Filed 2/22/22 P. v. Trujillo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS GONZALEZ TRUJILLO,

Defendant and Appellant.

F077583

(Super. Ct. No. MCR046166)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, 

Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and 

Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant Jesus Gonzalez Trujillo was convicted by jury of two counts of forcible 

lewd and lascivious acts against a child 14 years or younger (Pen. Code,1 § 288, 

1 Further undesignated statutory references are to the Penal Code.
2.

subd. (b)(1); counts 2 & 6) against two separate victims, and one count of lewd and 

lascivious acts against a child 14 years or younger (§ 288, subd. (a); count 3) against a 

third victim. The jury also found true as to all counts that appellant committed the 

offenses against multiple victims (§ 667.61, subds. (b) & (e)(4)). Appellant was 

sentenced to consecutive indeterminate terms of 15 years to life on each count, for an 

aggregate term of 45 years to life. 

On appeal, appellant argues his convictions on counts 2 and 3 must be reversed 

because the trial court erred by admitting statements that he made to law enforcement and 

by excluding expert testimony on false confessions. Appellant also contends his 

conviction on count 6 must be reversed because the prosecution’s theory at the 

preliminary hearing was “inconsistent and irreconcilable” with their theory at trial and 

because the jury was misinstructed on how to evaluate evidence of uncharged acts. 

We conclude appellant’s statements to law enforcement were taken in violation of 

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and the court reversibly erred by 

allowing them to be admitted into evidence. We therefore reverse appellant’s convictions 

on counts 2 and 3 and remand for a new trial. As such, we conclude appellant’s 

contention regarding the expert testimony is moot and do not reach its merits. In all other 

respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with sexual crimes against four minor victims: E.G., Y.S., 

Li.R., and Lo.R. Appellant was charged with forcible lewd and lascivious acts against a 

child 14 years or younger (§ 288, subd. (b)(1)) against E.G. (count 2), Li.R. (count 5), 

and Lo.R. (count 6) and a lewd and lascivious act against a child 14 years or younger 

(§ 288, subd. (a)) against Y.S. (count 3).2 

2 Appellant was also charged with violations of section 288.7 against E.G. (count 1) 

and Li.R. (count 4), but following their case-in-chief, the People moved to dismiss both 
3.

Count 2 

E.G. was appellant’s stepdaughter. She testified that on one occasion, when she 

was approximately five or six years old, appellant had initiated a game of hide and seek 

with her and her brother. E.G.’s brother went outside to count, and appellant suggested 

he and E.G. hide under the bed. Once they were under the bed, appellant pulled down 

E.G.’s underwear and put his penis inside her. E.G.’s mother, appellant’s wife, Ester,

testified that on one occasion when E.G. was five years old, she washed blood out of 

E.G.’s underwear. 

Count 3

Y.S. testified that she lived with Ester, appellant, and their children when she was 

a child. On one occasion, when Y.S. was about five or six years old, appellant took Y.S.

into his room, where he got on top of her and grabbed her and kissed her. Ester tried to 

open the door while this was happening, but appellant held the door closed. Appellant

held Y.S. against the floor with his hands on her wrists. He then put Y.S. outside the 

window before Ester was able to get inside. 

A.G., one of appellant’s stepdaughters, testified that on one occasion, she was 

trying to open the door to the bedroom the family shared but was unable to open it all the 

way. She saw appellant on top of Y.S., and he was holding the door semi-closed with his 

head. Ester came and opened the door, and Y.S. was gone when they entered the room. 

Count 5

Li.R. was Ester’s niece. She lived with Ester and appellant’s family when she was 

a child. She testified that when she was in fourth grade, she was playing with appellant 

and Ester’s young daughter when appellant came into the room. Appellant’s daughter 

counts as the statute had not been enacted at the time the acts were alleged to have

occurred, and the court granted the motion. 
4.

left the room, and appellant pushed Li.R. against the wall, pulled down her skirt, and put 

his penis inside her. He stopped when his daughter re-entered the room.

Lo.R., Li.R.’s brother, testified he saw appellant having sexual intercourse with 

Li.R. on an occasion when Li.R. had been playing with appellant’s daughter. He and 

Li.R. had never talked about this incident. 

Li.R. and Lo.R.’s father and Ester’s brother, Gabriel, testified he had seen 

appellant “playing with” or pinching Li.R.’s breasts.

Count 6

Lo.R. testified that he had inappropriate sexual contact with appellant on two 

separate occasions. On the first occasion, appellant grabbed Lo.R. and placed him on 

appellant’s lap. Appellant proceeded to move Lo.R.’s leg on appellant’s penis and Lo.R.

felt appellant get “a boner.” Appellant kept Lo.R. on his lap for around three minutes, 

then appellant said he had to use the restroom. 

The second occasion occurred when Lo.R. was approximately nine and a half 

years old. Appellant got a phone call, and Lo.R. brought appellant the phone and waited 

for him to finish so he could take the phone back. When appellant was finished with the 

call, he told Lo.R. to come closer. When Lo.R. did, appellant grabbed Lo.R. and put him 

in his lap and asked him if Lo.R. “remember[ed].” Lo.R. told appellant he did not 

remember, and appellant let Lo.R. go and told him not to tell anyone. According to Lo.R.

“nothing” happened when he was on appellant’s lap during the second occasion. 

Evidence of Uncharged Acts

A.G. testified as to a few incidents which were presented as uncharged acts 

tending to show appellant’s propensity to commit sexual offenses under Evidence Code 

section 1108. She testified that when she was in seventh or eighth grade, her family went 

to the park, and she did not want to get out of the vehicle when they arrived. Her siblings 

had gotten out of the car, and appellant turned around from the front seat and tickled her. 

Appellant was trying to touch A.G.’s breast, and she felt uncomfortable and exited the 
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vehicle. She also testified about another time while she was with her family at a river

climbing a tree, and appellant grabbed and touched her butt. On another occasion, she 

was in her room looking for something in her closet, and appellant came up behind her 

and squeezed her breasts. 

Pretext calls

During the investigation, law enforcement had E.G. and A.G. perform pretext 

phone calls to appellant, which were recorded and played for the jury. 

E.G.’s pretext call was conducted on April 29, 2013. E.G. told appellant she told a 

counselor “what happened.” Appellant told E.G. that he did not know “why you do those 

things,” he loved her, and she ruined his life because he cannot see his daughter due to 

the allegations. When E.G. told appellant she wanted him to apologize, appellant said he 

did not remember what happened and that he “was stupid” and “drunk.” He then told her 

“if it was like that, I am sorry, [] I ask you to forgive me.” Appellant continued to tell her 

he did not remember anything but that if he touched her, he was sorry. When E.G. asked 

appellant why he touched her, appellant responded, “What do I know, sweetie? It was 

the damn alcohol. Oh.” Appellant continued to deny remembering anything specific. 

A.G.’s call was conducted on April 30, 2013. A.G. told appellant she was in 

counseling, and her counselor said that he had to admit what he did. Appellant told A.G.

that E.G. had already called him and he told her he “ ‘d[idn’t] remember any of that.’ ”

A.G. then asked appellant if he remembered when she saw him with “Pili or Popi or one 

of them” and appellant responded, “But you don’t have anything to do with that girl.” 

A.G. asked appellant if he remembered touching her at the river when she was climbing a 

tree, and he told her he did not remember. He continued to deny remembering doing 

anything to her. 
6.

Appellant’s Police Interview

Appellant gave two statements to the police on May 9, 2013, which were recorded 

and played for the jury. Appellant initially denied any sexual conduct and that he had 

only tickled A.G. when they were at a river.

Eventually, appellant admitted on one occasion Y.S.3 pulled him toward her, 

causing him to fall on top of her, and told him she wanted to “make love.” Appellant

caressed her back and her leg, touched her buttocks, and rubbed his penis against her 

through the fly of his pants. He stated there was no penetration, but he was tempted. 

A.G. and Ester were at the door when this was happening.

Appellant also admitted that on one occasion he came home late, drunk and high 

and put his finger into E.G.’s vagina. 

The defense relied on the state of the evidence presented by the prosecution and 

did not present any additional evidence. 

The jury was unable to reach a verdict on count 5 involving Li.R., and the court 

declared a mistrial as to that count. The jury returned guilty verdicts on the remaining 

counts: 2, 3, and 6.

