Opinion
E064174
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS TORRES, Defendant and Appellant.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristine A. Gutierrez and Lise S. Jacobson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1407100) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristine A. Gutierrez and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant Jesus Torres of sexual intercourse with a child 10 years of age or younger (§ 288, subd. (b)), with a true finding on the allegation of kidnapping with intent to commit the offense. (§ 667.61, subd. (e)(1).) The trial court sentenced defendant to a total prison term of 65 years to life: 25 years to life for sexual intercourse, a consecutive term of 15 years to life for sexual penetration, and a consecutive term of 25 years to life for the forcible lewd act.
On appeal, defendant contends the police interrogation violated his Fifth Amendment right against self-incrimination. He also contends the trial court should have given a unanimity instruction and abused its discretion by imposing a consecutive sentence. We disagree on all points and affirm the judgment.
II
STATEMENT OF FACTS
Prosecution
Defendant is the victim's uncle. In 2011, when the victim was 10 years old, she lived in Riverside with her father and brother and defendant and his wife and family. One day, defendant picked up the victim and her six-year-old brother from school. At home, defendant brought the victim into his bedroom and locked the door. The victim was afraid defendant was going to spank her. Instead defendant covered the victim's mouth and started touching her genitalia over her clothing. The victim started crying and, when defendant pulled down her pants, she screamed and tried to fight back. Defendant covered the victim's mouth again, fondled her breasts and digitally penetrated her vagina. He then pulled down his pants, pushed the victim to the floor and kissed her face, chest, and neck. The victim was "scared" and screamed.
Because the vagina is an internal organ, the victim's reference seems to be to external genitalia. "The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris. (Stedman's Medical Dict., supra, pp. 1257-1258, 1954 [defining 'external female genital organs,' 'internal female genital organs,' and 'vulva']; 3 Schmidt, Attorney's Dict. of Medicine, supra, pp. G-59 to G-60 [defining 'genital organs, external,' 'genital organs, internal,' and 'genitalia'].)" (People v. Quintana (2001) 89 Cal.App.4th 1362, 1367 and 1371.)
At trial, the victim equivocated about whether defendant touched her breasts in the bedroom. But the victim told a sheriff's investigator that defendant had fondled her breast in the bedroom.
Defendant pulled down his underwear and laughed. With his hand still covering the victim's mouth, defendant penetrated the victim's vagina with his penis. The victim screamed and cried "because it really hurt." After defendant ejaculated on the victim's leg, he put on his pants, told the victim to get dressed, and "kicked" her out of the bedroom. He also told the victim that he was going to rape her again and impregnate her. The victim was scared to tell her father or aunt about what happened.
In the month following the incident, defendant picked the victim up from school six times and digitally penetrated her vagina in the car. At times, defendant offered to buy the victim ice cream if she complied. He scared the victim by threatening to kill her brother and father if she told anyone.
At age 11 or 12, the victim told her cousin about the car molestations but she thought her cousin did not believe her. In August 2013, at age 12, the victim told her father about the car incidents, that defendant had touched her breasts and genitals, and defendant threatened to have her father and brother killed if she told her father. The victim did not tell her father about the rape because she knew her father would have beaten defendant. Her father talked to defendant's wife, who told him not to believe the victim. The victim and her family continued living with defendant and his family after the disclosure.
In May 2014, the victim told her principal about the molestation because she no longer wanted to live with defendant and his family. She told two deputy sheriffs about the rape but not the car incidents because she was afraid they would not listen to her.
Two days later defendant was interviewed by Robert Heard, a sheriff's department employee who interviews job applicants, suspects, and victims. Defendant initially denied touching the victim "skin to skin." He eventually admitted that he agreed to buy something for the victim if she showed him her "vagina." The victim complied, and defendant digitally penetrated her vagina. Defendant said this happened once in a car, three or four years earlier. He bought the victim candy afterwards. Defendant denied raping the victim.
After the victim moved out of defendant's home, family members would no longer speak to her. The victim testified that, when she was younger, defendant, his wife and their children beat her and made disparaging comments about how she dressed.
Defense
Defendant's wife of 30 years testified that neither she nor anyone in her family punished the victim for misbehaving. The wife said the victim would throw pasta in the bathroom sink and blame her brother for it. The victim would also put food she did not like on her brother's plate and force him to eat it. The wife claimed that, shortly before the victim spoke to law enforcement, the school called their home about the victim's truancy. The victim got mad at defendant for telling her father about the call. Defendant's wife also testified that defendant has diabetes, that he takes medication, and that, as a result, he has had problems with erectile dysfunction since 2008. Defendant's wife never saw defendant act inappropriately towards the victim or touch her inappropriately.
