Opinion
G054696
12-03-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO MOLINA, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CF0027) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Raymundo Molina was convicted of multiple counts of child sexual abuse. On appeal, he contends 1) his police confession should have been suppressed on Miranda grounds (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); 2) there is insufficient evidence to support his conviction for sexual penetration; and 3) the jury instructions on the sexual penetration count were flawed. Finding no basis for reversal, we affirm the judgment.
I. FACTS
Appellant lived with his cousin Santiago's family for about 11 months starting in the fall of 2008. During that time, Santiago's daughters - Y.M., B.M. and J.M. - were seven, six and four years old, respectively. In 2010, Y.M. and B.M. told their mother appellant had molested them, and she notified the authorities. The girls were then interviewed by a social worker on the Orange County Child Abuse Services Team (CAST).
During their CAST interviews, the girls alleged varying degrees of abuse. J.M., the youngest, claimed appellant touched her breasts under her clothes. Y.M. said appellant once tried to lift her shirt and touch her breasts, but she rebuffed the assault by kicking him. And B.M. reported appellant subjected her to unwanted kissing and hugging on multiple occasions. Also, one time when she was in his room, he licked his finger and put it in her butt. After that, he touched her vagina over her clothes and told her not to tell her mother what he had done.
Following the girls' interviews, the police contacted appellant and interviewed him without reading him his Miranda rights. Appellant admitted he touched J.M.'s "private parts" and may have tried to touch Y.M.'s breasts. He also conceded he once inserted his finger into B.M.'s vagina while they were lying under some blankets together. In addition, he described an incident during which he reached inside B.M.'s pants and put his finger in her butt, "where she goes poop."
At trial, the girls reiterated their allegations against appellant. Although they were unable to remember everything appellant did to them, their testimony was generally consistent with the statements they made during their CAST interviews. Y.M. also leveled a new accusation against appellant, claiming he had touched her vagina with his penis. This evidence was admitted on the condition the prosecution would not use it to file any new charges against appellant.
The defense presented character evidence from appellant's aunt and a former landlord. They testified appellant was a good person, and they had never seen him do anything suspicious around their daughters. Nonetheless, the jury convicted appellant of four counts of child sexual abuse. Three of the counts were for committing a lewd act against J.M., Y.M. and B.M. (Pen. Code, § 288, subd. (a)). The fourth was for sexually penetrating B.M. when she was under the age of 10. (§ 288.7, subd. (b).) Because appellant victimized multiple children, the trial court sentenced him to prison for 45 years to life. (§ 667.61, subds. (b), (e).)
All further statutory references are to the Penal Code.
II. DISCUSSION
A. Miranda Issue
The primary issue is whether the police were remiss for failing to read appellant his Miranda rights during questioning. Although the issue is a close one, we conclude appellant was not in custody for Miranda purposes at the time of his police interview. Therefore, Miranda was not implicated, and his confession was properly admitted into evidence.
The admissibility of appellant's confession was litigated at a suppression hearing before trial. At the hearing, Santa Ana Police Detective Robert Valdez testified he was an investigator in the sexual assault unit at the time this case arose in the fall of 2010. He was fully aware of the victims' allegations and the circumstances of the case when he interviewed appellant on December 31, 2010.
That day, Valdez contacted appellant at his residence in Santa Ana. He asked appellant if he would be willing to come to the police station to talk about a shooting that had occurred in the area, and appellant agreed to do so. In truth, Valdez was not investigating the shooting; he used it as a ruse to get appellant to come to the station so he could question him about the victims' allegations.
Valdez drove appellant to the station in his police car. The ride there took about 10 minutes, and during that time, Valdez made small talk with appellant, but he did not discuss anything of substance with him. This was a tactical decision on Valdez's part. He made it a point not to bring up the victims' allegations because he did not want to give appellant an opportunity to come up with "some kind of story" before formally interviewing him.
Upon arriving at the police station, Valdez and appellant entered through the rear of the building, where all the police cars are kept. They had to pass through two secured doors and take an elevator to get to the interview room, which was located on the third floor of the station. Roughly 12 by 12 feet in dimension, the room had three chairs in it. Appellant took a seat in one of the chairs, Valdez sat in another, and Valdez's sergeant, who also participated in the interview, occupied the third seat. The officers were dressed casually and neither was armed.