DISCUSSION

I. Admission of Appellant’s Statements to Law Enforcement

A. Circumstances of the Interviews

Appellant sought to exclude appellant’s statements to law enforcement, and the 

court conducted an Evidence Code section 402 hearing to determine their admissibility. 

Sergeant Josh Chavez testified he was a qualified Spanish interpreter and was

called to assist Detective Brent Cederquist in his investigation of appellant. On May 8, 

2013, Chavez called appellant to see if he would come in to speak with him; he told 

3 Chavez and appellant speak about Y.S. using her nickname throughout the 

interview.
7.

appellant he would like to ask him some questions and talk to him about “some 

allegations.” Appellant agreed to come in that afternoon, but Chavez ended up having to 

reschedule, and appellant said he would call Chavez the next day. The next morning, 

however, appellant arrived unannounced at the police station.

Chavez met appellant in the police department lobby and was wearing slacks, a 

button-up shirt and tie. He took appellant into an interview room. The interview room 

was about 10 feet by 10 feet and contained a steel table and a couple of chairs. Detective 

Cederquist was in the room initially but was in and out throughout the interview. Chavez 

offered appellant some water and gave him his business card. Chavez asked appellant if 

he could slightly close the door, and appellant agreed. 

The interview was recorded and conducted in Spanish, which was later transcribed 

into English. No Miranda advisements were given. Chavez began by introducing 

himself and Cederquist to appellant. He informed appellant he was not under arrest and 

asked appellant if he understood, to which appellant responded, “Yes‒yes–no....”

Chavez told appellant he was not detained and that he had asked appellant to come in 

voluntarily, to which appellant responded, “yes.” At this point, Chavez said to 

Cederquist, “I’m doing the Beheler.”

Chavez told appellant to tell him if he felt uncomfortable and that he was just 

going to ask appellant “a few questions.” Chavez asked appellant if he felt if he was 

under arrest, and appellant replied he did not.

Chavez began asking appellant some personal history questions like appellant’s 

name and date of birth. Appellant told Chavez and Cederquist he did not speak any 

English, was 39 years old, came to the United States from Mexico 10 years’ prior, and 

had not had any trouble with the law. Chavez then began asking appellant about his 

family members, and appellant shared several details about his difficult childhood. 

Chavez then asked appellant if he knew why Chavez had asked him to come in. 

Appellant responded by saying that three or four weeks ago, police officers had gone to 
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his house, based on accusations E.G. had made and served him with a seven-day 

restraining order. Chavez told appellant Chavez wanted to resolve the accusations and 

that appellant was not “a criminal,” as he was “not killing people or—or robbing homes.” 

Chavez told appellant he had spoken to both E.G. and A.G. and now wanted appellant to 

“be free of legal problems.” Appellant told Chavez he did not understand what he was 

being accused of, and Chavez said the children were saying appellant touched their 

“breasts and their private parts.” Chavez explained he had spoken to the children

separately and they had detailed memories of what happened. Appellant stated he did not 

remember anything happening, to which Chavez responded, “For me, something 

happened.”

Chavez then spoke at length, with appellant only interjecting occasionally with 

“Mm-hm” or “Yes sir.” Throughout this portion of the interview, Chavez made several 

appeals to appellant to speak about the accusations, stating “we have to resolve [this]

now”; “[w]e have to sort this out now”; “we must ... be honest”; and “this is the time to 

explain.” Chavez told appellant he understood what appellant was going through because 

he too was “a man” and understood appellant had “mental traumas” from when he was a 

child and that appellant may be embarrassed. 

Chavez told appellant he knew “that something happened” and that “[w]e have to 

talk about why this happened. Not whether this happened but what was going through 

[appellant’s] mind.” Chavez posited appellant may have done it because he was young or 

under the influence of alcohol, but whatever the reason Chavez reiterated he wanted to 

know “not if it happened, but why, so it’s explained and so that you can move on and you 

can build a life with your daughter.” Chavez told appellant that if the police had wanted 

to arrest him the day they served the restraining order on appellant, he would “be in jail.” 

Eventually appellant said, “Sir look, I will tell you this from the bottom of my 

heart—from the bottom of my heart. I used to have a lot of drinking problems,” “but one 

time I tickled [A.G.]” Appellant insisted that was the only thing he could remember
9.

doing. Appellant stated that if he could remember doing anything else for certain, he 

would surrender himself. Chavez told appellant that when appellant spoke to the girls on 

the pretext calls, he “recalled other things as well.” Chavez went on to tell appellant he 

did not want to stop appellant from “ever seeing [his] daughter ever again” and explained 

that if the court thought appellant was “a risk to the family,” he “will never see those 

people again, ever again.” Chavez said appellant’s “situation” was not the “best one” but 

“it could be better in the future” and that was the reason why Chavez was asking 

appellant the questions. 

Chavez asked appellant about some statements he made during the pretext phone 

calls, and appellant continued to deny remembering anything that happened. Chavez then 

asked appellant if he needed any water and left the room. When he returned, Chavez

reminded appellant he was not under arrest, not detained, and was there voluntarily. 

Appellant responded, “That’s fine. Don’t you worry about that.” Chavez then asked for 

details about the incident where appellant tickled A.G.

Chavez then told appellant to assume he had spoken to Y.S. and another child he 

referred to as Popes and asked appellant what he thought they may have told him.

Appellant stated that one time when he was drunk, Y.S. pulled him towards her and he 

fell on top of her. Chavez asked appellant what he thought Y.S. told Chavez about that 

incident, and appellant responded, “Perhaps that I touched her, too?” to which Chavez 

responded, “But we both know that something else happened.” Appellant denied that 

stating, “Not with [Y.S.], sir.” Chavez insisted “[s]omething happened” and that he

wanted the case to be over but it could not be put to an end “until everything is checked.”

Chavez again told appellant he was “not trying to find out if it happened” because 

he “already kn[ew] that it did happen.” He stated he “ha[d] enough evidence saying that 

it did happen. Three or more witnesses.” Chavez asked appellant about a girl named

Locadia, and appellant explained she used to live in the same house as he did, and she 

would put her leg on top of his foot, and he did not pull his foot away when she did so.
10.

Chavez asked if he had had sex with her, and appellant responded, “No sir. No. Nothing 

like that.”

Appellant gave more details about the incident with Y.S. He stated that when he 

fell on top of Y.S., she told him to get up “or people will think we’re making love.” 

Chavez pointed out that Y.S. would have been five or six years old at the time and 

expressed confusion as to how she would know about “making love.” Appellant insisted 

she said it, as well as something similar on another occasion. Chavez responded by 

saying, “So the child was a little dirty.” Chavez went on to say some children grew up 

fast “but there’s a difference between touching a child and making love by force,” to 

which appellant responded, “Yes of course.” Chavez said, “A child who is a little dirty”

was a “different” situation. He again told appellant he “kn[ew] that something happened” 

and the question was “whether you forced her or if she was looking for you.” 

Chavez continued to ask for details about what happened with Y.S., and asked 

appellant if Y.S. “looked for [him]” and “wanted to make love with [him],” to which 

appellant replied, “Yes.” Chavez went on to state that “things happen” and that appellant 

“didn’t rape her.” In response, appellant told Chavez “[p]enetration never happened.” 

Chavez told appellant that “[s]omething sexual” happened. Appellant responded, “No. 

No...” and denied Chavez’s suggestion that appellant kissed Y.S.

Appellant then told Chavez that Y.S. said to him, “Let’s make love. Let’s make 

love.” Appellant admitted “stay[ing] for a little longer” but denied “penetration or 

anything.” Appellant denied pulling Y.S.’s pants down, and Chavez told him, “It’s okay 

if you pulled them down.” Appellant again denied doing so. He also denied touching 

Y.S.’s breasts but admitted to touching her buttocks.

Chavez told appellant he knew “when a child behaves like that it’s tough for a 

man to control himself.” Chavez told him rape was different from “her wanting it.” 

Chavez went on to tell appellant that he wanted appellant to “look like a man who tells 

the truth. This and that happened, but it wasn’t forced. Both sides wanted it.” Appellant 
11.

responded, “Right.” Chavez went on to say, “So I need to hear some details about that 

day in order to decipher that it happened but it wasn’t forced. It wasn’t—you didn’t tie 

her down, you didn’t cover her mouth or anything like that.” Appellant responded, “No.” 

