Opinion
G054286
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. EVARISTO RICARDO ROMERO, Defendant and Appellant.
Brett Harding Duxbury, 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, A. Natasha Cortina and Alastair J. Agcaoili, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF1428) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg and David A. Hoffer, Judges. Affirmed. Brett Harding Duxbury, 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, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Evaristo Ricardo Romero guilty of committing four sexual assault crimes against a child. In this appeal, Romero argues that the trial court improperly admitted his statements to the police following his arrest.
We disagree and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
During 2013 and 2014, Romero lived in Santa Ana with Maria and her daughter, S., who was about seven years old. During that time, they all shared a single room in two different multi-bedroom homes. While Maria was at work, Romero sexually assaulted S. on several occasions. Romero forced S. to grab his penis and masturbate him. Romero touched and entered S.'s vagina with his hand and penis.
On April 27, 2014, while they were having dinner at home, Maria noticed that S. was touching Romero's groin area over his clothes. Maria spoke to S. alone and she disclosed that Romero had sexually assaulted her. Maria confronted Romero, who confessed and asked for forgiveness. Maria told Romero that he had to leave.
Maria took S. to her friend's home, where she called the police. Officers arrived and spoke to Maria and S. Maria agreed to make a phone call to Romero, while the police secretly listened in and recorded the conversation. When Maria asked Romero during the pretext call what he had done, he said it was "the worst a human being can do." Romero said that he was staying at a nearby motel.
While the pretext phone call was still in progress, other officers went to the motel and forcefully entered Romero's room without an arrest warrant. The following exchange was captured on the recorded phone call:
"[Officer]: What's going on, a**hole?
[Unintelligible voices]
"[Officer: . . . really? F---ing* little girls?
[*Not used as a verb, but rather as an intensifier]
"[Romero]: No -
"[Officer]: Really? Why?
"[Romero]: I'm sorry. I already told my wife.
"[Officer]: So why, a**hole? [Unintelligible], why the f--- [sounds like] did you do that? Tell me, why?
"[Romero]: [Pause] [Inaudible] . . . I know . . . I should be ashamed of myself. I don't know. I don't know [Inaudible] things . . . [Inaudible] but . . .
"[Officer]: [Inaudible], with the little girl, a**hole.
" [Romero]: [Unintelligible] I should be ashamed of myself [Inaudible].
"[Officer]: And why did you do it, a**hole?
"[Romero]: Eh?
"[Officer]: Why did you do it?!
"[Romero]: Like I told my wife, [Inaudible], I'm disturbed, I don't even know why. I mean [Inaudible] -
[Phone appears to hang up abruptly]."
The words were spoken in Spanish. There was some later dispute as to whether the Spanish word "guey" actually translated to the word "a**hole" in English.
The police arrested Romero and transported him to the police station where he was advised of his constitutional rights under Miranda. Romero thereafter made further incriminating statements.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
On February 23, 2015, the prosecution filed an information charging Romero with four counts of lewd contact with a child and two counts of sexual intercourse with a child. (Pen. Code, §§ 288, subd. (a), 288.7, subd. (a).)
Further undesignated statutory references will be to the Penal Code.
A few months before a jury trial began, Romero filed a motion to exclude his statements to the police on the grounds that they were obtained in violation of the Fourth Amendment. The Honorable Judge Steven D. Bromberg conducted a special hearing on the motion. (§ 1538.5.) The court granted the motion, in part. The court excluded Romero's "statements made in the motel room." The court denied the motion "as to any statements made outside of the motel room."
In October 2016, a jury trial began with Honorable Judge David Hoffer presiding. Romero filed a motion in limine to exclude his statements at the police station on the grounds that they "were obtained in violation of [Miranda]; and further, that the statements were involuntary." (Evid. Code, § 402.) After conducting a hearing, the court denied the motion. The jury later found Romero guilty of all charges and the court imposed an aggregate sentence of 28 years to life.
