been complaining of soreness in her private area for about a month before the incident. J. said that her brother had hurt her when she was sleeping. J.s vaginal area did appear swollen and red, but Christina did not call the police immediately. Two days later, however, Christina told her supervisor at work; the supervisor called the police.

Only then did Christina take J. to the hospital for examination. The examining pediatrician testified that J. had what appeared to be a healing tear at the back of her vulva. The findings were consistent with a small injury that had taken place about 72 hours before the examination, or a larger injury, up to 10 days old, which had largely healed. The injury to J.s vulva would account for J.s complaint of burning pain during urination.

J.s injury in her genital region was not typically something that a child her age would inflict upon herself. The injury could have been inflicted by an erect penis or any blunt object or appendage could do that. A 13-year-old male, such as minor, is capable of achieving an erection. The physician opined that tickling, even in the clitoral area, would not produce an injury like J.s.

The police arrested minor and interviewed him. His father was present when minor was advised of his constitutional rights and agreed to speak with the officers.

At the outset, Detective Eneim twice told minor that he was under arrest for the suspected offense of sexual assault. An officer took a swab sample from minors mouth. Detective Eneim also stated repeatedly that he already knew the truth, and he need[ed] to hear the truth from [minor]. He told minor that J. says something happened between you and her, and asked minor, what do you think [J.] told me may have happened? Minor responded, That I was feeling on her or something. The detective seized upon this response, as if it were an actual admission of misconduct. He insisted, Why would you say that? and Why would she have told me that then? although minor repeatedly and consistently denied touching J.

Detective Eneim then asked to speak to minor alone, and minors father was sent out of the room. Detective Eneim cajoled minor, saying its not the crime of the century, stressed to him that [t]hree and a half year old girls do not lie, and warned him that the doctors examination of J. found findings saying that this, something bad happened. Detective Eneim pressed minor to admit doing something to J.: Dude she was sleeping on the couch and you know what Im talking about. Nows the time . . . [] . . . before I find out about this, this DNA stuff. A few minutes later, another officer entered the room and announced that minors DNA results were positive as [one] in 5.3 trillion African[-]American males. This was, of course, a fabrication, as there were no suspect DNA samples recovered from J. or from J.s clothing. Nevertheless, Detective Eneim pressed his psychological advantage, saying, Dude, now I gotcha. Minor still denied doing anything and said, Bring my dad back in, I want my dad.

Detective Eneim continued to urge minor to explain it now. Minor repeated, I want my dad, but the detective insisted that [t]his is the time you gotta tell us about it, and this is the time to talk to me now, if you dont want to talk to me now, then, . . . leaving the threat unstated. Minor began to cry and said, man I want my dad. This is a lie. I want to go back home, I want to go back to Arizona. The detective told the 13-year-old, You aint going nowhere, youre going to jail. Youre under arrest, I just told you youre under arrest. Minor pleaded yet again, Can I talk to my dad, I want my dad. The detective told him, yeah Ill get your dad back in here, but your dads not going to be able to help you get out of jail, and left with the parting shot that, [y]ou better think about a better story than lying. The detective finally stepped outside to get minors father.

After minors father was brought back in, the detective apparently left for a short time. While minor was alone with his father, he still denied doing anything to J.

When Detective Eneim returned, he asked, You talk to him about what we talked about? The father said, Yeah he said he did not do it, he says, I want to see, I guess if the DNA test is saying he did, I would like to see it. The detective sidestepped this request, however, hedging that, [w]ell, its just a preliminary test, and they dont print it out, its just my crime scene lady.

Detective Eneim proceeded to play a portion of the tape recording of a forensic interview with J. J. apparently said, My brother touched . . . my chones off like underwear. (Chonies was the word J. used for underwear.) The detective turned off the tape recording, however, before J. identified Wayne, and not minor, as the brother who had done this, leaving minor and his father with the false impression that J. had named minor.

The detective changed tactics to downplay the seriousness of the offense: I already told you its not the crime of the century. . . . Ive had a lot worse than what youve done. She probably wont remember this when she gets older. Minor protested, logically enough, that [i]f I did I would remember, but I never touched her thats all I know. It was at this point that the officer introduced the idea that, So maybe it could have happened and you dont remember? Minor maintained, I dont know what happened.

Detective Eneim changed course again, positing, Or you were half asleep, do you sleep walk? suggesting to minor that he could have done the deed while being unaware of having done so. Minor responded, Probably[,] I dont know.

The detective suggested that if minor had committed the offense while sleepwalking, [m]aybe thats why we have your DNA in her underwear. Minor said, I dont know why. I dont know what happened. As the detective wove more elaborate scenarios of how it could have happened that minor committed an offense without being aware of it, minor acquiesced in the officers insistence. He said, Probably, yeah, to Detective Eneims suggestions.

Detective Eneim got minor to state, I probably did it. And I dont know I did, and [t]hat could have happened. The detective insisted again that minor must have gotten up in the middle of the night and done something to J. while she was asleep, asking once more, [c]ould that have been what happened?

