Opinion
G054577
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JOEL GUERRERO-JASSO, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF2482) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Joel Guerrero-Jasso of four counts of sexual assault against his two minor daughters, found true special multiple victim allegations, and the trial court sentenced him to an indeterminate term of imprisonment of 55 years to life plus a concurrent three-year determinate term. On appeal, Guerrero-Jasso claims the trial court prejudicially erred by admitting his postarrest statements to police, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Because his Miranda advisement was in English, and English is not his native language, he maintains the advisement was faulty, his waiver was therefore involuntary, and the trial court's admission of his subsequent statements to police was reversible error. We disagree and affirm the judgment.
FACTS
Since the only issue before us is the legal question whether Guerrero-Jasso's statements to police were properly admitted after a valid waiver of his Miranda rights, we need only provide a brief factual summary. A first amended information charged Guerrero-Jasso with the following: lewd act upon a child [C.G.] (Pen. Code, § 288, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1); lewd act upon a 14 to 15 year old minor at least 10 years younger than her assailant [C.G.] (§ 288, subd. (c)) (count 2); forcible oral copulation upon a minor 14 years and older [C.G.] (§ 288a, subd. (c)(2)(C)) (count 3); and lewd act upon a child [I.G.] (§ 288, subd. (a)) (count 4).
It was further alleged that in the commission of counts 1, 3, and 4, pursuant to section 667.61, subdivisions (b) and (e)(4), Guerrero-Jasso committed an offense specified in section 667.61, subdivision (c), against more than one victim.
Victims' Testimony
Two of Guerrero-Jasso's daughters testified their father had molested them each repeatedly, over a period of years. C.G. is the eldest and beginning when she was about eight years old, her father first touched her vagina and her "butt" over her clothing. She recalled this kind of touching occurred "constantly."
When she was about 14, her father began touching her unclothed vagina. This too occurred more than once. She recalled her father would threaten her if she refused, telling her he would not allow her to play sports or have a Quinceanera if she did not comply.
C.G. further testified that after she turned 15, her father again escalated his conduct by making her lie naked on the bed while he touched her "private parts"; these touchings now also included her "boobs," and he used his exposed penis as well as his hands. C.G. denied her father ever actually penetrated her vagina with his penis, but did testify he had put it between her vaginal lips. This occurred three or more times when C.G. was 15 or 16 years old. She recalled her father ejaculated on her chest during these later incidents, and on one occasion had her orally copulate him as well. Similarly, on two of these later occasions, he orally copulated C.G. While up until now C.G. had only been molested on the bed in their residence, she testified her father then began having her touch his penis and orally copulate him while they were together in the car.
When asked why she permitted all these things to happen, C.G. replied that she was afraid her father would get angry and hit her, because he had hit her before. One time he punched her in the head hard enough to leave a bruise. On cross-examination she clarified this punch had not happened because she refused to perform a sex act. When asked if she ever tried to get away from her father when these events were occurring, C.G. testified he would "pull [her] back."
I.G. is C.G.'s younger sister and also Guerrero-Jasso's daughter. I.G. testified that at some point in 2015, when she was in seventh grade, she came home from school one day and laid down on one of the beds to watch TV. She recalled her father came over to her and touched her "below [the] waist" on her vagina, both with his hands and with his exposed penis. While she did not give any further details, I.G. testified this conduct had happened more than one time.
Taped Interview of Guerrero-Jasso
Detective Arthur Guo of the Anaheim Police Department testified that after Guerrero-Jasso's arrest in September 2015, he conducted a tape-recorded interview with Guerrero-Jasso. Guo identified and authenticated People's Exhibits 1 and 1-A as an audio CD and transcript of that interview. The audio CD was played for the jury in open court, and copies of the transcript were given to the jurors to assist them in listening. The CD was subsequently admitted into evidence, over a continuing defense Miranda objection.
During the interview, Guerrero-Jasso admitted committing numerous sex acts against both C.G. and I.G.; more than either daughter testified to, and in greater detail than they had. Relating to the individual charges, Guerrero-Jasso admitted touching C.G. on her clothed vagina in 2012. This escalated to a point where he told Guo "it became more, and more, and more in my mind to touch it," and he began to touch C.G.'s vagina "once a week."