Chavez explained he wanted to hear “details” because “forced rape is different 

than making love when both parties want it,” adding “[a]t any age” and that he wanted to 

know “the truth.” Chavez told appellant he “kn[ew] that something other tha[n] simply 

touching [Y.S.’s] buttocks happened.” Appellant responded, “Well I’m telling you that I 

caressed her here [referring to the back]. That’s true.” Appellant again stated he touched 

Y.S.’s buttocks and admitted that his “hand did stay there for a while.” Chavez again 

asked appellant if he kissed her, which appellant denied. 

Chavez continued to ask about the details of the incident with Y.S. and told 

appellant he “must be honest” with Chavez. Chavez told appellant if he “sa[id] no and it 

was that way, then it can go wrong.” Chavez told appellant if he touched Y.S. a little 

“that’s okay,” but he needed to know the truth. When appellant denied grabbing Y.S.’s 

buttocks, Chavez responded he “need[ed] to know everything that happened.” 

Appellant denied touching “Popes” and stated that Y.S. was the “only child” he 

touched. Chavez told appellant he “kn[ew] that something else happened” and he did not 

want to represent appellant as a liar. Chavez told appellant to tell him what happened so 

he could write down “that it wasn’t forced.” 

Chavez told appellant to remember that multiple children were accusing him and 

that Chavez could not believe appellant because he knew “more happened.” Chavez said

“something has to happen and we have to resolve this and stop talking about whether it 

happened but instead about why these things happened. Why did it happen with [Y.S.]? 

Why did it happen with [A.G.]? And why did it happen with ... [E.G.]?” 

Appellant responded “with [A.G.] nothing happened. Nothing happened 

whatsoever.” Chavez told appellant he “need[ed]” appellant to “tell [Chavez] the truth,” 
12.

and that appellant “can’t continue lying anymore.” Chavez stated that if nothing 

happened with A.G., “we need to leave that to rest.”

Chavez continued to ask if anything sexual happened with the other girls, which 

appellant denied, stating “only [Y.S.] once.” 

Chavez continued to press appellant for “the truth.” Chavez said, “We have to 

move forward already. I don’t want to go to court and say, [appellant]says that all of the 

children are liars, that nothing happened and that he didn’t do anything.” Chavez asked 

appellant how he thought a judge would see that. Appellant continued to deny having sex 

with Locadia and that he had just touched Y.S. 

Chavez asked appellant if he had sex with Y.S. and to “[j]ust [tell] the truth.”

Appellant responded he did rub a little against her leg but there was no “penetration.”

Chavez continued to ask about the incident and appellant stated he had taken his penis 

out through the fly and touched her leg over her pants but continued to deny penetration.

At one point Chavez asked appellant “[a]nd you never put it inside?” When appellant 

said, “No,” Chavez responded by saying, “The truth.” Appellant again denied several 

times that he penetrated Y.S. Chavez told appellant it was “okay” to tell him “the truth.”

Eventually, appellant admitted, “There was a temptation.” 

Chavez then began asking appellant about E.G. Chavez told appellant she 

“already said what happened” in an interview “[w]ith a professional.” Chavez suggested 

that perhaps E.G. loved appellant more like a boyfriend than a father and that “[t]hose 

things happen.” Chavez told appellant “if something happened, if it was an accident or 

something, we have to know about that, too.” 

Appellant then described an incident where he told E.G., “ ‘There’s my 

girlfriend,’ ” and E.G. hugged him and said, “ ‘I am your girlfriend.’ ” Appellant 

explained it was “nothing more than that. With [E.G.] that was it.” Chavez asked 

appellant if he was sure and after appellant denied anything else happened, Chavez told 
13.

appellant E.G. said something happened, and that appellant’s wife was suffering but “all 

of this has to come up.” 

Appellant then started to describe an incident with E.G. when he came home at 

3:00 a.m. and touched her. Chavez said he “kn[e]w something else happened with [E.G.]

and it wasn’t your fault but it did happen.” Appellant denied anything happening in 

relation to a game of hide and seek.

Chavez continued to question appellant and told him “[i]f it happened all of a 

sudden because your pulse was racing, you were sexually aroused, that’s what I want to 

hear. Because if you say, ‘No, nothing happened.’ I have to think about the worst.” He 

went on, “I have to think, ‘He’s a rapist.’ He can’t even admit what he did, then how can 

I believe him? If he didn’t do it with ill intentions or evil. If something happened,

because you were drunk, it was an accident, perhaps it got out of hand. That’s 

important.” Chavez went on, “Or else without that I have to think that it happened and 

you’re a bad guy. You did it for evil, you wanted to hurt them and you wanted to rape 

them violently. Do you understand me?” Appellant responded, “Yes sir, I do.” 

Chavez then asked appellant a few questions about his sexual relationship with his 

wife, and then told appellant, “I want an explanation about what happened and why did it 

happen. I want to know what happened and why? Do you understand me?” Appellant 

responded, “I do. With [E.G.], the truth is that....” Chavez interrupted appellant to say 

that he knew something happened and that appellant knew it too, that the truth needed to 

come out, and Chavez did not think appellant “did it because you’re mean.” Appellant 

eventually said, “Look I will tell you something, sir.” He then went on to describe an 

incident where he got home drunk and high on cocaine and caressed E.G. He said he 

remembered putting his finger inside her vagina. Chavez then questioned appellant about 

the details of the incident, including what E.G. was wearing, whether appellant pulled

E.G.’s panties down, whether appellant also put his penis in E.G.’s vagina, and how 

much of appellant’s finger went into E.G.’s vagina. After appellant gave those details, 
14.

Chavez told appellant he would “give [appellant] a moment” and the recording ended.

The interview lasted about an hour and 30 minutes.

After the interview, Chavez thanked appellant and escorted him to the lobby. 

Chavez immediately contacted other officers and asked them to take appellant into 

custody based on the things appellant said in his interview. Appellant was arrested 

within a minute of leaving the building. When the court asked Chavez why he did not 

arrest appellant in the interview room, Chavez responded that based on his training and 

experience he could have done that, but his chosen approach was acceptable as well.

Chavez testified that he concluded the interview as soon as he made the decision to arrest 

appellant. 

Upon his arrest, appellant was immediately brought back inside the interview 

room and Chavez read appellant his Miranda rights from his department-issued card in 

Spanish. Chavez told appellant, “[L]isten to me. You have the right to remain silent, do 

you understand? Anything you say can be used against you in a court of law, you have 

the right to have an attorney before and during the questioning, do you understand? If 

you can’t afford an attorney, one will be appointed to you before any questioning, do you 

understand?” Appellant, who had not spoken since Chavez began reading the card, said

“Okay.” Cederquist then began questioning appellant, while Chavez assisted him with 

interpreting. 

Cederquist told Chavez to tell appellant that E.G. had undergone an interview 

where she disclosed what happened between appellant and her, and that he wanted

appellant to tell him what happened between appellant and E.G. Chavez relayed to 

appellant that Cederquist “wants to know what happened with [E.G.] that is different to 

what you have already said.” Appellant replied, “Just that, sir.” Chavez told Cederquist 

“Just what ... he had said to me.” Cederquist then asked about an incident where 

appellant was under the bed with E.G. Appellant stated he did not remember the incident 

and that E.G. was “lying because we have never had any bed.” 
15.

Cederquist then stated, “Well he [referring to appellant]—he already said that 

he—he touched her vagina correct?” Chavez relayed the question to appellant, to which 

appellant responded, “Yes, that, yes.” Appellant then stated that incident happened in the 

bedroom and he had used drugs and was very drunk. Cederquist told appellant E.G.

stated he put his penis inside her, which appellant denied. Appellant stated it was a onetime incident with E.G. 

Cederquist asked if it had happened “with other ... young girls as well?”

Appellant responded, “No, besides them, no.” Chavez asked “Besides [E.G.], [Y.S.]?”

Appellant responded, “No, not besides them. They are the only ones....” Chavez then 

asked, “And you had sex with [Y.S.],” to which appellant responded, “No.” Chavez 

asked appellant if he just touched her leg, to which appellant responded, “I just touched 

her leg, just like I told you, sir.” Chavez relayed to Cederquist that “[appellant]says the 

only person he’s ever had sex with anyone and just touched—feeling on her thigh with 

the inner thigh with his penis and he fingered or used his pinkie to rub the inside of her 

vagina on [was] [E.G.]” 

Cederquist then continued asking appellant if anything else happened with E.G., 

and appellantsaid, “That was the only thing,” which Chavez interpreted to Cederquist as 

“Just the tip of his pinkie.” Appellant denied penile-vaginal penetration with any child. 

