Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD205835 Julia C. Kelety, Judge.
HUFFMAN, Acting P. J.
A jury convicted Martin Isodoro Castro of failing to register as a sex offender (Pen. Code, § 290, subd. (g)(2)). Castro was thereafter granted formal probation.
All further statutory references are to the Penal Code unless otherwise specified.
Castro appeals contending the court admitted his statement to police in violation of the protection guaranteed by Miranda v. Arizona (1966) 384 U.S. 436. Castro further contends the evidence at trial was not sufficient to support his conviction for failing to register as a sex offender. We will reject both contentions and affirm.
STATEMENT OF FACTS
As a result of a conviction for misdemeanor sexual battery (§ 243.1, subd. (e)(1)), Castro was required to register as a sex offender. In July 2006, Castro was convicted of failing to register as a sex offender. Following the 2006 conviction Castro was transferred to federal custody and was deported to Mexico in November 2006. Castro was not required to register while in Mexico, but he was required to register within five days of his return to the United States.
In early 2007, federal immigration officials suspected that Castro had returned to the United States. Agent Thomas Malandris was able to locate Castro on May 29, 2007. Malandris observed Castro driving a white Toyota pickup on Imperial Avenue in the city of San Diego. Castro dropped off his wife at the St. Vincent DePaul Center and then drove away. The agent lost Castro in traffic.
Malandris contacted San Diego Police Officer Justin Wallace and advised him of the sighting of Castro and advised there was an outstanding warrant for the arrest of Castro for failure to register as a sex offender.
On May 31, 2007, Malandris again observed Castro drop off his wife on Imperial Avenue. The agent notified Officer Wallace who was on patrol with his partner Pamela Rowlett. Wallace and Rowlett stopped Castro who was driving a white Toyota pickup registered to his son Blas Castro. Castro's other son, Roberto, was in the passenger seat of the truck.
When contacted by police Castro said he had no identification and said his name was Phillippe Castro. The officers used a photograph of Castro they had received from Agent Malandris to identify Castro as the person for whom a warrant had been issued. Castro was arrested and placed in the patrol car. Castro was advised of his Miranda rights and agreed to talk to police.
Castro told police he had been deported to Mexico in November 2006, but that he had illegally returned in January 2007. He said he had been working six days a week at a construction job in San Diego. Castro said he and his family had lived at 547 South 32nd Street in San Diego until April 2007 when they moved to 1827 Gregory Street. He said he stayed at the Gregory Street home one or two times each week and that he spent the rest of each week with his sister on Osborne Street in San Diego. Castro said he did not register as a sex offender because he feared he would be deported.
Castro's sons testified that Castro was only at the family home occasionally in 2007. Their testimony was impeached by police reports and the testimony of California Department of Justice Agent Daryl Heintz. Both sons claimed the statements attributed to them by law enforcement were not true.
Several neighbors and relatives testified about the frequency with which they observed Castro at the family residence in 2007.
Sex offender records showed that Castro had never registered anywhere in California.
Defense
Castro's wife, Silvia, testified that he did not live with the family in San Diego. She said at one point Castro stayed at the residence only once or twice from January to May 2007. She stated that Castro lived in Tijuana, Mexico, but acknowledged he stayed at the residence in San Diego one or two nights a week.
Castro testified and acknowledged he was aware of his registration requirements. He stated he pleaded guilty in 2006 to failure to register and had been deported after that conviction. Castro said he decided to live in Tijuana and only crossed the border to work in San Diego. He admitted he sometimes spent several nights each week at the family residence and spent several days there when the family moved. Castro denied he told police that he lived in San Diego. He said they put words in his mouth and that he had only told them he visited his family on occasion.
Castro admitted he knew if he registered the address where he was staying he would be deported. He also acknowledged that his name was not included on the lease or utilities for the Gregory Street residence in order to prevent authorities from finding him.
DISCUSSION
I
ALLEGED MIRANDA VIOLATION
The circumstances regarding the question of whether Castro was given a Miranda admonition prior to his statement to police were confused, to say the least. The original police report did not include any reference to such warning. The prosecutor talked with Officer Rowlett prior to trial and came away with the belief the warning had not been given. Accordingly, the prosecutor originally sought only to use Castro's statement for impeachment. Later, after speaking to Officer Wallace, the prosecutor believed Castro had actually been informed of his rights and had made a valid waiver. The court then held a hearing pursuant to Evidence Code section 402 to determine if such warning had been given.
At the evidentiary hearing Officer Wallace testified he had advised Castro of his rights and that Castro waived those rights and agreed to talk with the police. Wallace said that he told Rowlett he had so advised Castro, and Rowlett told him she had already done so.
