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People v. Cabrera

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 11, 2012
E051783 (Cal. Ct. App. Jan. 11, 2012)

Opinion

E051783 Super.Ct.No. INF063274

01-11-2012

THE PEOPLE, Plaintiff and Respondent, v. JORGE CARDOSO CABRERA, Defendant and Appellant.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

I


INTRODUCTION

All statutory references are to the Penal Code unless stated otherwise.

A jury convicted defendant Jorge Cardoso Cabrera of one count of unlawful sexual intercourse, involving Jane Doe, his 10-year-old niece. (§ 288.7, subd. (a).) The court sentenced defendant to the designated sentence of an indeterminate term of 25 years to life.

On appeal, defendant argues that his admissions made during a police interview should have been suppressed because the police did not give defendant a Miranda advisement. We reject defendant's contention and affirm the judgment.

Miranda v. Arizona (1966) 384 U.S. 436.

II


FACTUAL BACKGROUND

The statement of facts refers primarily to the facts supporting defendant's conviction and not the facts related to the other two counts with which he was charged but not convicted.
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A. Prosecution Evidence

Jane Doe testified in June and July 2010 when she was 14 years old.

In November and December 2006, defendant lived with his brother's family, including Jane Doe who was then 10 years old and in the fifth grade. One weekday morning around 7:30 a.m., Jane Doe's parents were at work and she was dressing for school in her bedroom with the door locked. She had finished showering and was wrapped in a towel when defendant forced his way into the room.

Defendant removed the towel and began touching Jane Doe on her breasts, "front part," and buttocks. Jane Doe tried to stop defendant and she crawled under the bed and grabbed a wooden bed slat. Defendant removed his pants and pulled Jane Doe out by her waist and buttocks until the wooden slat broke.

Next Jane Doe felt defendant penetrate her with his penis and begin moving. She cried and kicked him and asked him to stop. Finally, he desisted and left the room. She was hurt but there was no blood. She took a shower, dressed, and left for school. She did not tell anyone because defendant had threatened to blame her for the incident.

After the bedroom incident, defendant made a number of other sexual advances toward Jane Doe. When Jane Doe was entering the sixth grade, she told her parents defendant had touched her body and breasts. Defendant moved out of the family's home.

When she was starting the seventh grade, Jane Doe told her mother defendant had raped her. Jane Doe denied she had ever encouraged defendant or told him she loved him and was jealous of his girlfriends.

The police investigation began in August 2008. The police photographed the broken bed slat. Defendant agreed to speak to the detectives and they transported him to the police department for an interview.

The interview was conducted in Spanish on September 1, 2008. The detectives told defendant he had not been arrested and he was free to leave. Defendant claimed Jane Doe had acted provocatively toward him, jumping on him and touching him, coming into his room at night, and groping him in the kitchen. She kissed him twice. She displayed jealousy of his girlfriends and told him she loved him and would wait for him until she was 18 years old. Defendant denied acting inappropriately or going into her room. Finally, defendant admitted "it happened" twice when Jane Doe "would seek [him] out" in his room. During both incidents, he wore a prophylactic.

The forensic medical examiner concluded that Jane Doe displayed physical abnormalities and sexual abuse was suspected.

B. Defense Evidence

In the forensic interview in August 2008, Jane Doe said she was wearing a shirt and putting on underwear when defendant came into her bedroom. Defendant touched her breasts under her bra. She tried to hide under the bed and the wooden frame broke when defendant pulled at her. Defendant penetrated her. Doe was having her period but she was afraid she would get pregnant. She cried and tried to push and hit defendant. When she threatened to call the police, defendant said he would blame her. Afterwards, she took a shower and walked to school. She remembered there was some bleeding.

Jane Doe also described other sexual incidents with defendant. When Jane Doe told her mother defendant had touched her, her parents told defendant to move out. Later she told her mother defendant had penetrated her with his penis.

Four relatives and friends testified as character witnesses for defendant, particularly that he did not act inappropriately with children and that sexual abuse was not in his character.

C. Rebuttal Evidence

Jane Doe testified in rebuttal she was not menstruating on the day of the bedroom incident. She did not know whether pregnancy could happen during menstruation. She did not remember whether she saw any blood on the floor or in the shower. Defendant warned Jane Doe he would tell the police she was "looking for it" if she called them.

The first time Jane Doe described the details of the incident was during the forensic interview. She had said she was wearing a shirt because she was uncomfortable with discussing the details. She was pulling on her underwear when defendant first entered the bedroom.

III


DEFENDANT'S ADMISSIONS

Defendant contends the police interview was a custodial interrogation which required that the detectives give him a Miranda advisement. He argues the trial court erred in denying his motion to suppress his admissions and the error was not harmless beyond a reasonable doubt. We conclude a reasonable person would have understood he was free to terminate the interview and defendant's statements were not obtained in violation of Miranda. The court properly granted the motion to suppress.

A. The Pretrial Hearing

The court conducted a pretrial hearing on the motion to suppress, hearing testimony from Detective Erik Longoria. The two detectives contacted defendant at his home and asked him if he was willing to be interviewed. Because defendant did not have a car, they offered him a ride to the police department. The detectives did not restrain defendant. The interview was conducted in a room in a mobile trailer adjacent to the police department.

Before the interview began, the detectives advised defendant he did not have to talk to them and he was free to leave at any point. (California v. Beheler (1983) 463 U.S. 1121.) Defendant never asked to terminate the interview.