[Minor]: Yeah, probably yeah, I think.

[Detective Eneim]: Did it or didnt it? I mean its either yes or no.

[Minor]: Yes, I think, yeah.

[Detective Eneim]: Okay.

[Minor]: Probably. I dont know though.

Minor insisted that, I dont remember nothing, but, having gotten minor so far down the path of potential admissions, the detective shifted emphasis once again, this time saying that he disbelieved minor could have committed an offense while sleepwalking: There is absolutely no way that this could have happened while you were sleepwalking. You had to know what was going on, right? Yes? Minor responded, Yeah.

Minor continued to say that he did not remember or know what had happened, but that he may have been asleep, or may have made a mistake, or done something by accident. Detective Eneim insisted that minor admit or own up to committing the offense, even though minor repeatedly stated that he did not know what was going on, that he may have done something by accident without knowing what he was doing, and that he only remembered being asleep and waking up. The detective continued to describe various molestation scenarios and asked minor whether he had done various acts with J. Minor did not reply or said that he did not know what had happened or did not remember the acts described. Detective Eneim maintained that minor had to remember, because he had as much as admitted doing the act. When the detective asked, could that have happened? minor responded, [y]eah. When Detective Eneim pressed, Did that happen? Yes? minor only responded, I dont know. Minor stated more than once that all he remembered was being asleep and waking up when Christina was knocking at the door.

Minor asked if he would be in trouble, if it was an accident? Detective Eneim was noncommittal, but urged minor that, its not the crime of the century. . . . [Y]ou didnt mean to hurt her you told me, and shes fine, shes going to survive. She probably . . . wont even remember this in a couple years. . . . So I think you asked if you did it by accident I mean do you think that maybe . . . this was an accident, I dont see how that could be an accident. . . . Minor eventually said, I probably was, I probably did, I think I did do it. When asked, You think or you know, minor responded, I think, and said he d[id]nt really remember what might have happened in the incident. Detective Eneim asked, what do you mean by you think you did? Minor was unsure: Umm, I dont know, Im just confused.

Once he had obtained this admission, however, Detective Eneim asked minor whether he had put his penis into J.s vagina, and insisted that, I have to hear you say . . . something. Minor then said, Once. When asked what else he had done, minor stated, Nothing. When asked again what he had done with his hands, he responded, [n]othing.

After having obtained these statements from minor, minor was charged with one violation of Penal Code section 288, subdivision (a), lewd and lascivious act upon a child under age 14.

Christina testified to the events described above, having J. stay overnight at the fathers apartment. Christina ultimately delivered J.s clothing to the police, but she herself had not noticed any blood, marks or stains on J.s underwear. Forensic evidence did not detect any seminal fluid in J.s underwear, and screens for blood, blood stains and for hair were all negative. Christina admitted that J. had once complained of Christinas father or stepfather touching her, or tickling her, in her private area.

Minors father testified that he had put J. down on the couch to sleep for the night, and she was still asleep on the couch when he got up the next morning. Minors bedroom door was still shut; [h]e was still in his room asleep. Minors father had heard nothing unusual during the night.

J. remained at the apartment for part of the day on May 4, 2006. Minors father and Tory left to go to the store. They were gone approximately 20 minutes. When minors father and Tory left, minor and J. were awake, watching television or playing video games. While they were out, Christina had arrived at the apartment to pick up J. Christina and J. stayed in the apartment for another 15 to 20 minutes while J. had something to eat. Minors father did not observe anything unusual about J. that day, and never heard J. make any complaint.

Some time after minors arrest, the father had a conversation with Christina in which Christina admitted that J. reported that a man named Wayne, had took his two fingers and put it in her pee pee.

Detective Eneim testified that Christina reported that J. had complained for about a month about soreness in the vaginal area. At some point during his interviews with Christina, Detective Eneim learned that the man named Wayne may have molested J. about a year and a half before the present incident. The man called Wayne was later identified as the father of Christinas new baby. In addition, Christina also told Detective Eneim that J. may have been touching herself.

Three-year-old J. could not be qualified as a witness and did not testify at minors hearing.

The defense called a Riverside County Department of Social Services (DPSS) social worker to testify on minors behalf. The DPSS social worker testified that, in addition to minor, Christina had given him the names of two other individuals who might have molested J.: Christinas father (i.e., her stepfather) and Wayne, the father of Christinas other child.

Tory, the girlfriend of minors father, testified that during J.s overnight visit, J. had not complained of any pain or discomfort and had no trouble going to the bathroom when Tory accompanied her. Tory and minors father went to the store; J. and minor remained at home because there was no car seat for J. in their vehicle. Tory and minors father were gone approximately 15 to 30 minutes.

Tory also testified that she had been tickling J. the first day she met her; J. asked Tory to tickle her in her private area. Tory described the tickling incident as having taken place before minor had moved into the apartment. Tory claimed she told Christina about the tickling incident when Christina came to pick up J. on May 4, 2006.