Cederquist then asked Chavez if appellant had ever touched A.G. Without relaying the 

question to appellant, Chavez told Cederquist that appellant had just tickled her. 

Cederquist encouraged appellant to tell the whole truth and not just a piece of the 

truth, and appellant continued to deny any penile-vaginal penetration and denied touching 

A.G. Cederquist then began asking questions about the incident appellant had already 

disclosed regarding E.G. Appellant stated E.G. kissed his lips and that he “accept[s] that 

[he] touched [E.G.] a little bit.” 

Cederquist asked, “And did you guys discuss, uh, the other girl?” Without 

relaying the question to appellant, Chavez asked Cederquist if he meant Locadia, to 
16.

which Chavez replied, “Yeah”, “What happened with her?” Chavez, again without 

relaying to appellant stated, “No sex.” The interview was then terminated. It lasted 

about 25 minutes. 

The trial court found appellant’s statements from both interviews admissible. As 

to the first interview, the court pointed out the primary issue was whether the 

interrogation was custodialso as to require Miranda advisements. The court indicated 

the test it was applying is whether a reasonable person would have believed his or her 

freedom of movement was significantly affected by the interview. The court stated it 

considered the following factors which it believed weighed in the favor of finding the 

interrogation custodial: the length of the interview was one hour and 34 minutes; 

appellant was a suspect and not a mere witness; accusations were made during the 

interview; and Chavez indicated he did not believe appellant was telling the truth. 

The court then identified factors that indicated the interview was not custodial: 

appellant voluntarily appeared, having driven himself to the police station, and there was 

no evidence his car keys were ever taken; the door to the interview room was not 

completely closed; Chavez told appellant numerous times he was not under arrest; 

appellant told Chavez he did not feel he was under arrest; appellant was never physically 

restrained; the detectives did not “tag-team” appellant; at one point during the interview, 

Chavez and Cederquist left appellant in the interview room for three minutes with the 

door open; and the interview was not confrontational or coercive. Balancing the 

foregoing factors, the trial court concluded the interview was not conducted in a coercive 

atmosphere such that a reasonable person would have felt a restraint on his movement 

that was tantamount to arrest. 

As to the second interview, the trial court found appellant made a knowing, 

intelligent, and voluntary waiver of his Miranda rights. The court noted appellant was 

advised in his native language and “there was little risk of cultural misunderstandings,” as 
17.

Chavez testified “he grew up speaking Spanish with his parents.” Further, the court 

noted appellant responded fully and completely to the questions posed by the officers. 

B. Analysis

1. Admission of Appellant’s First Interview 

Appellant contends the court erred by admitting his first interview because it was 

taken in violation of Miranda. To protect a suspect’s Fifth Amendment right against selfincrimination, prior to a “custodial interrogation,” Miranda requires that law enforcement 

advise a suspect of the right to remain silent, that any statement made can be used against 

him or her in a court of law, that the suspect has the right to the presence of an attorney, 

and that if he or she cannot afford an attorney, one will be appointed. (Miranda, supra, 

384 U.S. at p. 444; People v. McCurdy (2014) 59 Cal.4th 1063, 1085‒1086.) “A 

statement obtained in violation of a suspect’s Miranda rights may not be admitted to 

establish guilt in a criminal case.” (People v. Jackson (2016) 1 Cal.5th 269, 339.) 

The parties agree the interview was an “interrogation,” but disagree as to whether 

it was “custodial” so as to require that appellant be advised of his Miranda rights. We 

conclude the interview was custodial and Miranda advisements should have been given. 

We apply a mixed standard of review, in which we review for substantial evidence 

the trial court’s factual findings regarding the circumstances of the interrogation but 

independently determine whether a reasonable person in appellant’s position would have 

felt free to end the questioning and leave. (People v. Moore (2011) 51 Cal.4th 386, 394‒

395.) “The facts surrounding an admission or confession are undisputed to the extent the 

interview is tape-recorded, making the issue subject to our independent review.” (People 

v. Linton (2013) 56 Cal.4th 1146, 1177.) 

It is well-settled that a setting is not “custodial” “simply because the questioning 

takes place in the station house, or because the questioned person is one whom the police 

suspect.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495; California v. Beheler (1983) 

463 U.S. 1121, 1125 (Beheler).) The question is whether there is a “ ‘formal arrest or 
18.

restraint on freedom of movement’ of the degree associated with a formal arrest.”

(Beheler, at p. 1125.) 

When there has been no formal arrest, the inquiry is whether “under all of the 

objective circumstances, a reasonable person in the suspect’s position would have felt 

free to terminate the interrogation.” (People v. Caro (2019) 7 Cal.5th 463, 491 (Caro).) 

The inquiry looks at all objective circumstances. It does not depend “on the subjective 

views harbored by either the interrogating officers or the person being questioned.” 

(Stansbury v. California (1994) 511 U.S. 318, 323.) 

In making this determination, the location of the interrogation as well as whether 

the individual subject to the questioning is a suspect are relevant factors to consider. 

Other relevant factors are the duration of the interview, statements made during the 

interview, the presence or absence of physical restraints during the interview, whether the 

individual is permitted to leave at the end of the interview, and the nature and form of 

questioning. (Howes v. Fields (2012) 565 U.S. 499, 509; Caro, supra, 7 Cal.5th at 

pp. 491‒492.) Ultimately, though the question is “ ‘whether the relevant environment 

presents the same inherently coercive pressures as the type of station house questioning at 

issue in Miranda.’ ” (Caro, at p. 491.) 

Miranda’s concern with custodial interrogation was the “ ‘inherently compelling 

pressures,’ ” specifically the “psychological pressures ‘which work to undermine the 

individual’s will to resist and compel him to speak where he would not otherwise do so 

freely.’ ” (Maryland v. Shatzer (2010) 559 U.S. 98, 103.) The Miranda opinion focused 

heavily on the psychologically coercive nature of police questioning, discussing at length 

interrogation tactics outlined in police manuals. 

Miranda noted one of the main contributing factors to a psychologically coercive 

environment is privacy, and police are instructed that interviews should take place in the 

investigator’s office or a room of his or her own choosing. (Miranda, supra, 384 U.S. at 

p. 449.) Other techniques that contribute to such an environment include: (1) displaying 
19.

“an air of confidence in the suspect’s guilt” and positing the guilt of the suspect “as a 

fact”; (2) directing comments “toward the reasons why the subject committed the act, 

rather than ... whether he did it”; (3) pointing out difficulties in the subject’s life which 

may have led him or her to commit the offense; (4) minimization of the moral seriousness 

of the offense; and (5) casting blame on the victim. (Miranda, supra, 384 U.S. at p. 450.) 

The Miranda court explained “[t]hese 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.” (Ibid.) 

Miranda also discussed other tactics including creating “an oppressive atmosphere 

of dogged persistence,” as well as offering legal excuses for the subject’s actions to 

obtain an initial admission. (Miranda, supra, 384 U.S. at p. 451.) Further techniques 

include a “friendly-unfriendly” two-investigator act and trickery. (Id. at pp. 452‒453.) 

Finally, Miranda noted investigators are instructed to “point out the incriminating 

significance of the suspect’s refusal to talk,” for example by saying, “ ‘Suppose you were 

in my shoes and I were in yours and you called me in to ask me about this and I told you, 

“I don’t want to answer any of your questions.” You’d think I had something to hide, 

and you’d probably be right in thinking that. That’s exactly what I’ll have to think about 

you, and so will everybody else. So let’s sit here and talk this whole thing over.’ ” (Id. at

p. 454.) 

Courts have put significant weight on the nature of the questioning in determining 

whether an interrogation is custodial. “ ‘[A]ccusatory questioning is more likely to 

communicate to a reasonable person in the position of the suspect, that he is not free to 

leave’ than would general and neutral investigative questions. Thus, on the issue of 

custody, courts consider highly significant whether the questioning was brief, polite, and 

courteous or lengthy, aggressive, confrontational, threatening, intimidating, and 

accusatory.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1164.) Relatively recent 
20.