II
DISCUSSION
In this appeal, Romero argues that: "The trial court's admission of [his] stationhouse confession violated the federal constitution . . . ." But it is not entirely clear whether Romero's constitutional challenge is limited to Judge Bromberg's search and seizure ruling, or whether he is also challenging Judge Hoffer's voluntariness ruling. Romero intermixes evidence and arguments from both hearings throughout his briefing. Out of an abundance of caution, we shall review both rulings. A. Motion to Suppress on Fourth Amendment Grounds
Romero filed a section 1538.5 motion to suppress evidence on Fourth Amendment grounds. Romero sought to suppress his statements to the police "regarding the alleged crime at the time of his unlawful arrest;" as well as his statements "following and flowing from his unlawful arrest."
1. Standard of Review
In California, a section 1538.5 motion is the comprehensive and exclusive procedure for seeking to exclude either tangible or intangible evidence on Fourth Amendment grounds. (People v. Brooks (1980) 26 Cal.3d 471, 475.) We defer to the trial court's express or implicit factual findings when supported by substantial evidence; we exercise our independent judgment when ruling on legal issues. (People v. Tully (2012) 54 Cal.4th 952, 979.) Our review is confined to the evidence presented at the suppression hearing. (See In re Arturo D. (2002) 27 Cal.4th 60, 77-78, fn. 18.)
2. The Suppression Hearing
The prosecution called Santa Ana Police Officer Moises Jimenez as its sole witness. No other evidence was introduced at the suppression hearing.
Officer Jimenez testified that on April 27, 2014, at approximately 10:30 p.m., he was dispatched to Maria's friend's home to investigate an incident of child abuse. Jimenez was accompanied by Corporal Rodriguez. Jimenez spoke to Maria, who said that she discovered that Romero had been sexually abusing her daughter. Maria said that Romero had apologized for his behavior and that she had kicked Romero out of their residence that night. Jimenez also spoke to S., who "described several incidents in which [Romero] exposed himself to her, grabbed her hand, placed her hand on his penis, and also had contact with her vagina."
Maria agreed to call Romero, while the police secretly monitored and recorded the conversation. The police had two goals in mind: "Getting a statement from [Romero], and finding out his location." Corporal Rodriguez continued to participate in the phone call, while Officer Jimenez went to the home where the incidents had occurred to see if Romero was there. During the pretext call, Corporal Rodriguez relayed to Officer Jimenez that Romero disclosed that he was located at an area motel.
Officer Jimenez went to the motel, accompanied by Officer Ricardo Velasquez and Officer Shin. Jimenez first contacted the motel clerk, then all three officers went to the door of Romero's room. Officers Velasquez and Shin knocked on the door, while Officer Jimenez stood just behind them. The officers said, "'Police. Open the door. Santa Ana Police. Open the door." Romero eventually opened the door and then tried to slam it shut. The officers physically prevented Romero from closing the door and went into the room. Officer Velasquez or Officer Shin grabbed Romero and restrained him on the bed. Romero was arrested and handcuffed. Later, at the police station, Officer Jimenez administered Miranda warnings. Romero signed a form, indicating that he understood his rights. Jimenez then began interviewing Romero. The interview started about 20 minutes after Romero had been arrested at the motel room.
At the suppression hearing, Officer Jimenez was asked during cross-examination to approximate the time between Romero's arrest at the motel room and the start of the interview at the police station. Jimenez responded: "Maybe approximately, I am just estimating, about 20 minutes." Later at trial, during the hearing on the motion in limine, Jimenez looked at reports and documents that indicated that Romero had been arrested at 1:00 a.m., and the recorded interview at the police station began at 2:45 a.m. --------
At the end of the hearing, the court granted the motion, in part, excluding "any statements made in the motel room." The court denied the motion "as to any statements made outside of the motel room." 3. Legal Analysis
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.) In California, federal constitutional standards govern the review of claims seeking exclusion of evidence on grounds of unreasonable searches and seizures. (People v. Camacho (2000) 23 Cal.4th 824, 830.)