The prosecutor argued that the medical evidence showed that something had been done to J. approximately 72 hours before J. was examined. The overnight stay at the fathers apartment occurred in that time frame. The living conditions in Christinas home were approximately the same both before and after the May 3-4 overnight stay. J.s injury healed normally afterward, i.e., there was no recurrence of injury, even though the same alternative suspects (the stepgrandfather and the father of Christinas other child) presumably had similar access to J. both before and after May 4, 2006. When Christina arrived at the fathers apartment on May 4, she knocked at the door for 10 minutes before minor answered. Minor claimed he and J. had been sleeping, although the father and Tory had left both children awake, watching television, no more than 30 minutes earlier. When minor was arrested, he was searched and the police found sealed condoms in his possession. Minor was 13 years old, an age of beginning sexual maturity. Although minor denied that he was sexually active, he had no good explanation or reason for his possession of the condoms. Finally, the prosecutor relied upon minors admissions during his interrogation, that certain things could have happened, or that things had probably happened as the detective suggested.

Defense counsel attacked the alleged confession, pointing out that the statements were made by a 13-year-old boy who was academically slow and was only in the sixth grade. Minor maintained that he had done nothing to J., until the detective introduced the possibility of sleepwalking, and having committed an offense while being unaware of it. Minor essentially followed the detectives lead from it was sleepwalking, to it was an accident, to it was a mistake. Defense counsel argued that there was nothing inherently improbable about having fallen asleep while watching television at 4:00 p.m. in the afternoon. Counsel also attacked Christinas credibility: Although Christina testified that she had never told authorities about any other possible suspects, the investigating officer and several other witnesses contradicted Christinas testimony, demonstrating that Christina herself had identified at least two other possible suspects. Although Christina stoutly denied that J. had had any indications of injury to her private area, other witnesses, including the investigating officer, flatly contradicted this, noting that Christina had reported J.s complaints about discomfort for a matter of weeks before the overnight visit with her father. Christina had denied that the other possible perpetrators had access to J. before the alleged incident, but DPSS investigators had received reports, confirmed by Christinas landlord, of all kinds of comings and goings from Christinas apartment.

Other inconsistencies were noted. Christina did not take J. to be examined for at least two days after the suspected incident. The forensic findings were consistent not only with a fresh injury within 72 hours, but also an older injury that had substantially healed.

Counsel argued specifically that, the People seem to concede that, [w]ell, maybe theres other suspects here. Maybe theres other indications of sexual abuse, if we can call it that, to [J.] by herself or by others. But that doesnt excuse the minors behavior. [] Well, I think it does because if these injuries could have been caused by anyone else, if thats a reasonable interpretation, then these allegations have to be found not true.

The court did not address all the arguments of counsel in detail in making its findings, but it focused on three matters. First, as to the issue of credibility, defense counsel correctly observed that Christinas credibility was not without problems. The examining physicians credibility, however, was impeccable, and her manner objective and professional. In addition, some aspects of Christinas testimony, such as some delay when minor answered the door, were corroborated by other evidence.

Second, the nature of the case was what the court termed a corpus confession case. In other words, was there a corpus delicti of the crime established? Minor could not be adjudged to have committed the crime as a result of his out-of-court statements unless other evidence showed that the offense had been committed by some criminal agency.

The doctor acknowledged the possibility, but only the possibility, that there may have been multiple injuries. That possibility could not be eliminated, though it apparently was not the doctors primary theory of the occurrence of the injury. Self-inflicted injury or accident were similarly unlikely, and could be ruled out. The court concluded that the corpus of the crime had been independently established by the physicians testimony.

Third, the court then turned to statements minor made during his interview. The court observed that, [i]n spite of the argument that this is a circumstantial evidence case, it is primarily not. It is primarily a direct evidence case, and the direct evidence comes from minor. Now, one can reject it or accept it, but it is not a circumstantial evidence case. The court took the view that minors statements during his police interrogation were substantive factual admissions that he had actually performed certain acts.

The court had reviewed the recording of the interview, and assessed minors demeanor as consistent with knowledge that he had done something he knew he should not have done. The court also believed that minor was able to understand the proceedings during the interview.

At the outset, minor was told he was accused of sexual assault, and that J. had said that minor had done something to her. When the detective asked minor what J. might have complained about, minor answered that she might have accused him of feeling on her or something. The court, like the detective, inferred that minor would not have made that statement unless it was true. Minor then made statements that he had tried to distance himself from or keep away from J., as if she were somehow trying to tempt him. The court also considered minors statements, to the effect that,  Would I get in trouble if I did this thing that youre saying that I did or that I think you are saying that I did? And then finally, All right, all right, all right, I did it. And then back to, You know, what, I justI didnt do this.  The court found the matter troubling, but concluded that his confession is sufficient to establish beyond a reasonable doubt that the allegation is true.

The court found the allegation of the petition true, and adjudged minor a ward of the court. As to disposition, minor was released to the custody of a maternal aunt in Arizona, subject to terms and conditions of supervision.

Minor now appeals.