California cases have explained that though an interaction may start out voluntary, the 

nature of the questioning can turn it custodial. (See People v. Saldana (2018) 

19 Cal.App.5th 432 (Saldana); People v. Torres (2018) 25 Cal.App.5th 162.) 

For example, Saldana presents a similar factual scenario to the one before us. In 

Saldana, the defendant was a 58-year-old Mexican immigrant with no notable criminal 

history whom two girls had accused him of molesting them. (Saldana, supra, 

19 Cal.App.5th at p. 436.) The police requested he come into the station for questioning, 

where the defendant was not given Miranda advisements but was told he was not under 

arrest “ ‘right now’ ” and was free to leave. (Saldana, at pp. 436‒437.) The police 

questioned the defendant for about 40 minutes, used several interrogation techniques 

including manifesting a belief that the defendant was guilty and indicating that all denials 

would fail. (Id. at p. 437.) The defendant made inculpatory admissions and was arrested 

a few minutes after the interview was concluded, about a block from the station. (Id. at 

p. 461.) 

The Saldana court explained, “Where ... police indicate to the defendant their 

resolute belief he committed the crime, the custody inquiry becomes whether a 

reasonable person in the defendant’s situation—i.e., having been told by the police that 

they know he committed the crime—would think he was free to break off the interview 

and leave,” noting “[c]ourts have concluded that, under the circumstances of the 

particular case, advising the suspect that he was not under arrest and was free to leave 

was insufficient to support a conclusion that he was not in custody for purposes of 

Miranda. (See, e.g., U.S. v. Hashime (4th. Cir. 2013) 734 F.3d 278, 284 [telling the 

individual being interrogated he is free to leave ‘ “is not ‘talismanic’ or sufficient in and 

of itself to show a lack of custody” ’]; U.S. v. Cavazos (5th Cir. 2012) 668 F.3d 190, 195 

[] [same].)” (Saldana, supra, 19 Cal.App.5th at p. 458.) 

The Saldana court concluded in light of the relevant factors, putting significant 

weight on the nature of the interrogation, “a reasonable person in [the defendant’s] 
21.

position eventually would have realized that telling the ‘truth’ meant admitting the 

detective’s information was correct—and that until this ‘truth’ came out, the person could 

not leave.” (Saldana, supra, 19 Cal.App.5th at p. 458.) The Saldana court explained the 

detective’s “insistence that [the defendant] was guilty, his disbelief of [the defendant’s] 

many denials, and his use of classic interrogation techniques reflects the sort of policedominated atmosphere that Miranda warnings were intended to counteract.... [¶] Over 

and over again, [the detective] conveyed the message that [the defendant] had no 

meaningful choice but to admit some version of the crime because continued denials—in 

light of the extensive and irrefutable evidence against him—was simply futile. Insisting 

on the ‘truth’ until [the defendant] told him what he sought, the objective message 

conveyed was that [the defendant] would be interrogated until he admitted touching the 

girls.” (Id. at p. 460.) “[T]he accusatory nature of the questioning” in Saldana among 

the other relevant factors “objectively conveyed that [the defendant] was not free to 

leave.” (Id. at p. 462.)

Applying the above principles to the present case, we acknowledge some factors 

weigh in favor of a finding the interrogation was not custodial: appellant voluntarily 

arrived at the police station and was not under formal arrest or physically restrained; the 

door to the interview room was open; and appellant indicated at the outset of the 

interview and about a third of the way through the interview he understood he was not 

under arrest. However, viewing these factors in context of the totality of the 

circumstances, keeping in mind the principles we have set forth above, we conclude the 

interrogation had become custodial by the time he began making inculpatory statements. 

First, the interview was conducted at the police station in an interview room, with 

only appellant and Chavez, and sometimes Cederquist, present. As Miranda explained, 

according to police manuals, this “privacy” helps “deprive[] [the suspect] of every 

psychological advantage” as opposed to his home where he “may be confident, indignant, 
22.

or recalcitrant” and be “more keenly aware of his rights and more reluctant to tell of his 

indiscretions or criminal behavior.” (Miranda, supra, 384 U.S. at pp. 449‒450.) 

Second, not only was appellant a suspect, but he was the sole suspect. Multiple 

minor victims had accused him of sexual abuse, and the investigative object in speaking 

to appellant was not to learn any neutral details of the crime but to obtain a confession. 

Relevant to our analysis, which turns on what was objectively conveyed to appellant, 

appellant knew at the time of the interview he had been accused of molestation by at least 

E.G. and A.G. and potentially two others, and found out during the interview he had 

already been the subject of the pretext phone calls. Further, just as Chavez began to ask 

about the abuse allegations, he told appellant the police could have already arrested him

if they had “wanted to,” in which case appellant would “be in jail” already and that 

Chavez already had “enough evidence” to prove he had committed the offenses. As the 

Saldana court explained: “ ‘ “The awareness of the person being questioned by an 

officer that ... the police have ample cause to arrest him, may well lead him to conclude, 

as a reasonable person, that he is not free to leave, and that he has been significantly 

deprived of his freedom.” ’ ” (Saldana, supra, 19 Cal.App.5th at p. 458.) 

Chavez’s questioning about the allegations was exclusively accusatory; he never 

asked neutral or investigative questions about the allegations. Rather, once Chavez began 

asking appellant about the allegations, he used almost every technique specified in 

Miranda that the court suggested contributed to psychological coercion the safeguards of 

Miranda are meant to mitigate. Chavez posited appellant’s guilt as fact, consistently and 

repeatedly directed his questioning toward “why” “it happened,” not “whether it 

happened” because Chavez already “kn[ew] that it did happen.” He mentioned 

appellant’s difficult childhood stating it caused him “mental traumas” and presented 

multiple explanations for appellant’s behavior (“[w]as it ... due to your youth that it 

happened or something ... [o]r was it alcohol”); minimized the seriousness of the offense 

(“there’s a difference between touching a child and making love by force”); victim 
23.

blamed (“[s]o the child was a little dirty”); and offered legal excuses (“forced rape is 

different than making love when both parties want to” “[a]t any age”). The above are just 

examples of each technique; the entire interview was replete with other iterations of these 

techniques and Chavez frequently switched between them, again, never relying on 

neutral, investigatory questioning. 

As the interview went on, Chavez started directly telling appellant he was lying 

when he outright denied particular sexual acts. Chavez also began suggesting appellant’s 

admissions were necessary to vindicate him of violent acts. He repeatedly said things 

like he “need[ed]” details so he could determine “it wasn’t forced.” Eventually, shortly 

before appellant admitted to digitally penetrating E.G., this suggestion became more 

concrete; Chavez told appellant, “If it happened all of a sudden because your pulse was 

racing, you were sexually aroused, that’s what I want to hear. Because if you say, ‘No,

nothing happened.’ I have to think about the worst.” Chavez went on to say, “I have to 

think, ‘He’s a rapist.’ He can’t even admit what he did, then how can I believe him?”

Chavez again told appellant if he did not tell him what happened, he would assume 

appellant “did it for evil, [that] you wanted to hurt them and you wanted to rape them 

violently.” In essence, Chavez gave appellant only two options: (1) admit he molested 

the children “because [he was] sexually aroused” or for some other reason; or (2) deny he 

molested the children and be considered a violent rapist. This technique is also 

significant because it hearkens back to another specifically mentioned by the Miranda

court: “point[ing] out the incriminating significance of the suspect’s refusal to talk.”

The interview here was like the one in Saldana where the combination of factors 

created “the sort of police-dominated atmosphere that Miranda warnings were intended 

to counteract.” (Saldana, supra, 19 Cal.App.5th at p. 460.) We conclude the culmination 

of this persistent and methodical accusatory questioning wherein Chavez employed 

varied interrogation techniques specifically highlighted in Miranda as being 

psychologically coercive, along with the factors that appellant was at the station and the 
24.

sole suspect of the molestations, would lead a reasonable person to believe, despite being 

told he or she was not under arrest at the outset of the interview, that he or she was unable 

to leave until he or she gave the investigator the confession he wanted. We agree with 

the Saldana court’s assessment of the use of similar interrogation tactics to those used 

here: “These tactics are not unusual, nor are they unreasonable. In fact, if [the 

defendant] 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 [the defendant’s] interrogation might have differed had he been under arrest.’ ” 

(Saldana, at p. 460.) 

Finally, weighing in favor of the setting being custodial, appellant was arrested 

within a minute of leaving the station. (See Oregon v. Mathiason, supra, 429 U.S. at 

p. 495 [finding significant in concluding a noncustodial setting that the suspect was able 

to “leave the police station without hindrance”]; Beheler, supra, 463 U.S. at p. 1121 

[same].)

