Opinion
CARR, J. A jury convicted defendant of four counts of lewd and lascivious acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) [595]Defendant appeals, contending (1) his statements to the police were involuntary and should have been excluded from evidence as the product of coercive police interrogation, (2) the victims of the molestations were not credible witnesses, resulting in a verdict unsupported by sufficient evidence, (3) the trial court erred in refusing to admit evidence of the victims’ prior sexual knowledge; and (4) the trial court erred in denying defendant’s motion for a new trial. We have listened to the four-hour tape recording of defendant’s interrogation and conclude defendant’s first contention is meritorious. On that basis, we shall reverse the judgment. 1
Factual and Procedural Background2
The following facts are taken from the police interrogation tapes and testimony at trial.
On March 20, 1983, Officer Virgil Lowe brought defendant to the Stockton Police Department for questioning. The interrogation began at 11:40 a.m. Lowe informed defendant he was a possible suspect in a child molestation investigation and read defendant his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) Lowe then said defendant’s step-grandchildren, Christie, Stephanie, and Dawn,3 had reported a number of incidents of sexual abuse committed by defendant.
Defendant immediately denied the allegations and stated he believed the girls’ mother, Karen B., was influencing the girls to tell these stories in order to end the relationship between defendant and Karen’s mother. As [596]Lowe gave more details of the reported incidents, defendant continued to deny his participation, saying he was trying to figure out what the girls were talking about and why they would say these things. In recounting the girls’ version of events Lowe accurately repeated some of their statements and fabricated others. Defendant told Lowe that Christie and Stephanie had previously been victims of a sexual molestation. He also described incidents of sexual conduct by the girls, such as masturbation and grabbing and slapping at defendant’s penis. Lowe asked defendant if he thought the girls were lying. Defendant said he did not think the girls were lying, but he had no recollection of any of these events.
Lowe told defendant that in order for defendant to receive help with his problem, he first had to admit he had a problem. Lowe added that he wanted the truth: if the events did not happen and the children were lying, he wanted to know why the girls would make up such a story. Defendant repeated that nothing happened, that he could not remember any incidents.
After approximately one and one-half hours of questioning, defendant continued to maintain he could not remember ever having molested the girls. He did not directly repudiate the alleged statements of his stepgranddaughters, but stated if the girls reported these incidents, they might have happened although he could not remember any such occurrences.
Raising his voice in apparent frustration, Lowe then told defendant, “You have to remember. You’ve got to remember because . . . we’re not leaving here until you remember all this stuff. ... It had to have happened. Now I want to know from you when it happened and what were the circumstances.” (Italics added.)
Questioning continued. After another one-half hour, defendant was still saying he was trying to figure out when these acts could have occurred. Lowe told defendant that he had to remember, that he knew defendant did it and he wanted the truth. Lowe repeated that he knew the girls were telling the truth and that if defendant would also be truthful he could get help. He added that it was impossible for defendant to have had intercourse with Christie, ejaculated and not remember having done so.
As the afternoon progressed and the questioning and prompting went on, defendant finally said that while lying with Christie on the living room floor, Christie might have “played with” defendant’s penis and his penis might have slipped into her vagina. Defendant said, “that could have been what happened; put it down that way if you want to.” He said another time, when he was lying down with the girls on the floor, Christie put defendant’s penis [597]between her legs, but that he got up and no penetration occurred. Neither of these events had been described by Christie.
Defendant denied ever having molested the girls in their bedroom or committing any other acts. Lowe responded that there must have been more times and that defendant was not admitting everything. Defendant again said he did not want to call the children liars and that the events had to have happened but he did not remember ever ejaculating or “french-kissing” the girls. He said he was physically unable to get an erection and that the only possible time something could have happened was the incident on the living room floor.
Lowe again said he believed the girls and that there had to be more times when penetration occurred. Defendant continued to deny it. Lowe said defendant’s statements were “not good enough to call it a day” and that the various versions he had received from the girls and defendant did not add up. He told defendant to “quit beating around the bush and tell me what happened.”
Defendant again said the penetration could have happened the one time when Christie was lying with defendant on the living room floor with her leg over defendant. He categorically denied any incidents with Stephanie or Dawn.
The interview concluded at 3:35 p.m. Defendant was placed under arrest and charged with five counts of lewd and lascivious conduct with a child under the age of 14.
Before trial, defendant moved to suppress the tapes of the interrogation and defendant’s statements as the product of coercive questioning. After listening to the tapes, the testimony of the interrogating officer and argument, the trial court denied defendant’s motion.
