Opinion
E051291
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. YONAY SERNA ROSALES, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF152973)
OPINION
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Municipal Ct. assigned by the Chief Justice pursuant to art. VI, section 6 of the Cal. Const.) Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of two counts of committing lewd and lascivious acts on a minor (Pen Code, § 288, subd. (a)) and one count of aggravated sexual assault with a minor who is 10 years younger than the defendant (§ 269, subd. (a)). He was sentenced to prison for 15 years to life, plus 8 years. He appeals, claiming evidence was erroneously admitted and his conviction for aggravated sexual assault cannot stand because the jury was misinstructed as to it and not reversing it violates the prohibition on ex post facto laws. We reject his contentions and affirm. The facts relevant to the issues raised will be discussed in relation to those issues.
All further statutory references are to the Penal Code unless otherwise indicated.
ISSUES AND DISCUSSION
1. Admission of Defendant's Statements
a. During the Pre-Polygraph Interview
Defendant here contends that the trial court erred in finding that his pre-polygraph examination interview with the polygraph examiner was voluntary. "A confession or admission is involuntary . . . only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial court's determination on the ultimate issue of voluntariness. [Citation.] But any factual finding 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. [Citation.] [¶] In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider 'the totality of circumstances' [Citations.] Relevant are 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 659-660.) No single factor, including promises of leniency, is determinative, unless those promises were the motivating cause of defendant's statements. (Id. at p. 661.)
The facts adduced at the hearing on the voluntariness of defendant's statements were as follows: The 28-year-old defendant had completed elementary school in Mexico. He entered the United States illegally when he was about 22. His stepbrother testified that defendant had worked for him for the last two years leading up to defendant's arrest at his machine shop and the two lived together during those years in the home of defendant's mother and the stepbrother's father. The stepbrother taught defendant to remove and replace motors, transmissions and parts from cars whose engines were being rebuilt. According to the stepbrother, defendant "was a pretty good learner." He also said that when he tried to teach defendant more complicated things about his business, he had to be sitting right beside defendant and defendant did not like or was not interested in working on electrical projects—he was just interested in the motors. The stepbrother was also teaching defendant to golf, and they played every weekend. According to the stepbrother, defendant was picking up the game and appeared to understand it. Defendant also drove a car. When asked whether defendant spoke to the stepbrother like any other 29 year old would, the stepbrother replied that defendant always talked about and played videogames. When explaining why he said that defendant did not "function on an adult level most of the time" the stepbrother described defendant as somewhat of a detached loner. According to the stepbrother, about a week before his arrest, defendant received paperwork that would make him a legal citizen.
The stepbrother did not testify at the hearing that defendant did not function on an adult level all the time. We presume that this statement, if made by the stepbrother, had been made to the police or to a defense investigator.
The police set up a pretext call between defendant and the victim and her father, during which defendant repeatedly asked what they were talking about in reference to accusations and he offered to take a polygraph examination. According to defendant's moving papers, this occurred on September 3, 2009. The stepbrother, who is the cousin of the victim's father, took defendant to the home of the victim's family to meet with the father. According to defendant's moving papers, this also occurred on September 3. While the father did not raise his voice to defendant at the meeting, the victim's mother did and she slapped defendant. This conversation was recorded with a device supplied by the police and a police corporal testified that during the conversation, the victim's mother yelled and shouted, but defendant made no admissions. Although taking a polygraph exam was discussed, the corporal who heard the recorded conversation was unsure whether defendant or the victim's father brought it up first.
On September 21, 2009, at 11:45 a.m., the corporal and an investigator, the latter of whom was fluent in Spanish, both in plain clothes, without their guns exposed, and driving an unmarked car without a cage, arrived at the stepbrother's machine shop. Defendant was not there but arrived some time later. The investigator asked defendant if he knew why there were there and defendant replied that it was because of the victim. The investigator asked defendant if the allegations were true and defendant said they were not. He asked defendant if the latter had requested a polygraph examination and he added that one was available if defendant wanted to take it. Defendant said he did. The investigator asked defendant if he needed a ride and the latter said he did. The investigator asked defendant if he needed to wash before leaving or let anyone know he was going. Defendant washed and was offered the front passenger seat of the investigator's car. After they arrived at the station, the officers had defendant wait in the lobby until the polygraph examiner could prepare her equipment for the examination. The officers escorted defendant to the room where the examination was to take place and then went into another room where they monitored the pre-examination interview by the examiner on close circuit television.