Before the interview commenced, Valdez informed appellant that although the door to the room was closed, it was not locked. He also told appellant that if he wanted to leave at any time, he was free to do so. He did not give appellant any instructions regarding how to exit the station.
At the start of the interview, Valdez activated an audio recorder and thanked appellant for coming to the police station. Valdez assured appellant he was not under arrest and that his presence at the station was voluntarily. In this regard, Valdez told appellant, "If at any moment, you want to go to the bathroom, you want something to drink, or if you don't want to talk with us, . . . I'm not forcing you to talk with us. Correct?" Appellant said he understood.
The interview was conducted in Spanish, appellant's native language.
Valdez then told appellant he wanted to talk to him about an investigation he was working on. Without revealing the subject of the investigation, he asked appellant about his cousin Santiago. Appellant said he lived with Santiago and his family for about a year after arriving here from Mexico. He claimed he got along well with Santiago and never had any problems with his daughters.
Valdez then asked appellant why he thought the police wanted to talk to him. Appellant said, "You mentioned to me about the shooting, no?" Appellant then started to explain what he did and saw on the day of the shooting. Valdez asked appellant if he had ever been arrested, and when appellant said no, he revealed the true purpose of the interview.
Valdez told appellant that instead of talking to him about the shooting, he wanted to focus his attention on some allegations that had been made by Santiago's daughters. Valdez said he had already completed his investigation into the allegations and even produced a report on them. However, he still needed to talk to one more person, that being appellant, before turning over all of his evidence.
Valdez said it was very important for him to hear appellant's side of the story. Yet, he was already "one hundred percent sure about what happened," so it would be "best for everyone" if he told the truth. He also told appellant that everyone makes mistakes and has done hurtful things. And even though appellant had "caused harm to Santiago's little girls," he could tell appellant was not a bad person.
Valdez also told appellant he was going to give him a chance to write a letter to Santiago's family. He suggested that appellant apologize to Santiago in the letter because he had violated his trust and shown him great disrespect. Appellant did not say much while Valdez was telling him all of these things; he simply went along with what Valdez was saying.
Continuing in this vein, Valdez reiterated that he already knew what appellant had done from talking to Santiago's daughters. However, because the girls were so young, he was still a bit confused about some aspects of the case and needed appellant to clarify a few things. And because he had given appellant "absolute respect," he expected appellant to tell him the truth about what had occurred. Valdez told appellant, "I'm almost sure that this was only a mistake. But I just want to hear from you what happened . . . with the girls." "So, explain to me what it was that happened[.]"
Appellant replied, "[Y]es I made a mistake." "I touched them." Although appellant insisted he did not do anything bad to the girls, it soon became apparent that was not the case. In fact, while appellant attempted to minimize his conduct and blamed the girls for egging him on, he admitted molesting them on multiple occasions, as described in the facts above.
During the interview, which lasted about 70 minutes, appellant took two breaks, one to use the restroom and one to get some water. The officers did not accompany appellant during those breaks. Rather, they stood outside the interview room and waited for him to return. When the interview was over, they arrested appellant and booked him into jail.
At the suppression hearing, Valdez testified he interviewed appellant in a respectful manner and that both he and his sergeant remained seated during the interview. At no point did they threaten appellant or coerce him into making any incriminating statements. Nevertheless, defense counsel argued appellant's statements were inadmissible because the officers failed to read him his Miranda rights before questioning.
The Miranda issue turned on whether appellant was in custody during the interview. While acknowledging appellant went down to the police station on his own accord and was repeatedly told he was free to leave, defense counsel argued he was still in custody because Valdez was slow to reveal the true purpose of the interview, and the nature of his questioning was manipulative and accusatory. Nonetheless, the trial court concluded no Miranda violation occurred. In rejecting appellant's custody argument, the court found it significant he was questioned in a nonthreatening manner, he was told he was free to leave, and he confessed shortly after Valdez revealed the true purpose of the interview.