During his testimony at the suppression hearing, the officer stated the interview lasted about four hours; that he had told defendant “we’re not going to leave, meaning both of us” until defendant remembered the molestation incidents; that he said to defendant there was no way he (defendant) could get any help unless he admitted molesting the girls; that he (the officer) wanted to know now about the molestation because if he found out later it would cause defendant more problems; and that “we’re not leaving” here until you remember all this stuff. Defendant did not testify at the suppression hearing but at trial he testified he felt the officer would not let him leave until he admitted molesting his step-granddaughters and that was the reason for his incriminating statements. The trial court did not indicate whether it [598]found the confession voluntary under the beyond a reasonable doubt standard (People v. Jimenez (1978) 21 Cal.3d 595, 608 [147 Cal.Rptr. 172, 580 P.2d 672]) or under the federal standard of preponderance of evidence. (Lego v. Twomey (1972) 404 U.S. 477 [30 L.Ed.2d 618, 92 S.Ct. 619].)
The tapes were subsequently played to the jury during the trial and defendant was convicted on four of the five counts.4
Discussion
The privilege against self-incrimination protects a defendant against the use of his confession by the prosecution unless the confession is shown to be the product of a rational intellect and a free will. (People v. Jimenez, supra, 21 Cal.3d 595, 605.) “In determining whether or not an accused’s will was overborne, an examination must be made of ‘all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’ (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 862, 93 S.Ct. 2041].) The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined. ’ (Rogers v. Richmond (1961) 365 U.S. 534, 544 [5 L.Ed.2d 760, 768, 81 S.Ct. 735].) Statements which are ‘the product of coercion, either physical or psychological, cannot stand . . . because the methods used to extract them offend an underlying.principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.’ (Id., at pp. 540-541 [5 L.Ed.2d at p. 766].) Also, coerced confessions are of doubtful reliability. (People v. Garner (1961) 57 Cal.2d 135, 163 [18 Cal.Rptr. 40, 367 P.2d 680] (conc. opn. of Tray nor, J.).)” (People v. Hogan (1982) 31 Cal.3d 815, 841 [183 Cal.Rptr. 817, 647 P.2d 93].)
Before passage of Proposition 8 the burden of proof borne by the prosecution as to the voluntariness of a confession was beyond a reasonable doubt. (People v. Jimenez, supra, 21 Cal.3d at p. 608.) In Jimenez, supra, the Supreme Court adopted the reasonable doubt standard as a judicially declared rule of criminal procedure and determined it was unnecessary to determine if this standard was also constitutionally compelled. (21 Cal.3d at p. 605.) The People assert enactment of the “Truth-in-Evidence” pro[599]vision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d))5 abrogates the rule established in Jimenez, and requires the prosecution to prove voluntariness only by the federal standard of preponderance of the evidence as enunciated in Lego v. Twomey, supra, 404 U.S. 477, 489 [30 L.Ed.2d 618, 627]. We disagree.
In People v. Weaver (1985) 39 Cal.3d 654 [217 Cal.Rptr. 245, 703 P.2d 1129], the Supreme Court observed: “Although article I, section 28, subdivision (d), of the state Constitution, by its terms forbids the exclusion of relevant evidence in any criminal proceeding, the provision further states that ‘Nothing in this section shall affect any existing statutory rule of evidence relating to privilege . . . (P. 659.) Evidence Code section 940 is such a statutory privilege and provides: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808.)
The People assert Evidence Code section 940 is applicable only to testimonial privileges and is irrelevant to extrajudicial statements as defendant’s confession in the present case. This argument was rejected in People v. Barrios (1985) 166 Cal.App.3d 732, 736-742 [212 Cal.Rptr. 644] [rev. den. Aug. 1, 1985]. We find the analysis of Barrios persuasive and reject the People’s contention. Indeed, in People v. Clark (1985) 171 Cal.App.3d 889 [217 Cal.Rptr. 819], this court held Evidence Code section 940 applicable to an extrajudicial statement. (At p. 894.)
Evidence Code section 940 includes within its parameters existing judicial decisions relating to its statutory privilege. “[T]he language of [section 940] is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination. ” (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 808, see also People v. Navarez (1985) 169 Cal.App.3d 936, 942-945 [215 Cal.Rptr. 519]; People v. Barrios, supra, 166 Cal.App.3d at pp. 742-743, People v. Jacobs (1984) 158 Cal.App.3d 740, 750-751 [204 Cal.Rptr. 849].)