At the beginning of the pre-examination interview with the polygraph examiner, defendant admitted that he had entered the United States illegally. Defendant acknowledged that he was at the station because he had been accused of rape. The examiner told defendant she was going to put aside what the investigator and corporal had told her and give defendant an opportunity to tell her the truth. She said the officers wanted to clarify if defendant touched his penis to the victim's vagina, adding "it's not so much a rape . . . ." Defendant denied that this happened.
We find it interesting that instead of providing exact quotes from the interview, or a summary of exactly what was said, as best as can be determined (and sometimes, it is difficult) appellate counsel for defendant provides trial counsel's interpretation of what was said during her argument to the trial court on the motion, with a secondary reference to the actual translated transcript of the interview, as though trial counsel's interpretation is more important than the actual words spoken by defendant and the interviewer. What this approach leaves us with is a distorted picture of what went on during this interview. For example, appellate counsel says, quoting trial counsel's argument to the trial court, regarding this particular portion of the interview,"'[The examiner] tells [defendant] that if he touched his penis to [the victim's] vagina, then that's not so bad because that is not really rape.'" In fact, the page of the interview which appellate counsel cites in support of this statement says nothing about what defendant did to the victim as not being so bad.
Appellate counsel's next statement is equally unsupported by the record, for the same reason. He quotes trial counsel's argument that, "[The examiner] 'says what [defendant] is here for is not that serious,' when compared with homicide." In fact, on the page of the translated transcript which appellate counsel cites as support for trial counsel's argument, all the examiner said was, "[W]hat you're here for in reality in [sic] compared to what we do with homicide is no comparison. [¶] . . . [¶] [I]t's importantbut it's not a homicide." There's a difference between important and serious.
The examiner showed defendant the consent form for the examination and explained each part of it, beginning with the fact that taking it was voluntary and that no one can be forced to take it, to which defendant agreed. Defendant said he was there voluntarily. She added that if "at any moment [you] decide that you don't want to take the test, I don't want [you] to continue . . . . [T]ell me and I'll look for the [officers] and you can leave." Defendant acknowledged that he understood this. The examiner noted that the door to the room was closed for privacy only. She explained how the polygraph machine worked. She said he could pass the exam by telling the truth one hundred percent, but if he did not tell all the truth, he would fail. She said that everyone who takes a polygraph test is nervous, whether they're lying or telling the truth, being nervous is normal and one does not fail the test because they are nervous. She said that people who lie are afraid and the polygraph test detects this fear. Defendant acknowledged knowing how the polygraph worked.
The examiner gave him a consent form, which he signed.
Defendant said he had been accused of rape or touching the victim or penetrating her. He denied knowing how old she was. He said that for two or three years, he and his mother and stepfather lived in a rented trailer that was located behind the victim's family's home. While living in the trailer, defendant would occasionally go into the house, where the victim lived.
The examiner told defendant that he probably didn't want to talk about the victim's accusation "because that's very bad, but in reality[,] what she . . . said and she didn't say it in a bad way[. I]t just came out when she was talking to someone." The examiner told defendant that the victim said that while defendant was living in the trailer behind the victim's home, defendant put his penis in the victim's vagina, but she hadn't said anything about it for a long time. The examiner asked defendant if he did this, and defendant denied it and denied that he touched his penis to the victim's vagina. When asked why the victim would say that if it was not true, defendant offered that the victim "always" slept with her male cousin. The examiner responded that the victim said that defendant, not the cousin, inserted his penis in the victim's vagina and it happened only one time. The examiner asked defendant if he drank, as drinking could cause one to do things the person would not normally do. Defendant again denied doing it. Defendant said his biggest fear in this case was going to