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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Mark Eric LIRA, Defendant and Appellant.

Cr. 4573.

Decided: May 29, 1981

Gregory H. Mitts, Bakersfield, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Vincent J. Scally, Jr., Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


After a trial by jury, appellant was found guilty of first degree burglary (Pen.Code, § 459), assault with a deadly weapon (Pen.Code, § 245, subd. (a)), forcible rape (Pen.Code, § 261, subd. (2)), and oral copulation (Pen.Code, § 288a, subd. (c)).  The jury also found that appellant inflicted great bodily injury on the victim (Pen.Code, § 12022.7) in the rape and oral copulation counts.   However, the jury found that appellant did not use a deadly weapon in those counts.

On March 29, 1979, Nellie was in bed asleep at her apartment.   It was very dark in the room, and she sensed someone was standing near her bed.

Someone then jumped on her and beat her over the head and face.   Although she could not see it, Nellie knew she was being beaten with a stick as she had heard a swish out of her mattress and she always kept a stick between her box springs and mattress.1

Nellie heard a click of some kind and felt a knife, although she could not see it.   The assailant was pressing it against her head and inside her legs.   The assailant tried to insert the knife in her vagina.

The assailant then pulled down her underwear.   He kept on beating her.   The assailant then had intercourse and oral sex with her.

Nellie could not see the assailant because there was blood on her face and it was burning her eyes.   However, she felt the hair of the assailant and recognized it as her brother's.   Nellie also testified that her older brother had the same type of hair as appellant.

During oral copulation, Nellie “wiggled” herself up and reached and grabbed a knife that she kept between her mattress and box springs.   When he came up on her she stabbed him in the back.

After Nellie stabbed him, the assailant bit her nose.   She felt a lot of pain.   Nellie stabbed him in the head and they rolled off the bed.

He beat her again in the face and bit her legs.   Nellie started screaming, and he ran out.

Nellie then went to her neighbor's apartment.   The police and an ambulance were called, and Nellie was taken to the hospital.

Nellie's head was stitched in the back;  however, Nellie testified that “they couldn't do too much with my nose ‘cause, well, there was—at the time it was a big hole there and there was no meat.”   When Nellie was taken back into her bedroom by the police she could not open her eyes because they were swollen.

The police determined that the assailant's point of entry was a broken window in the room where Nellie's daughter was sleeping.

A criminalist testified that both Nellie and appellant had type A blood and that type was found on a sheet.   However, 42 percent of the population has type A blood and the criminalist could not tell whether the blood was appellant's or Nellie's.   Further, the stick or club was not fingerprinted because the criminalist was not requested to do so.   Hairs found at the scene of the crime were compared to Nellie's and appellant's;  it was determined that the hairs found at the scene were most similar to the victim's hair, and not similar to appellant's hair.


Appellant testified in his own behalf and denied breaking into Nellie's house, raping her, beating her, engaging in oral copulation and going to her house the night of the arrest.   He also testified that he got along well with Nellie.

Appellant's story was that he was drinking beer from 5 to 7:30 or 8 p. m. with some friends, and then he went to his sister Florence's house.   Florence left, and appellant left her house after midnight.   Appellant went to the Circle K Market where he saw Florence.   He talked with her for around 20 minutes, and appellant told Florence he was going to Soroptomist Park.2

Appellant then went to the park, probably at about 12:45 a. m.   He put his speaker on top of the hood of his car and listened to some music for about five minutes;  all of a sudden he heard a couple of gunshots and felt pain.3  He got out of his car, retrieved his speaker, got back in and left.   He had been hit twice and his head was bleeding.

Appellant then went home and awakened his girl friend, Isabella.   He told her, “Babe, I've been shot.”   According to Isabella, the injuries were to the right side of his head and the middle of his back.   She started to clean him up and then took him to the hospital.

A nurse told appellant that he had stab wounds.   An officer then arrested appellant.

During trial the court held a hearing outside the presence of the jury on the voluntariness of an alleged taped confession of appellant.   The court found the statements were voluntary, and the tapes were played for the jury.


