Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF117386, Gordon R. Burkhart, Judge. Affirmed with directions.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of six counts of lewd acts against a child (Pen. Code, § 288 subd. (a)) and found true a special allegation that the acts were committed against more than one victim (Pen. Code, § 667.61, subd. (e)(5)). Defendant contends on appeal, and we agree, that the trial court erroneously admitted evidence of his statement, “I did bad things to [sic] little girl” to a police officer in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). However, we conclude the error was harmless beyond a reasonable doubt and, therefore, affirm the judgment of conviction.
Defendant additionally contends, and the People concede, that the trial court erroneously concluded it had no discretion to impose concurrent, rather than consecutive, terms of imprisonment for each of the counts for which he was convicted. We agree with both parties and remand the matter to the trial court for resentencing.
The trial court, after indicating it did not believe it had discretion to impose concurrent terms, sentenced defendant to six consecutive terms of 15 years to life, for a total term of imprisonment of 90 years to life, minus custody credits.
I. FACTS AND PROCEDURAL HISTORY
A. Prosecution’s Case
The victims’ mother (mother) testified that she and defendant met in October 2003 at a bar where they both worked. They began dating soon thereafter. The bar employed defendant as a security guard. Mother did not work for the bar; however, she would frequent the bar and charge patrons a premium to buy her drinks, converse, and dance with her. On two occasions before defendant and mother began dating, and on one occasion shortly thereafter, mother engaged in acts of prostitution with the bar’s patrons. Defendant helped her to stop the prostitution by financially assisting her and her daughters. He would buy mother and her daughters meals; he additionally bought the girls things, and would babysit, thereby saving mother money which would otherwise be spent on day care.
Although defendant maintained a separate apartment at which his daughter and granddaughter lived, he frequently spent the night at mother’s home and kept clothes there. Defendant, defendant’s daughter, and mother made arrangements to babysit each others’ children while they were at school or work. Defendant would watch mother’s children alone at her house sporadically during the first few months of their relationship. However, thereafter defendant would do so frequently whenever mother needed to go out.
In late January or early February 2004, mother’s eldest daughter, then eight-year-old Jane Doe 1, told mother that defendant had put his mouth on her vagina. Mother did not believe her because she had been prone to lying and making up stories. Mother also believed Jane Doe 1 may have made up the allegation because mother had disciplined her that day for getting her backpack dirty. In addition, mother believed Jane Doe 1 may have witnessed mother and defendant engaging in relations and may have put herself, psychologically, in the position of mother. Mother confronted defendant about the allegation and he denied it. Mother told Jane Doe 1 that it must have been a dream and not to make up such things.
On June 7, 2004, mother went to school in the morning and arrived home about 4:00 p.m. All three of her daughters were home. Defendant arrived at her house with his granddaughter between 4:30 and 5:00 p.m. Mother went into her room to take a nap. Defendant told mother that while she was sleeping he would make dinner for the girls. Mother would frequently take such naps after getting home from school because she worked nights. Unable to sleep, mother got up and went into the living room. There, she witnessed defendant standing in front of Jane Doe 2 with his penis in Jane Doe 2’s mouth. All three of her daughters were seated next to one another on the daybed. Defendant’s granddaughter was there too. Defendant’s pants were on, but undone; he had no shirt on.
Mother immediately screamed and her children began crying. Defendant put his penis back in his pants, zipped them up, and moved towards mother to hold her. Defendant apologized and told her he would turn himself in. Mother kept screaming, “Why? Why?” and began hitting him. She grabbed an iron and attempted to stab him. She eventually broke the home’s front window, injuring her arm in the process. Mother told the children to run outside and find someone to call the police, as there was no phone in their home. When the police arrived, they told her not to discuss the molestations with the children prior to their interview with the Riverside Child Assessment Team (RCAT) scheduled for the next day.
Jane Doe 1 testified that she did not remember ever telling her mom that defendant had done anything sexually inappropriate to her prior to June 7, 2004. She recalled that both sisters had told their mother that defendant had previously done “something bad” to them, but that mother did not believe them. Defendant once showed her a movie involving a naked man and woman touching each other. Although she could not recall the day, she testified the last time she saw defendant was the day he put his penis in her and her sisters’ mouths. She and her sisters were sitting next to one another in the living room on the daybed. Defendant was wearing his pants, but had removed his shirt. Defendant first put his penis in Jane Doe 3’s mouth, then he grabbed Jane Doe 1 by the shirt and put his penis in her mouth, then he did the same to Jane Doe 2. Mother then entered the room and screamed. Mother told her to go out into the front yard and find someone to call the police. The police eventually arrived and conversed with her shortly.