Defendant's daughter testified that the victim blamed her brother for writing on the bathroom wall and that the victim would put her food on her brother's plate. The daughter denied beating or making fun of the victim and never saw anyone in her family beat the victim. Nor did the daughter ever see defendant touch the victim inappropriately.
Defendant's son testified that the victim would break things and blame her brother for it. He never saw his father beat the victim or his siblings making fun of her. He did not believe that defendant would molest a child.
Defendant's wife, daughter, and son testified that, even if defendant admitted to conduct with the victim, it would not change their opinion about whether defendant raped the victim.
III
DEFENDANT'S ADMISSION
Defendant contends the trial court erred in admitting his statement to the polygraph examiner that he digitally penetrated the victim's vagina in a vehicle because he was in custody for purposes of Miranda when he made that statement and no Miranda warnings had been given. Defendant forfeited this claim by not objecting on this basis below, and his claim also fails on the merits. There was also no prejudice in light of the compelling evidence of defendant's guilt. Consequently, defendant's related claim of ineffective assistance of counsel also fails.
Miranda v. Arizona (1966) 384 U.S. 436.
Preliminary Hearing
At the preliminary hearing, Angel Gasparini, a lead investigator from the sheriff's department, testified defendant initially agreed to speak with him at the Jurupa Valley station. The investigator did not advise defendant of his Miranda rights. Instead, he gave him a Beheler admonition, informing defendant that he was not under arrest, that he did not have to answer any of his questions and that he could end their conversation at any time.
California v. Beheler (1983) 463 U.S. 1121, 1122. --------
Defendant also agreed to a second interview. Defendant was not under arrest at the time and arrived at the station on his own. Heard, the polygraph examiner, also gave defendant a Beheler admonition and administered a polygraph examination. After the examination, defendant admitted that he had penetrated the victim's vagina with two fingers. Investigators Gasparini and Pierson then interviewed defendant for 10 minutes. Investigator Gasparini did not advise defendant of his Miranda rights. After the interview, the investigators arrested defendant.
At the preliminary hearing, defense counsel objected to the admission of defendant's statements on the ground that defendant was in custody at the time and had not been advised of his Miranda rights. The court ruled that defendant was in custody after he admitted to Heard that he molested the victim. Consequently, the statements he made in the interview with both investigators were obtained in violation of Miranda.
Motion to Suppress
Subsequently, defendant filed a motion to suppress his statements at trial. The prosecutor filed a motion to admit defendant's statements, arguing there was no Miranda error because defendant was not in custody during any interviews. The court tentatively ruled that the statements defendant made to both investigators were inadmissible under Miranda but the statements he made to Heard before that interview were admissible. The court ruled that Evidence Code section 351.1, subdivision (a), which renders inadmissible evidence from polygraph examinations, was not a barrier because subdivision (b) of that provision allows for the admission of sanitized statements made during a polygraph examination and that a reasonable person in defendant's position would have felt free to leave until the point when he admitted the crime.
The prosecutor maintained defendant was not in custody during the second interview with the investigators. The court disagreed. After the polygraph exam, in response to followup questions, defendant said that, at his request, the victim pulled down her pants and showed him her vagina. Defendant admitted touching her vagina and demonstrated how he digitally penetrated the victim's vagina. Heard also traced defendant's hand on a piece of paper and defendant indicated how far his fingers penetrated the victim's vagina. Defendant denied raping the victim and claimed that he only touched her vagina once, three or four years earlier. Defendant said he bought the victim candy afterwards. Defendant did not make any additional admissions with the investigators; he merely confirmed what he had said to Heard. The court ultimately denied the motion to exclude defendant's statements to Heard, finding that, under the totality of circumstances, the People had met their burden of establishing that the confession was not coerced.
Analysis
Defendant forfeited his Miranda error claim. (People v. Linton (2013) 56 Cal.4th 1146, 1166; People v. Cruz (2008) 44 Cal.4th 636, 669.) As discussed below, defendant also has not established that counsel was ineffective in litigating the suppression motion.
"An officer's obligation to administer Miranda warnings attaches, however, 'only where there has been such a restriction on a person's freedom as to render him "in custody."' [Citations.] In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, . . ." (Stansbury v. California (1994) 511 U.S. 318, 322.) In determining whether a suspect was in custody during questioning, relevant circumstances include: the purpose, place, and length of the questioning; the ratio of officers to suspects; the officer's demeanor; restrictions upon the defendant's freedom of movement; the nature of questioning; the defendant's agreement to be interviewed; advisement that the defendant could terminate the questioning; police domination and control of the questioning; whether police informed the defendant he was considered a witness or suspect; and whether the defendant was arrested at the end of the interview. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.) No single circumstance is dispositive. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
The ultimate question is whether, under the totality of the circumstances, a reasonable person in the suspect's position would have interpreted the restraints used by the police as tantamount to a formal arrest, or whether the suspect would have felt free to terminate the interview and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 113-114; People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) Whether a defendant was in custody at the time of questioning is a mixed question of law and fact. This court defers to the trial court's findings of fact to the extent that they are supported by substantial evidence, but it independently evaluates whether the defendant was in custody. (People v. Ochoa, supra, 19 Cal.4th at p. 402; People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) When an interview is tape recorded and the surrounding facts are thus undisputed, the issue is subject to independent review. (People v. Linton, supra, 56 Cal.4th at p. 1177.)