Admissibility of Statements

 Appellant raises several issues regarding statements he made to Police Officers Shipley (Shipley) and McGowan (McGowan) after his arrest.   Appellant made the statements during the course of two interrogations conducted at approximately 3 a. m. and 11 a. m. on March 30, 1979.   The substance of the crucial parts of appellant's statements is referred to in the body of the opinion.   We discuss the issues seriatim.

(a) Whether Appellant Was Properly Given His Miranda Rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Appellant contends that the police officers did not properly advise him of his Miranda rights.   His contention is without merit.

The interrogation began with one of the officers stating to defendant:  You were stabbed?   You were stabbed and hit your head, too, huh?   Appellant then said, I was drunk.   The officer stated to appellant:  You're 19 years old, and appellant acknowledged that he was.

At that point one of the officers gave appellant his full Miranda warning.   He stated:  You have the right to remain silent anything can and will be used against you in a court of law, you have a right to talk to a lawyer before you're questioned, and have him present while you're being questioned.   If you can't afford to hire any lawyer and you want one you have the right to any lawyer appointed to represent you before you're questioned.

Appellant was asked if he understood his rights, and he said that he did.   He also was asked if he had been advised of his rights before, and he gave an affirmative answer.   He said he would waive his rights, and he apparently signed a waiver form.

(b) Whether Appellant Was Incapable of Making an Intelligent and Rational Waiver of His Constitutional Rights Because of His Physical Condition at the Time of the Interrogation?

At the admissibility hearing Shipley testified that when he and McGowan interrogated appellant, appellant had suffered injuries.   Also, appellant was bandaged and had been treated for deep lacerations just prior to the interrogation.   Shipley did not inquire whether appellant had been given any medication, and appellant appeared possibly confused, like “someone that was coming off a drunk.”   However, Shipley also testified that appellant did not appear tired, did not complain of any pain, and did not appear to be under the influence of alcohol.   We also find it significant that appellant told the officers an elaborate and contrived story concerning his whereabouts and injuries on the night in question.   Appellant did not appear to have been devoid of his faculties in this regard.

Under all the circumstances we believe appellant was capable of making an intelligent and rational waiver of his rights.

(c) Whether Appellant's Statements to Police Officers Were Voluntary.

Appellant argues that the police officers coerced him into making a series of inculpatory statements.4  The gist of the asserted coercion is that if appellant did not confess he would be subjecting his family to an embarrassing trial.

The first tape started at 3:08 in the morning.   There was no discussion pertaining to the crime before the starting of the taped interrogation.   The officers finished the interrogation probably around 4 a. m.

Appellant was placed in the Tulare County jail and held there until the next morning.   At 11 a. m. the same morning, McGowan and Shipley again interrogated appellant (tape two).

Both tapes were played at the admissibility hearing.

It should be noted herein that the same reasons given for voluntariness of the statements on the first tape would apply to the statements on the second tape as well.

At the first interrogation, appellant initially told the same story that he testified to on the stand.   That is, he was getting drunk in Soroptomist Park, there were some gunshots and he felt a pain.   Appellant further stated that he was inside the car, passed out from drinking, when he was shot.   Appellant heard the gunshot, saw blood, and went to his girl friend's home.   She took him to the hospital.

Appellant also stated that he had been drinking with a friend and that he, appellant, had been at his sister Florence's house.

Appellant also admitted to being stabbed in the back of the head.

The interrogation continued:

OFFICER:  Is Nellie your sister?


OFFICER:  Where does she live?

APPELLANT:  I don't know.   Right across the street from the recreation.

OFFICER:  Were you over there tonight?

APPELLANT:  No, I haven't been over there tonight.

OFFICER:  Is she your full sister?

APPELLANT:  Yes, she's my full sister.

OFFICER:  How come you broke in there tonight?

APPELLANT:  How come I what?

OFFICER:  You going in that house and trying to attack her and get in a fight with her.

APPELLANT:  I didn't.  [Unintelligible.]

OFFICER:  Yes you did.