Jane Doe 2 was five years old at the time of the incident. She is the twin of Jane Doe 3. She testified that while she and her sisters were sitting on the couch, defendant put his “towel” in their mouths. Defendant’s granddaughter was also present, but defendant did not put his penis in her mouth. Her mom woke up, came into the living room, and began fighting with and screaming at defendant. Her mother’s hand was bleeding. She had never seen her mother behave in this manner before. The police arrived shortly thereafter. Defendant had put his penis in her and her sisters’ mouths on previous occasions. Jane Doe 1 had told her that she had informed mother of defendant’s inappropriate sexual behavior on a prior occasion.
Jane Doe 3 testified that she and her sisters were sitting on the couch in the living room when defendant came in with his pants pulled down and placed his “private” in each of their mouths. Defendant put his penis in Jane Doe 1’s mouth first, then Jane Doe 2, and finally Jane Doe 3. Defendant’s granddaughter was also present; however, he never made her do it. Defendant’s penis “looked like a stick, but it’s bigger.” Defendant told her not to tell her mother what happened because her mother would become angry. He made her and Jane Doe 1 lick his “private” at his house on another occasion in the kitchen. Mother came into the room and screamed, “What’s happening?” Mother subsequently got angry, broke the window, and injured her hand.
Dr. Jody Ward, a clinical and forensic psychologist, testified that it is extremely rare for children to make up allegations of sexual abuse and that those instances are usually in custody disputes in which one parent compels a child to do so. Only one-third of victims of sexual abuse ever report the behavior during their childhood and only 10 percent ever come through the criminal justice system. Many childhood victims of sexual abuse experience Child Sexual Abuse Accommodation Syndrome (CSAAS). CSAAS sufferers generally disclose the abuse, if at all, bit by bit. However, if they meet with any reticence on behalf of the person to whom they disclose, they often retrench and begin to accommodate the sexual abuse because they feel powerless to stop it. Due to the physical and psychological differences between children and adults, a child’s manner of revelation will often vary significantly from what would be expected of an adult. Children’s accounts will often contain inconsistencies. Likewise, because children have difficulty with perceptions of time, the time line they reveal for sexual abuse may often lack specific dates and times. Children may also recant allegations of abuse or provide unconvincing disclosures. It is uncommon for children initially to provide total disclosure of the extent of sexual abuse.
Guadalupe Torres, who lived across the street from mother, testified that on a day in June 2004, the victims were in their front yard yelling for help and requesting someone to call the police, which she subsequently did. She then saw mother in the front of the house crying and yelling for help as well. When she asked the girls what was happening, Jane Doe 1 told her that their mother’s boyfriend had made her “suck his thing.”
Officer Daniel Floyd testified that while on patrol on June 7, 2004, he received a dispatch concerning a domestic disturbance at mother’s home. When he arrived on the scene he found the front window broken and could see both defendant and mother inside the house. He noticed blood on defendant’s upper body and on mother’s arms. He ordered both of them to come out of the house. When defendant came out, Officer Floyd handcuffed him and moved him to the side of the door. His partner grabbed mother and moved her to the side. Defendant appeared calm while mother was hysterical. Officer Floyd sat defendant down and asked him, “What do you have going on?” Defendant replied, “I did bad things to [sic] little girl.” Officer Floyd did not ask defendant any other questions.
Vera Diaz, a forensic child abuse interviewer for RCAT interviewed all three victims on June 8, 2004, the day after the incident. Her job is to interview alleged victims of sexual abuse as soon as possible after an incident in order to determine whether the children have, in fact, been molested and to prevent others from contaminating their memory of the event. She testified that children often have difficulty reconstructing the time line of events. She recorded her interviews with the victims and the recording was played to the jury. Transcripts of the recorded interviews were handed out to the jury. Ms. Diaz did not believe any of the victims had been coached.
Jane Doe 3 stated, during her interview, that defendant made her and her sisters lick his penis while she was sitting watching a movie. Defendant had put his hand on her head and told her to lick it. He was wearing pants, but did not have on a shirt. She indicated that defendant had done this on more than one occasion.