ANALYSIS

I. Part of Minors Police Statement Was Involuntary

Minor first argues that the juvenile court erred in admitting his statements made to police. He moved below to exclude the statements on the ground that, to the extent minor made any admissions or confessions, his statements were not voluntary.

Both the federal and the California Constitutions bar the use of involuntary confessions. (Jackson v. Denno (1964) 378 U.S. 368, 385-386 [84 S.Ct. 1774, 12 L.Ed.2d 908]; People v. Benson (1990) 52 Cal.3d 754, 778.)

A confession is involuntary if it is not  the product of a rational intellect and a free will   (Mincey v. Arizona (1978) 437 U.S. 385, 398 [98 S.Ct. 2408]), such that the defendants will was overborne at the time he confessed. (Lynumn v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922, 83 S.Ct. 917].) 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. Ray (1996) 13 Cal.4th 313, 340.) Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.) (People v. Smith (2007) 40 Cal.4th 483, 501.) [A]n examination must be made of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.) (People v. Thompson (1990) 50 Cal.3d 134, 166.)

 A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778, citing Colorado v. Connelly [(1986)] 479 U.S. [157] at p. 167.) 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. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it does not itself compel a finding that a resulting confession is involuntary. [Citation.] The statement and the inducement must be causally linked.  (People v. Perdomo (2007) 147 Cal.App.4th 605, 614-615.)

Characteristics of the accused which may be examined include the accuseds age, sophistication, prior experience with the criminal justice system and emotional state. (Stein v. New York (1953) 346 U.S. 156, 185-186 [97 L.Ed. 1522, 1542-1543, 73 S.Ct. 1077]; People v. Spears (1991) 228 Cal.App.3d 1, 27-28.)

Details of the interrogation may prove significant in deciding whether a defendants will was overborne. For example, courts may consider whether the police lied to the defendant. While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citation]. (People v. Hogan [(1982)] 31 Cal.3d 815, 840-841.) As we stated in People v. Engert [(1987)] 193 Cal.App.3d 1518, Appellant is correct that a lie told to a detainee regarding an important aspect of his case can affect the voluntariness of his confession or admission. (Id. at p. 1524.) (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)

 [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 a promise does not render a subsequent confession involuntary.  (People v. Sultana (1988) 204 Cal.App.3d 511, 522, citing People v. Jimenez (1978) 21 Cal.3d 595, 611-612; see also People v. McClary (1977) 20 Cal.3d 218, 227-230.)

On review, the appellate court independently examines the record, but, to the extent the facts conflict, accepts the version favorable to the courts ruling if supported by the record. (People v. Farnam (2002) 28 Cal.4th 107, 181; In re Aven S. (1991) 1 Cal.App.4th 69, 76.)

The trial court must first determine the evidentiary factswhat happenedand then, weighing all of the circumstances, determine the ultimate question, whether the individuals free will was overborne. . . . [] In reviewing a finding of voluntariness [the appellate court must] make an independent examination of the record and determine the ultimate issue independently as well. With respect to conflicting testimony, however, we accept the version favorable to the People to the extent it is supported by the record. (People v. Jimenez[, supra,] 21 Cal.3d 595, 609; People v. Brown (1981) 119 Cal.App.3d 116, 129.) (In re Aven S., supra, 1 Cal.App.4th 69, 76.)

The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) A defendants (here minors) admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. On appeal, we review independently the juvenile courts determination on the ultimate issue of voluntariness. However, any factual findings by the trial court as to the circumstances surrounding an admission or confession, including the characteristics of the accused and the details of the interrogation, are subject to review under the deferential substantial evidence standard. (People v. Williams (1997) 16 Cal.4th 635, 659-660.) When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial courts determination of voluntariness. (People v. Vasila (1996) 38 Cal.App.4th 865, 873.)

Here, the circumstances surrounding minors confession included characteristics of both minor himself and the characteristics of the interrogation.

Minor argues that his own characteristics showed him to be unsophisticated, nave, and even slow. The juvenile court rejected these characterizations, finding minor to be not as slow as peopleas people have argued here, both today and at past hearings. He seems to understand fairly well what was going on.^[1] This finding is belied by all the uncontradicted evidence and circumstances in the record. Minor was 13 years old. At the beginning of the interview, minor could not correctly identify the year he was born. Minor was, at the time of the interview, in the sixth grade; he was thus at least one and perhaps two years behind grade level academically. According to the probation report, when minor was living in Arizona, he was apparently to be transferred to a school for special education students.

Minor had no prior juvenile record and had never, apparently, previously had contact with police, although he had been in trouble at home in Arizona for running away. Minor did understand the meaning of many of the questions asked of him, but he was a neophyte in his exposure to police interrogation tactics, and he was unsophisticated.

At several points during the interrogation, both minor and his father indicated that minor was confused by the proceedings. Minor misunderstood what the officer meant, for example, by contact, when he denied ever having contact with the victim, J. Minor did not know what a half sister was. He did not know what polygraph meant. He had only a vague understanding of rape. He did not know what ejaculation was. He did not know what a social security number was.

