Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04551
CANTIL-SAKAUYE , J.
A jury convicted defendant Raul Castro Rodriguez of two counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a) – counts one and two), one count of committing a forcible lewd and lascivious act upon a child under 14 (§ 288, subd. (b)(1) – count three), and one count of committing a lewd and lascivious act upon a 14-year-old child while being at least 10 years older than the child (§ 288, subd. (c)(1) – count four). The jury also found true the allegation that defendant engaged in substantial sexual conduct with the victim in counts one and two. (§ 1203.066, subd. (a)(8).) The court sentenced defendant to an aggregate term of 14 years and eight months.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant raises two issues on appeal. First, defendant argues that the court erred in denying his motion to suppress statements that he made in an interview with a sheriff’s detective. Second, he contends that the abstract of judgment should be amended to accurately reflect his sentence. We affirm the judgment and direct the trial court to correct the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, defendant’s cousin J., was born in 1992. She described four separate incidents of sexual molestation at trial.
Count One:
In 1998, when J. was six years old, she moved from an apartment to a duplex with her parents, younger brother T., younger sister L., her Uncle D., and two first cousins -- defendant, who was 18 or 19 years old, and his brother V. The duplex had two bedrooms and two bathrooms. J. shared one bedroom with her immediate family, and defendant shared the other bedroom with V. and D.
One day J. asked her mother if she could go into defendant’s bedroom to watch television. Her mother agreed. J. sat on the floor and defendant sat on the bed. The bedroom door was closed. Defendant told J. to take off her panties. J. complied because she was afraid. Defendant touched J. “all over,” including her chest and stomach. Next, defendant told J. to suck on his penis as if it was a “bole,” a type of ice cream that came in a tube. J. tried to turn away, but defendant pushed her head back. Defendant told J. that he would hurt her if she said anything about what happened. He also suggested that no one would believe her. J. did not tell anyone what defendant had done because she was afraid.
Count Two:
On another occasion when J. was six and living in the duplex, J.’s mother ran an errand with L., and left J. and T. alone with defendant. Defendant called J. into his bedroom and then into the bathroom. He left the bathroom door open. T. was in the living room and could not see what was happening.
Defendant pulled down his pants, put J.’s hand on his penis, and told her to move her hand up and down. He then put his hand on top of hers and moved it the way he wanted. Defendant eventually ejaculated. Once again, J. did not seek help because she was afraid that defendant would hurt her.
Count Three:
A short time later, the family took defendant with them to Mexico, stayed for a few months, and returned to Sacramento without him. By the time defendant returned, J. and her family were living in a four-bedroom house. In addition to J.’s immediate family, J.’s Uncle G., defendant’s sister M.A. (known as S.), and her baby also shared the house.
One evening when J. was about 13 years old, her mother and sister went to the store while she was playing outside. When J. entered the darkened house, defendant jumped out and pushed her to the floor. J. fell on her back. Defendant straddled her, covered her mouth and tried to take off her T-shirt. J. could feel defendant’s penis through their clothing. She kicked defendant and managed to pull away. J. ran to her room and locked the door.
J. became depressed after this incident and did not want to eat. When her aunt asked why she was so thin, J. told her what defendant had done when she was six years old. J. was afraid defendant would do the same things to her younger sister L. J. also told her mother that defendant made her take off her panties when she was six. Her mother did not call the police, but told J. that she would kick defendant out of the house if he did anything else to her.
Count IV:
The last incident occurred when J. was 14. The family had moved into a four-bedroom house on Turnbridge Drive. J. shared a room with L., S., and S.’s baby. One night around midnight, J. was sleeping and S. was in the living room. J. was wearing pajama pants, a tank top and bra. She woke up to feel defendant’s hand inside her bra, touching the skin of her left breast. J. stared at defendant. He took his hand out of her bra and said that she had a little bug in there. Defendant left the bedroom and J. went into the living room. She did not say anything to S., however, because she was afraid that S. would not believe her.
J. told her mother about the incident a couple of days later, but her mother did nothing. Feeling suicidal, J. told a school counselor about the molestations. Child Protective Services removed her from the household and the sheriff’s office began its investigation.
Defendant’s Interview With Detective Hidalgo:
Sacramento County Sheriff’s Detective Juan Hidalgo contacted defendant after reviewing the police report and meeting briefly with J. Defendant’s aunt and uncle -- J.’s parents -- brought defendant to the sheriff’s station for an interview.
Hidalgo interviewed defendant in Spanish. He told defendant that he was not under arrest and could leave at any time. Hidalgo did not read defendant his Miranda rights. In the course of the interview, defendant made incriminating statements that were later admitted at trial.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
At the close of the interview, Detective Hidalgo allowed defendant to join his aunt and uncle. However, after deciding that defendant was a flight risk, Hidalgo arrested defendant outside the building.
Detective Hidalgo testified in detail about defendant’s statements in the prosecution’s case-in-chief.
Defendant’s Trial Testimony:
At trial, defendant gave a different version of the incident that took place in his bedroom. He maintained that J. put her hand on his penis through his clothes and denied guiding her hand. He denied having her orally copulate him. He also denied throwing J. to the ground or trying to remove her shirt. As for the last incident at the Turnbridge house, defendant testified that he had simply looked at J. while she was sleeping. He did not touch her or say anything about a bug. Defendant believed that J. was upset with him because he attempted to control her use of the telephone.
