Opinion
D058830
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN FERNANDO VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE303787)
APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.
A jury convicted Adrian Fernando Vasquez on two counts of committing a lewd act on a child under 14 years of age, with a finding of substantial sexual conduct as to one count. (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8).) He was sentenced to six years on each count, to be served concurrently.
Unless otherwise indicated, further statutory references are to the Penal Code.
Vasquez contends he was denied his constitutional right against self-incrimination because he was not advised of his right to speak to the Mexican Consulate as required under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 100-101, T.I.A.S. No. 6820 (Vienna Convention or Article 36). He further contends any questioning by the police should have been recorded to ensure the fair administration of justice. We affirm the judgment.
FACTS
Vasquez is a Mexican national. In approximately late July 2010, he rented a room in a home in San Diego County from a woman with two children. From August 11 to 13, 11-year-old J.I., a friend of the children, was staying at their home.
On or about August 12, J.I. was watching car racing videos on a computer in the living room. His friends had gone to bed. Vasquez knelt next to J.I. and suggested websites on car racing. J.I. was wearing a t-shirt and baggy shorts for bed. He was not wearing underwear.
Vasquez touched J.I.'s penis with two fingers over his clothing. When J.I. did not react, Vasquez put his hand under J.I.'s shorts and rubbed his hand up and down on J.I.'s penis. J.I. pushed Vasquez's hand away and told him to stop. Vasquez apologized. He said he did not know why he did it. He had a girlfriend. Vasquez said J.I. would have lots of problems if J.I. told anyone.
J.I. telephoned his mother and told her about the incident. He then told his friends' mother. J.I.'s mother came to the home and telephoned the police.
El Cajon Police Officer Melissa Calderon and her partner Officer Tina Greer responded. J.I. told Officer Calderon what had occurred.
Officers Calderon and Greer spoke to Vasquez in English without giving him a Miranda warning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)Vasquez voluntarily gave a statement to the officers. The officers arrested Vasquez and took him to the police station. Calderon tried to give a Miranda warning in English to Vasquez, but he said he did not understand her. She gave him a card with the Miranda warning printed on it in Spanish, and read it to him. Vasquez said he understood the advisements and waived his rights. Repeating his earlier statement to the officers, Vasquez said he and J.I. were watching a video on the computer. He moved one of his hands and lightly touched J.I.'s genital area, and then put his hand back on the keyboard. Vasquez said J.I. moved his chair. He then touched J.I. over his shorts and moved his hand up and down on J.I.'s penis. Valdez demonstrated the movement to Calderon. He said he apologized to J.I. The interview was not electronically recorded.
At trial, J.I. and Calderon testified for the prosecution. In his own defense, Vasquez denied he touched J.I.'s penis and denied telling officer Calderon that he had touched J.I.'s penis. Vasquez testified that what he had told officer Calderon was that he accidentally brushed J.I.'s knee while they were watching videos on the computer. Vasquez presented character witnesses who testified that he was a responsible person with a reputation for honesty and truthfulness.
During the criminal proceedings, Vasquez did not assert he was denied his rights under the Vienna Convention or move to suppress evidence in the trial court.
DISCUSSION
I.
RIGHTS UNDER THE VIENNA CONVENTION
Vasquez contends that before he was questioned by police he should have been advised of his right to speak to the Mexican Consulate as part of a voluntary waiver of his Miranda rights. A. The Issues Are Forfeited on Appeal.
During the trial court proceedings, Vasquez did not assert he was denied the rights conferred by the Vienna Convention and did not file a motion to suppress his statements to the police. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. (Citations.) A party may not assert theories on appeal which were not raised in the trial court." (People v. Roberts (2010) 184 Cal.App.4th 1149, 1193.)
Further, the record does not reflect whether Vasquez was or was not advised of his rights under Article 36 of the Vienna Convention. The issue was not raised at trial, and neither Calderon nor Vasquez was asked whether an Article 36 advisement had been given to Vasquez. Arguments relying on matters outside the record may not be considered on appeal. (People v. Smith (2007) 40 Cal.4th 483, 507 (Smith); People v. Shaffer (1960) 182 Cal.App.2d 39, 45 [matters not presented by the record cannot be considered on the suggestion of appellate counsel]; see Gantner v. Gantner (1952) 39 Cal.2d 272, 278 [statements made by appellate counsel in briefs are not part of the record on appeal].)
Even if the claims were not forfeited, we would conclude that Vasquez's claims are without merit. B. A Violation of Article 36 of the Vienna Convention Is Not Remedied By Evidentiary Exclusion.
Vasquez argues that, as a foreign national, the advisement of his rights under Miranda should have included an advisement of his rights under Article 36 of the Vienna Convention. He contends the failure to advise him of his Article 36 rights renders his Miranda waivers involuntary and, consequently, his statement should have been excluded at trial. We are not persuaded.