Here defendant agreed to be interviewed by investigators and was advised at the beginning that he was not under arrest and could terminate the interview at any time. There was no pressure or coercion. Before the polygraph examination, Heard advised defendant that he was not under arrest. Heard also told defendant he was free to leave. Heard also told defendant, we "are sure that your penis touched her vagina skin to skin, we are sure" but it may have been an accident. Heard did not use any force, violence or threat of violence during the interview. Defendant was not arrested at the end of the interview. The post-polygraph interview lasted less than eight minutes.
Confronting defendant with his failed polygraph examination did not render the interview custodial per se. (See People v. Mays (2009) 174 Cal.App.4th 156, 166: "In California, it has been held that if a defendant takes a lie detector test willingly, '"neither the fact it was given nor the fact that the defendant was told by the test giver it revealed in his opinion that defendant was not telling the truth, inherently demonstrates coercion."'") Miranda warnings are not required simply "because the questioned person is one whom the police suspect." (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) "While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person's freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody." (People v. Moore (2011) 51 Cal.4th 386, 402.)
The two cases on which defendant principally relies do not support his argument. In People v. Storm (2002) 28 Cal.4th 1007, the California Supreme Court was concerned about whether the police could contact the defendant two days after he had invoked his Miranda rights. The court's mention of the custodial nature of a polygraph examination was dicta. (Id. at p. 1120.) The Maryland case of Aguilera-Tovar v. State (Md. App. 2012) 57 A.3d 1084, 1097, involved a defendant who was in custody when an officer confronted him with his failed polygraph examination, repeatedly accused him of lying and "then questioned him without letup in an aggressive, persistent, and accusatory manner." Such conduct is just one factor to consider in the totality-of-circumstances analysis. Here, there was no other evidence of such restraint. Heard's comments were not the type of "aggressive, confrontational, threatening, intimidating, and accusatory" questioning that is likely to communicate to a suspect that he is not free to leave. (People v. Aguilera, supra, 51 Cal.App.4th at p. 1164.)
We conclude there is substantial evidence a reasonable person in defendant's position would have felt he was "at liberty to terminate the interrogation and leave." (Thompson v. Keohane, supra, 516 U.S. at p. 112.) Because defendant was not in custody during the interview with Heard and there was no sound basis for counsel to have objected to the admission of defendant's statement to Heard based on Miranda, defendant's claim that counsel was deficient in failing to have done so necessarily fails. (People v. Linton, supra, 56 Cal.4th at p. 1168.)
In spite of the many factually-distinct cases cited by defendant, given the totality of the circumstances in this case, including the brevity and tone of the interview and the Beheler admonitions, based on the independent standard of review, we uphold the findings of the trial court. (People v. Ochoa, supra, 19 Cal.4th at p. 402; People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) The trial court, therefore, properly admitted defendant's statements to Heard.
Prejudicial Error
Even assuming the trial court erred in admitting defendant's statements, a reversal would not be warranted. Any error was harmless beyond a reasonable doubt because the evidence of defendant's guilt was quite strong. (Chapman v. California (1967) 386 U.S. 18; People v. Thomas (2011) 51 Cal.4th 449, 498.) Here, the victim testified that defendant fondled her breasts and engaged in digital and penile penetration. Only when the victim finally disclosed the rape to adults outside her family was any action taken against defendant. Although the victim was inconsistent in some details at trial, she never essentially altered her claims about defendant's conduct. The jury requested a read back of the victim's testimony, showing that the jury considered all of the evidence and did not simply decide defendant was guilty based on his admission to an uncharged sex offense. In view of these circumstances, any error in admitting defendant's admission was harmless beyond a reasonable doubt. Consequently, defendant cannot establish that any prejudice resulted from counsel's failure to object. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
IV
UNANIMITY INSTRUCTION
Defendant contends the trial court erred in failing to give a unanimity instruction sua sponte regarding the lewd act by force charge in count 3. Because all of the lewd acts were made during a continuous course of conduct, no unanimity instruction was required and any error was also harmless. In a criminal case, a jury verdict must be unanimous as to a specific crime. The prosecution must elect among discrete crimes or the court must require the jury to agree on the same crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A trial court has a sua sponte duty to instruct on unanimity when warranted. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) Unanimity instructions are not required when the offenses are so closely connected in time that they are a part of a continuous course of conduct or "if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679.)