The two-hour interview began with general questions about Jane Doe and defendant's relationship with her and the family. The detectives informed defendant there were accusations he had touched Jane Doe. They suggested there was DNA evidence implicating defendant. Defendant talked about Jane Doe playing with and hugging and teasing him. The detectives feigned sympathy but pressed defendant to tell the truth and they observed that defendant was stuttering. The detectives told defendant that Jane Doe had passed a lie detector test. Later in the interview, defendant repeated that Jane Doe would grope, hug, and kiss him. Finally, defendant said "it happened" twice because Jane Doe came into his room and took off her clothes. He used a condom both times. He denied breaking the bed which he said was broken already.

When the detectives left the room, defendant called his girlfriend and confessed he had "a big old problem" and he would never see her again. At the end of the interview, the detectives arrested defendant.

Arguing against the motion to suppress, the prosecutor reasoned that, even if the detectives were forceful in their interview techniques, Miranda did not apply because defendant was not in custody and was free to leave at any time. The defense attorney countered that a reasonable person would not have felt free to leave under the circumstances and defendant had implied to his girlfriend he believed he was in custody. The trial court ruled the interrogation was consensual, not custodial. The length and form of questioning did not offer the objective indicia of an arrest. Defendant was advised he was free to leave at any point and he was not subjected to force or aggressive conduct. A reasonable person would not have believed himself to be in custody, except possibly after he made the incriminating admissions. No Miranda violation occurred.

B. Application of Miranda

"'In applying Miranda . . . one normally begins by asking whether custodial interrogation has taken place. "The phrase 'custodial interrogation' is crucial. The adjective [custodial] encompasses any situation in which 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'"' (People v. Mayfield (1997) 14 Cal.4th 668, 732.) 'Absent "custodial interrogation," Miranda simply does not come into play.' (People v. Mickey (1991) 54 Cal.3d 612, 648.) The test for whether an individual is in custody is 'OBJECTIVE . . . : "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."' (Thompson v. Keohane (1995) 516 U.S. 99, 112; see also People v. Stansbury (1995) 9 Cal.4th 824, 830.) [¶] . . . [¶]

"The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113.) 'Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact" . . . .' (Ibid., fn. omitted.) Accordingly, we apply a deferential substantial evidence standard (People v. Memro (1995) 11 Cal.4th 786, 826) to the trial court's conclusions regarding '"basic, primary, or historical facts: facts 'in the sense of recital of external events and the credibility of their narrators . . . (Thompson v. Keohane, supra, 516 U.S. at p. 110.) Having determined the propriety of the court's findings under that standard, we independently decide whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' (Id. at p. 112.)" (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)

Based on the testimony of detective Longoria, substantial evidence sustains the trial court's factual findings. The question to decide on independent review is whether a reasonable person in defendant's position would have felt free to end the questioning and leave. Defendant consented voluntarily to the interview. The detectives assured him he was free to terminate the interview and leave. The fact that he was questioned in a police station trailer "does not necessarily require a finding of custody, even if the room was in a secure area." (People v. Ochoa, supra, 19 Cal.4th at p. 403.) Although the detectives were persistent in their questioning, they were not obviously aggressive, confrontational, accusatory, threatening, or intimidating. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1165.) Instead, the detectives' strategy seemed more designed to express sympathy and understanding for defendant and gain his trust. Just before defendant made the admissions, one detective had assured him, ". . . it happened. Why? Because it's natural, bro. It's flesh."

Defendant asserts that similar facts in Aguilera, in which the court reversed a conviction on grounds of a Miranda violation, require the same result here. We do not agree. There are factual similarities. But in Aguilera, the court found that a reasonable individual would experience a degree of restraint "normally associated with a formal arrest" (People v. Aguilera, supra, 51 Cal.App.4th at p. 1161) in part because the police, as the court emphasized with italics, told the defendant that "'[w]e're not gonna let you leave here until we go talk to the girl, and she's not gonna be able to confirm the story . . . .'" (Id. at p. 1160; see id. at p. 1163.) Defendant was never warned he could not leave.

Without either approving or disapproving Aguilera' s compilation of circumstances that in its view tend to prove or disprove custody (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162), we find Aguilera is distinguishable from this case in which defendant was always free to leave and he was not subjected to aggressive questioning. In our view the interrogation was not custodial. Based on the circumstances, a reasonable person in defendant's position would have realized that he could end the questioning and leave.

C. Harmless Error

We do not agree with defendant's characterization of there being significant inconsistencies between Jane Doe's statements during the forensic interview and her trial testimony. Having reviewed both, we deem the inconsistencies to be minor. Both versions contain the essential facts of defendant forcing his way into Jane Doe's room and dragging her out from under the bed so he could assault her.

Defendant's conversation with his girlfriend was admissible because it was not obtained by interrogation. (People v. Leonard (2007) 40 Cal.4th 1370, 1401-1403.) The conversation demonstrated a consciousness of guilt. Combined with the testimony of Jane Doe, substantial admissible evidence supported the jury's verdict convicting defendant of sexual intercourse with a 10-year-old child. Any error was harmless beyond a reasonable doubt. (People v. Moore (2011) 51 Cal.4th 386, 404.)

IV


DISPOSITION

Defendant's admissions were not inadmissible under Miranda. In the alternative, any error was harmless.

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Codrington J. We concur:

Richli Acting P.J.

King J.


Summaries of

People v. Cabrera

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 11, 2012
E051783 (Cal. Ct. App. Jan. 11, 2012)
Case details for

People v. Cabrera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JORGE CARDOSO CABRERA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 11, 2012

Citations

E051783 (Cal. Ct. App. Jan. 11, 2012)