APPELLANT:  That's my sister.

OFFICER:  That's why I can't figure out what's going on.   Why would you do that to your sister?

APPELLANT:  I didn't do it to my sister.   That's my sister.   I can't do that.

OFFICER:  Apparently you did, friend.

OFFICER:  You left your fingerprints all over the place, some of your blood, blood and hair samples, the whole works.

APPELLANT:  I wasn't there.

OFFICER:  She said you were.

APPELLANT:  Nellie said that I was?


APPELLANT:  [Unintelligible.]  I'd like to speak to Nellie.

OFFICER:  She said you hit her with a club.   Hit her.

APPELLANT:  I wasn't there.

OFFICER:  This whole thing about this getting shot is a bunch of B. S.   You know that.   How many drinks did you have?

APPELLANT:  I don't know.

OFFICER:  About?

APPELLANT:  I had been drinking since earlier today.

OFFICER:  Where were you at five o'clock?

APPELLANT:  Five o'clock?   My brother Raul.

OFFICER:  Why don't you lay it out the way it is, Mark.   Don't beat around the bush about it.

APPELLANT:  What can I say?

OFFICER:  Then maybe we'd better just turn you over to your dad.

APPELLANT:  How's that?

OFFICER:  Maybe you'd rather us turn you over to your dad.

APPELLANT:  I mean, what can I say, I'm telling you the truth.

OFFICER:  [Unintelligible.]  I can't figure out.

APPELLANT:  I'm telling you the truth, you know.

OFFICER:  I don't think you're telling us the truth.

APPELLANT:  I am telling you the truth, I mean.

OFFICER:  We checked out at the park and there's some people there that didn't see you or see anybody, especially you, there.

APPELLANT:  I was there.

OFFICER:  Your speaker was shot?

APPELLANT:  How's that?

OFFICER:  You said your speaker was shot?

APPELLANT:  It's broken.

OFFICER:  It was hit by a bullet?

APPELLANT:  I don't know.   I didn't say that.   I said they broke it.

OFFICER:  Who broke it?

APPELLANT:  I don't know.

OFFICER:  Did they rob you?


OFFICER:  Take your money and your wallet?

APPELLANT:  No, they didn't take nothing.

OFFICER:  What did Nellie do to you to make you so mad?

APPELLANT:  I say I don't know ․ I wasn't there.   She's my sister, right?   I mean, I ain't gonna do that to her.

OFFICER:  Hey, Mark.   They've got your blood over there.   They've got your hair.   They've got your fingerprints.   They've got everything over there.   And Nellie, hey—sure you were bombed out of your gourd, but don't come in and try to cover it up.   That makes it all the worse, man.   If you were bombed out of your head, tell them you were bombed out of your head.   You know, you're gonna take this thing—saying that you were sober, that's no good.   It's about time you stand up and take things like a man.   Now, if you and her beefing, okay.   She done something to you to make you mad, let's hear about it.   But don't, don't come in here and try to cover it up.   That makes it bad, man.   Makes it look like you really planned the whole thing.

APPELLANT:  What can I say?

OFFICER:  Well, I don't blame you, man.   It's not a pretty good—nice thing to do to beat your sister up like that.  [Pause.]  Why don't you just take your medicine?   Don't try to weasel.   God damn, man, that's no good.   You're acting like a damned criminal.   Why don't you just get the whole thing straightened out and tell her you're sorry and get this thing straightened out.   You have to deal with your parents, too, you know.   You lie to them and you're gonna be in worse.

OFFICER:  You just get screwed up and didn't know what you were doing?

APPELLANT:  I was drunk.   I was drunk.

OFFICER:  Do you realize what you did?   You could have killed her.   She's in pretty bad shape now.  [Pause.]  You know you're going to have to admit this.   Who do you think your parents are going to believe?   You or Nellie?   So, why don't you get it over with instead of making it embarrassing for them, dragging them through court and everything like that?   Your mom and dad's had enough trouble down there.   I know them both.   You know that.   So why put them through any more ․

OFFICER:  It's a little different situation than the average case.   It's a situation with your family.