Although the Miranda decision has been on the books for over half a century, this case illustrates that reasonable minds can disagree over when the dictates of that decision are triggered. Miranda was designed to protect persons suspected of criminal activity from the inherently coercive circumstances attendant to police interrogations. (Miranda, supra, 384 U.S. at pp. 444-445.) By requiring the police to inform a suspect of his right to remain silent before questioning, the high court sought to implement the constitutional privilege against self-incrimination and ensure "the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." (Id. at p. 469.)
However, "police officers are not required to administer Miranda warnings to everyone whom they question." (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'" (Ibid.) In determining whether the custody requirement has been met, we must assess the objective circumstances surrounding the interrogation to determine whether a reasonable person in the defendant's position would have felt at liberty to terminate the questioning and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) This depends on whether the defendant was formally arrested or his freedom of movement was restrained to the degree associated with a formal arrest. (Id. at p. 465; Stansbury v. California (1994) 511 U.S. 318, 322; People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
No single factor is dispositive of the custody issue. (Howes v. Fields (2012) 565 U.S. 499, 509 [stating the totality of the circumstances must be considered].) However, courts have developed several factors bearing on the issue, including the length of the interrogation, where it occurred and the ratio of officers to suspects. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, quoting People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Some of these factors suggest appellant was in custody during his interrogation. For example, appellant was questioned behind closed doors at the police station and, during the interview, Detective Valdez made it clear he believed appellant had sexually abused the victims. "Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'" (People v. Moore (2011) 51 Cal.4th 386, 402, quoting Oregon v. Mathiason, supra, 429 U.S. at p. 495.) However, the location of the interview and the accusatory tone of the questioning are two indicia that support a finding of custody in this case. (See Howes v. Fields, supra, 565 U.S. at p. 511 [a person who is questioned at a station house "may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home."]; People v. Aguilera, supra, 51 Cal.App.4th at p. 1164 ["'Accusatory 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."].)
On the other hand, it is apparent the entire interview did not last very long, and appellant began confessing after only about 15 minutes of interview time. In addition, the detectives were polite, professional and accommodating throughout the interview. Not only did they speak to appellant in a respectful fashion, they made it a point to let him know the door was not locked, and they let him use the restroom facilities unattended whenever he wanted. This indicates appellant's freedom was not restricted to the degree usually associated with a formal arrest. (Compare People v. Saldana (2018) 19 Cal.App.5th 432 [defendant found to be in custody during highly confrontational interview in which he was threatened and confronted with false evidence].)
Moreover, the record shows appellant voluntarily accompanied Detective Valdez to the police station for questioning, and once they arrived there, Valdez explained to appellant he was not under arrest and free to leave. These circumstances further support the conclusion Miranda did not apply. In fact, courts have consistently ruled that suspects who were questioned under similar circumstances were not in custody for Miranda purposes. (See, e.g., California v. Beheler (1983) 463 U.S. 1121; Oregon v. Mathiason, supra, 429 U.S. 492; Smith v. Clark (9th Cir. 2015) 804 F.3d 983; People v. Moore, supra, 51 Cal.4th at pp. 402-403; In re Kenneth S. (2005) 133 Cal.App.4th 54; People v. Chutan (1999) 72 Cal.App.4th 1276.) We would have little difficulty ruling similarly if that's all there was to the case.
But it's not. The twist here is that Valdez used a ruse to convince appellant to come in for questioning. Appellant concedes there was nothing improper about this per se, and therefore he was not in custody when he first arrived at the police station. However, he maintains that once Valdez revealed the true reason he wanted to talk to him and began accusing him of harming the victims, the climate of the interview changed, and no reasonable person in his position would have felt free to terminate questioning and go on their way.
In so arguing, appellant points out Valdez did not merely intimate he had done something wrong; rather, he said he was "one hundred percent sure" about what appellant had done to the victims, and he had already completed his investigation into the matter. Valdez also made reference to a report he had prepared and encouraged appellant to write an apology letter to the victims' family. Then, in an apparent attempt to increase appellant's willingness to talk about what he had done, Valdez repeatedly reassured him he was not a bad person, and everyone makes mistakes. Appellant contends that, taken together, these statements rendered meaningless Valdez's earlier admonitions about him being free to leave, and coupled with the ruse tactic, they effectively transformed the interview into a custodial interrogation.
