Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF4079, Frank F. Fasel, Judge.
Alex B. Perez for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Following a bench trial, defendant Andres Salcedo Romo was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2)); all further statutory references are to this code), aggravated sexual assault of a child (§269, subd. (a)(5)), aggravated rape (§ 269, subd. (a)(1)), lewd act upon a child under age 14 (§ 288, subd. (a)), continuous sexual abuse of a child (§ 288.5, subd. (a)), and lewd act upon a child 14 or 15 years of age and at least 10 years younger (§ 288, subd. (c)(1)). The court sentenced him to an indeterminate 30 years to life in prison, plus a consecutive determinate sentence of 24 years.
Defendant appeals contending the court erred in denying his motion to exclude his statements to the police and that the evidence was insufficient to sustain his convictions. Finding no error, we affirm.
FACTS
When his daughter (child) was 12 years old, defendant entered the bedroom where she was sleeping with her younger brother, lay down next to her and touched her breasts and buttocks. The child told him to stop but defendant unzipped her pants, told her to be quiet, and digitally penetrated her vagina with his finger. She tried to get up but he pulled her back, unzipped his pants and placed his penis in her vagina. When she later told him she was going to tell someone, he said no one would believe her, that he owned the house and that he would take everything away from her, her brothers, and their mother.
The sexual abuse continued for over two years, with defendant putting his finger and penis in the child’s vagina, and touching her breasts and buttocks. The child told the police defendant had molested her about 20 to 30 times, with a frequency of three to four times a month. At trial, she testified it was “[m]ore than [10] times,” and later that it was “[p]ossibly 20, more than 20.”
When she was 13 years old, the child told her mother of the abuse but she did not believe her and called her a liar. Her mother made her repeat the allegations to defendant, but he denied them.
A year later, the child’s mother confronted her about a rumor she heard from a relative that she was not a virgin. The child again told her defendant had sexually abused her and taken her virginity. This time her mother took her to the police station, where the child gave a detailed statement about the abuse.
At the request of the police, the child placed a pretext call to defendant and told him her mother was asking why she was no longer a virgin. Defendant repeatedly asked her where she was calling from and who was with her. Within minutes of ending the call, defendant drove away from his home carrying over $11,600 in cash and was detained.
In a recorded interview that was played for the court, a detective read defendant his Miranda [v. Arizona] (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) rights in English. After waiving those rights, defendant admitted digitally penetrating the child on more than five occasions. He said he thought the first time was when she was 13 but stopped after she told her mother. He later admitted to touching her in a subsequent incident.
Defendant denied ever putting his penis inside the child and suggested she may have confused his finger with a penis. He then stated that if the child said he had done so, “if that’s what she’s saying well let’s go by what she’s saying.” Although he continued to deny having intercourse he stated it was possible the child was not lying about it and that he possibly just did not remember doing so.
At trial, the child stated she did not remember many of the incidents and statements she made to the police. She conceded feeling pressure from her mother to recant her claims and that she knew her mother had visited defendant in jail.
DISCUSSION
1. Motion to Exclude Statements to Police
Defendant contends the trial court erred in denying his motion to suppress his statement to police, after he was given his Miranda rights in English, because his primary language is Spanish. We are not persuaded.
To be valid, a waiver of Miranda rights must be voluntarily, knowingly, and intelligently made. (People v. Combs (2004) 34 Cal.4th 821, 845.) Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. (People v. Michaels (2002) 28 Cal.4th 486, 512.) The defendant’s age and “any language difficulties” are also factors in applying the totality test. (U.S. v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751-752 (Bernard S.).)
We review de novo the trial court’s ruling on a motion to suppress a statement under Miranda. (People v. Guerra (2006) 37 Cal.4th 1067, 1092, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “In doing so, however, ‘we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.’ [Citation.]” (People v. Guerra, supra, 37 Cal.4th at pp. 1092-1093.)
Here, the relevant considerations support the trial court’s finding that defendant’s ability to speak and comprehend English was sufficient to enable him to both understand his Miranda rights and to knowingly and intelligently waive those rights. The child told the police her father spoke both English and Spanish. When advised of each of his Miranda rights in English and asked if he understood, defendant responded “Yes” every time. After defendant waived those rights, Detective Ryan Tozzie conducted the initial two-thirds of the interview, which lasted approximately an hour and reflects the first 49 pages of the 74-page transcript, in English and defendant answered in English. At no point during Tozzie’s questioning did defendant appear to have any difficulty understanding English or request to speak in Spanish. Subsequently Detective Julissa Trapp entered the room and defendant asked if she spoke Spanish. She said she did and the rest of the interview was conducted mostly in Spanish.
When defense counsel objected to the admission of defendant’s statements, arguing his Miranda rights should have been given in Spanish instead of English, the prosecutor argued defendant had told the detectives that he had studied English when he came to the United States, and that the recordings of the pretext call between defendant and the child and his lengthy interview with detectives demonstrated defendant’s fluency in English. The trial court agreed, stating it “just spent the whole morning listening to [defendant] speak..., and [did not] even know why the court is providing a Spanish language interpreter for him. He speaks English and he understands English evidently as good as any American-born citizen in this courtroom. [¶] So the court finds a prior advisement of Miranda rights and understanding by... defendant and [a] knowing, intelligent waiver.”
Defendant cites two instances in the 74-page transcript of his interview where he claims he did not understand or communicate well in English. But that defendant may have had some difficulty with English does not preclude a finding that his ability to speak and comprehend English was sufficient to understand his rights and to validly waive them. (Bernard S., supra, 795 F.2d at p. 752; see also Campaneria v. Reid (2d Cir. 1989) 891 F.2d 1014, 1020 [the defendant’s limited proficiency in English did not prevent him from making a knowing and intelligent waiver of his constitutional rights].)
The record supports the court’s finding that his command of English was sufficient to enable him to understand and voluntarily waive his Miranda rights. Accordingly, the court did not err in denying defendant’s suppression motion.
2. Sufficiency of the Evidence
Defendant argues that “to the extent [his] statement to the police was erroneously admitted into evidence..., it follows that the [c]ourt should not have relied upon that statement to corroborate [the child’s] testimony or as evidence of [his] guilt in and of itself.” The argument implicitly recognizes the evidence is sufficient to support his convictions should we conclude his statement is admissible. Given our determination there was no error in the admission of his statement, defendant’s claim lacks merit and substantial evidence supports his convictions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.