Another aspect of the interrogation was that minor was represented only by his father; neither minor nor his father was sophisticated in police interrogation tactics. At one or two phases of the interrogation, the police induced the father to leave the interrogation room, and even pressed him into helping the police get minor to confess. The natural father was not the person who had reared and cared for minor. Minor had only recently, within a month, come to live with his father. They had no long-standing preexisting relationship. The father, moreover, was the natural father of both minor and the victim. It was difficult or impossible for the father to adequately protect minors interests with such a conflict of relationships.

The police used manipulative and coercive tactics throughout the interrogation. From the beginning, Detective Eneim told minor that he was under arrest for sexual assault. He then asked minor, what J. told me may have happened? Minor replied, That I was feeling on her or something. Detective Eneim treated this response as an admission, repeatedly demanding to know [w]hy would you say that? unless it was actually true that minor had molested J. The court itself wondered the same thing. There was, of course, a perfectly reasonable and innocent explanation for minors response, inasmuch as Detective Eneim had already twice expressly told minor that he was under arrest for sexual assault. In addition, merely feeling on the victim was very different from the actual blunt trauma injury J. had suffered.

Detective Eneim also misrepresented the strength of his case, telling minor that he already [had] my ducks in a row, okay, which means I already know the truth. He stated that J. had said something happened between you and her, okay, I already know the truth, I knew this, Ive known this for about three or four days now, okay. Now I need to hear the truth from you. In point of fact, during her forensic interview, J. had never identified minor as the perpetrator of the offense.

Detective Eneim represented, falsely, that three-year-old children simply cannot lie. In fact, J.s forensic interview showed that she did not truly understand the difference between the truth and a lie, and at trial she could not be qualified as a witness.

Detective Eneim stated again, something happened and I know it happened, [J.] knows what happened, the doctors know what happened, you need to be honest with me and tell me what happened. He stated another time that J. had told me what happened and she told the doctors what happened and her story didnt deviate one bit. This was untrue. J. did not tell a coherent and undeviating story. Her forensic interview was largely inconclusive as to what had actually occurred. There was no evidence, even from the victim, identifying minor as the perpetrator of the victims injury.

Detective Eneim outright lied about the physical evidence. He told minor, falsely, that biological evidence had been found in J.s underwear. He had another officer take a swab of minors mouth and pretend to run a DNA test. Later, after minors father had been persuaded to leave the room, an officer returned to report that the test was positive, to a probability of [one] in 5.3 trillion African[-]American males. This was of course a complete fabrication. There was no DNA evidence recovered from J.s underwear.

Detective Eneim pressed his advantage over the now-alone teenager, however, saying Dude, now I gotcha, and telling minor, Did you hear what he just said[?] [I]ts positive, its you. Minor was visibly shocked and upset. Detective Eneim repeated the lie, saying, there is some of your stuff on her underwear, and demanded that minor better explain that to me now.

Minor was highly distressed and crying. He said, Bring my dad back in, I want my dad. Detective Eneim did not immediately comply. Instead, he continued to press minor to admit guilt: DNA doesnt lie, I told you its better than fingerprints. So this is the time to talk to me now[. I]f you dont want to talk to me now then . . . and left the balance of the threat unstated.

Detective Eneim consistently belittled minors denials, saying, I know youre going to keep sticking to that, but emphasizing again that [t]hree and a half year old girls do not lie, okay, and that the doctor had examined J., and they found findings saying that this, something bad happened, so that what J. had said happened is consistent which is real, its, its the truth. Minor stated, I didnt touch her, but Detective Eneim said, Dude . . . you know what Im talking about. Nows the time . . . . He insisted, Dude there is more you want to tell me, I know there is. When minor repeated, I didnt touch her, Detective Eneim disparaged this with, Okay, okay, well thats your story. At another point, Detective Eneim dismissed minors denials, saying, Well I guess well have to leave it up to the courts then I guess since hes not going to tell me the truth.

With the false DNA results, Detective Eneim threatened minor, You aint going nowhere, youre going to jail. Youre under arrest, I just told you youre under arrest. Finally, he reluctantly agreed to bring minors father back into the room, but said, yeah, Ill get your dad back in here, but your dads not going to be able to help you get out of jail. He refused to accept minors statement, I didnt touch her sir, saying You better think about a better story than lying. When minor became upset at the officers lies, Detective Eneim said, You could take that look off your face right now because Im not going to put up with it. Minor maintained, I didnt touch her, but Detective Eneim refused to accept this: Dude come on. Minor said, Im trying to be honest, but Detective Eneim scorned this, saying, I know you are trying to not be honest, thats what it is.

Detective Eneim cut off the father from mentioning that J. had asked Tory to tickle her inappropriately, and said he d[id not] mind you being here, but hinted that the father could not remain present and continue that line of discussion. At other points, the detective again aggressively cut off the father, in minors presence. The officer also lied to the father about the DNA evidence; when the father asked to see the alleged test results, Detective Eneim bristled, do you think Im lying about that too? The father backed down. When Detective Eneim played J.s forensic interview tape, the father stated that he believed that something was going on, apparently referring again to the inappropriate tickling, and stated his firm belief that the mother, Christina, had coached the victim to accuse minor. Detective Eneim again cut the father off from proffering any explanations.