jail. The examiner said most people shared the same fear and because of that, they would not want to admit what happened. However, if it happened accidentally or because of something the victim did, or because defendant had been drinking, it would be "a sad thing" if he failed the test because he didn't "tell [the examiner] anything." The examiner said she wanted to help defendant. Defendant then said that the only thing he remembered was being in his shorts at the victim's house with her and her brother, watching television, and the victim "got there and she sat on top of me . . . [¶] . . . [¶] [b]ut I grabbed her and took her off and her father arrived "a little while later." He denied taking his penis out of his shorts to touch the victim. The examiner said the victim had said that on one occasion, she and defendant were alone and he removed her pants and put his penis in her vagina, then he left. Defendant responded, "Not that I remember, no. I just remember that we were in the room and then later her dad got there." The examiner reminded defendant that he had to be one hundred percent sure of this or he would fail the polygraph test. She said she did not want him to fail and she wanted to help him pass. She asked him if any part of his penis touched any part of the victim's vagina, skin to skin and that only a response of yes or no was acceptable, not that defendant could not remember or did not remember. She told defendant to think about it. She added, "If something happened and you regret it and you've been afraid of saying . . . something . . . tell me please. Because if something happened and you regret it[,] that's very important because that's what . . . [¶] . . . [¶] . . . the District Attorney's Office wants to see." The examiner said she wanted to know if defendant was the type of person who intentionally "does things that are criminal" or that he did something unplanned, unintentionally or accidental, like one time out of curiosity. If it was the later, the act was a mistake. In response to her own question, how such a mistake is fixed, she said, "From this side committing something like this can be fixed that mistake saying how you feel regarding what happened if you make a mistake and you feel bad and let us know and see that okay and we can lock you up." If defendant committed a crime and had done this a lot to the victim and to other girls, he is the type of person who should be in jail.
Again, appellate counsel's reliance on trial counsel's version of the actual statements (see fn. 3, ante, p. 6) does mischief with the record before this court. Appellate counsel states, "[The examiner] says that 'all [defendant] needs to do is say something happened and say that he is sorry.'" We have quoted above exactly what the examiner said on the page cited by appellate counsel in support of trial counsel's statement and the latter's interpretation of it is not necessarily correct.
This statement makes no sense, but that fact did not deter trial counsel from interpreting it, and appellate counsel for defendant using that interpretation as though it were gospel. (See fn. 3, ante, p. 6.) Appellate counsel says of this statement, "[The examiner] explains that 'it's only criminal if it was intentional [; or] if he was curious, then he is not a criminal [; and] if he is not a criminal, then he just made a mistake and he could fix that by admitting to it and apologizing for it.'" The confusion engendered by the examiner's statement aside, it is interesting to attempt to determine just what she was implying by using the term "fix it" as, on this occasion, her meaning is not clear. She used it again, later in the interview, in the following context, "[F]or example, if you tell me . . . this happened and this is how I feel, . . . I'll find the [investigator and the corporal] and I'll say . . . this is what we were talking about[,] this is what he told me, . . . he's a good person. He made a mistake[,] now let's go forward. Now there's consequences, probably so. But it's part of our mistakes that we have to fix. The good thing for you is that you don't have a criminal record because if you had it then it would be worse for you." Although the examiner's first statement about "fixing it" was unclear in its meaning (regardless of trial counsel's certainty that she knew its meaning) it was clarified by this second statement. Fixing it did not mean that there would be no consequences—it meant that defendant honestly admitted what he had done.
Appellate counsel for defendant reports this statement (see fn. 3, ante, p. 6) as, "[The examiner] tells [defendant] 'that the only person who would belong in jail for this kind of conduct would be somebody with multiple victims.'" Again, this is a distortion of what was actually said. (See fn. 3, ante, p. 6.)