During her interview, Jane Doe 2 informed Ms. Diaz that defendant made her and her sisters lick his “towel.” She stated that he also made her do it in the kitchen.
Jane Doe 1 told Ms. Diaz that defendant had made her and her sisters lick his privates while they were sitting on the daybed in the living room. She stated that defendant’s granddaughter was present. Defendant had his shirt off, but was wearing pants which were unzipped. Defendant was pulling her shirt and put his hand on her head while making her lick him. Defendant had done this to her and her sisters on four previous occasions.
Officer Chad Collopy testified that he was dispatched to mother’s residence on June 7, 2004. He spoke separately to all three victims, each of whom told him that defendant had put his penis in their mouths while they were sitting on the couch watching television. All three recounted that defendant had not forced his granddaughter to do it.
B. Defense
Alma Villanuevia testified that she and defendant were involved in a romantic relationship between 1997 and 2001. She left her son, who was 16 at the time of her testimony, alone with defendant overnight on occasions and there were never any problems. Defendant became and remains a friend with her son. She has a sister who, during her relationship with defendant, had three children, ages eight, five, and two. Defendant was patient with them and served as a role model for them.
Maria Bravo, defendant’s former sister-in-law, testified that defendant had a normal, healthy relationship with his stepson. She further stated that she sometimes left her now twelve-year-old daughter, nine-year-old boy, and six-year-old daughter with defendant and her sister, and there were never any reports of inappropriate behavior. Her children loved defendant a lot.
Ana Moreno, an investigator for the Public Defender’s Office, testified that she had previously interviewed Guadalupe Torres and Ms. Torres never indicated that the girls had told her defendant had done anything sexual to them.
Defendant testified he was working as a security guard at the bar and first noticed mother working there as an escort in February 2003. In October of that year, mother had some problems with her clients stealing money from her and defendant helped her with the situation. That night, after the bar closed, defendant found mother passed out drunk in her car. He offered to drive her home, but she refused. Instead, he followed her home until she almost got into an accident. Defendant then took over driving her car and helped her pick up her daughters.
Defendant became friends with mother, but did not become involved romantically with her until four or five months thereafter. Defendant was reluctant to become involved in a serious relationship with her and was only involved with her sexually a total of three times. He went to her house on a couple of occasions between October and December 2003, strictly as a friend, and gave her money for the babysitter. Sometimes he would pay her electric, water, and rent bills. Mother continued to engage in prostitution until January 2004.
Through January 2004, defendant only went to mother’s home once a week. In February, he began going to her house more than once a week, though he did not spend the night. During this period, defendant would pick the victims up at school. The first time he was alone with the girls at their house was at the end of February. Defendant initially had problems with Jane Doe 3 because she did not want anyone over at the house. Between the end of February and June, defendant was only alone with the children four times. Between December and March, defendant would watch the children twice a week at the house while mother was sleeping. Thereafter, he would do so three or four times a week.
Mother made Jane Doe 1 primarily responsible for the twins, including dressing, feeding, and bathing them. Mother had caused an injury to Jane Doe 2’s neck when she was young and, therefore, would spend most of her time with her out of remorse. Mother would discipline the children by hitting them with a thick belt. In March, defendant discovered mother’s real name. He had previously known her by an alias. Mother compelled the children to lie every day.
In February, mother confronted defendant about allegations Jane Doe 1 had made concerning his inappropriate touching of her. Defendant informed her she should call the police because he knew an investigation would show that he had done nothing improper. Mother decided not to call the police because Jane Doe 1 had previously been molested by someone else and she believed she might be mentally reliving the experience. She was also afraid that the authorities would take her children away. Jane Doe 1 later informed defendant that mother had forced her to make the allegations and was now punishing her for doing so.
Defendant informed mother on three occasions that if she continued to severely discipline her children he would not continue visiting her. In March, he first told mother that he wished to end the relationship with her. However, he would never actually end it because she would cry and threaten the children. A few days before June 7, 2004, the children asked defendant to be their father; however, because he was having problems with mother, he decided to terminate the relationship. When he informed mother what the children had asked of him, mother became angry, scaring the children because they were afraid she would hit them. Later that night, he could hear mother hitting Jane Doe 3 inside the restroom. On June 6, 2004, defendant informed mother that he was going to pay her bills and then leave her for good.
