Opinion
D073857
09-19-2018
THE PEOPLE, Plaintiff and Respondent, v. RAMIRO GONZALEZ, SR., Defendant and Appellant.
Robert E. Boyce, 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, Barry Carlton and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1300837) APPEAL from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed. Robert E. Boyce, 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, Barry Carlton and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Ramiro Gonzalez, Sr. guilty of one count of aggravated sexual assault of a child under 14 by sodomy (Pen. Code, § 269, subd. (a)(3)), one count of aggravated sexual assault of a child under 14 by rape (§ 269, subd. (a)(1)), two counts of committing a forcible lewd and lascivious act upon a child under 14 (§ 288, subd. (b)(1)), and one count of aggravated sexual assault of a child under 14 by oral copulation (§ 269, subd. (a)(4)). The trial court sentenced Gonzalez to a determinate prison term of 16 years and a consecutive indeterminate prison term of 45 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Gonzalez contends that the trial court erred in admitting evidence of statements that he made to an investigator while in jail awaiting trial. As we will explain, we conclude that Gonzalez has forfeited the argument because no objection was made at trial, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
As Jane Doe testified at trial, when she was six or seven years old, Gonzalez began to sexually molest her by touching her breasts and genitals. The molestation later increased in seriousness to include vaginal penetration, anal penetration and oral copulation. When Jane Doe was 12 years old, she disclosed the molestation to adults at her school, and Gonzalez was eventually arrested. A doctor who examined Jane Doe found unusual injuries to Jane Doe's anus and concluded that sexual abuse was "highly suspected."
As relevant to the issue presented in this appeal, on November 4, 2014, while Gonzalez was in jail awaiting trial on this matter, an investigator for the district attorney's office was directed to obtain a search warrant and to take photographs of Gonzalez's body. The investigator also conducted a follow-up interview with Gonzalez, during which he informed Gonzalez of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) During the interview, the investigator told Gonzalez that Jane Doe had identified Gonzalez's penis from a photograph as being "gray and uncircumcised," to which Gonzalez responded with the equivalent of "Oh, fuck" in Spanish. The investigator also informed Gonzalez that Jane Doe had suffered an injury to her anus. Gonzalez told the investigator that Jane Doe had fallen down on the edge of a sidewalk and injured her anus, and he stated that his wife took Jane Doe to the hospital for the injury. During trial, the jury heard recordings of phone calls that Gonzalez made to his wife and son following the interview with the investigator. Gonzalez asked his wife if she remembered Jane Doe falling on a sidewalk, but she stated she did not remember. Gonzalez asked his son to tell Gonzalez's wife that she took Jane Doe to the hospital when she hit herself on the sidewalk.
On the relevant date, a preliminary hearing had already taken place and Gonzalez was represented by counsel.
According to a motion in limine filed by the People, Gonzalez had last been questioned by police in this matter upon his arrest approximately 11 months earlier, at which time he declined to make a statement and asked for a lawyer. --------
The jury found Gonzalez guilty of all counts: aggravated sexual assault of a child under 14 by sodomy (§ 269, subd. (a)(3)), aggravated sexual assault of a child under 14 by rape (§ 269, subd. (a)(1)), aggravated sexual assault of a child under 14 by oral copulation (§ 269, subd. (a)(4)), and two counts of committing a forcible lewd and lascivious act upon a child under 14 (§ 288, subd. (b)(1)). Gonzalez was sentenced to a determinate prison term of 16 years, and a consecutive indeterminate prison term of 45 years to life.
II.
DISCUSSION
Gonzalez's sole argument on appeal is that the trial court prejudicially erred in admitting evidence of the statements that Gonzalez made to the investigator. According to Gonzalez, because he invoked his Miranda rights 11 months prior to the interview with the investigator, and he was still in custody on the same offense, it was improper under Edwards v. Arizona (1981) 451 U.S. 477, for the investigator to initiate any further questioning of him. The People contend that the argument has been forfeited because defense counsel did not object to the admission of the evidence in the trial court. As we will explain, we agree with the People that the issue has been forfeited.
The admissibility of Gonzalez's statements to the investigator was raised by the People in a motion in limine. Specifically, the People sought a ruling permitting them to introduce evidence of (1) statements Gonzalez made to the investigator on November 4, 2014; and (2) statements Gonzalez made to law enforcement officers in an interview in November 2013 before he was arrested in December 2013. As the People argued in their motion in limine, the statements should be admissible because "defendant was properly advised of his rights and defendant acknowledged that he understood those rights during all of his interviews."
At the in limine hearing, the following discussion took place regarding the People's motion:
"The Court: And then any statements . . . that Mr. Gonzalez is alleged to have made that were properly Mirandized, again, certainly come in as party admissions, and I don't believe [defense counsel] has any great objections to those.At trial, during the presentation of evidence, defense counsel made no objection to the admission of the statements that Gonzalez made to the investigator.
"[Defense counsel]: No.
"The Court: I'm sure he would prefer they not come in.
"[Defense counsel]: True.
"The Court: Again, long standing California law would allow their admission . . . . I will grant that request."
An evidentiary objection at trial is a prerequisite to obtaining reversal of a judgment based on the erroneous admission of evidence. As our Supreme Court has explained, " 'Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was "timely made and so stated as to make clear the specific ground of the objection." Pursuant to this statute, " 'we have consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.' " ' " (People v. Rundle (2008) 43 Cal.4th 76, 116.) "Miranda-based claims are governed by this rule. 'The general rule is that a defendant must make a specific objection on Miranda grounds at the trial level in order to raise a Miranda claim on appeal.' " (People v. Mattson (1990) 50 Cal.3d 826, 854.) Indeed, an appellate court is barred from reaching a question that has not been preserved for review by a party "when the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of evidence." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
Here, defense counsel made no objection to the admission of Gonzalez's statements to the investigator. In fact, when directly asked by the trial court whether he had "any great objections to those," defense counsel affirmatively stated "no" and failed to articulate any ground for the exclusion of the evidence. Although, defense counsel said "true" when the trial court observed that it was "sure" defense counsel would prefer that the evidence not be admitted, defense counsel's comment does not constitute an objection to the admission of the evidence as counsel set forth no legal basis on which the evidence should be excluded. Instead, the statement appears simply to be an acknowledgment that the evidence was not helpful to Gonzalez's case. Accordingly, because defense counsel did not object, Gonzalez may not on appeal seek reversal of the judgment based on the contention that the trial court erred in admitting evidence of his statements to the investigator.
In his appellate briefing, Gonzalez did not argue that defense counsel was constitutionally ineffective for failing to object to the admissions of Gonzalez's statements to the investigator. At oral argument, however, appellate counsel for Gonzalez requested to submit supplemental briefing to raise an ineffective assistance of counsel claim on appeal. We hereby deny the request. "[B]ecause, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. . . . ' [T]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.' " (People v. Wilson (1992) 3 Cal.4th 926, 936; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where facts necessary to a determination of whether certain evidence should have been excluded were not developed at trial, and it was not known why counsel failed to move to suppress the evidence, "[a] claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding"].) As we understand the ineffective assistance of counsel claim that Gonzalez intends to raise, it would be more appropriately presented and resolved in connection with a petition for habeas corpus because (1) the appellate record is not developed as to the circumstances surrounding the investigator's interview with Gonzalez, which may have some bearing on the question of admissibility; and (2) the appellate record does not reflect defense counsel's reasons for failing to make an objection.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.