The detective used additional manipulative interview tactics. When minor said, I dont know what happened, Detective Eneim twisted this into an admission: So [now] you are telling me that you dont know what happened so something, so something did happen. Minor responded, I dont, and Detective Eneim replied, Yknow we could sit here all night and just discuss this then.

In face of minors consistent and adamant denials that he could not remember anything happening, Detective Eneim introduced the idea that minor might have been able to commit a crime without being aware of it, for example, if he was sleepwalking. He got minor to say that such a thing could have happened, and then treated minors admission that such a hypothetical had maybe or possibly happened, as if it were an actual admission. He convinced minor by vouching for the possibility: [T]his is my personal opinion, I really think this occurred, this actually happened but you werent aware of it. Once he got minor to agree with him, he undercut the possibility of unconsciousness or sleepwalking, denying that sleepwalking could realistically happen.

Detective Eneim employed have you stopped beating your wife? loaded questions, such as, did you mean to hurt her [J.]? to which minor quite understandably said, no, but which the detective then treated as if it were an actual admission of minors having hurt J. He also asked, lets just say now you did know [i.e., that minor did rape J.] and you did that[,] do you think thats wrong to do that? and elicited a yes, from minor. This, of course, was not an admission that minor had actually done anything, but only that it would be wrong to do so. The detective then misstated what minor had said, saying, [a]nd basically what you just told us is that this occurred, when in fact minor had said no such thing. Minor said he did not remember anything, but Detective Eneim ignored the denial and said, I couldnt understand how we could [have] all these things just gelled together but you just explained it to me because yknow, I personally think you werent sleep walking . . . .

Detective Eneim minimized the crime, telling minor several times that it was not the crime of the century, and said things like, [y]oure thirteen, I was thirteen once, I know what its like. Okay, you get those urges, you get urges once in a while; I mean, Ive had a lot worse than what youve done; [s]he probably wont remember this when she gets older; we all make mistakes dude; (speaking to minors father), I mean and you and I are both men weve been there, weve done that, weve all made our mistakes; you didnt mean to hurt her[,] you told me, and shes fine, shes going to survive; and she probably wont even remember this in a couple years.

Detective Eneim continued to insist, despite minors consistent denials that you [minors father] and I both know what happened, I think your son knows what happened. He disparaged the sleepwalking scenario that he himself had convinced minor of, saying, yknow, this sleepwalking bit[,] I dont see that happening in this case . . . . [T]he thing is is you lying about it is not going to help. You would feel a lot better, so we could sit here until you tell me the truth but Id like to hear it from you so we could just move on and well finish this up. So go ahead. (Italics added.)

It was only after the threat to sit here until you tell me what Detective Eneim wanted to hear, that minor made the most direct and damaging admissions.

Detective Eneim simply refused to accept any statement from minor about sleepwalking, failure to remember, accident or mistake. Owning up to it, this is where you need to do it right now. Minor finally said, I am, and, on further prompting, said, I did it. Minor himself never directly provided any details of the incident, however. He simply acquiesced to some of the detectives proffered scenarios. He agreed that he may have been on top of J., that J. probably took her own underwear off, that it was the first time anything like this had happened, and that he may have rubbed his penis on J.s vagina once.

Detective Eneim had insisted that we already know that . . . something happened, I just, yknow, now youre saying that you dont remember, dont do that. You know what happened, its okay, its over with, were talking about I just need to get the details of exactly what happened. He urged that he had to explain to my boss . . . yknow, about the DNA being in her underwear and explain that she got injured a little bit, and demanded that minor help him explain it. He repeated that, I gotta explain this to my boss so you need to help me explain that. He played on minors reliance upon his father, saying, the sleepwalking thing . . . doesnt make a lot of sense . . . [t]hats what I think, . . . I think your dad thinks that too and thats why hes so upset right now. And all he wants you to do is be truthful and say yeah, yknow, I did this, Im sorry . . . . He reiterated that minors father wants to get to the truth and I want to get to the truth and I want you to tell me the truth and not this sleepwalking thing. It was at that point that minor stated, I probably did, I think I did do it, but he only thought so and did not know so because he did not remember, but that he may have done something by accident, not knowing what I was doing.

Detective Eneim said, Do you understand that you are just telling me just a part of what you really want to tell me? Youre not saying yeah I did this, Im sorry I did this and its over with. Detective Eneim would not accept anything other than an admission of guilt: youre just beating around the bush about it and [t]hen answer this one and honestly, did you put your dick in her vagina, inside of her, because thats the only thing that make[s] sense? I have to hear you say [it].

Involuntariness means the defendants free will was overborne. [Citations.] Whether the defendant lost his free will and made involuntary statements does not rest on any one fact, however significant it may seem. Instead, courts examine the totality of the circumstances. (People v. DePriest (2007) 42 Cal.4th 1, 34-35.)

