Opinion
G052851
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. LUC HIEP DOAN, Defendant and Appellant.
Richard Jay Moller for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Kristen Hernandez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF1779) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Richard Jay Moller for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
Luc Hiep Doan appeals from a judgment after a jury convicted him of two counts of lewd acts upon a child under 14 years old. Doan contends the trial court erred by failing to suppress his pre-Miranda statements and confession. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He also argues his trial counsel provided ineffective assistance of counsel by failing to provide proof of his low I.Q. at the suppression hearing. His contentions have no merit, and we affirm the judgment.
FACTS
Doan and his wife lived with multiple families in a shared house including children and the victim, T.H. T.H. claimed Doan sexually abused her at the shared home when she was approximately eight to 11 years old. One particular incident occurred when T.H. was about 10 or 11 years old. That night, T.H. was sleeping on her bunk bed and woke up when Doan inserted his finger in her vagina and "started rubbing it." Doan stopped touching T.H. when her father, J.H., entered the room and asked what Doan was doing. A few days later, the family moved out of the shared house. T.H. further alleged Doan put his finger in her vagina on at least one other occasion in the garage of the shared house, although this incident was only reported at trial.
T.H. alleged J.H. sexually abused her starting when she was four years old until she was 14 years old. T.H. revealed the incident with Doan in one of her counseling sessions in connection with her father's sexual abuse.
In 2014, Orange County Sheriff Department investigators Carol Almaguer and Brent Jasper went to Doan's apartment to interview him. Both investigators were dressed in civilian clothes, but had badges and guns on their hips. The investigators also brought social worker and Vietnamese interpreter Khac Quy Nguyen with them to the interview. The interview was recorded with a video and audio recorder.
The investigators asked Doan to step outside to speak with them, allowing him to go inside to put a shirt on before they began. The interview lasted about 80 minutes. The interview was conducted in the hallway outside of Doan's apartment, and the investigators never entered the apartment. At the beginning of the interview, Doan asked his wife to help him remember a few names and dates. Shortly thereafter, the investigators asked her to step inside so they could interview Doan alone.
Once Doan was alone, Almaguer told Doan they were investigating T.H.'s accusation that Doan touched her vagina. Doan denied the accusation. Almaguer, employing a ruse technique of investigation, told Doan they found his DNA on T.H. during a medical examination conducted years ago. Doan appeared not to understand what DNA meant.
Doan told the investigators he had taken T.H.'s pants off once when she wet the bed. He then denied touching T.H. again, before stating that he might have accidentally touched T.H. while changing her. Doan said T.H.'s mother, L.H., saw him pull T.H.'s pants up and L.H. screamed. Doan said L.H. accused him of being "sexually flirtatious" and T.H.'s family moved out shortly after the incident. Several times throughout the interview the investigators told Doan he was not under arrest, he did not have to talk to them, and he could leave and go back into his apartment at any time.
After continued questioning, in which the investigators told Doan they had "nanny cam" footage from the incident, Doan admitted he touched T.H.'s vagina one time with his hand. He demonstrated to the investigators how he touched her and said he was drunk at the time. He also admitted to touching T.H.'s vagina two or three other times, claiming she "lured" him into her room. At that point, the investigators informed Doan he was under arrest and read him his Miranda rights.
An amended information charged Doan with two counts of lewd acts upon a child under 14 (Pen. Code, § 288, subd. (a)). The jury found Doan guilty on both counts. The trial court sentenced Doan to three years for each count, to run concurrently.
All further statutory references are to the Penal Code. --------
Prior to trial, Doan moved to exclude statements made prior to Miranda warnings. The trial court denied Doan's motion to suppress the pre-Miranda statements, determining Doan was not in custody during the interview with law enforcement outside of his apartment.
At trial, T.H. testified to the abuse committed by Doan. L.H. also testified she saw Doan standing over T.H. as she was sleeping and "freaked out." L.H. stated the family moved out of the house they shared with Doan the next day because of the incident.
A defense investigator testified Doan was five feet one inch tall. Certified Vietnamese interpreter Chau Stotelmyre translated and corrected Doan's interview transcript. Stotelmyre found several errors in the transcript, including mistranslating: "'molesting'" as "'sexually harass,'" "'finger'" as "'hand,'" and "'touch'" as "'mak[e] contact.'" Additionally, compound questions were not translated in full.
DISCUSSION
Motion to Suppress
Two things are required for Miranda warnings to be required; a defendant must be in custody and also under interrogation. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Here, the only issue on appeal is whether Doan was in custody when the investigators interviewed him outside his home. The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) However, because there are no disputed facts to be decided, 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.)
In making the determination as to whether a person was in custody, we consider the totality of the circumstances surrounding the incident. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) While no one particular factor is controlling, courts should consider: "'(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.' [Citation.]" (Ibid.) Other circumstances to consider include "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. [Citation.]" (Id. at pp. 1403-1404.)