On June 7, 2004, defendant arrived at mother’s house sometime around 5:00 p.m. Mother asked him if he was still planning on leaving, and he replied that he was. He told her he just needed to go to Pomona to get money to pay her bills and then he would be gone for good. This made mother angry. Because mother had to go to school, he had to go to Pomona and return prior to 6:00 p.m. in order to give her the money. He then told her he would make the girls dinner and leave. Mother came out of her room and began pushing him and telling him to leave. Mother ran to the front window and broke it with her hand. She continued “ranting and raving” and throwing things. She grabbed an iron and hit him in the head with it. She then told the girls to go call the police.
When the police arrived, an officer asked defendant if there were any weapons in the house. Defendant replied that he used a gun in his employment as a security guard and it was inside the house. Defendant could hear mother across the yard telling another officer that defendant had molested her daughters. The officer then handcuffed defendant and asked, “What do you got going on here?” Defendant replied partially in English and partially in Spanish, “Aren’t you listening to what she’s saying? That I did those bad things to the girl.” He never informed the officer that he had, in fact, done bad things to a little girl. Defendant never did anything sexually inappropriate with any of the children.
II. DISCUSSION
A. Defendant’s Statement to Officer Floyd
By motion in limine, the People sought, under the “public safety” exception to Miranda, to admit defendant’s statement to the arresting officer that he “had done bad things to [sic] little girl.” After a hearing, the trial court ruled that defendant’s statement was admissible in the prosecution’s case-in-chief as either the product of a noncustodial inquiry or under the “public safety” exception to Miranda.
The court found: “Okay. I -- I agree with the position that [the People have] taken on this case. We definitely have -- we have some unknown -- certainly some unknown issues here. We have blood. We have a broken window. We don’t know if there are other people around. We don’t know if there are weapons in the area. And I think he asked a very innocuous question, ‘What’s going on here?’ I don’t think that that would in any way come up to the level of what we would refer to as an in-custody interrogation. Just simply trying to find out what has happened and whether or not there are other concerns that they need to be aware of before they continue on with their investigation. [¶] So I agree, it is a public safety issue. It is an officer’s safety issue. It is not an in-custody interrogation. So any statement that he made is not precluded by Miranda. So we’ll allow it if you choose to use it.”
“No person . . . shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.) “[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 . . . .” (Miranda, supra, 384 U.S. at pp. 478-479.) These procedural safeguards include a police advisement that the individual has the right to remain silent; that anything he says may be used against him in a court of law; that he has the right to an attorney; and that if he cannot afford one, one will be appointed to him free of charge. (Id. at p. 479.) “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Id. at p. 444.)
In reviewing a ruling on the admissibility of a statement we are faced with a mixed fact-law question. Questions of fact are reviewed under the deferential, clearly erroneous standard. (People v. Mickey (1991) 54 Cal.3d 612, 649.) A trial court’s factual resolution is clearly erroneous when the appellate court “‘“is left with the definite and firm conviction that a mistake has been committed . . . .”’” (People v. Louis (1986) 42 Cal.3d 969, 986.) If supported by substantial evidence, we accept the trial court’s factual findings, “[b]ut we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained.” (People v. Mayfield (1997) 14 Cal.4th 668, 733.)
“‘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.’”’ [Citation.] ‘Absent “custodial interrogation,” Miranda simply does not come into play.’ [Citation.] 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.”’ [Citations].” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Or, more to the point, would a reasonable person believe he is not free to leave. (People v. Lopez (1985) 163 Cal.App.3d 602, 606.) Handcuffing a suspect has the nearly ubiquitous distinction of conveying the message that the individual is not free to leave. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1404-1405, and cases cited therein.)
“‘Interrogation’ consists of express questioning, or words or actions on the part of the police that ‘are reasonably likely to elicit an incriminating response from the suspect.’ [Citations.] ‘The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 993.)
Here, a reasonable person would conclude defendant had been placed in custody when the officer handcuffed him immediately after arriving on the scene and moved him to the side of the house. Officer Floyd testified that upon arriving at the scene he removed his gun from its holster and ordered the occupants of the house to exit through the front door. He then escorted defendant to the east side of the house and immediately handcuffed him. He did not inform defendant about the status of his custody, i.e. whether he was under arrest or being temporarily restrained. The officer then instantly questioned defendant regarding the circumstances of the situation. Moreover, Officer Floyd himself testified that defendant was not free to leave. Absent any indication that the restraint was temporary, a reasonable person would conclude in this situation that the defendant was not free to leave. (People v. Pilster, supra, 138 Cal.App.4th at p. 1405.)