On cross-examination, defendant admitted that he first denied everything in his interview with Detective Hidalgo, but later changed his story. Cross-examination revealed other inconsistencies between his interview and trial testimony.
DISCUSSION
I.
Defendant’s Statements Were Properly Before the Court
Defendant argues that he was “in custody” during his interview with Detective Hidalgo and Hidalgo’s failure to read defendant his Miranda rights rendered his statements inadmissible at trial. We conclude that the Miranda warnings were not required and defendant’s statements were properly admitted at trial.
Miranda holds that when a suspect is questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way,” the officer must warn the suspect that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (384 U.S. at p. 444.) Because Detective Hidalgo did not formally arrest defendant until after the interview ended, the question here is whether defendant was “otherwise deprived of his freedom of action in any significant way.” (Ibid.)
“The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] ‘Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’” (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) In other words, the question whether the defendant was in custody turns on an objective assessment of the circumstances surrounding the interrogation, not on the subjective views of the interrogating officers or the person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323 [128 L.Ed.2d 293, 298].)
Courts may consider a number of factors in deciding whether a defendant is effectively in custody. Among them are: “whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.]” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).) No one factor is dispositive. “Rather, [courts] look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.” (Ibid.)
Faced with the claim that defendant’s statement was inadmissible because it was obtained in violation of his rights under Miranda, “we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although this court must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statements were illegally obtained [citation], we may ‘“give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Kelly (1990) 51 Cal.3d 931, 947.) Indeed, we will not set aside the trial court’s ruling on a Miranda issue unless it is “‘palpably erroneous,’ i.e., unsupported by substantial evidence. [Citation.]” (People v. Salinas (1982) 131 Cal.App.3d 925, 933.)
Here, the trial court found that defendant was not in custody during the interview. It noted specifically that defendant’s testimony was “at odds” with that of Detective Hidalgo, and that defendant’s credibility was damaged by inconsistencies between his testimony at the suppression hearing and his statements during the interview. Hidalgo’s testimony at the hearing and the interview transcript support the court’s factual findings and the conclusion that a reasonable person would have felt free to leave the interview.
Detective Hidalgo initiated contact with defendant through his uncle. Defendant came to the sheriff’s station for the interview around 5:00 p.m., accompanied by his aunt and uncle. The two-hour interview took place in an interview room at the sheriff’s station. Hidalgo interviewed defendant alone. He advised defendant at the beginning and end that he was not under arrest and was free to leave at any time. Defendant acknowledged that he understood. Hidalgo told defendant at the end of the interview that he needed to complete his investigation before he could confirm what the next step would be. Thus, the facts of this case differ from those in Aguilera, supra, 51 Cal.App.4th at pages 1163-1164, which involved a “tag team” of officers who did not inform the defendant he was free to terminate the interview at any time.
Although the door to the interview room had a lock, Hidalgo left the door unlocked while he talked with defendant. Defendant was not handcuffed. Defendant never indicated that he wanted to leave during the interview and never attempted to do so. Defendant was engaged in the entire exchange, responding in some way to every question.
Defendant accepted Hidalgo’s offer of water at the start of the interview. Hidalgo testified that defendant appeared to be calm. When Hidalgo asked defendant if he knew why he was being interviewed, defendant said that J. told him she had accused him of raping her.
During the interview, Hidalgo repeatedly asked defendant how he was doing and defendant responded that he was “fine.” Later in the interview, Hidalgo asked if defendant felt fine talking to him and defendant responded, “Yes.” Toward the end of the interview, Detective Hidalgo asked, “Do you have any problem with how -- how I’ve spoken with you or how I’ve treated you?” Defendant responded, “No. No, everything is fine.”
Detective Hidalgo employed several standard interview tactics. He told defendant that he had evidence that defendant sexually abused J. Hidalgo repeatedly stated that he wanted to know why it happened -- what defendant was thinking in his mind -- and stressed the importance of defendant telling him the truth. At one point, Hidalgo told defendant that there were tests by which the officers could obtain evidence of sexual abuse, even if there was no penis-vagina penetration. Hidalgo left the room during a short break in questioning. When he returned, he told defendant that he had seen test results on J., inferring that J. had contracted a sexually transmitted disease from defendant. Although Hidalgo raised pointed questions, the tone of the interview was calm and respectful. Again, this interview differed from Aguilera, where the court found that the two-hour interview was “was intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating,” more like “the full-blown interrogation of an arrestee.” (Aguilera, supra, 51 Cal.App.4th at p. 1165.) Despite defendant’s testimony at the hearing that he did not feel free to leave after Hidalgo began demanding the truth, his behavior and statements he made during the interview itself contradicted his testimony.
Considering the circumstances surrounding the interrogation, and questions regarding the credibility of defendant’s testimony at the hearing, we conclude that the court properly determined that defendant was not “in custody” during his interview with Detective Hidalgo and Miranda warnings were not required.
II.
The Abstract of Judgment
Defendant argues, and the Attorney General agrees, that the abstract of judgment fails to accurately reflect the defendant’s sentence in counts two and four. The court imposed full, consecutive six-year terms in counts one and three. It imposed a consecutive two-year term (one-third the middle term) in count two and a consecutive eight-month term (one-third the middle term) in count four in accordance with section 1170.1. The abstract of judgment incorrectly lists all four terms as “consecutive full term.” We shall direct the trial court to correct the abstract.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to properly reflect that the prison terms in counts two and four are not “consecutive full terms,” and to forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P.J., MORRISON , J.