Generally, the Fourth Amendment prohibits the police from entering a suspect's home without an arrest warrant, as held by the United States Supreme Court in Payton v. New York (1980) 445 U.S. 573 (Payton). The court emphasized that as to warrantless entries, "the Fourth Amendment has drawn a firm line at the entrance to the house." (Id. at p. 590.) A person's motel room is generally the equivalent of his or her home. (People v. Williams (1988) 45 Cal.3d 1268, 1297, abrogated an another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) There are, however, exceptions to the arrest warrant requirement, including a bona fide emergency or a person's voluntary consent to the entry. (People v. Ramey (1976) 16 Cal.3d 263, 275.)
Here, three police officers entered Romero's motel room without an arrest warrant. The prosecution did not establish that there was an emergency that prevented the police from obtaining a warrant. Further, Romero did not consent to the entry into his motel room, a location in which Romero had a reasonable expectation of privacy. Thus, the officer's entry was constitutionally unreasonable under Payton, supra, 445 U.S. 573. However, that does not end our inquiry. We must analyze exactly what evidence—if any—must be excluded as a result. (See People v. Macabeo (2016) 1 Cal.5th 1206, 1224 [the purpose of the exclusionary rule is to deter police misconduct].)
When officers make an entry into a home without an arrest warrant, but with probable cause, any evidence collected in the home must be excluded (to deter the police from repeating that misconduct); however, any otherwise admissible statements that the police obtain at some other location need not be excluded. (New York v. Harris (1990) 495 U.S. 14 (Harris).) In Harris, officers had probable cause to suspect the defendant had committed a homicide. (Id. at p. 15.) The police went to the defendant's home without an arrest warrant. (Ibid.) Once inside the home, the police arrested the defendant and he confessed to the homicide. (Id. at p. 16.) The police then took the defendant to the police station, re-administered Miranda warnings, and he again confessed. (Ibid.) The trial court excluded the defendant's statements at his home and admitted the statements he made at the police station. (Ibid.)
In Harris, the Supreme Court agreed with the trial court's ruling and held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after [a warrantless] arrest made in the home in violation of Payton." (Harris, supra, 495 U.S. at p. 21.) The court held that: "Nothing in the reasoning of [Payton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house." (Id. at p. 18.) The court concluded that: "The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it should have been; the purpose of the [exclusionary] rule has thereby been vindicated." (Id. at. p. 20.)
Here, the facts of this case are very similar to those in Harris. Before going to the motel room, Officer Jimenez had spoken to Maria, as well as S., who confirmed that Romero had been sexually assaulting her. It is beyond question that there was probable cause to arrest Romero. But because the officers entered Romero's motel room without a warrant, the trial court properly excluded Romero's statements he made within the motel room in order to deter the police from such future warrantless entries. Nevertheless, under the Supreme Court's holding in Harris, any statements Romero made after he was taken to the police station were properly admitted because the arrest itself was supported by probable cause. (See People v. Watkins (1994) 26 Cal.App.4th 19, 29 ["Where there is probable cause to arrest, the fact that police illegally enter a home to make a warrantless arrest neither invalidates the arrest itself nor requires suppression of any postarrest statements the defendant makes at the police station"].)
Romero argues that we should analyze his statements at the police station to determine if they were sufficiently "attenuated" from the officer's illegal entry, primarily relying on the Supreme Court's holdings in Wong Sun v. United States (1963) 371 U.S. 471 (Wong Sun), and the attenuation factors normally considered in Brown v. Illinois (1975) 422 U.S. 590, 603-604 (Brown). But those two cases are readily distinguishable because they involve situations where the police did not have probable cause to make an arrest. (Wong Sun, supra, 371 U.S. at p. 479 ["there was neither reasonable grounds nor probable cause for [defendant's] arrest"; Brown, supra, 422 U.S. at p. 590 [defendant "had been arrested without probable cause"].) In situations where there is an unlawful arrest without probable cause, such as Wong Sun and Brown, it is appropriate to consider whether a later confession is sufficiently removed from—or attenuated from—the taint of the initial unlawful arrest. (Harris, supra, 495 U.S. at pp. 18-19.)