In People v. Weaver, supra, 39 Cal.3d 654, our Supreme Court was presented with a question analogous to that in the instant case, whether the [600]limited exclusionary rule enunciated in People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024] survived the enactment of Proposition 8. In Coleman, the court held a probationer’s testimony at a probation revocation hearing could not be used against him in a subsequent trial on the related criminal charges, except for impeachment on rebuttal. (People v. Coleman, supra, 13 Cal.3d at p. 889.) Like the Jimenez court, the Coleman court adopted this position as a rule of criminal procedure without reaching the constitutional question. (Ibid.) The court found this rule compelled by “the policy of maintaining ‘ “a fair state-individual balance” ’ at the subsequent criminal trial ‘ “by requiring the government ... in its contest with the individual to shoulder the entire load.” ’ [Citation.] Together with the demands of due process that an accused be presumed innocent and that his guilt be established beyond a reasonable doubt [citations], the privilege against self-incrimination requires the prosecution in a criminal trial to produce sufficient evidence to establish the defendant’s guilt before he must decide whether to remain silent or to testify in his own behalf. [Citations.]” (People v. Coleman, supra, 13 Cal.3d at pp. 875-876, original italics.) The rule also reflected the law’s “ ‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.’” (Id., at p. 878, quoting Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 55 [12 L.Ed.2d 678, 681, 84 S.Ct. 1594].)
In Weaver, supra, the court held this judicially created rule survived the enactment of Proposition 8. As Justice Lucas explained in the majority opinion, “Coleman’s exclusionary rule may be deemed a ‘statutory’ rule because the self-incrimination statute itself (Evid. Code, § 940) merely adopts existing judicial decisions relating to the privilege. [Citation.]” (39 Cal.3d at p. 659, italics added.)
The Weaver holding is relevant to the present issue. The rule set forth in Jimenez, as that in Coleman, is judicially created. Both rules are formulated to sustain the public policy considerations underlying the privilege against self-incrimination. (See People v. Jimenez, supra, 21 Cal.3d at pp. 605-606.) We conclude the Jimenez rule, as the Coleman rule, is a “ ‘statutory rule of evidence relating to privilege’ ” within the meaning of article I, section 28, subdivision (d) of the state Constitution. (People v. Weaver, supra, 39 Cal.3d at p. 659.) The rule is therefore expressly exempted from the effects of Proposition 8 by the proposition’s own terms. (Cal. Const., art. I, § 28, subd. (d)), and defendant’s confession is inadmissible unless the People prove beyond a reasonable doubt that it is voluntary. (People v. Jimenez, supra, 21 Cal.3d at p. 605.)6
[601]The trial court did not articulate the standard it was applying in its ruling that defendant’s confession was admissible. Because of the uncertain state of the law after passage of Proposition 8, we cannot presume the court found defendant’s confession to be voluntary beyond a reasonable doubt. (See People v. Jimenez, supra, 21 Cal.3d at p. 609.) From the record herein, though admittedly this is a close case, we conclude defendant’s confession was involuntary as a matter of law, compelling reversal.
The People contend several factors support a finding of voluntariness. (See People v. Andersen (1980) 101 Cal.App.3d 563, 577-578 [161 Cal.Rptr. 707].) Lowe read defendant his Miranda warnings and reiterated at the beginning of the interview that defendant was free to refuse to answer questions at any time. Defendant never exercised that right. Lowe offered defendant the opportunity to get food or go to the restroom and in fact took two short breaks and paused to change the tapes. Defendant smoked Lowe’s cigarettes throughout the interview.
The fact defendant was given Miranda warnings and made physically comfortable does not excuse other coercive aspects of the interrogation. Lowe consistently lied to defendant about what the girls had told him. Defendant was taken from his home by Lowe to the police station and into the interrogation room. He repeatedly implied that things would be easier on defendant if he admitted his guilt, saying defendant could receive help for his problem only if he admitted doing these acts, and conversely, that things would be harder on defendant if he waited to confess.
The use of deception or subterfuge will not render a confession inadmissible unless it is of a type likely to produce an untrue statement. (In re Walker (1974) 10 Cal.3d 764, 777 [112 Cal.Rptr. 177, 518 P.2d 1129], People v. Watkins (1970) 6 Cal.App.3d 119, 125 [85 Cal.Rptr. 621].) Lowe’s statements to defendant, standing alone, may not rise to this level. Defendant’s claim is not just that the police used subterfuge, but that he was psychologically coerced into making incriminating statements and admissions, with deception being one of the tactics used to overcome his free will. (See People v. Hogan (1982) 31 Cal.3d 815, 840 [183 Cal.Rptr. 817, 647 P.2d 93].) Examining the totality of the circumstances, we agree.