Rowlett testified she did obtain a statement from Castro at the police car and also at the jail. She did not have a specific recollection of giving Castro a Miranda warning or whether she had heard Wallace give such warning. Rowlett also admitted her report did not make reference to any Miranda warning even though there were blank spaces in the report form for that purpose.
At the close of the testimony at the hearing the trial court found Officer Wallace's statement to be credible and found that Rowlett's lack of recollection did not detract from that finding. The court said:
"Officer Wallace stated clearly that he did give the Miranda rights while Mr. Castro was in the back of the patrol car, which would have preceded any questioning either as to the address situation or the statement that Officer Rowlett believes she took in the sally port. So there is evidence that the Miranda rights were, in fact, given."
It is without dispute that Castro was in custody when he was subjected to police interrogation. It is also clear that if Castro was advised of his rights he does not claim on appeal that any subsequent waiver of those rights was invalid. Nor does Castro claim the warning, if given, was inadequate. Rather, the issue presented here is whether the trial court erred in finding police compliance with the warning requirements of Miranda, supra, 384 U.S. 436.
In this case the prosecution bore the burden of proof to establish that Castro was validly warned of his rights and made a knowing and intelligent decision to waive those rights. (People v. Wash (1993) 6 Cal.4th 215, 236; In re Bonnie H. (1997) 56 Cal.App.4th 563, 577.) In order to determine whether there has been compliance with Miranda the trial courts are often required to make credibility decisions and factual findings. Where a trial court has made such findings we review them on appeal under the substantial evidence standard of review. (People v. Weaver (2001) 26 Cal.4th 876, 918.) Once we determine if there is substantial evidence to support the trial court's factual determinations we independently decide if, under those facts, there has been compliance with the Miranda rule. (Wash, supra, 6 Cal.4th at p. 236.)
The present case presents a classic factual dispute. If Officer Wallace is believed, he properly warned Castro of his Miranda rights in advance of any custodial interrogation. He also testified that Castro stated he understood his rights and agreed to talk. If all those facts are true, the court correctly admitted the statement. The trial court, after hearing conflicting testimony, made credibility decisions and found Officer Wallace to be truthful. There is nothing in this record that makes such finding irrational or impossible. There is substantial evidence to support the trial court's factual findings and thus we find no error in the admission of Castro's statements.
II
SUFFICIENCY OF THE EVIDENCE
Castro contends there is not sufficient evidence to prove that he "resided" in California such that his duty to register would have applied. It is clear from the record the evidence shows Castro was advised of his duty to register as a sex offender. Indeed he pleaded guilty to failing to do so in 2006. Further, there is evidence in the record that Castro did not want to register in California in 2007 because that could lead to being deported again. The essential question raised by this contention is whether there is sufficient substantial evidence to show he resided in San Diego and knew he had a duty to register. We are satisfied there is substantial evidence in this record to support the conviction.
When we review a claim the evidence is not sufficient, we review the entire record to determine whether there is sufficient evidence from which a reasonable jury could have concluded the prosecution has proved each element of the offense beyond a reasonable doubt. In conducting such review we do not make credibility determinations and we do not weigh the evidence, those tasks are for the factfinder, not the appellate court. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Hughes (2002) 27 Cal.4th 287, 370.)
In this case the trial court properly instructed the jury on the elements of the charged offense. The court defined the term "reside" as it is used in the registration requirement. The court said, in part:
"For purposes of these instructions, 'resides' means a place of abode of some permanence; that is, a place where a person is living or temporarily staying for more than a limited time. A person may have several residences for different purposes; if so, then a person who is required to register must register the address of each such address that is within California. [¶] The term 'reside' means more than passing through or a presence for a limited visit."
The evidence in this case was in conflict. Castro attempted to establish he lived in Mexico and only "visited" San Diego on occasion. The prosecution case included admissions that he either "lived" or "stayed" with his family two to three days each week and that the balance of each week he stayed with his sister at a different address in San Diego. The record also contains admissions by Castro of his desire not to register in order to avoid deportation. He intentionally kept his name out of the lease for the Gregory Street residence and the utilities for that home in order to keep officials from finding him in San Diego. If the jury believed the law enforcement witnesses and the observations from neighbors and relatives, it could reasonably have been convinced that Castro was residing in San Diego and not Mexico and that he was well aware of his duty to register and willfully failed to do so. The jury apparently accepted the prosecution evidence and rejected the defense effort to raise a reasonable doubt that Castro actually resided in Mexico and only visited California. That conclusion is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.