She said that all people make mistakes, adding, "You're not in Mexico anymore[,]" explaining that if he was in Mexico, he could be put in a room and the truth gotten out of him by shooting him. She told him she used to live in Mexico and knew that, there, "[t]hey don't care[,]" whereas, in the United States, everyone is treated alike and as a human being. She added, "[T]hat's why you're here today to give you an opportunity . . . to tell me one hundred percent of the truth." She asked him if he was the type of person who made a mistake but was too much of a coward to admit it or that he would admit making a mistake, despite being scared and embarrassed. She repeated that "they" were there to help and she could help him if he told the truth. She said, "[F]or example, if you tell me . . . this happened and this . . . is how I feel, . . . I'll find the [investigator and the corporal] and I'll say . . . this is what we were talking about[,] this is what he told me, . . . he's a good person. He made a mistake[,] now let's go forward. Now there's consequences, probably so. But it's part of our mistakes that we have to fix. The good thing for you is that you don't have a criminal record because if you had it then it would be worse for you." Defendant then said that he was "at the point to do it" but he did not. The examiner said she had the victim's version of the incident and she wanted defendant's, that she was going to "join them together" but normally they should be the same. Defendant said he was at the point where he was going to penetrate the victim, but did not and left instead. He said this happened about eight years before, when he had first arrived from Mexico. He then said that the victim had locked the door of the room they were in, asked defendant if he wanted to do something that her father did to his girlfriend, then pulled down her shorts or pants and asked defendant to look. Defendant moved his shorts aside and pulled his penis out and touched a small part of it to her vagina. The examiner said she was not asking the questions about the details of the incident to embarrass defendant. He responded, "No I want . . . to talk to somebody about that." He then added that his penis was erect at the time. He denied that his penis went inside the victim. The examiner repeated that the victim had said that it did, adding, "we have to get [the stories] together. It's like a puzzle." She said the victim also said that defendant removed her pants. Defendant said he touched the victim's vagina with his penis for about 20 or 30 seconds. The examiner told defendant that she suspected that defendant was not telling her "the whole truth" because his story and the victim's differed and "we need them to be the same." The examiner told defendant to assume, "for example," that it happened the way the victim said it did. She said that that did not mean that defendant was a bad person because it could have started with the victim joking, but then she got scared, while defendant wanted to continue. Defendant insisted that the victim's account that she locked herself in the bathroom afterward and waited for him to leave was incorrect—that he stopped the activity and left.
Appellate counsel for defendant reports this statement (see fn. 3, ante, p. 6) as, "The examiner said that 'law enforcement is going to help him if he just repeats what it is that she wants him to say . . . and the consequences wouldn't be as severe because [defendant] didn't have a criminal record.'"
The examiner also told defendant that the victim reported that before this incident, defendant would grab, touch and rub her leg. Defendant denied this, but admitted that he had playfully squeezed her leg. He said the victim told him that hurt. He denied the victim's account that he would touch her genitals over her clothes during these times. He said that if asked during the polygraph exam if he touched the victim's genitals over her clothes, he would pass the exam. Defendant agreed with the examiner that the victim was about eight years old when these things happened. Defendant reported that one time he passed by the house and saw the victim and her female cousin together naked and "they wanted to have relations[,]" but when they saw defendant looking at them, they went outside. Defendant denied that he masturbated after the incident involving him touching the victim's vagina with his penis. He acknowledged knowing that it was wrong and when asked how he felt now, defendant said, " . . . I feel good for having talked about it with someone . . . ." The examiner responded, "That's good that you . . . said the truth." She asked him if that was the whole truth and he replied, "Well[,] if you want [to] do a test or something." When the examiner asked him why he had not told his story to the investigator and the corporal, he said that they had not questioned him about it, except to ask if he had penetrated the victim, which he denied. Defendant said he went to the victim's home to talk to her dad about what had happened after the pretext call from the victim, but the victim's mother was there and she attacked him, then called the police, who took information from defendant, before letting him go. The examiner told defendant she would go get the investigator and the corporal and defendant was to answer their questions with the truth because they would ask themselves whether to believe defendant's version of the incident or the victim's. She said, "[Y]ou want to come out as the person that cooperated that said the truth because you've told me that you feel bad . . . [¶] . . . [¶] . . . about doing that. You knew it was wrong. You feel bad, you feel better because you've talked about it . . . . [¶] . . . [¶] . . . Even if it sound[s] difficult . . . getting it out makes you feel better." Defendant agreed to this. She reiterated that he should tell the investigator and the corporal the whole truth.
Defendant said he had gotten about eight hours of sleep the night before this and the subsequent interview by the corporal and the investigator. He had had breakfast, but not lunch (the interview began at around noon and lasted about an hour). He denied having any prior negative contact with law enforcement other than a brief detention for not having identification, after which he was released with no further action taken. The examiner called defendant by his first name throughout the pre-exam interview. Defendant said he knew how to read in Spanish. The polygraph examiner was low-keyed, mild-mannered, often soft-spoken, at times even solicitous, throughout the interview. She sat at a desk while defendant sat sideways in a chair at the side of the desk. Defendant's body language was distinctly casual throughout—he rested his elbow and forearm on the desk except for a few times when he stretched his arm over the top of his head and when he crossed his arms. Neither changed their tone of voice, volume of voice, or body language as defendant began and continued to make the admissions he did. The examiner was attired in a dress that was suitable for work.