The closer issue is whether Officer Floyd’s question was “interrogation,” within the meaning of Miranda. We disagree with the trial court’s characterization of the question as, “innocuous.” In its ruling, the trial court referenced the officer’s question as, “What’s going on here?” While this was asked, the officer also inquired, “What do you have going on here?” Given the circumstances, this question was likely to elicit an incriminating response. When being asked the question, defendant was aware that mother was being questioned by another police officer. It was additionally obvious to everyone present that a significant fight between defendant and mother had just occurred. A window was broken and both mother and defendant had blood on them. In light of these circumstances, the question specifically brought to bear defendant’s involvement in the altercation, which in all likelihood, would lead to some inculpatory answer. We therefore conclude that defendant’s statement was elicited by way of custodial interrogation.
1. Rescue Exception
Under the “exigent circumstances” exception to the Miranda rule, two distinct exceptions have emerged, the “rescue” exception and the “public safety” exception. (People v. Riddle (1978) 83 Cal.App.3d 563 (Riddle); New York v. Quarles (1984) 467 U.S. 649 [104 S.Ct. 2626, 81 L.Ed.2d 550].) While courts have applied both exceptions to the facts of their cases, it is clear that the two exceptions provide for distinct mechanisms of analysis for determining whether non-Mirandized, inculpatory statements may be admitted at trial. (Riddle, supra, 83 Cal.App.3d 563; New York v. Quarles, supra, 467 U.S. 649.) Indeed, the so-called “rescue” exception predates the “public safety” exception introduced in Quarles.(Riddle, supra, 83 Cal.App.3d 563; New York v. Quarles, supra, 467 U.S. 649.) Therefore, we choose to address each exception separately.
In Riddle, supra, 83 Cal.App.3d 563, an exception under California law to the Miranda rule was first announced “in instances of overriding need to save human life or to rescue persons whose lives are in danger.” (Id. at p. 574.) That court furthermore noted that “under circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody, even though answers to the questions may incriminate the witness.” (Id. at p. 578.) It announced a three-part test for determining whether the exception should apply: “1. Urgency of need in that no other course of action promises relief; [¶] 2. The possibility of saving human life by rescuing a person whose life is in danger; [and] [¶] 3. Rescue as the primary purpose and motive of the interrogators.” (Id. at p. 576.) In that case, defendant was suspected of burglarizing a home where the resident was now missing. (Id. at p. 567.) The court held that the officer’s non-Mirandized questions of defendant came within the exception because they were expressly aimed at determining where the victim was and removing her from any potential danger. (Riddle, supra, at p. 579.)
Subsequent cases following the Riddle rule have strictly adhered to the factual predicate in that case. (People v. Coffman and Marlow (2004) 34 Cal.4th 1; People v. Stevenson (1996) 51 Cal.App.4th 1234; People v. Panah (2005) 35 Cal.4th 395.) In each of these cases, the questioning officers had definitive knowledge that an individual was missing or in danger and strong circumstantial evidence that the questioned suspect was responsible. Moreover, in each of these cases, the officer’s questions were narrowly tailored to alleviate the potential harm. (People v. Coffman and Marlow, supra, at p. 57; People v. Stevenson, supra, at p. 1239; People v. Panah, supra, at p. 471.)
The rescue doctrine is inappositely applied to the facts of the instant case. The People argue that the presence of the broken window and blood on both individuals is expressive of danger to them, the officers, and others such that the rescue exception should apply. However, here, unlike the above cited cases, Officer Floyd had no express knowledge that anyone was missing or in danger. Officer Floyd responded to a call regarding an apparent domestic dispute. Nothing in that call indicated that anyone was missing or in immediate danger. Upon arriving at the scene, Officer Floyd was presented with a scenario which in no way reflected an “overriding need to save human life or to rescue persons whose lives are in danger,” (Riddle, supra, 83 Cal.App.3d at p. 574) nor an “extreme emergency where the possibility of saving the life of a missing victim exist[ed]” (id. at p. 578). As far as he was aware, only two individuals were involved in the fracas, defendant and his girlfriend, and he testified that upon approaching the scene he could see both individuals. Both defendant and his girlfriend were capable of walking out the front door and neither showed an apparent life-threatening condition. Neither defendant nor his girlfriend expressed any serious, life-threatening injury, nor indicated that anyone else was injured or hurt. Officer Floyd’s handcuffing of defendant is inconsistent with a belief that defendant himself had a serious, life-threatening condition. Thus, Officer Floyd had no definitive knowledge of any serious, life-threatening danger to himself or anyone else, such that the “rescue” exception would apply.