Police officers have a difficult job. Because criminals often rely on falsehoods and deception to avoid detection, we do not require angelic behavior on the part of investigators in ferreting out illegal activity. Generally speaking, there is nothing wrong with the police using trickery or subterfuge to gain a suspect's cooperation or elicit information from him. (People v. Chutan, supra, 72 Cal.App.4th at p. 1280.) Although courts will not countenance police tactics that are so fundamentally unfair as to violate due process (ibid.), the use of a ruse to lure a suspect to the stationhouse for questioning generally does not rise to that level; it is not typically seen as a tactic that implicates the constitutional safeguards set forth in Miranda. (See, e.g., United States v. Martinez (9th Cir. 2015) 602 Fed.Appx. 658, 659 [defendant not in custody even though "the officers used a ruse to convince Martinez to come to the interview"]; United States v. LeBrun (8th Cir. 2004) 363 F.3d 715, 723 [overruling United States v. Hanson (8th Cir. 2001) 237 F.3d 961, 964, which found the defendant was in custody because, inter alia, the police used a "'deceptive stratagem'" to gain his cooperation]; Thompson v. Keohane (9th Circ. 1998, No. 97-35309) 1998 WL 230928, on remand from Thompson v. Keohane, supra, 516 U.S. 99 [misleading the defendant as to true purpose of questioning did not trigger Miranda]; State v. Carrillo (Az. 1988) 750 P.2d 883, 891-892 [defendant not in custody despite the fact the police procured his cooperation and presence by using a ruse]; see also People v. Chutan, supra, 72 Cal.App.4th at p. 1283 [defendant not in custody even though the police failed to disclose they were conducting a criminal investigation when they invited him to come in for an interview].)
Still, appellant is correct that the circumstances of an interview can change so as to transform a noncustodial setting into a custodial one for purposes of the Miranda requirements. Indeed, that's precisely what happened in United States v. Knowles (E.D.Wis. 1998) 2 F.Supp.2d 1135 (Knowles), one of the principal cases upon which appellant relies. In that case, the defendant voluntarily agreed to be interviewed by federal agents, and once he arrived at their office, he was told he was not under arrest and free to leave. He then proceeded to answer questions for several hours before his cooperative spirit began to wane and he asked if he could go. At that point, the agents showed him the cover page of a criminal complaint that had been filed against him. Then they continued to interview him for several more hours before finally placing him under arrest. (Id. at pp. 1141-1143.)
The Knowles court found the defendant was not in custody during the first few hours of the interview. (Knowles, supra, 2 F.Supp.2d at pp. 1144-1145.) However, once the agents showed him the criminal complaint, "a reasonable person would have known that he had been charged with a crime and that what (the agents) had previously represented to him (about being free to leave) was untrue." (Id. at p. 1145, italics added.) Therefore, he should have been advised of his Miranda rights at that juncture of the interview. (Ibid.)
Unlike the situation in Knowles, Detective Valdez did not convey the impression to appellant he had been charged with a crime. Valdez certainly made it clear he had investigated the victims' allegations, prepared a report on them, and believed they were true. But he also told appellant he needed to hear his side of the story before he "turn[ed] over all of the evidence[.]" This implied the investigation was still ongoing and no charging decision had been made in the case. Despite the accusatory tone of the interview, we do not believe Valdez's statements created the level of compulsion that was exerted on the defendant in Knowles by virtue of showing him a complaint that named him as a criminal defendant. Certainly allowing him to leave the room unaccompanied twice would do a lot to dispel the impression his prosecution was a fait accompli.