As part of its conclusion that defendant's statements to the polygraph examiner (and the officers) were voluntary, the trial court found that the only reason defendant went with the officers to the interview was that they offered him a ride and he accepted— he was free to drive himself. At the beginning of the interview, he was told that it was voluntary and he could terminate it any time he wanted, but he did not. The fact that defendant initially denied any wrongdoing was not reason for the examiner to terminate the interview—frequently, defendants initially deny wrongdoing. Although defendant had only an elementary education, he could read Spanish. The stepbrother testified that defendant learned fairly well, which negated any possibility that he was uneducated to the point of being unable to understand what was going on. As is apparent from the statement of facts, all these findings were supported by substantial evidence.
Defendant begins his attack on the voluntariness of his statements to the examiner by asserting that he had low intelligence. He attempts to prove this by pointing out his statements at the beginning of the interview that he did not know the numerals in his home address or his work or home phone numbers or his height. However, defendant lived in a trailer behind a house, not in the house. Moreover, he lived there with his mother and stepfather and they paid all the bills. Therefore, defendant's inability to recite the numerals in his home address did not necessarily indicate that he was of low intelligence. The same is true for his inability to state the phone numbers at the home he shared with his mother and stepfather and the business where he worked. Defendant had a cell phone and he knew its number. Defendant's response about the home phone number could be interpreted to mean that there was no "land line" in the home. His work place was owned by his stepbrother. He helped out, but was not paid regularly and had no social security number. Because he lived with his stepbrother, if he was not going to work a particular day, he could have told his brother at home before the latter left for the shop and would not need to know the phone number. It is certainly not an indication of low intelligence that he did not know the work number. On the other hand, the stepbrother's testimony, although obviously designed to demonstrate defendant's low intelligence, missed the mark, as the trial court found. Defendant was, according to his work-and-golf-instructor, a good learner. When asked about defendant's failure to behave like other 29 year olds, the father of two replied that the single and childless defendant kept to himself and spoke about and played video games, which probably impressed the stepbrother, given his circumstances, as rather odd. However, it did not demonstrate that defendant had low intelligence. Defendant's responses to the questions posed by the polygraph examiner, the investigator and the corporal did not demonstrate that he was of low intelligence. As to defendant's inability to tell the examiner his height, defendant, himself, explained it. He had not measured himself.
We also find unpersuasive on this issue defendant's reliance on statements the examiner made about how Mexican authorities would extract the truth from defendant as "evidenc[ing] [her] transparent belief that she was dealing with a naive immigrant." That is simply not the context in which the examiner made that statement, as demonstrated by our summary of the interview, above.
Next, defendant asserts that direct or implied promises were made by the examiner that he might reasonably expect more lenient treatment by the police, the prosecutors or the courts and this helped render his statements involuntary. This is based on a faulty reading of the record. Defendant ignores the examiner's statement that it was good he did not have a criminal record or things would be worse for him. This does not imply that there would be no consequences if he admitted his involvement—rather it implies that there would be consequences, as did her express statement, which we have already reiterated. In short, no promises of leniency, either expressed or implied, were made by the examiner. Even if what the examiner said could be construed as such promises, the fact that defendant made admissions after they were made does not, as defendant here asserts, prove that his statements were motivated solely by the asserted promises. Defendant clearly stated twice that he felt good about telling the examiner the truth concerning the crimes. Moreover, defendant voluntarily, without law enforcement interference, went to the victim's father in an attempt to tell him what had happened, only to be prevented from doing so by the violent outburst of the victim's mother. These facts suggest that defendant did not make his admissions because he somehow perceived that the examiner was promising him leniency for doing so.
See footnotes three through seven, ante, pages six through ten.
Defendant asserts that he was surprised when the officers subsequently arrested him and this necessarily means that he believed the examiner had promised him that if he admitted touching the victim's vagina with his penis, nothing would happen to him. However, defendant's premise is incorrect and demonstrates that his appellate counsel did not view the video of the interviews, which both the trial court and we have. In defendant's presence, the corporal told the investigator in English that he is going to arrest defendant for putting his erect penis on the victim's vagina, the investigator asked defendant if he understood what the corporal had said and defendant said, "No." Then the investigator told defendant in Spanish what the corporal had just said and defendant said, "Uh huh." There was no look of surprise on defendant's face either when this occurred or when the corporal told defendant, in English, to stand up and put his hands behind his back, which defendant did, and the former placed defendant in handcuffs.