We conclude based on all the relevant factors, a reasonable person in appellant’s 

position would not have felt free to terminate the interview and leave, and therefore the 

first interview was custodial. Accordingly, appellant’s statements were taken in violation 

of Miranda and were inadmissible. 

2. Admission of Appellant’s Second Interview

As for the second interview, appellant contends that his Miranda waiver was 

invalid because it was involuntary due to Chavez “softening [him] up” by interrogation 

strategies such as minimization, manifested belief in his culpability, false advice and/or it 

was “vitiated by the initial unconstitutionality.” We agree with appellant the statements 

made in his second interview were inadmissible based upon the circumstances. 

Appellant contends the waiver obtained in the present case was like the one 

obtained and deemed to be invalid by the California Supreme Court in People v. 
25.

Honeycutt (1977) 20 Cal.3d 150 (Honeycutt). In Honeycutt, the defendant was arrested 

and placed in the backseat of a patrol car, transported to the police station, and placed in 

an interview room. (Id. at p. 158.) The defendant was initially hostile toward one of the 

detectives, who left the room. (Ibid.) Another detective, with whom the defendant was 

acquainted through previous police contacts engaged the defendant in a half-hour 

unrecorded discussion where they discussed unrelated past events, former acquaintances, 

and finally, the victim. (Ibid.) The detective began disparaging the victim, in an effort to 

“try to get [the defendant] to talk.” (Ibid.) The detective observed the defendant 

“softening up” and the defendant, after a 30 minute discussion, indicated he would talk 

about the crime for which he was arrested. (Ibid.) The defendant was then advised of his 

Miranda rights which he indicated he understood and waived. (Honeycutt, at p. 159.) 

The Honeycutt court found the “conversation-warning-interrogation sequence” 

used in that case should have been preceded by a Miranda advisement. The Honeycutt

court relied on the following passage from Miranda to come to its conclusion: 

“ ‘Whatever the testimony of the authorities as to waiver of rights by an 

accused, the fact of lengthy interrogation or incommunicado incarceration 

before a statement is made is strong evidence that the accused did not 

validly waive his rights. In these circumstances the fact that the individual 

eventually made a statement is consistent with the conclusion that the 

compelling influence of the interrogation finally forced him to do so. It is 

inconsistent with any notion of a voluntary relinquishment of the privilege. 

Moreover, any evidence that the accused was threatened, tricked, or cajoled 

into a waiver will, of course, show that the defendant did not voluntarily 

waive his privilege. The requirement of warnings and waiver of rights is a 

fundamental with respect to the Fifth Amendment privilege and not simply 

a preliminary ritual to existing methods of interrogation.’ ” (Honeycutt, 

supra, 20 Cal.3d at pp. 159‒160.) 

The Honeycutt court reasoned: “The police by applying practices condemned in Miranda

cannot be heard to contend that they should benefit because they have violated only the 

spirit of Miranda. It must be remembered that the purpose of Miranda is to preclude 

police interrogation unless and until a suspect has voluntarily waived his rights or has his 
26.

attorney present. When the waiver results from a clever softening-up of a defendant 

through disparagement of the victim and ingratiating conversation, the subsequent 

decision to waive without a Miranda warning must be deemed to be involuntary for the 

same reason that an incriminating statement made under police interrogation without a 

Miranda warning is deemed to be involuntary.” (Honeycutt, supra, 20 Cal.3d at pp. 160‒

161.) The Honeycutt court accordingly held the trial court erred when it refused to 

suppress the defendant’s statements. (Id. at p. 161.) 

Here, more than just a “conversation” like the one in Honeycutt preceded the 

Miranda advisements; rather, appellant was subject to a full-blown interrogation that 

involved much more than the “softening-up” of the Honeycutt defendant. Not only did 

the interrogation involve disparaging of the victims and rapport-building with appellant, 

but all the other interrogation techniques we have discussed above. 

It, too, appears from the record the lengthy first interview was a result of Chavez’s 

intentional effort to avoid reading appellant Miranda rights evidenced by Chavez’s 

characterization of the first interview as “doing the Beheler.” In Beheler, the defendant 

was attempting to steal from a victim who his acquaintance eventually shot and killed. 

(Beheler, supra, 463 U.S. at p. 1122.) The defendant called the police and told them who 

killed the victim and that the gun was hidden in the defendant’s backyard. (Ibid.) The 

defendant gave the police consent to search his yard, where the gun was found. (Ibid.) 

The defendant further agreed to accompany the police to the station house where he was 

told he was not under arrest, not advised of his Miranda rights, and was interviewed for 

less than 30 minutes. (Beheler, at p. 1222.) The defendant was told his statement would 

be evaluated by the district attorney, was permitted to leave, and was arrested five days 

later. (Ibid.) The United States Supreme Court held the unwarned statements were 

admissible in substantial part because the defendant was not under formal arrest or 

restrained when he made his statements. 
27.

By indicating he was “doing the Beheler,” it appears Chavez intended to obtain 

incriminating statements from appellant without advising appellant of his Miranda rights 

by attempting to recreate the factual circumstances of Beheler by not arresting or 

restraining appellant and allowing him to leave before arresting him. We find this, 

combined with the custodial nature of the first interview which we have discussed above, 

clear evidence of an intent to circumvent at least the spirit of Miranda. We conclude this 

tactic resulted in a situation like Honeycutt where appellant was, as a result of the lengthy 

interview that had already taken place, inappropriately “softened up” into waiving his 

Miranda rights before the second interview. 

The present case is also analogous to the United States Supreme Court case,

Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), where the court analyzed a “two-step 

interrogation” or “question-first” tactic of a suspect in custody. We find the analysis 

there instructive. 

In Seibert, the defendant was taken into custody and questioned without Miranda 

warnings for 30 to 40 minutes, during which the defendant made inculpatory statements. 

(Seibert, supra, 542 U.S. at pp. 604‒605 (plur. opn. of Souter, J.).) The defendant was 

then given a 20-minute coffee and cigarette break, given Miranda warnings, and signed a 

waiver of rights. (Seibert, at p. 605.) Seibert concluded the warned statements were 

inadmissible. The plurality explained that the circumstances “must be seen as 

challenging the comprehensibility and efficacy of the Miranda warnings to the point that 

a reasonable person in the suspect’s shoes would not have understood them to convey a 

message that she retained a choice about continuing to talk.” (Seibert, at p. 617.)

The Seibert plurality listed several relevant factors to determine whether “Miranda 

warnings delivered midstream could be effective enough to accomplish their object: the 

completeness and detail of the questions and answers in the first round of interrogation, 

the overlapping content of the two statements, the timing and setting of the first and the 

second, the continuity of police personnel, and the degree to which the interrogator’s 
28.

questions treated the second round as continuous with the first.” (Seibert, supra, 

542 U.S. at p. 615.) Also relevant is whether “a reasonable person in the suspect’s shoes 

could have seen the [second] questioning as a new and distinct experience,” rendering 

“the Miranda warnings ... as presenting a genuine choice whether to follow up on the 

earlier admission.” (Id. at pp. 615‒616.) 

Justice Kennedy authored a concurring opinion expressing the view that the 

plurality’s test, which “envisions an objective inquiry from the perspective of the suspect, 

and applies in the case of both intentional and unintentional two-stage interrogations,”

was too broad. (Seibert, supra, 542 U.S. 600 at pp. 621‒622 (conc. opn. of Kennedy, 

J.).) Justice Kennedy proposed a “narrower test applicable only in the infrequent case ... 

in which the two-step interrogation technique was used in a calculated way to undermine 

the Miranda warning.”4 (Id. at p. 622.) Justice Kennedy explained, “If the deliberate 

two-step strategy has been used, postwarning statements that are related to the substance 

of prewarning statements must be excluded unless curative measures are taken before the 

postwarning statement is made.” (Ibid.) Justice Kennedy’s examples of “curative 

measures” included, “a substantial break in time and circumstances between the 

prewarning statement and the Miranda warning may suffice in most circumstances, as it 

allows the accused to distinguish the two contexts and appreciate that the interrogation 

has taken a new turn. [Citations.] Alternatively, an additional warning that explains the 

likely inadmissibility of the prewarning custodial statement may be sufficient.” (Ibid.) 

4 This was the case in Seibert. There, the interrogating detective “testified that he 

made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an 

interrogation technique he had been taught: question first, then give the warnings, and 

then repeat the question ‘until I get the answer that she’s already provided once.’ ” 

(Seibert, supra, 542 U.S. at pp. 605‒606.) 
29.