In this case, the prosecutor argued to the jury that all three of the charged offenses were based on the events that occurred in the bedroom. The prosecutor asserted count 1, the sexual intercourse charge, was based on penile penetration and count 2, the sexual penetration charge, was based on digital penetration. With respect to the lewd act charge in count 3, the prosecutor argued that any type of touching—kissing or rubbing—is sufficient if the touching was for a sexual intent. The victim's statement to the investigator and trial testimony cumulatively established that all of the acts mentioned by the prosecutor occurred during a single incident in the bedroom one afternoon, with little or no interruption. Defense counsel offered the same defense that the victim lied about the incidents. Because the kissing, breast fondling, digital penetration and rape were part of a continuous course of conduct in the bedroom, and because defendant offered the same defense to all the acts, the court had no duty to give a unanimity instruction. (People v. Riel, supra, 22 Cal.4th at p. 1199.)
Even if there had been error, there was no prejudice. (People v. Hernandez (2013) 217 Cal.App.4th 559, 576; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.) All the crimes were committed in defendant's bedroom. The sole defense was the victim lied. The jury rejected the defense by its guilty findings on all three counts. In view of these circumstances, any error does not require reversal. (Wolfe, at p. 188.) The inconsistencies in the victim's testimony were not as significant. The jury's guilty verdict on all counts, means the jury credited the victim's version of events, notwithstanding any discrepancies, and rejected the unitary defense offered as to all counts. Any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.
Finally, there was no cumulative error. Defendant was entitled to a fair trial but not a perfect one. (People v. McDowell (2012) 54 Cal.4th 395, 442.) Because there was no error, there was no cumulative prejudicial error. (People v. Myles (2012) 53 Cal.4th 1181, 1225; People v. Russell (2010) 50 Cal.4th 1228, 1274.)
V
CONSECUTIVE SENTENCE
Defendant contends the court abused its discretion in imposing a consecutive sentence on count 3 based on its mistaken belief that it lacked discretion to impose a concurrent sentence. Because a consecutive sentence was authorized (§ 667.6, subd. (d)), defendant forfeited this claim by failing to object at sentencing. (People v. Scott (1994) 9 Cal.4th 331, 336.) Nevertheless, the trial court did not abuse its discretion and defense counsel was not ineffective in failing to object.
Section 667.6, subdivision (d) states, "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." The crime of lewd act by force is listed in subdivision (e). (§ 667.6, subd. (e)(5).) Subdivision (d) of section 667.6 also sets forth how a court should determine "whether crimes against a single victim were committed on separate occasions": "the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).) Thus, a finding that the crimes occurred on separate occasions does not require a break of any specific duration, a change in physical location, or an obvious break in the defendant's behavior. (People v. King (2010) 183 Cal.App.4th 1281, 1325.)
The trial court implicitly found that defendant committed the forcible lewd act on a separate occasion from the sexual intercourse as evinced by its statement that a consecutive sentence on count 3 was mandated. "Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, [this court] may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
The trial court here could have reasonably decided that the forcible lewd act occurred on a separate occasion. The sequence of events established that defendant had sufficient time to reflect between the sex acts but chose not to stop. Because the breast fondling and kissing were separate from the sexual intercourse and digital penetration, a consecutive term was mandated by section 667.6, subdivision (d). (People v. King, supra, 183 Cal.App.4th at p. 1325 [digital penetrations of same victim occurred on separate occasions where between acts, defendant saw the lights of a passing car, removed his fingers from the victim's vagina, looked around uneasily and then inserted fingers from his other hand].) The trial court did not abuse its discretion and defense counsel was not ineffective in failing to make a futile objection. (People v. McDermott (2002) 28 Cal.4th 946, 992.)
In any event, even if the trial court had erred in finding defendant committed the forcible lewd act on a separate occasion from the unlawful sexual intercourse, a remand for resentencing is unnecessary. Section 667.6, subdivision (c), vests a trial court with discretion to impose a full, consecutive term for enumerated sex crimes "if the crimes involve the same victim on the same occasion." Forcible lewd act on a child is included on the list. (§ 667.6, subd. (e)(5).) The trial court's discretionary decision to impose the 15 year to life sentence on count 2 consecutive to the consecutive 25 year to life sentences on counts 1 and 3 shows that it is not reasonably probable that the trial court would have imposed a concurrent sentence on count 3 under section 667.6, subdivision (c), if it had discretion to do so. Accordingly, any error by the trial court or defense counsel was not prejudicial. (People v. Osband (1996) 13 Cal.4th 622, 728.)
VI
DISPOSITION
We hold there was no Miranda error and no instructional or sentencing error. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.