Since defendant is calling on us to determine the voluntariness of his statements during both interviews, and, as part of that determination, to accept as true his representation that defendant was surprised when he was arrested, it is perplexing that appellate counsel for defendant did not request early transmission of this exhibit for our viewing. Defendant cited to it extensively throughout his opening brief, thereby ensuring that such a request was appropriate. Thankfully, the People made the request, which resulted in this appeal being processed in a timely manner.
We presume that appellate counsel did not carefully read this portion of the translated transcript and believed that defendant said "No" in response to the announcement, in English, that he was going to be arrested, and, based on that, appellate counsel assumed that defendant was surprised to be arrested.
In People v. Johnson (1969) 70 Cal.2d 469, 474, 475, a case cited by defendant in support of his position, the minor African American defendant, who had already been arraigned without an attorney, and who expressed the desire to have an attorney, was interrogated three times without an attorney about a botched robbery that had resulted in the death of a gas station attendant. Defendant testified during a hearing on whether he knowingly and intelligently waived his Miranda rights, that he felt he had to make admissions during the last interrogation because when he denied involvement in the crimes, his interrogators told him that no one would believe him since others had identified him as being involved and if they were sitting on the jury, they would not believe him and would give him the death penalty. (Id. at p. 475.) They told him that if he had to go to trial it would be best for him to go in the best light and by him denying involvement, he was demonstrating malice or hatred towards the victim, who was white, and or that the murder was a senseless killing of a white man. (Id. at pp. 475-476, 478.) Defendant further testified that he feared he was the victim of a frame up because his interrogators told him that he was being charged with first degree murder and witnesses had pointed him out as the shooter (defendant denied being the shooter). (Id. at p. 476.) Defendant had been told that his statements were not admissible in court and he believed this. (Id. at pp. 474, 476.) Defendant testified that if he had known he didn't have to say anything, he would not have. (Id. at p. 476.) The California Supreme Court concluded, "Th[e interrogators' statements] appear . . . to be more than merely pointing out to a suspect that which flows naturally from a truthful and honest course of conduct. It carries the implication that by cooperating and telling what actually happened he might not be accused of or found guilty of first degree murder . . . . To someone unskilled and uncounseled in the law it might have offered a hope that since no money was taken in the robbery and if, as he claimed he did not do the shooting, that he might be cleared of any serious charges." (Id. at p. 479.) In contrast, the examiner here did not imply that by admitting committing an inappropriate act with the victim, he might not be accused of or not found guilty of a crime.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In People v. McClary (1977) 20 Cal.3d 218, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17(Cahill),also cited by defendant, the 16-year-old defendant in custody was interrogated despite her four requests for counsel. (McClary at pp. 222-224.) The Supreme Court observed, "[T]he officers repeatedly branded defendant a liar, and advised her that unless she changed her statement and admitted the true extent of her complicity, she would be charged as a principal to murder and would face the death penalty. In addition to this direct, and partially false . . . threat [(defendant was ineligible for the death penalty due to her age)], the officers strongly implied that if defendant changed her story and admitted mere 'knowledge' of the murder, she might be charged only as an accessory after the fact. . . . [D]efendant testified that she decided to make a . . . statement as a result of the pressure exerted by the officers . . . , including their references to the death penalty." (Id. at p. 229.) Here, in contrast, the examiner made no such promises and the defendant did not testify that he made his incriminatory statements because of any such promises.
Finally, in Cahill, supra, 22 Cal.App.4th 296 which defendant also cites, the question was "when does a representation . . . about the penal consequences of silence or untruthfulness amount to a threat or promise?" (Id at p. 311.) "[T]he basis of [the officer's] effort to persuade defendant to admit that he was inside the house and had knowledge of the killing is his representation that defendant could avoid a charge of murder in the first degree if the killing were not premeditated. . . . [¶] In the context of the interrogation . . . , the remarks of [the officer] amount to a threat, or promise of leniency . . . ." (Id. at p. 314.) In contrast, the examiner here made no such representation.