After some time, Guerrero-Jasso related he began to remove C.G.'s pants and "tried to have sex with her" by placing his penis on her exposed vagina. He insisted he never penetrated her. On the final occasion, when C.G. was 17, he did try to penetrate her but stopped before doing so. On this occasion, he admitted to also orally copulating her.
He admitted having C.G. put his penis in her mouth "two, maybe three times." After those incidents, however, C.G. told him she did not want to do it anymore, and he stopped.
Responding to Guo's questioning regarding his younger daughter, Guerrero-Jasso admitted trying to have sex with her on about three occasions. "[S]ame thing as like [C.G.]," he would place his penis next to her vagina but not penetrate her. During the last incident, he pulled I.G.'s pants down slightly, approaching her from behind, and "tried to have sex with her," but she began crying so he stopped.
The defense rested without offering any evidence, renewing its Miranda objections. The jury convicted Guerrero-Jasso on all four counts, and found true the special allegation regarding multiple victims. Guerrero-Jasso was sentenced to an indeterminate prison sentence of 55 years to life on counts 1, 3, and 4, with a three-year determinate sentence to run concurrently on count 2.
DISCUSSION
Guerrero-Jasso contends the trial court erred by denying his motion to suppress his postarrest statements to police. He argues the statements were involuntary because the waiver of his Miranda rights was neither knowing nor intelligent since the police did not advise him in his native Spanish language.
The prosecution has the burden of proving by a preponderance of the evidence that a confession was voluntary. (People v. Cahill (1994) 22 Cal.App.4th 296, 310; see also Colorado v. Connelly (1986) 479 U.S. 157, 168 ["[T]he State need prove waiver only by a preponderance of the evidence"].) "While deferring to any factual findings made by the court below, we independently review the legal issue of the voluntariness of the statements in question. [Citation.] In deciding that issue we review the entire record, noting all the surrounding circumstances including the characteristics of the accused and the nature of the interrogation. [Citations.]" (People v. Hall (2000) 78 Cal.App.4th 232, 239; People v. Cunningham (2001) 25 Cal.4th 926, 992 ["[W]e accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence"]; cf. Edwards v. Arizona (1981) 451 U.S. 477, 482 [waiver is "a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused' [Citations.]"].) When, like here, an interview is tape-recorded, the facts surrounding an admission or confession are undisputed, making the issue subject to our independent review. (People v. Linton (2013) 56 Cal.4th 1146, 1177.)
In Miranda, supra, 384 U.S. 436, the United States Supreme Court addressed the admissibility of statements obtained from a person who is subjected to custodial police interrogation, and set forth certain procedures to ensure the individual is accorded his or her privilege under the Fifth Amendment to the United States Constitution not to be compelled to incriminate himself. The Court held: "[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Id. at pp. 478-479, fn. omitted.)
In explaining the basis for its decision, the Miranda court stated: "For those unaware of the [right to remain silent], the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise." (Miranda, supra, 384 U.S. at p. 468.) Likewise, the warning that anything said can and will be used against the individual "is needed in order to make him aware not only of the [Fifth Amendment] privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." (Id. at p. 469; see also Colorado v. Spring (1987) 479 U.S. 564, 574 ["The Miranda warnings ensure that a waiver of [the Fifth Amendment privilege against self-incrimination] is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him"].)
With these principles in mind, we consider the evidence presented at the motion hearing and the trial court's ruling in this case. Guerrero-Jasso brought a written pretrial motion to suppress his statements pursuant to Evidence Code section 402. At the hearing the prosecution submitted a CD of the tape-recorded interview of Guerrero-Jasso for the trial court's consideration. The defense offered its prepared transcript of the interview recorded in exhibit 1, and for some reason it was marked "People's exhibit 1A." The exhibits show Guerrero-Jasso was interviewed by Guo on September 10, 2015, at the Anaheim Police Department, and it was there that Guerrero-Jasso was advised and purportedly waived his Miranda rights.
The exhibits were not made part of the record on appeal by the superior court, and neither party has requested they be transmitted to us. On our own motion, we ordered them transmitted to us for our review. (Cal. Rules of Court, rules 8.340, subd. (c) & 8.155, subd. (a)(1)(A).)