Likewise, assuming arguendo that Officer Floyd did have sufficient information to believe someone was in danger, the question he posed to defendant was not narrowly tailored to assuage the situation. As defendant aptly points out, Officer Floyd could have asked him a number of specific questions which, if truthfully answered, would have diffused any apparent peril. He could have asked, “Are you injured?”; “Is anyone else injured?”; “Is anyone else inside the house?”; or “Is anyone missing?” All of these questions would have signaled that Officer Floyd’s query was posed primarily out of a motive of rescue. Instead, the officer asked defendant the extremely broad and general question, “What do you have going on here?” While one could speculate that this question could likewise be posed out of a desire to determine any potentiality of danger, it could similarly be designed to elicit incriminating statements. Moreover, in the above cited cases, only specifically tailored questions asked from a position of definitive knowledge of danger and posed chiefly to deflect that danger qualified under the exception. Here, Officer Floyd posed a broad question out of, at best, a purely speculative potential of danger that was not particularly designed to alleviate that potential threat. Thus, defendant’s statement in response to Officer Floyd’s query cannot be excepted from Miranda’s requirements under the “rescue” exception.
2. Public Safety Exception
In New York v. Quarles, supra, 467 U.S. 649, the United States Supreme Court announced an exception to the Miranda rule where an officer’s questions are reasonably prompted by a concern for public safety. (New York v. Quarles, supra, at p. 656.) That concern must outweigh the “need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” (Id. at pp. 657-658.) This exception has been applied to cases in which the officer was looking for a missing weapon in order to protect the safety of the public (People v. Gilliard (1987) 189 Cal.App.3d 285, 292; People v. Cole (1985) 165 Cal.App.3d 41, 52; People v. Simspon (1998) 65 Cal.App.4th 854, 857) and cases in which the officer was concerned for his own safety when searching a suspect (United States v. Carrillo (9th Cir. 1994) 16 F.3d 1046, 1049-1050; People v. Cressy (1996) 47 Cal.App.4th 981, 989). Statements made to police will only be exempted from Miranda under the “public safety” exception when there is a justification for the question and the query posed is narrowly tailored. (People v. Cressy, supra, at p. 989.)
Here again, the “public safety” exception to Miranda’s requirements is inapplicable to the facts of this case. Unlike the primary line of cases developing the exception, Officer Floyd had no specific knowledge that a weapon had been used and was now missing. Indeed, no weapon was at all involved in the circumstances surrounding the events of June 7, 2004. Moreover, his query to defendant was not specifically directed at determining if a weapon had been used and where it now was. Rather, he asked a broad question calling for an infinitely variable response. Likewise, Officer Floyd’s question was not directed at protecting his own safety while searching defendant or the safety of others. He had already handcuffed defendant and moved him to the side of the house, and nothing in the record indicates he ever searched defendant. Additionally, after receiving defendant’s initial response, Officer Floyd did not follow up the question as to whether the victim was in danger or otherwise injured in such a way that an immediate response was called for. Thus, defendant’s statement cannot be exempted from Miranda’s requirements pursuant to the public safety exception.
3. Harmless Error
Errors that are the product of a violation of the United States Constitution, even errors that infringe upon fundamental rights, do not necessarily result in reversal per se. (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 113 L.Ed.2d 302] [admission of involuntary confession subject to harmless error analysis]; People v. Sims (1993) 5 Cal.4th 405, 446-447 [admission of statement obtained in violation of Miranda subject to harmless error analysis under California Constitution].) Constitutional errors that are subject to harmless error analysis are evaluated under the standard enunciated in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705], which requires reversal unless the prosecution can show that the error was harmless beyond a reasonable doubt. (Id. at p. 24.)