Defendant then asserts that the examiner gave a materially deceptive account of the law, thereby helping to render his statements involuntary. Defendant again misconstrues what the examiner said, as we have already discussed. Contrary to defendant's assertion, the examiner did not tell defendant that if he made a mistake in touching his penis to the victim's vagina or did it out of curiosity or unintentionally or because the victim initiated it or he expressed regret for having done so, he would suffer no or reduced consequences.
b. During His Subsequent Interview by the Investigator and the Corporal
The investigator and the corporal entered the room in which the polygraph examiner had been interviewing defendant. They did not arrest defendant or place him in handcuffs. The examiner told the officers that defendant had just told her that he touched his penis to the victim's vagina, skin to skin, but he denied penetrating her. She told them that she had asked defendant to tell the officers in Spanish what he had just told her and defendant said he would. She told defendant she did not administer the polygraph exam to him because he had told her the truth. She then left the room.
The investigator told defendant that the examiner had told him that defendant had made a mistake. Defendant, then, in response to questions by the investigator, repeated his story, adding only that when the victim pulled down her pants or shorts and told defendant she wanted to do what her father did to his girlfriend, defendant assumed she meant that she wanted to have intercourse with him and he thought about having intercourse with her, but realized it was wrong and didn't do it. He reiterated his earlier admission that he playfully grabbed or squeezed her leg while she was clothed, but denied touching the victim's genitals over her clothing. The investigator then read defendant his Miranda rights, which defendant said he understood. The investigator then repeated to defendant what defendant had just said to him about his activities with the victim. Defendant added only that the victim might have thought that he was near or was touching her genitals or he may have accidentally touched them on those prior occasions when he grabbed or squeezed her leg, but he did not intend or try to touch them. He denied that he had an erection during this activity. Defendant then repeated the story he had told before about his penis touching the victim's vagina, adding that he had gotten aroused when he and the victim were watching television because there were women on the screen dancing. Defendant also volunteered that shortly after this incident, he was going to go to the victim's father and tell him what had happened, but the father became ill and either the father or defendant left to go live with a friend. He denied touching any of the other girls that lived at the house. The corporal then said he was going to arrest defendant for putting his penis on the victim's vagina. The corporal told defendant that when it got out that he was being arrested, other family members might come forward with accusations involving other victims and now was defendant's time to talk about that. Defendant denied that anything else had happened.
It is difficult to tell exactly what defendant said.
During most of this interview, the defendant sat sideways, as before, in the same chair he occupied while being interviewed by the polygraph examiner, except that instead of keeping his elbow and forearm resting on the desk, he rested it on his chair back. His body language was the same as it had been with her. Most of the questioning was done by the investigator who sat in the same chair the polygraph examiner had occupied. He spoke to defendant in Spanish. The corporal, who was not fluent in Spanish, either sat in a chair at the opposite side of the desk from the investigator or stood up against a wall across the room with both hands in his pants pockets and listened to the two of them speak in Spanish. After the investigator read defendant his Miranda rights, he told the corporal in English what defendant had admitted doing. The corporal then had the investigator translate into Spanish questions about the details of what defendant had already admitted to the investigator in Spanish. Neither officer were harsh in their tones. Neither raised their voices or moved towards defendant at any point in the interview. Both acted as though they were merely having defendant tell them what the facts were. When the investigator told the corporal in English what defendant had said about how he became aroused before touching his penis to the victim's vagina, defendant appeared to understand what the investigator was saying and he and the corporal laughed. (Because the camera faced the back of the investigator's head, it cannot be determined if he laughed also.) A little later, when the investigator told the corporal in English that defendant had told him about a man who called defendant and advised him to go to Mexico, defendant again appeared to understand what the investigator was saying and all three men laughed.
Defendant here offers no new reasons why the statements he made during his interview with the officers was involuntary. Even if they were, his statements to the examiner, which were essentially the same, would have been admitted as voluntary and defendant could not show prejudice by the admission of his statements only to the officers.