This defense-prepared transcript is at times slightly different from the prosecution-prepared transcript introduced at trial and given to the jury. Because it was before the trial court at the motion hearing, however, we have used the defense transcript in assessing the Miranda issues, while in summarizing the trial evidence, we have used the prosecution's redacted transcript given to the jury as "People's exhibit 1A." For purposes of the issues raised in this appeal, any differences between the two transcripts are nugatory.
No other evidence was adduced at the motion hearing, and the defense submitted the matter on its moving papers.
Below, before submitting on the matter, defense counsel asked the trial court to take judicial notice of the fact Guerrero-Jasso was being assisted by a Spanish-language interpreter, and the court did so. The court added, however, "I will also note that yesterday when I asked a question, [Guerrero-Jasso] answered the question prior to the -- it being translated. So I just note that since we're noting that. [¶] [Defense Counsel]: Fair enough."
The exchange went as follows:
"[Guo]: Interview of Joel Guerrero, Anaheim PD. You can relax and put your hands down. Joel, right?
"[Guerrero-Jasso]: Yes.
"[Guo]: What was your last name?
"[Guerrero-Jasso]: Guerrero.
"[Guo]: Guerrero? G . . .
"[Guerrero-Jasso]: U-E . . .
"[Guo]: U-E ...
"[Guerrero-Jasso]: Double R.
"[Guo]: Double R.
"[Guerrero-Jasso]: E-R-O.
"[Guo]: E-R-O, okay. Joel and then middle name?
"[Guerrero-Jasso]: Oh, I don't have a middle name.
"[Guo]: No middle name? What's your birthday, sir?
"[Guerrero-Jasso]: Eight Ten 'Eighty.
"[Guo]: Uh, Eight Ten 'Eighty?
"[Guerrero-Jasso]: Uh-huh.
"[Guo]: Okay. Okay, my name is Arthur Guo, I'm a detective with Anaheim PD.
"[Guerrero-Jasso]: Okay.
"[Guo]: Okay so I'd like to ask you a couple questions and then before we begin I have to read you your Miranda [r]ights, okay? Um, you comfortable talking in English?
"[Guerrero-Jasso]: Yeah.
[Guo]: Yeah? Okay and then after I read you each right just answer yes or no, okay? You have the right to remain silent, do you understand? Yes or no?
"[Guerrero-Jasso]: Yes.
"[Guo]: Anything you say may be used against you in court, do you understand?
"[Guerrero-Jasso]: Yes.
"[Guo]: You have the right to the presence of an attorney before and during any questioning, do you understand?
"[Guerrero-Jasso]: Yes.
"[Guo]: If you cannot afford an attorney one will be appointed for you free of charge before any questioning if you want, do you understand that?
"[Guerrero-Jasso]: Yes, I understand.
"[Guo]: Okay, is it okay if we talk?
"[Guerrero-Jasso]: Yes."
The sole issue Guerrero-Jasso raises on appeal regarding the admissibility of the statements he made in the interview is whether the trial court properly found he had validly waived his rights under Miranda. More particularly, he narrowly focuses his claim on the fact Guo advised and questioned him in the English language, and not in Spanish, his native language. And because of this, he argues his waivers were neither knowing nor intelligent; i.e., they were involuntary.
In Moran v. Burbine (1986) 475 U.S. 412 (Moran), the Supreme Court made clear that to determine whether a person voluntarily, knowingly, and intelligently has waived his or her Miranda rights, a court must consider two distinct components: "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." (Id. at pp. 421-423, fn. omitted.)
The record before us is devoid of any suggestion the police, Guo, or others, resorted to physical or psychological pressure to elicit statements from Guerrero-Jasso. To the contrary, his willingness to speak with Guo is readily apparent from the beginning of the interview, including his waivers and his responses to questioning until the very end of the interview, when Guerrero-Jasso began crying and wanted to stop the interview.
Moreover, there is nothing to suggest Guerrero-Jasso was worn down by improper interrogation tactics, lengthy questioning, trickery or deceit. (See generally, Moran, supra, 475 U.S. at pp. 421-424, fn. omitted.) Similarly, there is no evidence before us Guerrero-Jasso was induced to provide his statements by any improper promises. On its face, therefore, the basic voluntariness of the waiver is clear. (See Colorado v. Connelly (1986) 479 U.S. 157, 164 ["Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. (Fn. omitted.)"]; see also Fare v. Michael C. (1979) 442 U.S. 707, 726-727 (Fare); Moran, supra, 475 U.S. at pp. 421-422.)