OFFICER:  Yeah, don't drag your family through this.   Take it like a man and do your time over there and don't drag them through all this.   Calling Nellie a liar on top of everything else.

OFFICER:  You think you were drunk or you think you need some psychological help?

APPELLANT:  I was drunk.   I know I was drunk, but ․

OFFICER:  Well, that's—a guy does stupid things when he gets drunk, but don't, you know, don't try to ․  You gotta face up to it sooner or later.   You might as well do it now.   You've put her through enough problems tonight, and then go and tell your parents that she's lying about you.   Now you're—how old are you now, Mark?

APPELLANT:  Nineteen.

OFFICER:  You're old enough to take your own medicine.   You should be man enough.

OFFICER:  See, the thing about it is, you got stabbed, see.   That really but the screws to you.

OFFICER:  Well, I think he don't want to put his mom through all this.   I think he's man enough to clear it up without that.   I hope so.   Drag them through court, Mark.   Okay.  Why don't you—why don't you get it squared away now and then and be over with it?

APPELLANT:  [Unintelligible.]

OFFICER:  Well, if you say “no, I didn't do it,” we're gonna take you to court and drag Nellie up there on the stand and drag your buddies, your girlfriend, we're gonna drag your mom and dad up there.   We're gonna have to embarrass them in front of a lot of people.

OFFICER:  And you don't have witness one.

OFFICER:  It's no good then, Mark.   Your girlfriend already told [unintelligible] this happened.   She said she didn't see you until about two when you came in.  [Unintelligible.]  We got a statement from her here.

APPELLANT:  What can I ․?

[Here another officer enters the room to tell them that another party has arrived to be interviewed.]

OFFICER:  You know, Mark, it's your fault that this happened.   You're the guy that's at fault, not your folks, and so why put them through this because of something you did.   Take your medicine like a man and get it over with.   Don't pull them through this.   Hey, Jess has been a friend of mine for a long time.   And it's gonna embarrass Jess to come in here and talk to me.   At least ․ let me tell him that his son is man enough to take his own medicine.  [Unintelligible] a coward that runs and hides and hides.   You know, it's bad enough things like this happen, but to make him think his son is a coward and weaseling out of this thing ․ he don't deserve it.

OFFICER:  No, I don't think so.

OFFICER:  The thing about this, Mark, it obviously was not a planned—well planned situation where you were really trying to get away with that.   I think it's something, I don't know, just a spur of the moment, crazy kind of thing to do that didn't make any sense.   See if we can't get it straightened out.

OFFICER:  What do you want me to tell your dad.   You want me to give him a reason for it?   That you were drunk?   Mad?  Did she do something to you to piss you off or what?

APPELLANT:  I don't know.

OFFICER:  What do you want me to tell him.

APPELLANT:  I don't know.   I was drunk, I mean.

OFFICER:  What made you mad though?   What made you decide to beat her up like that?

APPELLANT:  I don't know.

OFFICER:  You think you lost your head?   You been smoking any grass or anything?

APPELLANT:  No.   I don't smoke or take any kind of drugs.

OFFICER:  The only thing you had—had been boozing?


OFFICER:  What happened, Mark?   Just lay it out.   You know, just give us a summary of it.

APPELLANT:  I, I done it.

OFFICER:  Well, we know that, Mark.   We want to know kind of why.

APPELLANT:  I was drinking earlier, okay, I'll throw it out straight.   I was drinking earlier with friends of mine and I got drunk.   I don't know.   Drinking all sorts of stuff—I mean, not drugs, but all sorts of whisky and wines and everything.   I don't know, I just ․

OFFICER:  What time did you start drinking?

APPELLANT:  I don't know.  [Unintelligible.]  About three hours.   Stopped about—started about five around in there, about five.

OFFICER:  Okay.   What did you do the rest of the night then?

APPELLANT:  Just drink.

OFFICER:  All night?


OFFICER:  Where were you?

APPELLANT:  All over.   Cruising.  Well, really, I was at, uh, Soroptomist Park drinking by myself.   And then I just went cruising.