At the outset, minor and his father had been advised of minors constitutional rights. The initial portion of the interview was voluntary. It was during that portion of the interview that minor said, in response to Detective Eneims inquiry, that the victim might have alleged minor was feeling on her or something. That portion, at least, was admissible. There was also a perfectly reasonable and innocent explanation for minors statement, however, in that Detective Eneim had already expressly informed him that he was under arrest for sexual assault.

As the interview progressed, however, the detective used every trick at his disposal: Getting minors father to leave the room; misstating what minor had said and treating his denials as admissions; asking loaded questions and treating the answers as admissions of guilt; co-opting the father as another interrogator and encouraging the father to pressure minor to confess; failure to honor minors request to bring back his father; lying to minor about the strength of the case; total fabrication of false DNA results; convincing minor that he could have done the crime without remembering, and then undercutting that scenario once minor admitted that the officers hypotheticals maybe, or possibly could explain the (false) DNA evidence consistently with minors failure to remember; and twice threatening to prolong the interrogation until minor confessed.

Minor was an unsophisticated young man. He was easily confused and manipulated. Even though he was 13 years old, he had not completed the sixth grade and was a candidate for special education classes. Minor appeared genuinely shocked at the accusations and, particularly, the presentation of the supposedly ironclad DNA evidence. He was emotionally distraught and crying at several points during the interview.

At critical times during the interview, minor was deprived of the support of his father, who was also unsophisticated and who had not had any significant prior experience acting as minors father. The interrogator not only convinced the father to leave, but, in minors presence, he also forcefully cut off any attempts by the father to proffer any explanatory or exculpatory statements. If minors father was unable to resist the officer, how could minor expect to do so? The father himself appeared at certain moments to be emotionally overcome.

The interview lasted approximately two hours. Although minor does not complain of being deprived of necessities, the interview was long enough that the officer excused himself to use the bathroom. The record reveals that at times the tone of the interrogation was aggressive and harsh. The officer twice threatened to simply sit there until minor confessed. He deprived minor of his fathers presence at a critical point, springing the fabricated DNA evidence on him while he was alone. Detective Eneim repeatedly ignored minors requests to bring his father back in. As to the father himself, the officer firmly refused to listen to minors father proffer any explanatory statements, and enlisted the fathers aid in pressing minor to confess. It was Detective Eneim who suggested, by numerous scenarios, how minor might have committed the crime, and convinced him that, despite his adamant statements he did not remember, he could have committed the crime even though he did not remember. He convinced him, by outright lies, that there was an absolute DNA match. Perhaps DNA doesnt lie, but, unfortunately, this police officer did.

In terms of the quality of the facts elicited from minor, minor demonstrated no actual knowledge of the alleged crime. He did not remember doing anything. He only remembered being asleep. He did not know how or what kind of injury had occurred. He did not know what he supposedly said to the victim or what the victim had said to him. He did not know how J.s underwear had been moved or removed. He did not remember choking the victim. He did not know what he had done with his hands. He did not know where the incident had taken place. Of the two available times the incident could have taken place, if minor was the perpetrator, it was never clearly established whether it had happened in the middle of the night or during the interval in the afternoon while minors father was at the store. In none of minors statements did any clear picture of the crime crystallize.

We have reviewed the circumstances of minors police interrogation, including the use of coercive techniques, as well as minors personal characteristics. We conclude that minors will was overborne. The officer simply would not take no for an answer, and minor reasonably believed that the only way to end the interrogation was by making false admissions. Under all the circumstances, minors interview was so coercive that it produced a statement that was both involuntary and unreliable. (People v. Ray (1996) 13 Cal.4th 313, 340.)

The trial court therefore erred in admitting the bulk of minors police interview. As noted, minors statement that the victim may have alleged he was feeling on her or something, was voluntary and admissible, but that particular statement both had an innocent explanation or interpretation, and was inconsistent with the officers theory of the crime. Otherwise, minors statements were elicited by manipulation, trickery, coercion and lies, well more than sufficient to overbear his will to resist. Minors father was likewise unable to resist the officers commanding presence; Detective Eneim effectively shut down any exculpatory statement or denial from the father, and adamantly refused to accept any of minors numerous denials. Even when minor was left wholly alone, he continued to repeat his denials that he had ever touched the victim. When he was left alone with his father, he likewise maintained his innocence.

Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. [Citation.] (People v. Farnam, supra, 28 Cal.4th 107, 182.) The deceptions here, however, were of precisely the type reasonably likely to procure an untrue statement. It was only after the police got minor alone and lied to him about the supposedly incontrovertible DNA evidence, and presented an out that reconciled both minors possible guilt and his inability to remembere.g., sleepwalkingthat minor began to admit that such a hypothetical could, maybe, or possibly have happened. Detective Eneim recast these admissions, which he himself had set up, into admissions of actual conduct, which they were not. The hypothetical admissions were at least as likely, if not likelier, to be untrue as to be true. (See People v. Hogan (1982) 31 Cal.3d 815, 840-841 [confession excluded as involuntary where the defendant was confronted with false statements concerning his guilt, and came to doubt his own sanity].)

