P. v. Merino

Filed 2/9/06 P. v. Merino CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Mario Albert Merino was convicted after jury trial of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)).[1] He was sentenced to state prison for 15 years to life. (§ 269, subd. (b).) On appeal he contends that the prosecutor committed prejudicial misconduct by cross-examining him on his post-Miranda[2] silence. We disagree, and therefore affirm the judgment.

BACKGROUND

Defendant was charged by first amended information with aggravated sexual assault of a child (§ 269, subd. (a)). The testimony at trial was as follows.

The prosecution's case

Defendant and his wife, H., had been married seven years and had two children, a six-year-old son and a four-year-old daughter (the child). On October 1, 2003, the family lived in a split-level house in San Jose. Defendant and H. had had an argument two days earlier and had not spoken to each other since that time. They had previously discussed divorce and resulting child custody issues. Each of them claimed that he or she would get custody of the children, and that the other one would not. Although the last time divorce was mentioned between them was six months before the most recent argument, H. decided after that argument to seek a divorce. At the time of the March 2004 trial, however, H. had not yet instituted divorce proceedings.

On the night of October 1, 2003, H. got the children ready for bed around 7:30 p.m. She then allowed them to watch cartoons in her son's bedroom on the third level of the house, while she watched television in a room on the first level. Defendant arrived home sometime between 8:30 and 9:00 p.m. A few minutes before then, H. went upstairs to tell the children that it was almost bedtime. The children were in their son's bed, awake. H. returned to the television room and was there when defendant entered the room from the garage. Defendant acted intoxicated, which was not unusual; he often came home intoxicated. He and H. did not speak to each other as he walked through the television room.

H. heard defendant enter the kitchen on the second level and prepare some food. She then heard their son talking. H. went into the kitchen and saw defendant and their son talking to each other. H. returned to the television room and defendant and their son went upstairs. H. could hear footsteps going in and out of the master bedroom overhead. She thought that the children were going in to see defendant and was concerned because defendant was intoxicated and thus short-tempered. Before the show she wanted to watch at 9:00 p.m. began, H. heard the child crying. H. went upstairs. She glanced into the master bedroom on her way to the children's rooms and saw defendant in bed and the television on. H. went first to their son's room, where she saw her son in his bed still watching television. She could hear the child's muffled crying, but she did not find the child in that room. She then went to the child's room, but the child was not there either. H. heard the child's muffled crying again, so she headed for the master bedroom. While still in the hall she heard defendant say, â€