OFFICER:  What gave you the notion to go do this?   Why did ․ when did it hit you?

APPELLANT:  I just don't know.

OFFICER:  About what time did you go there?

APPELLANT:  I don't know.   I don't know.   Just—

OFFICER:  How did you break the window?

APPELLANT:  I just remember sobering up.

OFFICER:  Man you did after that ․

APPELLANT:  I don't know.   My girlfriend took me to the hospital.

OFFICER:  How did you get home?   Did you get in your car?

APPELLANT:  In my car, yeah.

OFFICER:  Where did you park your car there?

APPELLANT:  Geez, to tell you the truth, I don't even remember where my car was at.

OFFICER:  Were you parked back out in the alley there?

APPELLANT:  I guess, yeah.   I just remember—

OFFICER:  Break the window to get in?


OFFICER:  What did you break it with?

APPELLANT:  A stick.

OFFICER:  Then you went in her bedroom?   You guys started fighting?


OFFICER:  Did you have sex with her?


OFFICER:  What did she do—hit you with a club?

APPELLANT:  A couple of times I guess.

OFFICER:  Did you bite her? ․

APPELLANT:  How's that?

OFFICER:  Did you bite her?

APPELLANT:  I guess, yeah.   I don't know.

OFFICER:  Did she stab you?

APPELLANT:  Yeah, she did.

OFFICER:  Did she ever know who you were?

APPELLANT:  I don't know.

OFFICER:  Did she ever say your name?


OFFICER:  You guys talk in Spanish?

APPELLANT:  I don't even remember.   I just remember when I was in the car, man.   I just remember that I was stabbed.

OFFICER:  You remember that you did it though, huh?

APPELLANT:  I just, I swear it really, what can I say, I was really out of my head.   I mean I didn't even know what happened and realize what I had done.

OFFICER:  But you do realize you did something wrong?


OFFICER:  Had you ever thought of this before?   Doing something like this?

APPELLANT:  I don't know.   Yes.

OFFICER:  [Unintelligible.]

APPELLANT:  So, what's gonna happen?

OFFICER:  Oh, I don't know.   It's gonna be a heck of a lot easier on your mind, you know, if you come up with this thing.

APPELLANT:  I won't get any time or anything?,

OFFICER:  I don't know.   We won't hurt you.

OFFICER:  It's more—more or less up to Nellie, what she wants to do about it.   You did a pretty good number on her.   Beat her up pretty good.   Were you mad at her?   Before you went over there?

APPELLANT:  No.   I wasn't mad at her or nothing.   We get along perfect.

After an independent examination of the record, we conclude that appellant's statements were admissions and the admissions were voluntary by a preponderance of the evidence.

In People v. Gordon (1978) 84 Cal.App.3d 913, 924, 149 Cal.Rptr. 91, the court stated:

“ ‘ “As a reviewing court it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found․  In exercising this function the court recognizes that the burden is on the prosecution to show that a confession was voluntarily given without previous inducement, intimidation or threat․”  [Citation.]  Thus in making an independent examination of the record to ascertain whether defendant's statements were voluntary we follow a practice of the United States Supreme Court which is both well established ․ and currently adhered to.  [Citations.]’  (People v. Sanchez (1969) 70 Cal.2d 562, 571–572 [75 Cal.Rptr. 642, 451 P.2d 74].  Fn. omitted.)  ‘With respect to conflicting testimony, of course, “․ we accept that version of events which is most favorable to the People, to the extent that it is supported by the record.” ’  (People v. Jimenez (1978) 21 Cal.3d 595, 609 [147 Cal.Rptr. 172, 580 P.2d 672].)  And in People v. Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418], we find the teaching that ‘any form of compulsion or promise of reward’ taints the information which is forthcoming as a result.  ‘Involuntary admissions are also inadmissible [citations] and “the due process clause of the Fourteenth Amendment requires exclusion of coerced admissions if they are sufficiently damaging.  [Citations.] ” ’  (People v. Haydel (1974) 12 Cal.3d 190, 197 [115 Cal.Rptr. 394, 524 P.2d 866].)”