The Vienna Convention, signed by both the United States and Mexico, sets forth a number of circumstances requiring consular intervention or notification, including the arrest of a foreign national (detainee). (U.S. v. Lombera-Camorlinga (9th Cir. 2000) 206 F.3d 882, 884 (Lombera-Camorlinga); People v.Corona (2001) 89 Cal.App.4th 1426, 1428-1429 (Corona).) Article 36 of the Vienna Convention provides if a detainee "is arrested or committed to prison or custody pending trial or is detained in any other manner", the local authorities are required to inform the detainee of his or her right to contact and communicate with the consulate of the detainee's state. (Vienna Convention, art. 36, 21 U.S.T. at 101.) However, the Vienna Convention does not link consular notification to police interrogation or require officials to halt an interrogation if a detainee invokes his rights under Article 36. (Corona, supra, at p. 1429, citing Lombera-Camorlinga, supra, at p. 886.) Significantly, suppression of illegally obtained evidence is not an appropriate remedy for a violation of a detainee's rights under Article 36 of the Vienna Convention. (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 350 (Sanchez-Llamas); Lombera-Camorlinga, supra, at p. 885; Corona, supra, at pp. 1429-1430.) Suppression of illegally obtained evidence is an "entirely American legal creation" and was not contemplated as a remedy for a violation of Article 36 by the signatories to the Vienna Convention. (Sanchez-Llamas, supra, at pp. 342-344.) Consequently, Vasquez's argument fails.
A foreign national detained on suspicion of a crime enjoys the protections of the Due Process Clause and, among other things, is protected against compelled self-incrimination. (Sanchez-Llamas, supra, 548 U.S. at p. 350). If Vasquez believed his statement was involuntarily compelled, he could have moved to suppress it under United States constitutional protections.
II.
RECORDING OF POLICE QUESTIONING
Citing statutory and case law from other states, Vasquez asserts any questioning by police, including any advisement and waiver of constitutional rights, should have been recorded verbatim under general principles of due process and fair administration of justice. He acknowledges electronic recording of custodial interrogations is not mandated by California law, but asks this court to require law enforcement officers to electronically record custodial interrogations, reverse his conviction and sentence, and remand the matter for new proceedings consistent with this principle. We decline to do so.
See, e.g., Stephan v. State (Alaska 1985) 711 P.2d 1156, 1159-1160, 1163 [adopting exclusionary rule for unexcused failure to record custodial interrogation]; Commonwealth v. DiGiambattista (Mass. 2004) 813 N.E.2d 516, 533-534 [requiring cautionary jury instruction where the police did not record a custodial interrogation]; State v. Scales (Minn. 1994) 518 N.W.2d 587, 592 [requiring suppression of statements obtained in violation of recording requirement if violation is deemed substantial]. See also, chapter 725 of the Illinois Compiled Statutes, act 5, section 103-2.1, subdivision (b) [for some specified criminal proceedings, statements made during custodial interrogation are presumed inadmissible unless an accurate electronic recording has been made].
Although Vasquez's counsel argued in closing that the jury should not believe the officer Calderon's testimony because there was no electronic recording made of the interrogation, Vasquez did not seek to suppress his statement on the basis that it was not electronically recorded. (See, e.g., Smith, supra, 40 Cal.4th at p. 506 [defendant forfeited his claim by failing to object in the trial court to the incomplete recording of defendant's interviews].) He has thus forfeited the right to assign error on appeal.
Even if his claim were not forfeited, the record shows that the jury was instructed: "You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." (CALCRIM No. 358; People v. Mayfield (1997) 14 Cal.4th 668, 776; People v. Dickey (2005) 35 Cal.4th 884, 905 [when the evidence warrants, the trial court must instruct the jury to view evidence of a defendant's oral admissions or confession with caution].) We presume the jury complied with the court's instruction. (People v. Thompson (2010) 49 Cal.4th 79, 138.) The jury heard the conflicting versions of what Vasquez told officer Calderon, complied with the court's instructions to view Vasquez's oral admission with caution, and decided Vasquez was not credible. The giving of the cautionary instruction adequately protected the fair
A cautionary instruction, such as the one given to the Vasquez jury, is precisely the remedy fashioned by the Massachusetts Supreme Judicial Court for a failure to comply with that state's law requiring police questioning to be recorded. (Commonwealth v. DiGiambattista, supra, 813 N.E.2d at pp. 533-534 [requiring cautionary jury instruction where the police did not record a custodial interrogation].)
administration of justice, and Vasquez received a fair trial.
In light of our ruling we need not, and do not, address the People's claim that creation of a judicial rule requiring recording of police interrogation would violate the California Constitution.
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DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.