The second component of the Moran analysis focuses on whether an individual was aware of the rights he or she was abandoning, and of the consequences of a decision to do so. The trial court found Guerrero-Jasso's answers were clear and responsive, and both the tape recording and the transcript support that conclusion:
"[The Court]: I listened to the tape. I found nothing to suggest that the waiver was excessive in the standpoint of based on [Guo's] conduct. The officer's voice was down, was very mild mannered. . . . There were times in which the defendant clarified things or asked for -- asked questions back to the officer.
"All of his answers seem responsive, except for at one point there is a definitional issue [regarding whether the meaning of the word "sex" means actual penile penetration]. That was the only time where there were clarifications back and forth.
"The court finds that the waiver was knowing, intelligent and voluntary by the standard of preponderance."
We note Guerrero-Jasso was asked whether he was "comfortable" speaking in English, and he responded "Yeah." In addition, when asked if he understood each of his rights, Guerrero-Jasso replied (in English): "Yes." Finally, when Guo asked if it was "okay if we talk", Guerrero-Jasso unequivocally replied (in English): "Yes."
Nonetheless, on appeal Guerrero-Jasso renews his argument that because the advisements were not given nor the waivers taken in his native Spanish language they were inadmissible under this second prong of the Moran analysis. In support, he relies on the decision of the Ninth Circuit Court of Appeals in United States v. Garibay (9th Cir. 1998) 143 F.3d 534 (Garibay). Both parties focus on this case in their briefing.
In Garibay, the court reversed a trial court's finding that the defendant made a knowing and intelligent waiver of his Miranda rights because the evidence showed the defendant was a person of low intelligence, with no experience in the criminal justice system, whose native language was Spanish, and who produced independent evidence of his inability to understand English. (See Garibay, supra, 143 F.3d at pp. 538-539.)
Unlike the present case, in Garibay, "the record clearly indicate[d] that [the defendant's] primary language is Spanish and he underst[ood] only a few things in English," based on his high school grades in English, and the testimony of his high school football coach. (Garibay, supra, 143 F.3d at pp. 537-538, italics added.) Just as important to the court, it was "undisputed that [the defendant's] IQ is borderline retarded and that he has difficulty understanding the English language." (Id. at p. 538, fn. omitted.)
At the suppression motion hearing in Garibay, the evidence actually showed the defendant understood only a few things in English: "[The defendant] attended a U.S. high school where he received English instruction and received D+ grades in eleventh and twelfth grade English. These grades do not support a finding that he is sufficiently proficient in English to have waived his Miranda rights. [The defendant] did not graduate from high school. According to the presentence report, [the defendant received the passing grades in English because those classes were taught using Spanish. Moreover, a probation officer reported that several independent sources in the community told him that 'they did not believe[the defendant] could speak English except for a few words.' In addition, with the exception of [the federal agent], every witness at the suppression hearing testified that at [the defendant's] request they would always communicate with him in Spanish. These witnesses include [the defendant's] former high school counselor, [his] former football coach, the clinical psychologist who examined [him], and the probation officer who prepared [his] pre-sentence report." (Garibay, supra, 143 F.3d. at pp. 537-538.)
Even though the United States Customs agent testified the defendant told him he understood English, "[the defendant's] former high school football coach testified that when under stress and interacting with persons of authority, [the defendant] often claimed to understand English and gave the appearance of comprehending English, when in fact he did not understand what was being said to him." The court concluded "[a] fair reading of the record does not support a finding that [the defendant] understood his constitutional rights to remain silent and to have the assistance of counsel. Nor does the record support a finding that [the defendant] understood that he had the option to knowingly and intelligently waive those rights." (Garibay, supra, 143 F.3d at p. 538.)
Guerrero-Jasso, in contrast, is a person whose native language is presumably Spanish, but based on the evidence presented at the motion hearing, is one who speaks responsively and intelligently in English, and, unlike in Garibay, one who produced no independent evidence of an inability to understand and speak English. Similarly, there is no evidence in the record Guerrero-Jasso is "borderline retarded," and does not possess at least average intelligence.