Under either Seibert approach, we find further reason to conclude appellant’s 

warned statements inadmissible. (See People v. Krebs (2019) 8 Cal.5th 265, 309 

[declining to decide which approach should be applied].) 

Applying the factors set forth by the plurality, we conclude the Miranda warnings 

given before the second interview could not have had their intended effect. The first

interview was substantially longer and more involved than the second interview. The 

first interview was approximately an hour and 30 minutes long, and the second interview 

was approximately 25 minutes long. The transcript of the first interview was 60 pages 

long, and the second was 14 pages long. This difference is even more stark when 

considering that the second interview involved translation of Cederquist’s questions into 

Spanish. The first interview contained more detailed statements by appellant and were 

obtained after Chavez rejected many of appellant’s denials and used, as we have 

discussed, many calculated and ultimately successful interrogation techniques. The first 

interview was referenced several times during the course of the second, with several 

instances of Cederquist and Chavez discussing among themselves statements appellant 

made in the first interview and relying on them to have appellant repeat what he had 

already stated and to obtain further admissions. Moreover, the interviews happened 

within minutes of one another in the same interview room. Though Cederquist was 

primarily asking the questions in the second interview, Chavez, who had already 

developed a rapport with appellant, was present the entire time and doing the interpreting, 

and, on a few occasions, editorialized appellant’s answers with Chavez’s own summaries 

of appellant’s statements from the first interview. Given these considerations, we 

conclude a reasonable person in appellant’s shoes would not have seen the second 

questioning “as a new and distinct experience” (Seibert, supra, 542 U.S. at pp. 615‒616),

rendering the Miranda warnings given ineffective.

Further, under Justice Kennedy’s approach, while no direct evidence was 

presented as to the subjective intent behind the two-step questioning in the present case, 
30.

the circumstances of the interview, including the various factors set forth in the plurality 

opinion, demonstrate “objective indications of a subjective intent to frustrate Miranda.” 

(See People v. Sumagang (2021) 69 Cal.App.5th 712, 728.) Most evident of this intent is 

Chavez’s statement at the beginning of the first interview, as we have discussed, that he 

was “doing the Beheler.” As no curative measures described by Justice Kennedy were 

taken, under this approach, we conclude appellant’s statements from the second interview 

were not admissible. 

We agree with appellant that the prewarning interaction in the present case 

rendered appellant’s subsequent waiver invalid and that the second interview was 

inadmissible. 

3. Harmlessness

Concluding neither statement from the first nor second interview were admissible, 

our final inquiry is whether the error in admitting them was harmless. We conclude the 

error was not harmless. “The erroneous admission of statements obtained in violation of 

the Fifth Amendment is reviewed under the Chapman standard (Chapman v. California 

(1967) 386 U.S. 18, 24).” (People v. Henderson (2020) 9 Cal.5th 1013, 1029.) The 

People bear the burden “ ‘to prove beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained.’ [Citation.] The standard is satisfied only if 

‘[t]here is no reasonable possibility that the verdict would have been more favorable to 

defendant had [the] statements not been admitted.’ ” (Id. at p. 1029.) “Because 

confessions ‘ “[a]lmost invariably” will provide persuasive evidence of a defendant’s 

guilt ..., the improper admission of a confession is much more likely to affect the 

outcome of a trial than are other categories of evidence, and thus is much more likely to 

be prejudicial under the traditional harmless-error standard.’ ” (Ibid.) 

The Henderson court listed several examples of circumstances which could render 

an erroneous admission of a confession harmless: “ ‘(1) when the defendant was 

apprehended by the police in the course of committing the crime, (2) when there are 
31.

numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed 

by a wealth of uncontroverted physical evidence, or (3) in a case in which the prosecution 

introduced, in addition to the confession, a videotape of the commission of the crime 

....’ ” (People v. Henderson, supra, 9 Cal.5th at p. 1030.) This list is “not intended to be 

exhaustive,” but “exemplif[ies] the kind of strong evidence required to satisfy the

Chapman standard.” (Ibid.) 

Here, we cannot conclude the error was harmless beyond a reasonable doubt. The 

jurors requested the transcript of the interview “between Chavez and [appellant],” 

indicating it contributed to the jurors’ decision-making process. They also asked for the 

pretext call transcripts, E.G.’s testimony, Gabriel’s testimony, and Li.R.’s forensic 

interview. That the jury was unable to reach a verdict on the charge involving Li.R., who 

was not discussed in appellant’s statements, despite corroborating evidence such as 

Lo.R.’s testimony and her forensic interview, is notable and raises a reasonable inference 

that appellant’s statements did contribute to the verdicts on the charges against Y.S. and 

E.G.

We note that under Chapman, it is not enough that “ ‘in a trial that occurred 

without the error, a guilty verdict would surely have been rendered.’ ” (People v. 

Quartermain (1997) 16 Cal.4th 600, 621.) 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. The admission of appellant’s 

statements was not harmless.

II. Exclusion of Expert Testimony on False Confessions

Appellant sought to introduce testimony from an expert on false confessions to

support an assertion that appellant’s inculpatory statements made during his interviews 

with law enforcement were not reliable. The trial court excluded the proffered testimony 

in pertinent part because appellant had not recanted or otherwise provided evidence the 
32.

inculpatory statements were false. Appellant contends the trial court’s exclusion of the 

testimony was error. 

Because we have concluded the statements appellant made to law enforcement 

were inadmissible, we need not determine whether the trial court’s exclusion of the 

expert’s testimony was error, as the issue is moot. 

III. Count 6 

A. Relevant background 

At the preliminary hearing on the charges related to Lo.R., a detective testified 

Lo.R. reported in a forensic interview appellant had touched him on two separate 

occasions. On the first occasion, appellant touched Lo.R.’s buttocks under the clothing, 

then picked him up and placed him on his lap. Appellant grabbed Lo.R.’s leg and rubbed 

it back and forth on his erect penis. Appellant told Lo.R. to get off and went to the 

bathroom. 

On the second occasion, appellant asked Lo.R., “Do you remember what 

happened?” and Lo.R. told him he did not. Appellant then picked up Lo.R. and put him 

on his lap and kept asking if he remembered what happened. Lo.R. believed appellant 

was referring to the previous incident. Appellant did not grab Lo.R.’s leg as he had done 

previously, and after approximately one minute, Lo.R. got down from appellant’s lap and 

ran back to his house. Appellant told Lo.R. not to tell anyone.

During argument at the preliminary hearing, the court asked the prosecutor to 

comment on the force and duress element on the charge against Lo.R. The prosecutor 

argued that appellant picked Lo.R. up and moved him around on his lap to gain an 

erection, which was sufficient force under the statute. 

In ruling, the court stated as to the count related to Lo.R., “it is a closer call [than 

the other charged offenses as to the element of force], ... the act that was described was 

[appellant’s] manual stimulation of himself using the child as basically an instrumentality 
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for that stimulation. In this instance, that could have occurred without placing the child 

in his lap and moving the ... child’s leg.” The court held appellant to answer to count 6. 

During motions in limine, in a discussion regarding the admissibility of the 

Evidence Code 1108 evidence, the prosecutor informed the court “[Lo.R.] had two acts.” 

She went on to explain the second act was the charged act and the first act where Lo.R.

felt appellant’s erect penis was the uncharged act.

The following day the prosecution again confirmed that the second act was the 

charged act and the first act was the uncharged act. The court then asked for argument on 

why the uncharged act should be admitted. The prosecutor argued the evidence was 

“highly probative,” as it showed appellant’s propensity to commit sexual acts against the 

children. Defense counsel argued the evidence on uncharged acts was cumulative, and he 

focused primarily on A.G.’s proffered testimony arguing she was the fifth witness being 

brought in solely to testify as to Evidence Code section 1108 evidence. 

In ruling, the court summarized that the uncharged act with regard to Lo.R. was 

that appellant touched Lo.R.’s bare buttocks under his clothing and rubbed his leg against 

appellant’s erect penis. The court, after weighing the probative value versus the

prejudicial nature of the proffered evidence of the uncharged acts, ruled it was 

admissible. 