But within Harris, the Supreme Court clarified that the type of attenuation analysis conducted in Wong Sun and Brown does not apply when the police do, in fact, have probable cause to make an arrest. "The case is analogous to [United States v. Crews (1980) 445 U.S. 463]. In that case, we refused to suppress a victim's in-court identification despite the defendant's illegal arrest. The Court found that the evidence was not '"come at by exploitation" of . . . the defendant's Fourth Amendment rights,' and that it was not necessary to inquire whether the 'taint' of the Fourth Amendment violation was sufficiently attenuated to permit the introduction of the evidence. [Citation.] Here, likewise, the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris' home." (See Harris, supra, 495 U.S. at p. 18.)
In this case, just as in Harris, the court properly excluded Romero's statements within the motel room because the evidence was the product of the officer's unlawful entry. However, as colorfully stated by the trial court, the officers had "probable cause on steroids with a neon sign around it." Thus, it was not necessary to exclude Romero's later statements at the police station because that evidence was the product of an arrest supported by probable cause. As to Romero's remaining contention concerning the voluntariness of his statements at the police station, that issue was raised in a motion in limine and dealt with by Judge Hoffer at the jury trial. B. Motion in Limine on Voluntariness Grounds
Just before the jury trial began, Romero filed a motion in limine to exclude his statements to the police "on the grounds that the statements were obtained in violation of [Miranda]; and further, that the statements were involuntary." In this appeal, Romero does not challenge the trial court's Miranda ruling, but Romero appears to continue to challenge the court's denial of his motion in limine on voluntariness grounds. 1. Standard of Review
"On appeal, we review independently the trial court's determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including '"the characteristics of the accused and the details of the interrogation" [citation],' are subject to review under the deferential substantial evidence standard." (People v. Williams (1997) 16 Cal.4th 635, 659-660.) When an interview was tape-recorded, and the surrounding facts are essentially undisputed, we review the trial court's ruling regarding voluntariness de novo. (People v. Maury (2003) 30 Cal.4th 342, 404.) 2. The Hearing on the Motion
At the hearing on the motion in limine, the prosecution called Officers Jimenez and Velasquez. Prior to the hearing, the trial court reviewed a transcript and the recording of Romero's interview at the police station. The court also reviewed the transcript and heard Maria's pretext phone call with Romero.
Officer Jimenez largely restated his earlier testimony as to the sequence of events leading up to the warrantless entry into Romero's motel room. Jimenez said that he followed Officers Shin and Velasquez as they entered through the front door. Jimenez immediately went into the bathroom to clear it. Jimenez noticed that Romero made a move towards the bathroom, but the other two officers were able to put Romero's hands behind his back and handcuffed him on the bed. After Romero was handcuffed, he was taken to a patrol vehicle, where he was made to wait about five minutes. Jimenez then transported Romero to the police station, which was about a 10-minute drive away. While on route to the station, Jimenez asked Romero "about where they came from"; Jimenez did not ask Romero any questions about the case.
When Jimenez arrived at the police station, he took Romero to an interview room and "logged him in." Jimenez began his interview about an hour and forty-five minutes after Romero had been arrested at the motel. There is a stool in the interview room along with a table and a chair. Romero was handcuffed to a wall during the interview. Jimenez advised Romero of his Miranda rights in Spanish from a department issued form. After Romero said that he understood his rights, Jimenez interrogated Romero for about 20 minutes. Jimenez said that at no point did he threaten Romero or make any promises. Jimenez described both his own demeanor and Romero's demeanor as calm.
Officer Velasquez testified that on the night of Romero's arrest he was called to assist in a child molestation investigation. Velasquez knew that the alleged victim was a little girl and that the suspect was at a nearby motel. When Velasquez got to the door of the motel room, he was standing next to Officer Shin and Officer Jimenez was standing just behind them. Shin knocked on the door, and said "police," both in English and in Spanish. The officers waited about a minute before the door opened a few inches. Romero looked at the officers and then tried to close the door. As Romero tried to close the door, Officers Velasquez and Shin pushed it open.