2. Jury Instruction
Defendant was charged, after bind-over, with three counts of committing lewd and lascivious acts on a minor and, in count 4, one act of violating section 269, subdivision (a)(1) in that he committed a violation of section 261, subdivision (a), rape, and the victim was under 14 years of age and "10 or more years younger than the defendant." In 2001 and 2002, the years that act was alleged to have occurred, section 269, subdivision (a)(1) provided that the victim must be at least 10 years younger than the defendant (former § 269, subd. (a)(1), 2001-2002 ed.). Both parties had requested that Judicial Council of California Criminal Jury Instruction, CALCRIM No. 1123 be given as to this count. Unfortunately, at the time of trial, CALCRIM No. 1123 provided that the victim be at least seven, not ten, years younger than the defendant (CALCRIM No. 1123, 2009-2010 ed.). This was due to a change in section 269, subdivision (a) that became operative on November 7, 2006. The parties got this confused and informed the trial court that when the crime was alleged to have occurred (in 2001 or 2002), section 269, subdivision (a)(1) provided for an age difference of at least seven, not ten, years. Relying on this representation, and without objection from the defendant, the trial court erroneously permitted the prosecutor to amend count 4 to allege an at least seven year difference in ages and it instructed the jury accordingly.
Defendant now contends that because the jury was erroneously instructed that it had to find at least a seven, and not a ten, year difference, we must reverse his conviction of count 4, unless we can conclude beyond a reasonable doubt that the error did not contribute to the verdict. The People counter that we can so conclude because there was uncontroverted evidence that there was a more than 14 year age difference between defendant and the victim. In fact, the victim testified that her date of birth was April 18, 1995. There was no other evidence at trial to contradict this. During his pre-polygraph exam interview, defendant said he was born on December 4, 1980. There was no other evidence at trial to contradict this. That is a 14 year, 4 month, 14 day difference in their ages. Defense counsel conceded during argument to the jury that if this act occurred, it did when the victim was under the age of 14. The father testified that defendant lived in the trailer behind the family home "maybe about six years ago" (which would have been 2004, years after this crime was alleged to have occurred) during which time the victim "was probably about eight or nine" and "[he] would say [defendant] was in his twenties." Defendant told the examiner that this incident occurred "[around] seven, eight years" ago (which would have been 2001 or 2002, when this crime was alleged to have occurred). When asked by the examiner how old he was, he said, "I don't know—twenty—I don't remember in reality how old I was." Later, he told the officers that he was "about twenty [¶] . . . [¶] [a]round there eighte[sic]—nineteen, around there" Defendant's meandering guesses about his age at the time of the crime is inconsistent with his own statement about his birth date, because in 2001 or 2002, he was 20 or 21 and 21 or 22, respectively, not 18 or 19. Further, it does not affect the uncontradicted facts that whenever this crime occurred, there was a more than 14 year age difference between the victim and defendant, and the victim was under the age of 14. Defendant's current attempt to combine his lowest guess at his age, i.e., 18, with the father's highest guess at the victim's age, i.e., nine, is not persuasive. According to defendant's uncontradicted account of his birth date, he turned 18 on December 4, 1998, when the victim was three years old. It defies credulity to believe that a three or four year old would tell the victim to do to her what she had seen her father do to his girlfriend and that she would "spy" on her father and his girlfriend while they were having intercourse, that defendant would believe that such a young child would want him to have intercourse with her, or that she and a female cousin were on the verge of having sexual relations with one another. Moreover, it contradicts defendant's own statement that he thought the victim was "more or less" eight years old at the time. It also contradicts the representation of defense counsel to the trial court that the victim and defendant were "sort of 12 or 13 years apart in age. Therefore, the failure to instruct the jury that there had to have been a 10 year difference in their ages, rather than a seven year difference, is harmless beyond a reasonable doubt.
The victim testified that she was 15 at the time of trial.
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Defendant also appears to challenge the trial court's allowing the prosecutor to amend the information to change the age difference requirement from 10 to seven years. However, defense counsel did not object to this change. Moreover, defendant cannot claim that his right to prepare a defense was impacted by this amendment since it did not occur until after the close of evidence and defendant did not request an opportunity to produce more evidence concerning it.
Defendant's contention that allowing his conviction to stand violates the prohibition on Ex Post Facto laws is unpersuasive. Upholding his conviction does not mean that we are applying a version of section 269, subdivision (a)(1) that did not exist at the time defendant committed his crimes. We are merely concluding that, given the state of the evidence, we are persuaded beyond a reasonable doubt, that had the jury been instructed that it must find an at least 10 year difference in the ages of defendant and the victim, it would have done so.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.