Guerrero-Jasso argues he did provide such evidence, and points to the fact that he "required" the use of a Spanish language interpreter. He does not point to where in the record such a "requirement" can be found, but instead only points to the fact the trial court took notice Guerrero-Jasso was being "assisted by an interpreter."
In United States v. Abou-Saada (1st Cir. 1986) 785 F.2d. 1, 10-11, the court rejected the defendant's argument that the very fact he was provided an interpreter showed an inadequate knowledge of the English language. We agree with the Abou-Saada court.
Guerrero-Jasso also argues the prosecution's exhibit 1 itself shows his inability to speak and understand English, claiming it demonstrates he "answered virtually all of Guo's questions in Spanish." Not so. We have listened to the 48 minute-long interview and read both the defense and prosecution's transcripts of it. We can find only one instance when Guerrero-Jasso answered a question using Spanish, and then only partially, by using the word "si" in the middle of an otherwise English response.
"[Guo]: So you put [your penis] on the outside [of C.G.'s vagina] and you tried to put it in?
"[GuerreroJasso]: The last, last time, si, yes."
Guerrero-Jasso argues his lack of English proficiency is shown by the fact he and his family "had only recently come from Mexico." The inference to be drawn from this, presumably, is that a recent arrival may have more extreme language issues because he or she may be completely unaware of the customs and cultures (and legal systems) of the new country.
The problem with this assertion, however, is that it too is not supported by the record. Guerrero-Jasso points to the portion of his interview where he and Guo are discussing when it was he first molested C.G.:
"[Guo]: Okay. When did it first happen?
"[Guerrero-Jasso]: I don't know [inaudible] here when, when she got here.
"[Guo]: When she got here?
"[Guerrero-Jasso]: Yeah.
"[Guo]: What do you mean by when she got here?
"[Guerrero-Jasso]: 'Cause I bring my wife and my daughter from Mexico.
"[Guo]: Oh, okay.
"[Guerrero-Jasso]: I bring them from Mexico.
"[Guo]: Um, your daughter [C.G.] she was, uh, she was born in Mexico?
"[Guerrero-Jasso]: Yeah.
"[Guo]: Okay. What - , when did they come to the United States?
"[Guerrero-Jasso]: In the 2000 . . . I remember when it happened in 2011, on the, the same day what happened with the . . .
"[Guo]: 911?
"[Guerrero-Jasso]: Yeah.
"[Guo]: Okay. So 2011 in September, uh, [inaudible] . . .
"[Guerrero-Jasso]: Yes, yeah, yeah."
Guerrero-Jasso argues this exchange shows he had arrived in the United States in 2011, showing he came recently before his September 2015 interview.
This passage actually illustrates a confusion on both Guo's part as well as Guerrero-Jasso's. First of all, "911" refers to September 11, 2001, not 2011. More importantly, this mistake is clarified and corrected later in the interview when Guo asked Guerrero-Jasso if he had ever molested C.G. before she came to the United States, and Guerrero-Jasso insisted he had not:
"[Guo]: No? Okay. 'Cause [sic] 2011, that's only four years ago. Right?
"[Guerrero-Jasso]: No. That - 2001 when . . .
"[Guo]: 2001?
"[Guerrero-Jasso]: . . . that happened.
"[Guo]: Oh, 2001? Okay.
"[Guerrero-Jasso]: 2001 when I had that happen.
"[Guo]: Okay. 2001.
"[Guerrero-Jasso]: That when the towers came down?
"[Guo]: Yeah. How old was [C.G.] then?
"[Guerrero-Jasso]: Three years old."
So the 2001/2011 confusion was remedied by Guerrero-Jasso himself, and in English no less, and it is he who set Guo straight. Guerrero-Jasso was not a "recent arrival" from Mexico at all. He had been here since at least 2001; i.e., 14 years at the time of his interview. From this, the only thing we can infer is that Guerrero-Jasso understood English well enough and expressed himself well enough to correct Guo's misunderstanding, and did it in English.
Guerrero-Jasso also argues his limited English proficiency is demonstrated by Guo's testimony he agreed Guerrero-Jasso did not speak "perfect" English, and when Guerrero-Jasso's defense counsel characterized him as having a heavy accent. Setting aside the fact the suppression motion was heard before trial, and Guo had yet to acknowledge anything, we agree the recorded interview in exhibit 1, which was before the trial court at the motion hearing, does show that Guerrero-Jasso does speak in a heavily accented English.