Focusing on the totality of the circumstances surrounding the Doan interview and considering the objective test of whether a reasonable person in Doan's position would have felt free to leave, Doan was not in custody when he was interviewed by investigators outside of his apartment. At the initiation of the interview, Doan willingly stepped outside his apartment to speak with the investigators. While the interview lasted approximately 80 minutes, as noted by the trial court, the length of the interview seemed to be mainly dictated by the need to interpret all questions and responses between English and Vietnamese. Doan claims he was confined to a small space during the interview and that his exits were blocked by the two investigators. However, the interview occurred in an outdoor hallway directly outside of Doan's apartment, in front of a flight of stairs. There was no indication he could not leave by simply walking into his apartment or exiting down the stairs. In fact, Doan never expressed a desire to leave or go back into his home. While there were three people acting as part of the interview, only two were police officers. The nature of the questioning was consistently cordial and neither investigator raised their voices nor directed Doan what to do or where to stand. In fact, both investigators told Doan on several occasions throughout the interview that he was free to leave and did not have to talk to them.
Doan makes much of the fact that interviewers employed "ruse" techniques claiming they had DNA and surveillance camera footage of the assault. However, simply telling a suspect in an interview there was evidence linking him to the crime is insufficient on its own to create a custodial interrogation. (Oregon v. Mathiason (1977) 429 U.S. 492, 495-496.)
Doan also argues his confession should have been excluded because it was not voluntary. A confession is deemed involuntary and inadmissible if there is a finding of coercive police conduct. (In re Elias V. (2015) 237 Cal.App.4th 568, 577 (Elias V.).) "Voluntariness turns on all the surrounding circumstances, 'both the characteristics of the accused and the details of the interrogation.' [Citation.]" (Ibid.) We independently review whether the confession was given voluntarily. (Ibid.)
Doan relies heavily on Elias V. for the proposition the totality of the circumstances demonstrates his confession was coerced because he was "particularly susceptible" to making an involuntary confession because he was 73 years old, of slight stature, did not speak English, and had an I.Q. of 80. Elias V. is distinguishable.
In re Elias V. involved a 13-year-old charged with committing a lewd and lascivious act upon a child under the age of 14 years. (Elias V., supra, 237 Cal.App.4th at p. 570.) Defendant was taken out of class by his principal and brought to a small room where he was interviewed by two police officers while a third uniformed officer stood outside. (Id. at pp. 574, 583.) The police engaged in aggressive and persistent interview techniques and confronted the defendant with false evidence against him. (Id. at p. 583.) Police also threatened to subject the defendant to a lie detector test against his will. (Id. at p. 584.) The defendant confessed, and this confession was admitted at trial. (Id. at p. 575.) The Court of Appeal reversed, determining the confession was involuntary due to the defendant's youth, which rendered him susceptible to influence; the absence of any evidence corroborating his inculpatory statements; and the likelihood that the use of deception and overbearing interrogation tactics would induce an untrustworthy admission. (Id. at pp. 586-587, 591.) The court declined to decide whether the "dominating, unyielding, and intimidating" nature of the interrogation would be sufficient to undermine the voluntariness of the confession. (Id. at p. 586.)
Here, by contrast, the interview took place outside of Doan's apartment and was voluntary. Doan was told he was free to leave on several occasions. The tone of the interview was conversational. Unlike the defendant's youth in Elias V., there is no indication in the record that Doan's age, build, or even I.Q. would have made him particularly susceptible to falsely confessing. Another distinguishing factor is here there was ample corroboration for Doan's confession through the testimony of T.H. and L.H.
Ineffective Assistance of Counsel
Doan argues his trial counsel rendered ineffective assistance of counsel because he failed to provide proof of Doan's low I.Q. at the suppression hearing. In order to establish such a claim, Doan "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. [Citations.]" (People v. Centeno (2014) 60 Cal.4th 659, 674.)
Doan's entire argument consists of one sentence buried in a footnote. He claims his counsel erred by failing to introduce evidence of his low I.Q. at the suppression hearing and there was "no conceivable tactical advantage for trial counsel to fail to do so." The record reflects Doan's trial counsel presented evidence to the court regarding Doan's inability to understand he was free to leave, his minimal education, his inability to understand terms such as "DNA," his inability to understand Miranda rights, and his lack of understanding English. While he may not have specifically introduced evidence of Doan's precise I.Q., there is ample evidence of his lack of education and understanding. Doan fails to demonstrate his counsel was deficient. Doan also ignores the second prong of the ineffective assistance of counsel test, providing no argument or authority for how his counsel's alleged deficiencies resulted in prejudice. The argument lacks merit.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. THOMPSON, J.