The jury was instructed with CALCRIM No. 1191A that the People had presented 

evidence that appellant committed the uncharged crime of lewd or lascivious act with a 

child under 14 years by force or fear against Lo.R. The court instructed the jury they 

could consider the evidence only if the People proved by a preponderance of the evidence 

that appellant committed the uncharged offense. The court further instructed the jury that 

if they decided appellant committed the uncharged offense, they could conclude from that 

evidence appellant was disposed or inclined to commit sexual offenses, and based on that 

decision, also conclude that appellant was likely to commit and did commit the charged 

offenses. The court instructed the jury the conclusion was “only one factor to consider 
34.

along with all the other evidence” and was “not sufficient by itself to prove that 

[appellant] is guilty of [the charged offense]” and “[t]he People must still prove each 

charge beyond a reasonable doubt.”

The court also instructed the jury with CALCRIM No. 1191B, which provided that 

the People had presented evidence appellant had committed the charges in counts 2, 3, 5, 

and 6. The court instructed that if the jury found the People had proved beyond a 

reasonable doubt that appellant had committed one or more of the charged offenses, they 

could conclude appellant was disposed or inclined to commit and did commit the other 

sex offenses charged in this case. The court further instructed that it was only one factor 

to be considered, and the People were still required to prove each charge and allegation 

beyond a reasonable doubt. 

In closing argument, the prosecutor explained to the jury that the second act 

regarding Lo.R. was the charged act and the first act was the uncharged act. The 

prosecutor argued, “[t]he first act tells you what the second act is really about,” 

explaining the jury could infer appellant’s intent from the first act. 

B. Analysis

1. “Inconsistent and Irreconcilable Theories”

Appellant argues that by arguing at the preliminary hearing that the first act was 

the charged act and later arguing at trial the second act was the charged act while also

presenting evidence of the first act as an uncharged act, the prosecutor was using 

“inconsistent and irreconcilable theories,” violating appellant’s due process rights.

Respondent contends appellant forfeited the issue and appellant contends that if we find 

the issue is forfeited, that his trial counsel provided ineffective assistance of counsel by 

failing to object. We need not discuss whether appellant forfeited the issue and reject his 

claim of ineffective assistance of counsel because appellant has failed to show any 

prejudice arising from this alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 
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687 [to make a successful claim of ineffective assistance of counsel, appellant must 

establish prejudice occurred].) 

The case appellant cites as authority that a prosecutor’s use of “inconsistent and 

irreconcilable theories” violated his due process rights is In re Sakarias (2005) 35 Cal.4th 

140. In Sakarias, the California Supreme Court found a due process violation where a 

prosecutor had sought convictions against two defendants using “inconsistent and 

irreconcilable factual theories.” (Id. at p. 163.) The prosecutor had deliberately omitted 

evidence in one trial that had been used in another, which the court concluded showed 

bad faith. (Ibid.) The Sakarias court held “the prosecutor’s unjustified use of 

inconsistent and irreconcilable factual theories to convict two people of a crime only one 

could have committed, or to obtain harsher sentences for both on the basis of an act only 

one could have committed, violates due process because in those circumstances the state 

has necessarily convicted or sentenced a person on a false factual basis.” (Id. at p. 164.) 

We cannot see, nor does appellant explain, how this case supports his claim. We 

do not see the connection between the “inconsistent and irreconcilable” factual scenarios 

used to convict two individuals of the same crime and the circumstances in the present 

case. The factual scenarios here, the two instances where appellant put Lo.R. on his lap, 

are not “inconsistent and irreconcilable” in that the prosecution consistently alleged both 

at the preliminary hearing and at trial that they both occurred. In other words, a finding 

that one of these instances occurred does not preclude a finding that the other instance did 

not. Moreover, appellant does not explain how he was prejudiced. 

A trial court may, in its discretion, permit amendment of the information at any 

stage of the proceedings, provided the amendment does not change the offense charged 

by the original information to one not shown by the evidence taken at the preliminary 

examination. (§ 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1005.) If the 

defendant’s substantial rights would be prejudiced by the amendment, the court may 

grant a reasonable continuance no longer than the ends of justice require. (§ 1009;
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Winters, at p. 1005.) “Trial court discretion, in granting a motion to amend, ‘will not be 

disturbed on appeal in the absence of showing a clear abuse of discretion.’ ” (People v. 

Bolden (1996) 44 Cal.App.4th 707, 716.)

As respondent argues, an argument to which appellant does not address in his 

reply brief, the trial court, in effect, allowed a constructive amendment to the 

information. The constructive amendment was permissible because the amendment 

conformed to the evidence presented at the preliminary hearing and because appellant 

was on clear notice of the prosecutor’s plan to present the first incident as an uncharged 

act and the second incident as the charged act early in the trial. When the prosecutor 

explained which of the acts was the charged act in open court, there had only been one 

day of evidence; Lo.R. did not testify until three days later, and evidence did not close 

until eight days later. Appellant had ample time to defend against both acts involving 

Lo.R. and does not make any argument to the contrary. Appellant notably does not 

contend that count 6 was supported by insufficient evidence or that the court erred by 

admitting the first act as uncharged propensity evidence under Evidence Code 

section 1108. 

We find no violation of due process.

2. Jury Instructions

Related to this argument, appellant also argues that the jury instructions lowered 

the prosecution’s burden of proof for count 6. He reasons that because the jury was only 

required to find the first act (the “more graphic incident elected by the prosecution at the 

preliminary hearing”) true by a preponderance of the evidence, and were instructed they 

could use it to conclude disposition to commit count 6 (“the previously uncharged 

offense”), this allowed them to convict on count 6 by only a preponderance of the 

evidence. Appellant relies on People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz), which is 

inapposite. 
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In Cruz, the trial court instructed the jury that “ ‘[i]n determining whether 

defendant has been proved guilty of any sexual crime of which he is charged, you should 

consider all relevant evidence, including whether the defendant committed any other 

sexual crimes, whether charged or uncharged, about which evidence has been received.’ ” 

(Cruz, supra, 2 Cal.App.5th at pp. 1183‒1184.) The court went on to instruct the jury if 

they found “ ‘by a preponderance of the evidence, that the defendant committed any such 

other sexual offense you may, but are not required to, infer that the defendant had a 

disposition to commit sexual offenses.’ ” (Id. at p. 1184.) 

This court reversed, holding that the instruction effectively lowered the standard of 

proof because it suggested that charged offenses needed only to be proved by a 

preponderance of the evidence before they could be used as propensity evidence. (Cruz, 

supra, 2 Cal.App.5th at p. 1186.) This court suggested that “a jury instruction explaining 

the use of currently charged offenses to show propensity under Evidence Code section 

1108 must ... specify[] that a currently charged offense must be proved beyond a 

reasonable doubt before it can be used as propensity evidence in support of another 

currently charged offense.” (Id. at p. 1186.) 

The Cruz court’s suggestion is exactly how the jury was instructed here. The jury 

was expressly instructed it needed to find the charged acts true beyond a reasonable doubt 

before being used as propensity evidence. (CALCRIM No. 1191B.) The court also 

correctly instructed the jury that it needed only to find the uncharged act true by a 

preponderance of the evidence but reiterated that even if it found an uncharged act true, it 

was still required to find the charged offenses true beyond a reasonable doubt.

(CALCRIM No. 1191A.) 

This case is more like People v. Reliford (2003) 29 Cal.4th 1007, where the 

defendant made an argument like appellant has here, that “having found the uncharged 

sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to 

convict him of the charged offenses.” (Id. at p. 1013.) Our high court in Reliford readily
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rejected this argument stating, “the instruction nowhere tells the jury it may rest a 

conviction solely on evidence of prior offenses. Indeed, the instruction’s next sentence

says quite the opposite: ‘if you find by a preponderance of the evidence that the 

defendant committed a prior sexual offense ..., that is not sufficient by itself to prove 

beyond a reasonable doubt that he committed the charged crime.’ ” (Ibid.) 

Like in Reliford, “Nothing in the instructions authorized the jury to use the 

preponderance-of-the-evidence standard for anything other than the preliminary 

determination whether defendant committed a prior sexual offense.” (People v. Reliford, 

supra, 29 Cal.4th at p. 1016.) As such, it is not “reasonably likely a jury could interpret 

the instructions to authorize conviction of the charged offenses based on a lowered

standard of proof.” (See id. at p. 1016.)

We find no error. 

DISPOSITION

We reverse appellant’s convictions on counts 2 and 3 and remand for a new trial 

on those counts. In all other respects, the judgment is affirmed. 

 DE SANTOS, J.

WE CONCUR:

LEVY, ACTING P. J.

MEEHAN, J.