Appellant also relies on Haas v. State (Alaska 1995) 897 P.2d 1333 and State v. Champion (Minn. 1995) 533 N.W.2d 40, which found a custodial situation arose during police questioning once the suspect confessed to a serious crime. It is only natural that a suspect would feel less inclined to walk away from a police interview after admitting his involvement in a felony. However, as one court has observed, the United States Supreme Court has never held "that admission to a crime transforms an interview by the police into a custodial interrogation." (Locke v. Cattell (1st. Cir. 2007) 476 F.3d 46, 53.) Rather than adopting such a bright-line rule, courts will generally consider a confession sufficient to affect such a transformation only if it materially alters the environment of the interview, or the police react to it by signaling an immediate intention to arrest. (See United States v. Chee (10th Cir. 2008) 514 F.3d 1106, 1114; United States v. Casmento (S.D.N.Y. 1998) 998 F.Supp. 372, 375.) This approach is fully consistent with the totality-of-the-circumstances rule applicable in reviewing Miranda issues.
Here, neither of those things occurred after appellant confessed to molesting the victims. Instead, Valdez continued to interview appellant in a calm and evenhanded fashion. He did not threaten appellant or make any promises to him, nor did he physically restrain appellant in any way. He continued trying to elicit as much information as possible about the crimes to which appellant was admitting, but at no point did appellant express any reservations about being interviewed. Considering all of the circumstances surrounding the interview, we conclude appellant was not in custody for Miranda purposes until he was formally arrested. Therefore, his suppression motion was properly denied.
Relying on information contained in his probation report, appellant contends his cultural background and education and intelligence level also support a finding he was in custody when he was interviewed. However, that information is irrelevant to our analysis because it was not produced at the suppression hearing. (United States v. Willis (10th Cir. 2016) 826 F.3d 1265, 1275, fn. 4; People v. Garry (2007) 156 Cal.App.4th 1100, 1105, fn. 2; see also People v. Torres (2018) 25 Cal.App.5th 162, 174, fn. 2 [finding the defendant's criminal history and past experience with law enforcement irrelevant to whether he was in custody, "which is an objective inquiry."].)
B. Sufficiency of the Evidence
Appellant also contends there is insufficient evidence to support his conviction for sexually penetrating B.M. Again, we disagree.
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence of the defendant's guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) In so doing, "'[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (Ibid.) "'The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]'" (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
The crime of sexually penetrating a child is set forth in section 288.7, which states, "Any person 18 years of age or older who engages in . . . sexual penetration . . . with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." (§ 288.7, subd. (b).) Appellant claims there is insufficient evidence he was at least 18 years old when he victimized B.M., or that he actually penetrated her.
With regard to the age issue, the probation report and the preliminary hearing evidence show appellant was born on March 7, 1988. If that's the case, he would have been at least 20 years old when he sexually penetrated B.M. between September 2008 and August 2009. However, the prosecution did not present any direct evidence of appellant's age during the course of trial. Appellant contends this compels reversal of his conviction for sexual penetration, but we do not see it that way.
Despite the absence of any direct evidence of appellant's age, there was substantial circumstantial evidence on the issue. During her CAST interview, B.M., then age eight, was asked whether the person who had molested her was a "kid" or a "grown up," and she said he was a grown up. J.M. was asked a similar question during her interview, and she said her assailant was "a man." Videotapes of the girls' interviews were admitted into evidence and played during the trial. In addition, the jury had ample opportunity to observe appellant's appearance in the courtroom, which, in and of itself, is sufficient to support a finding he was an adult at the time in question. (People v. Montalvo (1971) 4 Cal.3d 328, 335 (Montalvo); see also People v. Castaneda (1994) 31 Cal.App.4th 197, 203-204; People v. Smith (1993) 13 Cal.App.4th 1182, 1190.) In light of everything the jury saw and heard at appellant's trial, it could reasonably conclude that was the case.