The interrogation session lasted four hours. Defendant consistently denied the accusations made against him, saying he could not recall ever having done anything to his step-granddaughters. Lowe was not content with this response and continued to question defendant until he admitted some acts, [602]but not the acts which Lowe stated in his police report had been reported by the girls.
This questioning was far more than a simple exhortation to tell the truth. (See People v. Hogan, supra, 31 Cal.3d at p. 839.) Lowe repeatedly said he did not believe defendant could not remember these events, at one point telling defendant, “You have to remember. You’ve got to remember because . . . we’re not leaving here until you remember all this stuff.” While Lowe said he was only after the truth, he stated the truth was the girls’ version of events.
In the first hour of interrogation, Lowe said, “If you’re telling me that [the girls] are lying, then that’s when I have to kind of sit back and take exception to that. ...” The following three hours of questioning repeated the same theme, with such statements as “[Stephanie] tells me that you did it, so I know that you did” and “I believe [the girls]. I want you to tell me when you did that.” For hours defendant repeatedly said he did not remember any of the events described by Lowe. Lowe refused to accept this response, insisting defendant remember the incidents. The very real impression conveyed throughout the four-hour interrogation was that defendant was not free to leave until he admitted molesting his step-granddaughters. It is this type of questioning that is an anathema to our system of criminal justice and cannot be tolerated. Defendant was deprived of his free choice to admit, deny, or refuse to answer Lowe’s questions. (Garrity v. New Jersey (1967) 385 U.S. 493, 496 [17 L.Ed.2d 562, 565, 87 S.Ct. 616].) It was not the product of a rational intellect and free will.
Error in the admission of a confession “is prejudicial per se and compels reversal. (People v. Sanchez (1969) 70 Cal.2d 562, 576 [75 Cal.Rptr. 642, 451 P.2d 74]; People v. Fioritto (1968) 68 Cal.2d 714, 720 [68 Cal.Rptr. 817, 441 P.2d 625].) This is true whether the conviction is founded in whole or in part upon the confession, whether the confession is true or false, and even if there is clearly sufficient evidence other than the confession upon which to sustain the conviction. (Jackson v. Denno (1964) 378 U.S. 368, 376 [12 L.Ed.2d 908, 915 84 S.Ct. 1774, 1 A.L.R.3d 1205].)” (People v. Watkins, supra, 6 Cal.App.3d at p. 122.)
Disposition
The judgment is reversed.
The other issues raised by defendant are meritless. Very briefly: (1) As to the insufficient evidence argument, there were discrepancies in the girls’ stories; these, however, were pointed out and argued to the jury; their testimony cannot be characterized as inherently incredible. The medical testimony was less than conclusive, but was consistent with the acts of molestation described by the girls. (2) Evidence of the girls’ prior sexual knowledge and conduct was adduced at trial; the tape recording was played in which defendant described some of these events and, as well, defendant testified to these. The court precluded some questioning on the basis of Evidence Code section 352 and the failure to lay a proper foundation. Defendant did not recall the witness to correct this situation. (3) The motion for new trial was based on the same arguments raised here. If they are meritless here, there was, of course, no error in denying the motion.
The only facts germane to this appeal are those surrounding defendant’s interrogation by the police. Facts concerning the underlying offenses will be discussed only insofar as they are relevant to the confession issue.
We have used the phrase “step-grandchildren” for convenience. Defendant lived with the girls’ grandmother and the girls called him “grandpa.” Christie, Stephanie and Dawn lived with their grandmother and defendant for several months in 1982-1983, when the incidents underlying this appeal were said to have occurred. At that time, their ages were nine, seven and four, respectively.
The trial court declared a mistrial on count V, the charge relating to Dawn, after the jury was unable to reach a verdict on that count.
Article I, section 28, subdivision (d) of the California Constitution provides in full that: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press. ”
In the recent case of People v. Leach (1985) 41 Cal.3d 92 [221 Cal.Rptr. 826, 710 P.2d 893], the court held the prosecution was not held to the beyond a reasonable doubt standard [601]of proof when the statement at issue was not that of the defendants. In its discussion the court distinguished the two situations, analyzing a defendant’s position with references to Jimenez.