Officer Velasquez testified that Romero "immediately ran towards the rear. We chased him just a couple of feet, and we went inside. We grabbed him. He was resisting. We ended up grabbing, tackling onto the bed. And after a few moments, we were able to handcuff him." Officer Velasquez said that during the arrest, "I was asking him like why? Like, really? Like why did you do it? Something about little girls." Officer Velasquez used the word, "guey," which he understood to mean "dude." Velasquez did not understand or intend the word "guey" to mean "a**hole." Velasquez said that he never threatened Romero and used only that amount of force that was necessary to arrest him. Velasquez said that he was not present for Romero's interrogation at the police station.
At the conclusion of the hearing, the trial court "found Officer Jimenez credible." The court said "there was a great deal of force used in the arrest, no doubt about that." The court said the issue was "whether that amount of force affected the interrogation at the police station to the extent that it . . . made it an involuntary statement, whether it overbore the defendant's will." The court said "the police station contact is entirely conversational. There's no threats, no promises, no physical force used. The defendant is in handcuffs, and the court considered that, and it's the middle of the night, no doubt about that. But this is conversational - they're basically talking about what happened, and the defendant is repeatedly apologizing." The court said, "I don't think there was any, any effort by the police to coerce him at that stage."
The trial court found it notable that at the police station Romero "does call it off at some point. He says, you know, it's just too embarrassing to talk about this anymore and the interview ends. I think the defendant was able to make a decision, and as I said, it wasn't the police that ended the interview. It was the defendant. And he understood his Miranda rights. And he - as I said, there was no coercion used to overbear his will when it comes to the police station. I don't think the carryover from the force used an hour and 45 minutes before made this statement involuntary. And therefore I am going to deny the motion." 3. Legal Analysis
"No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." (U.S. Const., 5th Amend.) Through the application of the Fourteenth Amendment's due process clause, as well as the California Constitution, a criminal suspect's involuntary statements to the police that were the product of coercion cannot generally be introduced against him or her at trial. (People v. Sapp (2003) 31 Cal.4th 240, 267.) The prosecution must prove by a preponderance of the evidence that a defendant freely and voluntarily gave his or her statements to the police. (Ibid.)
"'Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of [the] circumstances."'" (People v. Sapp, supra, 31 Cal.4th at p. 267.) The test considers several factors, including any element of police coercion, the length of the interrogation and its location and continuity, and the defendant's maturity, education, and physical and mental health. (People v. Massie (1998) 19 Cal.4th 550, 576.) The determinative question "'is whether defendant's choice to confess was not "essentially free" because his will was overborne.'" (Ibid.)
Here, we have reviewed the record of the proceedings including the testimony of Officers Jimenez and Velasquez, as well as the transcripts of the recordings of the conversations at the motel room and at the police station. We note that there was some force used by Officers Shin and Velasquez to arrest Romero during the warrantless entry at the motel room. And we will accept that Officer Velasquez used some profane and accusatory language while effectuating Romero's arrest.
However, there was apparently an hour and forty-five minute delay between the arrest and the start of Officer Jimenez's interview at the police station. This delay would reasonably have dissipated any coercion Romero may have felt at the motel room. Further, it does not appear that Officer Jimenez engaged in any coercive behavior whatsoever. Jimenez was Romero's interrogator at the police station. Assuming Romero felt intimidated by Officer Velasquez, he was not present at the interview.
The 20-minute interview by Officer Jimenez was not particularly lengthy. We agree with the trial court that the tone of the interview appears to be conversational and not overtly accusatory. We also agree with the court that Romero's termination of the interview on his own volition suggests that his will was not overborne. Moreover, Romero did not present any evidence concerning his maturity, education or health, which might have suggested that he was particularly susceptible to coercion.
In sum, we agree with the trial court and find that the prosecution established by a preponderance of the evidence that Romero's statements at the police station were voluntarily given following Miranda warnings. The court did not commit any constitutional errors.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.