In arguing otherwise, appellant draws our attention to People v. Adams (1935) 7 Cal.App.2d 743, People v. Levoy (1920) 49 Cal.App. 770 and State v. Galvan (Wis. Ct. App. 1984, No. 83-2355-CR) 1984 Wis.App. LEXIS 3987. However, because these decisions either contradict or fail to recognize Montalvo's holding that a defendant's courtroom appearance is sufficient to prove his age, we decline to follow them. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [lower courts are required to follow decisions of higher courts].) --------
There is also substantial evidence appellant sexually penetrated B.M. within the meaning of section 288.7. For purposes of that section, sexual penetration means "the act of causing penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) The term "anal opening" has been broadly defined to include "the perianal folds [that] radiate from the anus [and] comprise the outer boundary of the anus[.]" (People v. Paz (2017) 10 Cal.App.5th 1023, 1037 (Paz).) Thus, while mere penetration of the victim's buttocks is insufficient to prove penetration of the anal opening, penetration of the victim's anus is not required. (Id. at pp. 1037-1038.)
The issue here is whether appellant inserted his finger past B.M.'s buttocks into her perianal region. At several points during her CAST interview, B.M. said appellant put his finger "on" her butt. However, when asked what part of her butt appellant touched, she said the "middle," where "the poop comes out." And when asked whether appellant's finger went inside or just touched that area, she said it went inside. At trial, B.M. said she couldn't remember if appellant actually put his finger inside her. She surmised he only touched the "outer part" of her butt, meaning not the part she uses to "go to the bathroom."
Irrespective of whether these statements were sufficient to prove appellant penetrated B.M.'s anal opening, appellant admitted to the police he inserted his finger about two inches inside B.M.'s butt, "where she goes poop." Considering this admission along with B.M.'s pretrial statements, the jury could reasonable find appellant sexually penetrated her with his finger. We therefore reject his challenge to the sufficiency of the evidence.
C. Instructional Claim
Appellant also claims the jury instructions on the sexual penetration count were prejudicially flawed. This claim also fails.
The trial court instructed the jury that in order to convict appellant of sexually penetrating B.M., it had to find, inter alia, he penetrated her anal opening, however slightly, with a foreign object for purposes of sexual gratification. The court did not, however, define the term "anal opening." Even though he never asked the court to do so, which raises the specter of forfeiture (see People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), appellant contends the court should have given a special instruction in accordance with Paz that explained, "[M]ere penetration of the buttocks is not sufficient to establish penetration of the anal opening." (Paz, supra, 10 Cal.App.5th at p. 1038.)
Appellant fears that absent such an instruction, the jury could have found him guilty of anal penetration merely for inserting his finger into B.M.'s buttocks. However, the term "anal opening" implies the victim's anus must be penetrated, which is how the parties interpreted the term. During closing arguments, both sides focused on whether appellant actually put his finger inside B.M.'s butt, i.e., "penetrated her rectum," in discussing the sexual penetration charge. And that's exactly what appellant confessed to doing when he was interviewed by the police. Under these circumstances, "there was no need to define [the term anal opening], and no error or constitutional violation occurred." (People v. Rundle, supra, 43 Cal.4th at p. 152, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [given evidence the defendant had vaginal intercourse with the victim, the trial court was not required to define sexual intercourse to exclude sodomy].)
III. DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. I CONCUR: THOMPSON, J. Moore, J., Concurring.
Respectfully, I would find that appellant was subject to a custodial interrogation at the police station. I agree with the majority that this is a close case.
Detective Valdez picked up appellant at his home and took him on a ten-minute drive to the police station. When they arrived at the station, they entered through the rear gate, and then through two secured doors before getting to the interview room on the third floor. When Valdez disclosed the true purpose of the interview (a sexual assault investigation), I do not agree with the majority that a reasonable person in appellant's position would have felt that he had the liberty—or the capacity—to terminate the interview, get out of the building, and go home. (Maj. opn., ante, at p. 4; see Oregon v. Mathiason (1977) 429 U.S. 492, 493 [not a custodial interrogation where suspect walked two blocks from his apartment to the police station]; see also State v. Schultz (2009) 289 Kan. 334, 341 [factor to be considered in custodial interrogation analysis is "whether the person being questioned was escorted by the police to the interrogation location or arrived under his or her own power"].)
However, I agree with the Attorney General that any error in admitting appellant's statements was "harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24.) In the Orange County Child Abuse Services Team interviews and at trial, the multiple victims described in graphic detail how appellant had committed the alleged crimes.
In all other respects, I concur with the majority.
MOORE, J.