Regarding the difference between a confession and an admission, it has been said that:

“A confession is defined as ‘a complete and express acknowledgement of the crime charged’ [citation], a statement in which the defendant ‘disclos[es] his guilt of the charged offense and which exclud[es] the possibility of a reasonable inference to the contrary.’  [Citations.]  However, when the statement contains facts which amount to a claim of mitigation, justification or excuse, it is an admission rather than a confession.  (People v. Fowler (1918) 178 Cal. 657, 664–665 [174 p. 892];  People v. Luzovich (1932) 127 Cal.App. 465, 469 [16 P.2d 144].)  In both Fowler and Luzovich, the defendants admitted having committed a homicide, but each claimed that their actions were done in self-defense.   The statements were held to be admissions.”  (People v. Maynarich (1978) 83 Cal.App.3d 476, 481, 147 Cal.Rptr. 823;  People v. Kilpatrick (1980) 105 Cal.App.3d 401, 413, 164 Cal.Rptr. 349.)

 As in the case of confessions, when a defendant objects to the admissibility of an admission on any ground, the court must determine the question of admissibility by conducting a hearing outside the presence of the jury and permitting all parties to introduce evidence on the question of admissibility.  (People v. Fowler (1980) 109 Cal.App.3d 557, 564, 167 Cal.Rptr. 235.)

According to some case law, the same criteria and considerations apply to admissions as well as confessions (People v. Atchley (1959) 53 Cal.2d 160, 170, 346 P.2d 764), but as to the standard of proof at trial see People v. Jimenez (1978) 21 Cal.2d 595, 604, 147 Cal.Rptr. 172:

“In this state, whether a confession is voluntary and therefore admissible into evidence is a determination to be made outside the presence of the jury by the trial court, as provided in section 405 of the Evidence Code.   As that section does not mandate a particular standard of proof, the matter is controlled by the general provisions of Evidence Code section 115 which declares in relevant part:  ‘Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.’  (Italics added.)   The exception ‘as otherwise provided by law’ includes ‘law established by judicial decisions as well as by constitutional and statutory provisions.’   (Evid.Code, § 160;  People v. Burnick (1975) 14 Cal.3d 306, 313–314 [121 Cal.Rptr. 488, 535 P.2d 352].)”  (Fn. omitted.)

 Having found no law to the contrary, it appears that Evidence Code section 115 5 would be controlling, i. e., the burden of proof required for admissibility of admissions at trial is by a preponderance of the evidence.   Consequently, we hold that the standard of review in cases of admissions is a preponderance of the evidence standard.  (Cf., People v. Jimenez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172.) 6

As noted in People v. Atchley, supra, 53 Cal.2d 160, 170, 346 P.2d 764, the same criteria and considerations apply to admissions as well as to confessions.   The Atchley court said:

“Involuntary confessions are excluded because they are untrustworthy, because it offends ‘the community's sense of fair play and decency’ to convict a defendant by evidence extorted from him, and because exclusion serves to discourage the use of physical brutality and other undue pressures in questioning those suspected of crime.  [Citations.]  All these reasons for excluding involuntary confessions apply to involuntary admissions as well.   [Citations.]  Accordingly, any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily.”

 Although People v. Nicholas (1980) 112 Cal.App.3d 249, 169 Cal.Rptr. 497 involved a confession, the same reasons would apply before an admission or series of admissions can be admitted.

“In this state, before a confession can be used against a defendant, the prosecution has the burden of proving that it was voluntary and was not the result of any form of compulsion.   The ‘only issue is whether ․ [the defendant's] abilit[y] to reason or comprehend a result [was] in fact so disabled that he was incapable of free or rational choice.’  [Citations.]  The circumstances must be such as to overbear a rational intellect and free will [citation].  Inducements or threats must be the motivating cause of a confession before it is held involuntary [citation].  The slightest pressure, however, whether by way of inducement to confess, or threat if confession is withheld, is sufficient to require the exclusion of the confession [citations].”  (Id., at p. 266, 169 Cal.Rptr. 497.)