The trial court should have excluded minors police statementwith the exception of minors initial guess that the victim may have accused him of feeling on heras coerced, involuntary and unreliable.

II. The Evidence Was Insufficient to Support a True Finding on the Petition

Minors counsel argues that the evidence was insufficient to establish a corpus delicti of the offense, independent of minors confession. Counsel points out that the examining physician saw no evidence of choking, although J. had supposedly reported that she had been choked. There was a healing tear at the rear of the vagina, about one-quarter inch long. The tear indicated possibly a recent event, within 72 hours, or a greater injury that had taken place earlier, but had nearly healed. There was no damage to the hymen. Any blunt object could have caused the tear. Even tickling might have caused the injury if the tickler did not use due care. A three-year-old generally could not have inflicted the injury on herself. The doctor opined, therefore, that the injury was suspicious for sexual abuse, because it fits with what Ive been told. That was the strongest statement the doctor would hazard.

Counsel argues that the expert medical examiner was equivocal, and that this evidence was insufficient to establish the element of the corpus delicti that the injury had occurred by a criminal agency. (People v. Swain (1996) 12 Cal.4th 593, 603.) We disagree. Dr. Dully testified that accident or self-infliction were unlikely. In many cases of criminal molest, findings no greater than suspicious were common. Dr. Dullys testimony was sufficient to permit an inference of criminal conduct, notwithstanding her admission that tickling without due care might also cause such an injury. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1171.) A slight or prima facie showing is sufficient to establish the corpus delicti. (People v. Scott (1999) 76 Cal.App.4th 411, 416.) The evidence here was sufficient to meet that standard.

With the exclusion of minors police statement, however, the evidence was insufficient to support a true finding on the petition; that is, the evidence was insufficient to conclude, beyond a reasonable doubt, that minor was the perpetrator of the offense.

J. herself could not be qualified as a witness. She was only three years old. She did not reliably respond to questions in a way that assured she understood. She was unresponsive at times, answered irrelevantly at times, made mistakes in her answers (e.g., colors and numbers), and generally displayed a demeanor that did not demonstrate her understanding of concepts such as truth, lie, promise, and so on.

J.s forensic interview was the same. She could not reliably or consistently show that she understood the difference between the truth and a lie, or between one and many (or lots), or who anyone was or what had really happened, if anything. She showed herself to be suggestible, often repeating from cues.

In the videotaped interview, J. said that my brother had hurt her, and the interviewer ever after repeated your brother had done this or that. J. also seemed not to know, however, what brother meant, or whether she in fact had any brothers. When it came time to ask J. who her brother was, the only name she stated was Wayne. Wayne is not minors name. Wayne was, however, the name of an adult male who had a relationship with Christina. Because of his relationship with Christina, Wayne would have had access to J., and could have perpetrated the offense. In fact, although she denied the fact in her trial testimony, Christina had identified Wayne as a possible perpetrator to both Detective Eneim and the investigating social worker.

Similarly, the forensic interviewer asked J. questions about her daddy, but failed to establish in any way whom J. might have regarded as her daddy. She had only begun to start visiting with minors father a few weeks before the alleged incident occurred. She had met minor perhaps four or five times in the month before the alleged incident occurred. During virtually all of her life, she had not known minors father as her father. In the meantime, however, Christina had had relationships with other men after J.s birth.

Other evidence established that J. was allowed to wander her apartment complex unsupervised, and that many persons frequently came and went from Christinas apartment. Christinas own testimony established that the victim had complained of pain in her vaginal area for about a month before the alleged incident took place, and she had been walking funny and sitting funny weeks before the night that she stayed at her fathers apartment.

Christinas credibility was in serious question. She vehemently denied at trial that anyone other than minor could have perpetrated the offense, but she was flatly contradicted by both the police and the investigating social worker: Christina herself had suggested other possible perpetrators, including Wayne. The physicians physical findings were consistent not only with an injury within 72 hours before the examination, but also with an older injury that had largely healed. Christinas testimony was self-contradictory with respect to when the alleged injury must have taken place, as she herself had described J. as complaining of pain and behaving as if injured for up to a month before the alleged incident. Christinas response to the alleged offense was in itself suspicious or questionable, as she did not report the incident when she supposedly became aware of it. She delayed taking J. for physical examination until three days afterward, when she was compelled to do so by her employers report of the incident.

The evidence as a whole was not sufficient to establish beyond a reasonable doubt that minor had molested J. There was a great deal of evidence suggesting otherwise. In the absence of minors confession, there was nothing to show that he had done anything to J.

The evidence was insufficient to sustain a true finding on the petition.

DISPOSITION

The bulk of minors statements to police were the product of coercion and were involuntary. The evidence was insufficient to support a true finding on the petition, particularly in the absence of minors statements to police. The judgment is therefore reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J

We concur:

GAUT

J.

MILLER

J.

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