Similarly, Guerrero-Jasso refers to Guo's testimony at the preliminary examination as evidencing a "pronounced accent." However, there is no evidence in the record showing the trial court considered the transcript of the preliminary examination, held before a different judge, in the later suppression motion hearing. It is true the trial court did read the preliminary hearing transcript before hearing an earlier section 995 motion. The issues in that motion involved the sufficiency of evidence as to certain counts in the felony complaint, and had nothing to do with the issues raised in the later suppression motion and in this appeal.
Nevertheless, the fact a defendant has some difficulty with English does not render a waiver of Miranda rights invalid. (United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 752 [even though defendant clearly had difficulties with English and required an interpreter at trial, his waiver of Miranda rights was nonetheless valid because most importantly, after police explained each of his rights to him in English, appellant stated in English that he understood his rights].) Even where a defendant has limited skills in English, he or she may knowingly, intelligently, and voluntarily waive Miranda rights, provided the totality of the circumstances indicates that he or she understood those rights when they were waived. (People v. Salcido (2008) 44 Cal.4th 93, 127-128.)
Finally, we must observe Garibay was decided in 1998, involved an interview that occurred in 1995, and involved federal law enforcement officers operating under quite different policies and protocols from those of the Anaheim police in this case. (Garibay, supra, 143 F.3d at p. 536.) The Garibay court was understandably concerned about a lack of written waivers (particularly the United States Customs Service policy against them), and the evidentiary value of such an absence and its preference for one. In this case, however, there is a much more salient distinction that neither party has discussed. Here we have an undisputedly accurate tape recording (and two transcripts) of Guerrero-Jasso's Miranda advisement and waivers.
Nowhere in the Garibay opinion is there any indication of a recorded interview. Indeed, the circuit court was "troubled with" the federal government's policies prohibiting written waiver forms, let alone tape recordings. (Garibay, supra, 143 F.3d at p. 540.) It appears the Garibay court only had before it the questionable, and uncorroborated, testimony of a United States Customs agent to rebut the in-court testimony of Garibay's witnesses.
In our case, 20 years after the Garibay interview, we have clear tape-recorded evidence of Guerrero-Jasso's actual advisement, waivers, and subsequent statements to inform our review. We need not rely on the recollections and conclusions of possibly biased witnesses. Instead, we have the words, nuances, and any language issues available for our direct review.
We do agree with Guerrero-Jasso and do acknowledge the Garibay court's observations that language issues are a significant factor to be considered in the assessment of the adequacy of Miranda advisements and waivers in every case. Nonetheless, our perspective in reviewing that factor is completely different from and based on much more probative evidence than that which was available to the Garibay court, both due to the nature of evidence we have been able to review and the absence of any evidence to the contrary.
Thus, we find the trial court properly determined that prior to his interview, Guerrero-Jasso was aware of his rights and knowingly waived them. As was true with regard to the defendant in Fare, supra, 442 U.S. at p. 726, there is no evidence before us that Guerrero-Jasso lacked sufficient ability to understand those rights or the consequences of his waiver. Rather, the evidence does show a knowing and intelligent waiver. The trial court listened to the recording, read a transcript, and found a valid waiver. We have reviewed both as well, and they support this conclusion.
Consequently, based upon our independent review of the evidence, including the taped recording and both transcripts of Guerrero-Jasso's interrogation, we conclude the trial court's ruling was sound, and the prosecution met its burden to show Guerrero-Jasso voluntarily, intelligently, and knowingly waived his Fifth Amendment rights. The trial court rejected Guerrero-Jasso's claim his confession was involuntary and we have no reason to disturb that ruling. Accordingly, the trial court properly denied Guerrero-Jasso's motion to suppress his postarrest statements.
The Attorney General argues that even if the trial court's ruling on the suppression motion was erroneous, any such error is harmless beyond a reasonable doubt, citing Chapman v. California (1967) 386 U.S. 18. In his reply brief, Guerrero-Jasso disagrees. Because we have concluded the trial court's ruling was not error, we need not consider this issue. --------
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.