 Further, mere exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or promise does not render a subsequent confession involuntary.  (People v. Jimenez, supra, 21 Cal.3d 595, 611, 147 Cal.Rptr. 172.)   A confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency, whether express or implied.  (Ibid.)  However, “ ‘[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made.”  (Id., at pp. 611–612, 147 Cal.Rptr. 172.)

People v. Nicholas, supra, 112 Cal.App.3d 249, 169 Cal.Rptr. 497, is somewhat similar to the instant case.   There the court held that a confession was improperly admitted but did not require a reversal under an exception to the per se rule.  (Id., at pp. 268–270, 169 Cal.Rptr. 497.)   However, the court also noted that employment of psychologically coercive interrogation techniques did not render the confession involuntary.

“Here, the officers continued to interrogate defendant after his repeated denials of guilt and used admittedly psychologically coercive tactics in order to wear down his will.   Defendant was admonished to protect his girl friend accomplice, and to ‘earn some respect’ by telling the truth;  that if he continued to deny his guilt he would get ‘nothing but contempt from anybody’;  that the interrogators would ‘have some consideration for [him]’ if he admitted his crime;  and that he should ‘at least ․ be a man now.’

“The above described conduct alone cannot be considered unlawful coercion, as advice or exhortation to tell the truth does not, in itself, render a subsequent confession involuntary.  [Citations.]”  (Id., at p. 265, 169 Cal.Rptr. 497.)

 Additionally, a long line of cases has held that the use of subterfuge is not in and of itself a form of coercion as long as the subterfuge used is not one likely to produce an untrue statement.  (See, e. g., People v. Felix (1977) 72 Cal.App.3d 879, 885–886, 139 Cal.Rptr. 366, and cases collected therein.)

Thus, inasmuch as the same principles, except the burden of proof, apply to the admissibility of admissions as well as to confessions, we may apply these rules to the instant case.

At the outset, appellant's statements to the police amount to admissions.   There was not an express and complete acknowledgement to the crimes charged (People v. Maynarich, supra, 83 Cal.App.3d 476, 481, 147 Cal.Rptr. 823), nor was there a declaration of appellant's participation in the criminal acts charged (People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620).

In support of a finding of voluntariness, we note that the officers merely exhorted appellant to tell the truth.   Just as in People v. Nicholas, supra, 112 Cal.App.3d 249, 169 Cal.Rptr. 497, there may have been psychologically coercive tactics;  however, exhortations to tell the truth, without more, do not render admissions involuntary.

Next, there were no threats, express or implied.  (Cf., People v. Nicholas, supra, 112 Cal.App.3d 249, 263, 266, 169 Cal.Rptr. 497 [death penalty threat].)  Any reference to a trial and calling of witnesses was not a threat but a potential reality.

Also, there were no promises of leniency.  (Cf., People v. Jimenez, supra, 21 Cal.3d 595, 613, 147 Cal.Rptr. 172.)   The idea that if appellant would confess a trial would be avoided could be seen as a benefit which “flows naturally from a truthful and honest course of conduct.”

Appellant's decision to speak was entirely self-motivated.  (People v. Thompson (1980) 27 Cal.3d 303, 327–328, 165 Cal.Rptr. 289, 611 P.2d 883.)   He was not forced to speak, nor was he promised any reward for talking.   (Ibid.)

Regarding the use of deceit and trickery, the officers told appellant on two occasions that they had his fingerprints, hair samples and a statement of Nellie implicating Lira.   As Officer Shipley testified at trial, Nellie had never told him that the assailant was appellant and the statement about the fingerprints was knowingly false.   However, this is a technique commonly used according to Shipley.  (Note, however, Nellie did tell the officers that she felt the hair of the assailant and recognized it as her brother's.)   Despite the use of such trickery and deceit, the use of subterfuge was not in and of itself a form of coercion so as to produce an involuntary admission.  (See People v. Felix, supra, 72 Cal.App.3d 879, 885–886, 139 Cal.Rptr. 366.)