Here, the admission of defendant’s statement, when considering the evidence as a whole, was harmless beyond a reasonable doubt. While defendant correctly characterizes the trial as a credibility contest, the evidence adduced below weighed heavily in favor of the People’s case. Here, the prosecution put forth the testimony of four percipient witnesses whose statements were mutually reinforcing. Mother testified that on June 7, 2004, she walked into the living room and observed defendant standing before Jane Doe 2 with his penis in her mouth. Moreover, she testified that Jane Doe 1 had previously informed her of sexual abuse by defendant and that all three victims had subsequently informed her of prior instances of such mistreatment. Likewise, each of the victims testified that on June 7, 2004, defendant had put his penis in each of their mouths and that each had witnessed him do it to the others. Furthermore, Jane Does 2 and 3 both testified that defendant had put his penis in their mouths on prior occasions and each had witnessed him do it to the other on those occasions. Thus, the jury was presented with the testimony of four witnesses, each who actually observed defendant’s conduct on at least one occasion against one victim, and some who witnessed such behavior on multiple occasions against multiple victims.
Moreover, the prosecution witnesses’ testimony was eminently more credible than defendant’s. Mother was cognizant of the fact that by testifying, evidence of her prior prostitution would inevitably come out. This testimony exposed her to potential fiscal, emotional, and criminal sanctions. Indeed, she testified that she had no offer of immunity for her testimony; thus, she faced possible criminal charges for her prostitution. Likewise, because she did not report the income she received from working at the bar, she faced possible charges of welfare fraud. Furthermore, with allegations of prostitution and welfare fraud, mother recognized the possibility of losing her children in dependency proceedings. Nonetheless, she was determined to testify in order to protect her daughters regardless of any repercussions she was facing. It is difficult to reconcile the potential deleterious effects of mother’s testimony on her and her children’s lives with the defense theory that mother concocted the allegations of sexual molestation in order to exact revenge on defendant for breaking up with her. Indeed, defendant himself testified mother had nothing to gain from lying. Likewise, the children would appear to have had no motive in inventing such allegations.
Similarly, all four witnesses’ testimonies about the circumstances of the incident on June 7, 2004, were remarkably consistent with both each others’ testimony and their own prior statements, especially considering the youth of the victims and the length of time which elapsed between the episode and trial. All three victims testified that they were sitting down next to one another in the living room while defendant stood in front of them and placed his penis in each of their mouths. These descriptions matched those given in their RCAT interviews and those the victims reported to Officer Collopy and Guadalupe Torres. Mother also testified that all three victims were sitting next to one another in the living room when she saw defendant with his penis in Jane Doe 2’s mouth. All three victims testified to experiencing previous sexual abuse themselves and/or having witnessed or heard about such abuse to their other sisters. Likewise, mother testified Jane Doe 1 had made previous allegations of abuse to her. Jane Doe 2 consistently referred to defendant’s penis as a “towel.” The evidence also consistently showed that while defendant’s granddaughter was present, she was not subjected to any sexual abuse.
Certainly there were some minor inconsistencies in the victims’ testimonies, such as the order in which defendant had placed his penis in the sisters’ mouths and whether he was wearing a shirt. However, these were limited to trivial matters and were readily explicable. As already noted, the victims, particularly the twins, were extremely young at the time the abuse occurred. Moreover, nearly two years had elapsed since the event and the trial. Furthermore, Dr. Ward’s testimony demonstrated the difficulty children have in expressing the circumstances of sexual abuse both because of their youth and the trauma they experience. Thus, even without defendant’s vague admission, we believe beyond a reasonable doubt that this jury would have rendered the same verdicts had defendant’s statement not been erroneously admitted.
B. Sentencing Error
Defendant contends the trial court erred when it determined that it had no discretion to impose concurrent 15-year-to-life terms under Penal Code section 667.61 for counts 2 through 6. The People concede the issue and we agree.
Penal Code section 667.61, subdivision (b) provides that anyone convicted of any of a number of specifically enumerated offenses, including a violation of Penal Code section 288, subdivision (a), shall be sentenced to imprisonment for 15 years to life. In virtually identical circumstances as the present case, we remanded for resentencing when that trial court indicated it lacked discretion to impose concurrent sentences. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1263.) We held that “[a]bsent an express statutory provision to the contrary, [Penal Code] section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions.” (Id. at p. 1262.) Thus here, the trial court was in error when it similarly concluded it did not have discretion to impose concurrent sentences.
III. DISPOSITION
The judgment of conviction is affirmed, but the matter is remanded to the trial court for resentencing. The trial court is directed to resentence defendant, considering the factors set forth in California Rules of Court, rule 4.425, and thereby exercise its discretion as to whether to impose concurrent and/or consecutive sentences.
We concur: Ramirez, P.J., Miller, J.