Based on the totality of circumstances, we are convinced by a preponderance of the evidence that the statements were voluntary rather than coerced.

(d) Whether the Trial Court Applied the Correct Standard of Proof.

Appellant apparently contends that the failure of the trial court to expressly state the beyond a reasonable doubt standard was prejudicial error.

Inasmuch as we have held that the beyond a reasonable doubt standard enunciated in People v. Jimenez, supra, is inapplicable to admissions, there was no error.

Whether the Special Allegations of Great Bodily Injury Are Supported by the Evidence.

The jury made true findings on the special allegations of great bodily injury in counts three (rape) and four (oral copulation).   However, the jury found that appellant did not use a deadly weapon (a knife) in counts three and four.

Appellant argues that there is no substantial evidence to support the great bodily injury findings.   Appellant notes the jury found the special allegations of use of a knife not true, and thus the allegations of great bodily injury had to be based on the stick or club and not the knife, together with the severe nose biting.

 Great bodily injury means a significant or substantial physical injury.  (People v. Caudillo (1978) 21 Cal.3d 562, 589, 146 Cal.Rptr. 859, 580 P.2d 274;  Pen.Code, § 12022.7.)   However, a transitory and short-lived manifestation of physical or bodily effects suffered by a victim that do not result in any serious impairment of physical condition or any protracted impairment of function of any portion of the body do not fall within the meaning of great bodily injury.  (People v. Caudillo, supra, 21 Cal.3d 562, 588–589, 146 Cal.Rptr. 859, 580 P.2d 274.)

 Normally the issue of great bodily injury is a question of fact for the jury.  (Id., at p. 588, 146 Cal.Rptr. 859, 580 P.2d 274;  see also People v. Jaramillo (1979) 98 Cal.App.3d 830, 836, 159 Cal.Rptr. 771 [great bodily injury found where victim suffered multiple contusions causing swelling and severe discoloration;  the injuries were visible after the infliction;  there was evidence that the victim suffered pain and she told others that “it hurt”].)

 The evidence shows that the back of Nellie's head required stitching.   However, doctors could not do much with her nose “ ‘cause, well, there was—at the time it was a big hole there and there was no meat.”   After the attack, officers took Nellie back into her bedroom, but she could not see because her eyes were so swollen.

In light of the above, we find that there is substantial evidence to support the jury's findings that appellant inflicted great bodily injury.

The judgment is affirmed.



1.   Nellie also testified that quite a few people knew that the club was there.   Nellie had shown her brother, the appellant, the club and knife she kept.   Appellant had been to her apartment several times and had been in her bedroom.

2.   Florence testified she saw her brother at the Circle K the day her sister was injured.   She talked with her brother at the Circle K for about a half hour sometime after 12 o'clock midnight.   Florence's testimony was confused;  she testified she saw appellant on a Saturday night;  however, the attack did not occur on Saturday.   Florence also testified she did not remember the day of the week she saw her brother;  she was unclear about the day and dates.Crysela, who lived with her sister, testified that she was pretty sure her brother was at her house between 12 and 12:30 the night he was arrested.   Florence was there also.

3.   He did not actually see a gun or see anybody shoot a gun.

4.   Neither party in the case provided this court with a transcript of the tape recorded statements of appellant.   The tapes are not good quality.   After listening to the tapes several times, we have set forth as well as we are able the gist or substance of appellant's statements wherever pertinent.   The excerpted portions of tape one do not necessarily include all the statements made by appellant nor are they intended to be in haec verba, but the statements included herein do provide the critical points of the interrogation.

5.   Evidence Code section 115 provides:“ ‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.   The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”

6.   People v. Jimenez, supra, 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, held that the prosecution must prove the voluntariness of a confession beyond a reasonable doubt.   We also read Jimenez to hold that when an appellate court independently reviews the record to determine the voluntariness of a confession, the court must apply a beyond a reasonable doubt standard of review.

EVANS,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

GEO. A. BROWN, P. J., and FRANSON, J., concur.

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